People v. Culhane , 57 A.D.2d 418 ( 1977 )

Herlihy, J.

This case has been tried three times. The first jury failed to agree and a mistrial resulted. The second trial resulted in a conviction which was set aside by the Court of Appeals in People v Culhane (33 NY2d 90). The instant trial resulted in a conviction of the crime of felony murder. This appeal ensued and defendants have raised several issues urging reversal. After a careful consideration of defendants’ contentions we are of the view that only two require comment by us.

While this is an appeal following a retrial, the general and underlying facts are sufficiently set forth in People v Culhane (supra) and need not be repeated here.

Defendants contend that there is insufficient evidence to sustain the conviction. On this appeal, therefore, we must view the facts most favorably to the People (People v Cleague, 22 NY2d 363, 366).

The central issue at the trial was one of credibility as to the testimony of the witness Singer and the testimony of the two defendants. The jury, as it usually does, exercised its good judgment and common sense in weighing the testimony and found the defendants guilty and it would be difficult to conceive of a jury doing otherwise. The defendants’ sole defense was that a dead associate was the prime actor in the attempt to escape and even assuming that to be so, the jury was justified in finding the defendants guilty.

The only remaining issue concerned the charge of the court and experienced criminal lawyers seek to convince this court that certain parts thereof were out of proportion. It is this court’s opinion that the charge may be read in its entirety as often as one might wish and never come away with the reaction that it was so unfair to these defendants as to require a reversal. The court meticulously charged time and again that it was not its recollection or its marshaling of the facts that they were to consider, but it was the jury’s own recollection. It charged the prior criminal record of these defendants, but made it explicitly plain that it was to be considered only on the issue of the credibility of these defendants. The jury, of course, knew that the defendants were imprisoned at the time of the commission of the crime as they were in the process of being transported from Auburn State Prison to the Westchester County Court to be present at a coram nobis hearing.

It should be noted that the jury returned on several occasions for additional instructions and for reading parts of the testimony, all of which demonstrates the careful and thorough examination given in reaching its ultimate decision and which, in and of itself, makes it crystal clear that as to the jury, it did not consider the charge in any way prejudicial, slanted or unfair. After a four-week trial marked by considerable interruptions, objections, and bench conferences held at the request of the attorneys for the defendants, it was the obligation of the court to marshal the facts. On one occasion when the jury returned for additional information where it appeared that the court may have been in error as to one minor part of the charge, the court said: "I caution you once again, as I have on at least two occasions during the course of my charge, and that is, as to any reference of fact that I made in my charge to you, it is your recollection, the combined recollection of the twelve of you, that must govern and not nr recollection nor that of the attorneys.”

The court’s attention has been called to the memorandum decision of the Court of Appeals in People v Williamson (40 NY2d 1073). A reading of the record and the opinion of the Appellate Division (48 AD2d 863) is convincing that that decision is in no way controlling. In that case two police officers investigating the crime directly contradicted each other’s testimony as to the facts surrounding the happening of the event. Such a contradiction in testimony presented a sufficient reason for a court to mention the numerous inconsistencies in the testimony of the witnesses for the prosecution. The present trial lasted approximately four weeks while the Williamson trial was of short duration. Additionally, there were numerous other areas of concern in the latter case, including the sentence, which raised serious issues requiring a reversal, none of which are here present.

We have examined the numerous other alleged errors as set forth in the brief of the defendants and, after a review of the record, we find them to be without merit (see People v Crimmins, 36 NY2d 230, 239).

The judgment should be affirmed.