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People v. Horobecki

OPINION FILED APRIL 7, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ALBERT HOROBECKI, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. J. ARNOLD WELFELD, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Mr. PRESIDING JUSTICE SULLIVAN delivered the opinion of the court:

After a bench trial, defendant was found guilty of criminal damage to property and sentenced to serve 60 days in the House of Corrections. On appeal, he contends that proof of guilt beyond a reasonable doubt was lacking and that his sentence was improperly imposed. Co-defendants Joseph Aleman and Raymond McGann, who were tried with defendant and also found guilty, are not parties to this appeal.

On April 19, 1976, at approximately 12:30 a.m., Maciej Kocur was sitting in the front room of his apartment watching television when one of the two windows in the room was shattered. He went to the unbroken window and observed defendant, with co-defendants Aleman and McGann, standing across the street at a distance of approximately 30 feet. He saw all three of them throw rocks in the direction of his windows, some of which broke his windows and landed in his apartment. The light provided by street lamps allowed Kocur to clearly see them throw the stones. They then drove away in an automobile, and he reported the incident to the police.

Approximately one hour later, Kocur was in the front room of the apartment picking up the shattered window glass when he looked out the window and saw the same three men approaching with bricks in their hands. The bricks were thrown through a bedroom window, where his mother and daughters were sleeping. The men stood at a distance of two to six feet from Kocur as they threw the bricks through the window. The police were again notified.

Officer Sulki testified that at approximately 1 a.m. on April 20, 1976, he was arresting Aleman and McGann along with other individuals for disorderly conduct for an unrelated incident, and he was approached by Kocur who told him that Aleman and McGann had broken several of the windows in his home on the previous night. Later that day, Kocur saw defendant and notified the police, who arrested him. Thereafter, Kocur signed complaints concerning the window breaking incidents. During the cross-examination, Officer Sulki stated that he had seen the three men in the neighborhood on previous occasions and had once preferred criminal charges against Aleman.

Concerning the damage to his property, Kocur testified that eight panes of two windows had been shattered, which he repaired at a cost of $64. Aleman's father testified that he saw only one broken window when he passed the Kocur residence on the morning following the occurrence. Edward Farrer, a friend of Aleman and McGann, testified that he had seen only one broken window after the incident.

Defendant's mother testified that she, defendant and her sister-in-law were together during the evening of April 18 and on April 19. On the evening of April 18, at approximately 7 p.m., defendant and the two women left their home to purchase fish and chips. After making the purchase, they went for a long automobile ride, returning home about 1 or 1:30 a.m., after which they all watched television for a short period of time before retiring. She further testified that defendant never left home at any time on April 19.

Defendant testified that on the evening of April 18, he and his mother went to a fish place. After driving around for "a little while," they went home and he watched television until 3:30 or 4 a.m.

Aleman testified that he had not broken any of Kocur's windows but had been in court on prior occasions on charges brought by Kocur. He admitted that he had been in the vicinity of Kocur's building earlier in the evening but went home around 10:45 p.m., after driving his girl friend to her home. McGann testified that he did not break any windows in the building; that he had spent the evening with a girl named Angie and went home around 10:30 p.m.

During the presentencing hearing, McGann — after stating that he had lied in his earlier testimony — testified that he had broken all of Kocur's windows and "would like to take full responsibility for everything."

In aggravation, the State pointed out that defendant had been convicted of burglary in 1975 and was still on probation at the time of the offense in question. Defendant's probation officer testified he was placed on probation in December of 1975 and was obligated to report once every month but did not do so until May 14, 1976, which was after his arrest for breaking the windows. The trial court then sentenced defendant to 60 days in the House of Corrections.

OPINION

• 1-3 Defendant contends that he was not proved guilty beyond a reasonable doubt. It is well settled in Illinois that the testimony of a single witness when positive and credible is sufficient to support a conviction, although contradicted by defendant. (People v. Stringer (1972), 52 Ill.2d 564, 289 N.E.2d 631; People v. Miller (1971), 2 Ill. App.3d 206, 276 N.E.2d 395.) The testimony of an identification witness is strengthened to the extent of any prior acquaintance with defendant. (People v. Lumpkin (1975), 28 Ill. App.3d 710, 329 N.E.2d 262.) While unimpeached testimony of an alibi may not be disregarded (People v. Hister (1974), 20 Ill. App.3d 933, 314 N.E.2d 562, aff'd (1975), 60 Ill.2d 567, 328 N.E.2d 531), the trier of fact is under no obligation to believe alibi testimony even if given by a greater number of witnesses (People v. Jackson (1973), 54 Ill.2d 143, 295 N.E.2d 462). A natural interest in defendant's well-being may affect the weight given to an alibi witness's testimony. (People v. Simmons (1950), 407 Ill. 417, 95 N.E.2d 477.) Witnesses who recant their testimony after trial have been regarded as very unreliable. (People v. Marquis (1931), 344 Ill. 261, 176 N.E. 314.) While ordinarily judicial confessions are accorded high probative value, a confession is not conclusive of every statement made therein and must be weighed in the same manner as other evidence. (People v. Uselding (1967), 85 Ill. App.2d ...


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