12 N.Y.2d 188 | NY | 1962
In January, 1958 the Joint Legislative Committee on Government Operations of the New York State Legislature and the Commissioner of Investigations of the State of New York commenced inquiries into law-enforcement practices of
The indictment charged Fiore, former Senior Deputy Chief of Police of the City of Utica, with aiding and abetting Irene Burke in receiving the proceeds of prostitution by protecting her from danger of arrest from August, 1954 through December, 1956, and during November, 1957. Fiore and the appellant police officers under his command, Bogan, Macner, Custodero and Fragetta, were charged with falsely testifying under oath before Oneida County Grand Juries and the Office of the Attorney-General that they had no knowledge that houses of prostitution were operating in Utica. Fiore, and O’Dowd, a political figure and city official in Utica, were charged in separate counts with attempting to procure Irene Burke to withhold testimony from investigating bodies; and O’Dowd was also charged with bribing Irene Burke during the period from October to December, 1959 to withhold testimony from the Original Grand Jury. Finally, all of the appellants were charged with conspiring to obstruct justice from December, 1957 to July, 1960, in that they attempted to conceal from the investigating bodies inquiring into vice and official corruption in Utica the existence of a prior conspiracy, between the appellants and Irene Burke, to protect Burke’s prostitution operations.
The People contend that the appellants were parties to a conspiracy which, existed from August, 1954 to November, 1957 for the purpose of permitting Irene Burke to operate houses of prostitution in Utica without danger of- arrest. Allegedly,
The proof of the crimes charged consisted of the testimony of Irene Burke and Lee Clarke, denominated as co-conspirators and accomplices, the testimony of prostitutes and other non-accomplice witnesses, the contents of certain telephone conversations intercepted and recorded by Bogan and Macner, and the sworn testimony of Fiore,. Bogan, Macner, Custodero and Fragetta before the Commissioner of Investigations, the Joint Legislative Committee and the Oneida County Grand Juries.
Aware of the importance of determining the sufficiency of the evidence as to each defendant in mass conspiracy trials, we find that there is more than enough legal evidence to support the convictions of (a) Fiore, Bogan, Macner, Custodero and Fragetta for committing perjury, (b) Fiore and 0 ’Dowd for attempting to procure Burke to commit perjury, (c) O’Dowd for bribing Burke to influence her testimony before the Grand Jury, and (d) all of the appellants, except O’Dowd, for conspiring to obstruct justice.
The evidence supports the determination that the police officers agreed to lie about their knowledge of prostitution operations in Utica, and negates the likelihood ‘ ‘ that each [officer] decided for himself that it would be wiser not to discuss all that he knew” (United States v. Bufalino, 285 F. 2d 408, 411 415). The chain of command connecting the police officers, exhibited by Fiore’s control over the Confidential Squad (Bogan and Macner) and the Pawnshop Detail (Custodero and Fragetta), becomes forged into a conspiratorial bond through evidence of the arrangements made by the police to hospitalize a
Fiore’s motion to dismiss the count charging him with violating the Penal Law (§§ 2, 2460, subd. 8) —aiding and abetting Irene Burke in the crime of knowingly receiving money from proceeds earned by women engaged in prostitution — should .have been granted.
The testimony of Irene Burke, an accomplice, showed quite clearly that Fiore was a puppet in the conspiracy protecting Burke’s operations, and not the puppeteer as were the defendants in People v. McKane (143 N. Y. 455); People v. Becker (215 N. Y. 126); People v. Luciano (277 N. Y. 348), and People v. Hines (284 N. Y. 93). At the outset he informed her that he did not have the power to grant her permission to operate a house of prostitution, since he was “ only a police officer ” — a clear indication that he was subject to the orders and directions of another. At later stages of the operation her activities were suspended without his knowledge and in spite of his wishes. He was, according to Burke, unable to make commitments until he had consulted with an unidentified person or persons. Although Fiore was derelict in his duty by doing nothing to interrupt or prevent Burke’s unlawful business, such dereliction does not constitute a violation of section 2 of the Penal Law with regard to subdivision 8 of section 2460 of the Penal Laav. The principal object of section 2460 is “ to get the tycoons of organized vice * * * men such as the defendant in People v. Luciano (277 N. Y. 348) * * * to punish those ‘ conscience-less vampires who make merchandise of the passions of
The corroborating evidence relied upon by the prosecution does not satisfy the requirements demanded by section 399 of the Code of Criminal Procedure. The testimony of the prostitutes did not tend to indicate that it was Fiore who aided and abetted Burke. Proof of perjurious statements and his efforts to induce Burke to commit perjury merely established the fact of an acquaintanceship with Burke; it did not indicate the nature of their relationship. Hence, there is no competent evidence in the record which supports a conviction for the commission of the crime defined in section 2 of the Penal Law as applied to subdivision 8 of section 2460 of the Penal Law.
