Opinion
Argued April 25, 1980
Decided July 3, 1980
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, LEON DEUTSCH, J.
Eve Cary, William E. Hellerstein and Charles Schinitsky for appellant.
Eugene Gold, District Attorney (Roseann MacKecknie and Sonya Kornblum of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
While we agree with appellant's contention that it was error for Family Court to receive, over objection, the arresting officer's hearsay testimony as to the identity of the change purse, this error was, in our opinion, harmless.
Family Court, after a fact-finding hearing, determined that appellant had committed acts which, if done by a person 16 years of age or older, would have constituted the crime of robbery in the second degree. (Penal Law, § 160.10.) To sustain this finding, we must conclude that the People established as one element of the crime that appellant forcibly stole property from the victim.
The record discloses that the victim testified that two boys, after one grabbed her from the back and put his hands over her mouth, took a change purse from her shoulder bag while she prepared to walk up the stairway from the subway platform to the street. Further, it was elicited through the testimony of the arresting officer, that the victim screamed "That's him" when the officer brought appellant back to the area where the robbery occurred. This statement was properly admitted as a spontaneous declaration, and we find no merit to appellant's suggestion that CPL 60.25 was meant to alter the rule recognizing the admission of such evidence in criminal prosecutions or similar proceedings as an exception to the hearsay rule. (See People v Caviness, 38 N.Y.2d 227.)
In light of this unrebutted testimony, we agree with the Appellate Division that the People established beyond a reasonable doubt that appellant, in concert with another, forcibly stole property from the victim. It simply was not necessary for the People to prove that the change purse discovered on appellant's person was the same purse stolen from the victim, and the testimony to that effect, albeit hearsay, can be considered mere surplusage.
After having sustained the objection of appellant's counsel when the prosecutor sought to introduce such testimony, the trial court himself later elicited from Patrolman Ponall, and received in evidence, testimony that the victim had made an out-of-court verification to him that the change purse found sticking out of defendant's pocket was hers. I cannot agree that the admission of this concededly hearsay testimony was harmless error, i.e., that there was no significant probability that the trial court would have made a different finding had it not been for the erroneous admission of this testimony (People v Crimmins, 36 N.Y.2d 230, 242). The trial court in his brief oral decision expressly referred to appellant's possession of the victim's change purse in his summary of the evidence on which he based his conclusion that appellant had committed acts which, if done by a person 16 years or older, would have constituted the crime of robbery in the second degree. The circumstance, relied on by the majority, that there was other evidence sufficient to support a finding of guilt, had the trial court chosen to ignore the hearsay testimony, does not satisfy the harmless error standard. I would therefore reverse the order of the Appellate Division, vacate the adjudication of juvenile delinquency and remit the case for a new hearing.
Judges JASEN, GABRIELLI, WACHTLER and FUCHSBERG concur; Judge JONES dissents and votes to reverse in an opinion in which Chief Judge COOKE and Judge MEYER concur.
Order affirmed, without costs, in a memorandum.