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The court have considered the defendant’s remaining points

Judgment by the Bronx County Supreme Court convicting the defendant after trial to a jury of robbery in the first and second degrees, grand larceny in the third degree and possession of a weapon as a misdemeanor, and sentencing him to concurrent indeterminate terms of 12 years on each of the robbery counts, four years on the grand larceny count and a conditional discharge on the weapons count, unanimously modified on the law, to the extent of reversing the conviction on the grand larceny count and dismissing that count of the indictment and, as so modified, the judgment is affirmed.

The defendant could not have committed robbery without having also committed larceny; the larceny offense was, therefore, an inclusory concurrent lesser count included within the greater crime of robbery.

Prior to trial, a hearing was held pursuant to Article 670 of the CPL to determine whether the victim of the criminal act was unable to testify at the trial by reason of illness. Under circumstances prescribed in this article, testimony given by a witness at a trial of an accusatory instrument, or a hearing upon a felony complaint, or an examination of such witness conditionally, may, where otherwise admissible, be received into evidence at a subsequent proceeding in or relating to the action involved when at the time of such subsequent proceeding the witness is unable to attend the same by reason of death, illness or incapacity, or cannot with due diligence be found, or is outside the state or in federal custody and cannot with due diligence be brought before the court. Upon being received into evidence, such testimony may be read and any videotape or photographic recording thereof played. Where any recording is received into evidence, the stenographic transcript of that examination shall also be received.

The victim had testified at the criminal defendant’s preliminary hearing. An authenticated transcript of his testimony was made available to defense counsel and to the court by the prosecutor. The victim’s physician, the sole witness called at the hearing, testified that the man was suffering from a serious heart condition which rendered him totally disabled and that to compel him to testify might well prove fatal. The court found that the victim was unable to testify at trial due to his physical condition and allowed his preliminary hearing testimony to be read. After an adverse ruling, the defense counsel moved the following day for the appointment of a doctor at State expense and for other relief, in effect seeking to reopen the hearing. On this record it cannot be said that the court abused its discretion.

The defendant contends that his right of confrontation was violated when the victim’s preliminary hearing testimony was read into evidence at trial.

While the right of a defendant in a criminal case to confront adverse witnesses is guaranteed by the Federal and State Constitutions, a well-recognized exception to this right authorizes the use at a later proceeding of a then unavailable witness’ prior testimony provided that the defendant at the prior proceeding has been represented by counsel who has been afforded the opportunity to adequately cross-examine the witness.

In a related case, the Court of Appeals reversed because the defendant had been denied the opportunity to adequately cross-examine the then deceased witness at the preliminary hearing. There the judge had restricted the defense counsel’s cross-examination challenging reasonable cause and to laying a foundation for an identification hearing. In this case the defense counsel had extensively and adequately cross-examined the victim at the preliminary hearing.

Contrary to the defendant man’s claim, the weapon count should not be dismissed since there was evidence independent of the robbery to show possession of the knife. Indeed, the defendant was arrested in possession of the knife.

The court once again observe that the use in a court’s charge of the phrase ‘if you feel in your hearts and consciences’ in defining the reasonable doubt standard is improper.

The court have considered the defendant’s remaining points and find them either without merit or harmless error in view of the overwhelming nature of the proof of his guilt. He was apprehended together with an accomplice moments after emerging from the building where they had robbed and attacked their victim with the proceeds of the robbery in their pockets.

Witness plays an important role in convicting the person who committed a crime. If you want to make sure that the one who endangered your life or your family or your properties, contact Stephen Bilkis and Associates to speak with the Bronx County Robbery Lawyer and the Bronx County Criminal Attorney. A Bronx County Grand Larceny Lawyer is also available to hear your legal problems and help you act on it.

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