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The said victim is deaf and illiterate, but able to read lips

This is an appeal by defendant from a judgment of the Supreme Court, Kings County, rendered March 16, 1967, convicting him of attempted grand larceny in the first degree, upon a jury verdict, and imposing sentence. A Kings Grand Larceny Lawyer said that, defendant, along with two others, was indicted for robbery in the first degree, grand larceny in the first degree and assault in the second degree. The charges stem from a robbery allegedly committed in a hallway against a certain victim. The said victim is deaf and illiterate, but able to read lips. He does not know ‘sign language’ and communicates by making verbal sounds which can be understood only by those with special training. When he was called to testify, the People introduced his sister to the court and offered to have her sworn for the purpose of assisting the court and jury in understanding his testimony. A Kings Criminal Lawyer said that, defense counsel objected to the use of a relative for such a purpose and insisted upon using a disinterested person. The objection was sustained and a speech therapist was used instead of the victim’s sister.

A Kings Robbery Lawyer said that, with considerable difficulty, the victim ‘testified’ that he was kicked by one of the defendants and that a sum of money was taken from his person. The Detectives testified that their unmarked patrol car was stopped for a red traffic light when they observed a group of people in the hallway in question. The first detective testified further that he got out of the car and approached the hallway to investigate. When he was within approximately six feet of the group in the hallway, he ‘observed 4 men going through the pockets of the complainant, who was on the ground.’ As the first detective approached the hallway door, defendant ran out of the building, but was apprehended by the second Detective. A Kings Grand Larceny Lawyer said that, the jury acquitted defendant of the robbery and assault counts of the indictment, but convicted him of attempted grand larceny in the first degree, under the count of the indictment charging him with grand larceny in the first degree.
The issue in this case is whether the court properly convicted defendant of grand larceny in the first degree.

The Court said that, it is defendant’s contention (1) that the Trial Justice erred in denying his motion to strike the victim’s testimony as unreliable and because the victim’s handicap made effective cross-examination impossible and (2) that the evidence apart from victim’s testimony was insufficient to establish his guilt. In our opinion, defendant was in no way prejudiced by the victim’s testimony. Since defendant was acquitted on the robbery and assault counts, it would appear that the jurors either refused to credit or were unable to comprehend the victim’s testimony and that their verdict of guilty of Attempted grand larceny in the first degree was based upon the police testimony alone, which, in our opinion, was sufficient to establish defendant’s guilt beyond a reasonable doubt.

With respect to the sentence imposed for grand larceny in the second degree, it was excessive as a matter of law (Penal Law, §§ 1297, 1941 subd. 1) because the record does not show that the former section 1944 of the Penal Law (now Penal Law, § 1905) was considered by the court in sentencing the defendant. Therefore, the action must be remitted for determination, upon a proper record, of the issue whether defendant himself was armed at the time of the larceny. If it be determined that the additional punishment so provided is not applicable, then a proper sentence should be imposed for grand larceny in the second degree.

Accordingly, the court held that the judgment modified on the law, on the facts, and in the exercise of discretion as follows: (a) by reducing the term imposed for robbery in the first degree from 30 to 60 years to 15 to 20 years, and (b) by vacating the term imposed for grand larceny in the second degree. As so modified, the judgment is affirmed and the action is remitted to the Trial Court for determination of the issue whether defendant was armed at the time of the larceny, and for the imposition of a proper sentence accordingly, not inconsistent herewith.

Accordingly, the court held that the judgment is affirmed.

If you are involved in a similar criminal case, don’t hesitate to call Stephen Bilkis and Associates, our Kings Grand Larceny Attorney and Kings Robbery Attorney can help you.

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