Opinion
November 3, 1967
Appeal from a judgment of conviction of County Court, Schenectady County, of the crime of assault in the third degree. The appellant was indicted on July 7, 1966 by the Grand Jury of Schenectady County on three counts of assault in the second degree. The first count charged the appellant with having willfully and wrongfully assaulted Louis T. Masucci on June 5, 1966 by striking him with an automobile radio antenna. The second count charged him with having assaulted Louis T. Masucci on June 5, 1966 by willfully and wrongfully wounding and inflicting grievous bodily harm upon him by striking him with his fists, feet, and an automobile antenna. The third count charged that the appellant assaulted Nicholas Masucci on June 5, 1966 by striking him with his fists and knocking him to the ground. The appellant was brought to trial on December 12, 1966 and the jury rendered a verdict of not guilty on the first and third counts, and guilty of assault in the third degree on the second count. The appellant contends that the proof was legally insufficient to convict him of assault in the third degree; that certain exhibits, photographs, and a broken radio antenna were improperly admitted into evidence; that the refusal of the trial court to reopen the case after it was closed for the purpose of recalling Louis Masucci to the witness stand to be questioned concerning an affidavit wherein Louis Masucci stated he had been hit by a sharp instrument wielded by the appellant's companion; and that it was reversible error for the trial court to charge the jury concerning section 2 of the Penal Law which defines a "principal". The testimony adduced on the trial establishes that, on the night of June 5, 1966 at about 10:00 P.M., Louis T. Masucci accompanied by his son, Nicholas, age 15, left his home at 539 Summit Avenue in the City of Schenectady to mail a letter. While driving on Strong Street in the City of Schenectady, they came upon a motorcycle in the travelled portion of the road which the appellant was straddling and, being unable to drive around it, Mr. Masucci asked the appellant to move the motorcycle and was told, "If you want to move it, you'll have to push." Mr. Masucci and his son testified that he got out of his car and was attacked by the appellant and his companion when he placed his hand on the motorcycle to push. Two alleged eyewitnesses for the appellant testified that Mr. Masucci pushed the motorcycle to the ground causing the appellant to fall to the ground and that thereafter a fight developed. Nicholas Masucci testified that his father, in addition to being beaten by both men, was struck by a shiny metal object by the appellant's companion while being kicked by the appellant. Conflicts in testimony bear on the weight to be given to such testimony and the credibility of the witnesses. These are questions of fact to be determined by the jury. In criminal actions the jury is the exclusive judges of all questions of fact. (Code Crim. Pro., §§ 419, 420; People v. Foster, 204 App. Div. 295; People v. Walker, 198 N.Y. 329.) The jury resolved the facts in this action against the appellant and, upon review, we do not find them insufficient as a matter of law. The testimony indicates that the appellant and his companion acted together in the alleged assault upon Mr. Masucci. Having acted together in the alleged crime, the court properly charged the jury the definition of a "principal" as contained in section 2 of the Penal Law, and properly allowed the introduction of the exhibits which indicated that Mr. Masucci was struck by a radio antenna which was sufficiently identified as having been broken off of his car. ( People v. Henry, 18 A.D.2d 293.) The granting of a request to reopen the defense after both sides have rested, lies in the sound discretion of the trial court. (Code Crim. Pro., § 465; People v. Palumbo, 282 App. Div. 1059.) It has been held that new evidence which would warrant such reopening must be such as could not have been discovered before trial by due diligence. ( People v. Priori, 164 N.Y. 459; People v. Knapper, 230 App. Div. 487.) The affidavit, claimed to be new evidence herein, was a public record in the office of the Clerk of the County of Schenectady and was found during a 10-minute recess after the closing of the case. The failure to reopen the case does not appear to have been prejudicial when we consider the verdict of the jury in the light of the affidavit, and in our opinion, the Trial Judge properly refused to reopen the case after he viewed the affidavit. Judgment affirmed. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Staley, Jr., J.