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New York Appellate Court Determines if Prior Confession is Admissible


Two men were indicted on January 28, 1977, for murder in the second degree and attempted robbery in the first degree. A woman was also indicted for the same counts but pled guilty to attempted robbery and testified for the prosecution at trial. According to court documents, the three and another man attempted to rob another in his home. During the attempted robbery, the owner was shot in the head. He died a few days after the incident. Had his home been unoccupied at the time the four individuals broke into his home with the intent to steal, his life might have been spared and the defendants may only have been charged with burglary.

Three weeks after the robbery occurred, one of the robbers was arrested and given a Miranda warning. He then made a statement to police in writing, which he signed. A second written statement was later given to an assistant district attorney. In these two statements, he claimed that he and his partner had developed a plan to make money, which involved the robbery of the house. The two men met with another before going to the woman’s home to further discuss the robbery. They forced their way into the apartment. One pointed a gun at the owner but stated he had never intended to harm him. A struggle ensued and the gun went off, causing the injuries to the owner. Both theives then left the scene.

One robber was arrested approximately two weeks later and after being read his rights, gave a statement to police. In the statement, which he refused to sign, he detailed his involvement in the robbery and the events prior. Smalls stated that he was with the other two men on the night the robbery occurred and that he went with them to the woman’s apartment. Essentially, he stated that he was present during the planning of the robbery and the crime itself but that he never had any intent to participate in the event.

His attorney filed a pretrial motion to sever his case from his partner but that motion was denied. The court suppressed his pretrial statements but allowed his partner’s pretrial statements to be admitted into evidence. He then renewed his original motion to sever, citing his partner’s pretrial statements as prejudicial to his case. The court denied this motion and certain portions of his statements were redacted but references were still made to his knowledge that the robbery was going to occur.

At trial, the testimony of Mary was considered key to the case. She described one as actively participating in the robbery while the second’s role in the crime was minimized. She also testified that she was not present at the robbery or the shooting but that one had told her about it afterward. The man made further statements that suggested that he had acted deliberately in shooting Mr. Pratt.

A friend of the owner testified that three men had approached him in the hallway of the apartment building where the robbery occurred and that each of them were armed with guns. He stated that one of the men had placed a gun to his head while the others forcibly entered the apartment. The friend was forced into the bathroom and later heard a gunshot. When asked to identify the gunmen in court, he stated that one of the prisoners looked like the man who had forced him into the bathroom.

The owner’s mother and brother, who were present during the robbery and shooting, were unable to identify either of the robbers as the man who had shot the victim. All of the witnesses present at the time of the shooting testified that the men continued to demand money after the owner was shot. Both subsequently convicted of felony murder and their convictions were affirmed by the Appellate Division. The two men then filed separate appeals with the New York Court of Appeals.

The Court of Appeals was charged with determining whether the trial court committed an error in allowing McGee’s confession to be admitted into evidence and in charging the jury with regard to the presumption of intent. The court held that the admission of the confession and the fact that one was not available to be cross-examined deprived Mr. Smalls of the right to confront the witnesses against him.

The court also went on to say that the trial court erred in charging the jury regarding the intent to commit a crime. The judge essentially told the jury that a person is presumed to intend what he or she does and the consequences of those acts. In one’s case, the court held that there was no error since the evidence presented at trial was sufficient to find him guilty beyond a reasonable doubt. In the other’s case, the court held that the charge was harmful to the outcome of his case. Consequently, the court opted to reverse one’s conviction and ordered a new trial. The other’s conviction was upheld and the other arguments presented in his appeal denied.

Robbery is a serious charge and one that merits the assistance of an experienced New York criminal defense attorney. If you’ve been arrested for robbery or another property crime, such as larceny, you should not attempt to face the judge and jury alone. Contact the law firm of Stephen Bilkis and Associates at 1-800-NY-NY-LAW to speak with a member of their criminal defense team. You can also visit one of our numerous New York area offices to discuss your case in person.

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