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New York Appellate Court Determines Admissibility of Prior Testimony in Robbery Case


On March 9, 2003, a robbery occurred at Maggie’s Restaurant, located at 2643 Jerome Avenue in Bronx County, New York. On March 11, the detective investigating the case got a telephone call from the New York County Parole Office. The Parole Office stated that David X was present. The detective then went to the office, arrested Mr. X and gave him his Miranda warning. The detective asked Mr. X if he knew why he was being arrested and then told him it was for the robbery at the restaurant. According to the detective, Mr. X then stated that he was at the scene and participated in the robbery but did not have a gun at the time.

The detective found a pawn shop ticket in Mr. X’s pocket, which he stated was for a necklace that had belonged to one of the restaurant’s customers. The detective and Mr. X went to the pawn shop and retrieved the chain.

On March 12th, two of the alleged victims were brought in for a lineup. Both witnesses spoke only Spanish and another detective had to be called in to translate. The two women were placed in a waiting room while Mr. X and four other men were lead into the lineup. Mr. X was third in line. All of the men had their clothing covered and only their faces were visible. Ms. and Ms. identified Mr. X as the robber.

Mr. X was subsequently charged with two counts of first degree robbery. Both the prosecution and the dense presented numerous motions to the Bronx County Supreme Court regarding the case.

First, the defense filed a motion to suppress the testimony of the investigating detective and that of the detective who was called in to translate for the two female witnesses. The court found that the detectives’ testimony was credible and Mr. X’s motion was denied.

The prosecution filed a motion to admit Ms. Grand Jury testimony. The court granted this motion on the grounds that the testimony’s reliability and accuracy was already established and should be admitted in the event that the witness’s memory failed her at trial.

The defense also moved to dismiss the first degree robbery charge. Under New York law, robbery specifically requires the threat or use of force on the part of the perpetrator and/or the display of a weapon, such as a gun. The defense argued that the prosecution had failed to establish that a firearm was actually used during the commission of the robbery and that if, indeed, a weapon was present, whether or not it was actually loaded. Other property crimes involving theft, such as larceny, typically do not require the element of force. The court also denied this motion.

Mr. X’s criminal defense lawyer also filed a motion to suppress the statement s his client made to police and contended that taking police to the pawn shop to retrieve the stolen chain effectively constituted a statement. The defense further argued that the prosecution did not prove that Mr. X had acted voluntarily and that the police tactics used in interviewing him were designed to elicit a specific response.

The defense also argues that there is no way of knowing what was exchanged between the two Spanish-speaking witnesses and the detective who was called in to translate. The lineup was also challenged based on the argument that Mr. X’s appearance was markedly different from that of the other men who acted as fillers, which could have lead the witnesses to single him out.

The prosecution argued that going to the pawn shop with Mr. X did not constitute a statement and that the information he gave to police once they got there was a continuation of the statement he began earlier at the police precinct.

The prosecution also argued that Mr. X’s statements were voluntary and that he knowingly waived his Miranda rights. The People also argued that the lineup was conducted properly and did not create an increased likelihood of misidentification. Specifically, the prosecution argued that the lineup was not required to include men who looked exactly like Mr. X and his position in line was never revealed to either witness.

In the Grand Jury proceedings, Ms. stated that both robbers had black guns but she was unable to remember any specific details about what they looked like. Ms. recalled identifying Mr. X in the lineup but that she was no longer sure she could remember exactly what he or the other robber looked like. The prosecution used this as the basis for their argument that the Grand Jury testimony should be allowed to be heard at Mr. X’s robbery trial.

Mr. X’s criminal defense attorney claimed that the two first degree robbery counts were potentially repugnant, meaning that the underlying circumstances of the crime were so similar as to warrant either a conviction or acquittal of both charges. The prosecution challenged this argument, claiming that to find Mr. X guilty of one first degree robbery charge and not the other would be within the boundaries of the law since each count had specifically different elements. This theory centers on whether or not Mr. X used a gun to commit the robbery and whether the gun was loaded and/or capable of firing at the time the crime occurred. Had Mr. X committed robbery or attempted robbery without the use of a weapon, he may have been charged with a lesser crime, such as third degree robbery or larceny.

The Bronx County Supreme Court held that the testimony of the two detectives who questioned Mr. X and participated in the lineup was credible. As such, the defense’s motion to suppress their testimony and the statements Mr. X made was denied. The court also held that the prosecution’s arguments concerning Ms. Grand Jury testimony were meritorious and that the evidence should be allowed at trial. The court denied Mr. X’s motion to dismiss the first degree robbery count and concluded that a repugnant verdict would be unlikely, based on the evidence. Finally, the court granted Mr. X’s motion to dismiss the first degree robbery count based on the grounds that the prosecution had failed to prove that the gun used in the robbery was either loaded or capable of firing a shot.

This case demonstrates how important it is to have an experienced defense lawyer advocating on your behalf when you’re faced with robbery or other charges. If you’re facing a criminal trial for a felony robbery count or a misdemeanor theft count involving larceny, you need to contact a qualified New York Criminal Defense Attorney today.

The law firm of Stephen Bilkis and Associates is committed to aggressively defending clients who’ve been charged with robbery and similar crimes in the New York area. If you or someone you love needs legal representation in a criminal case, call 1-800-NY-NY-LAW today to speak with a member of our expert legal team. Alternately, you may visit one of our New York area offices to discuss your case in person. Don’t let a robbery conviction ruin your life. Call Stephen Bilkis and Associates today to get the legal assistance you need

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