People v. Salino (266 A.D. 205, 1943)

Dobe, J.

Defendant Salino and the codefendants Verdiccio and Maisto, after trial before the court of General Sessions and a jury, were convicted of the crime of robbery in the first degree (Penal Law, § 2124) and each defendant was sentenced to State prison for not less than fifteen nor more than thirty years. Defendant Salino alone appeals.

On the afternoon of June 16, 1942, two men armed with a revolver held up the office force of the K. & G. Manufacturing Co., 440 Broadway, New York, N. Y., and carried off the pay roll of approximately $2,300. On the trial the robbers were positively identified as defendants Verdiccio and Maisto each of whom on arrest made confessions admitting his part in the robbery. Their statements were read to the jury with the instruction that they could not be considered against appellant.

! Maisto stated that about a month before the robbery appellant had told him that ‘‘ any time need a gun could let you have one; ” that Verdiccio got the gun from appellant on the morning of the day of the robbery; that after the robbery Maisto and Verdiccio returned to Brooklyn, met appellant who was in a car, put the gun on the seat, went to appellant’s house, opened the stolen pay envelopes, divided the money and gave appellant “ a lot of money; maybe $500 ” not for himself but to pay off debts.

Verdiccio’s statement was substantially the same, but he added that before the robbery he met appellant on the street and asked him for the gun telling him he was going to use it for “ a stickup ” and appellant gave him the gun.

Appellant also made a statement which was read to the jury in which he admitted that he met the two codefendants on the morning of June 16,1942, the day of the robbery; that they told him they were going over to New York and asked him would he be around later; that in the morning they were “ broke ” but when he met them in Brooklyn in the afternoon of that day about five o’clock they had money; that they gave him “ about $200; ” that he assumed that they had done some wrong in getting it “ like stealing it.” He denied that he got anything out of it saying that he used the money to pay off “ shylocks.” But he also said: “ Did not get nothing, practically nothing.” Defendant also admitted that on the line-up he had stated to the detectives that he received part of the proceeds of the robbery.

At the trial the People conceded appellant was not present at the scene of the robbery and of course concede that the statements or confessions of the codefendants were binding only on them and could not be considered against appellant. As indicated, the court 'so charged. The People, however, contend that appellant was a principal to the crime in absentia.

Appellant did not take the stand, but produced witnesses to testify that he was in Brooklyn on the afternoon of the day of the robbery flying pigeons on the roof of a friend’s house until four-thirty or five p. m. Appellant’s motions to dismiss the indictment against him at the close of the People’s case and at the close of the whole case were denied and the court refused to charge at his request that there was no evidence to establish that appellant was a principal in the commission of the crime charged in the indictment.

The trial court charged the jury that if Salino aided and abetted the other two codefendants or counselled or procured them to commit the crime, he was guilty as a principal though absent when the crime was committed under section 2 of the Penal Law. That section provides that a person concerned in the commission of a crime whether he directly commits the act or aids or abets in its commission whether present or absent and a person who directly or indirectly induces or procures another to commit a crime is a principal.

Appellant contends that if the evidence against him proves any crime it is the crime of receiving stolen property and not the crime of robbery, a separate and distinct offense; and that as a receiver only, he is neither a principal nor accessory t