Opinion
December 21, 1970
Appeal from a judgment of the County Court, Rensselaer County, rendered March 11, 1970, convicting defendant of the crime of robbery in the third degree. On July 26, 1969, shortly after 12:00 A.M., Sidney Smith, an 82-year-old man, was attacked and robbed of some $32 as he was about to enter his apartment building in Troy. Defendant was charged with this crime, and following a trial was found guilty of robbery, third degree. He raises three issues on this appeal. First, that the verdict was against the weight of evidence; second, that the court erred in permitting the testimony of one John O'Connor to be read into evidence from the transcript of a preliminary hearing; and third, that the court also erred in refusing the jury's request that the testimony of O'Connor be reread to them. We find no merit in defendant's first contention. There was ample evidence in the record to sustain a verdict of guilty. The victim identified the defendant as the one who attacked him and took his money. O'Connor placed defendant at the scene, as did other witnesses. Certain denominations of bills which the victim testified were taken from him during the attack were found in defendant's wallet shortly thereafter. While there were some discrepancies and conflicts in the testimony, these were for the jury to resolve, as was the question of credibility. Defendant's next contention is also untenable. The record reveals that the witness had left the State several months before the trial and was living in Virginia attending dental school at the time of the trial. His school schedule did not permit him to leave and come to Troy. Under the circumstances, the prosecutor was unable to subpoena him. The case was reached for trial on rather short notice, and it was then that the prosecutor first learned the witness was unavailable. It is also significant that at the preliminary hearing when this witness was examined, defendant had a full opportunity to cross-examine him. The record further reveals that the transcript was an accurate reproduction of the testimony and that there was sufficient compliance with the safeguards established by the statute. The court, therefore, properly permitted this testimony to be read in evidence. (Code Crim. Pro., § 8, subd. 3, par. [a]; § 221-b.) The last error urged by the defendant was not preserved for this appeal since there was no objection, nor did the defendant state his position at that time. ( People v. Simons, 22 N.Y.2d 533, 541; People v. Harvey, 34 A.D.2d 857, 858; Code Crim. Pro., § 420-a.) Considering, however, O'Connor's testimony which was damaging to defendant and the record as a whole, we find that there is no reasonable basis for concluding that injustice has been done the defendant. ( People v. Semione, 235 N.Y. 44, 46.) Judgment affirmed. Herlihy, P.J., Reynolds, Staley, Jr., Cooke and Sweeney, JJ., concur.