Appellants argue that, even if the evidence is sufficient, reversible error was committed when the trial court permitted the People to utilize a “ conspiracy device ” for the purpose of introducing into evidence transactions and conversations otherwise inadmissible. This “ conspiracy device ” consisted of charging the appellants with conspiring to conceal from various investigating bodies the existence of a prior conspiracy, not charged in the indictment and prosecution for which was barred by the Statute of Limitations. It is urged that, if appellants cannot be prosecuted for committing a particular crime, the evidence proving the commission of the crime is inadmissible, and the admission of such evidence, regardless of the scheme used, is prejudicial and constitutes error.
It is, of course, axiomatic that evidence improperly admitted cannot be used to sustain a conviction. But proof of the conspiracy charged in the indictment is not designed to convict appellants for their participation in the prior conspiracy to protect the operations of the houses of prostitution. Therefore, the reasoning in Krulewitch v. United States (336 U. S. 440) and Grunewald v. United States (353 U. S. 391) is not applicable. In those cases the Q-overnment sought to avoid the bar of the Statute of Limitations on the theory that the original conspiracy continued; here the People allege a new conspiracy, not a continuation of the old one. Nor is the present case governed by the principles laid down in Kotteakos v. United States (328 U. S. 750) and People v. Abelson (309 N. Y. 643). The conspiracies here are not interdependent as in those cases, but are separate
According to the appellants the trial court’s refusal to allow their counsel to inspect the minutes of the pretrial testimony of Irene Burke, and omissions in the charge to the jury with respect to the corroboration of accomplice testimony, justify a reversal. During the cross-examination of Irene Burke, defense counsel requested that the court examine the Grand Jury testimony of Burke, and, if material variances or inconsistencies be therein found, direct that the People make this testimony available to the defense. (People v. Walsh, 262 N. Y. 140.) The court, upon finding no material variance in her testimony given before the Grand Jury and at the trial, denied this request. Three weeks after the termination of the cross-examination of Burke and after our decision in People v. Rosario (9 N Y 2d 286), a request was made for the pretrial testimony of Irene Burke and for the resumption of her cross-examination. This request was denied.
Appellants’ criticisms of the court’s charge are groundless. The instructions given the jury in the exact language of People v. Dixon (231 N. Y. 111, 116) were in all respects proper and followed the standards prescribed by this court. (See People v. Goldstein, 285 N. Y. 376, 382-383.) The requests to charge which were refused were either not germane or, if pertinent, had been adequately covered in the main charge. The appellants fail to recognize the difference in the roles of the court and the jury where the corroboration of accomplice testimony is the issue.
To determine whether the evidence corroborating the testimony of an accomplice is sufficient to submit the question of the defendant’s guilt to the jury, “ The court * * * should be satisfied that there is some corroborative evidence fairly tending to connect the defendant with the commission of the crime ” (People v. Elliott, 106 N. Y. 288, 292, citing the rule of People v. Hooghkerk, 96 N. Y. 149). If the testimony tends only to establish the credibility of the accomplice, it is insufficient as a matter of law, and should not be submitted to the jury (People v. Kress, 284 N. Y. 452; People v. Nitzberg, 287 N. Y. 183). If the crime charged is of such a nature, such as bribery, that the corroborating evidence must tend to show that defendant committed the crime, the existence of such evidence is a question of law for the trial court to determine before submitting the question of guilt to the jury. (People v. Mullens, 292 N. Y. 408.) Once the trial court has determined that the evidence, if believed by the
The remaining assignments of error have been considered and found to be wholly without merit.
The conviction of O’Dowd on the conspiracy count and the conviction of Fiore on count 2 should be reversed, these counts as to O’Dowd and Fiore should be dismissed, and the judgments of conviction should be in all other respects affirmed.
On the appeals of defendants Bogan, Macner, Custodero and Fragetta: Judgments affirmed. Chief Judge Desmond and Judges Dye, Fuld, Froessbl, Van Voorhis and Foster concur.
On the appeal of defendant Fiore: Judgment modified by reversing so much thereof as convicts him under count 2 of the indictment, that count dismissed as to him and the judgment otherwise affirmed. Chief Judge Desmond and Judges Dye and Van Voorhis concur with Judge Burke; Judges Fuld, Froessbl and Foster dissent and vote to affirm the judgment as to defendant Fiore.
On the appeal of the defendant O’Dowd: Judgment modified by reversing so much thereof as convicts him of conspiracy, that count dismissed as to him and the judgment otherwise affirmed. Chief Judge Desmond and Judges Dye, Fuld and Van Voorhis concur with Judge Burke; Judges Froessbl and Foster dissent and vote to affirm the judgment as to defendant O’Dowd.
On the appeals of defendants Bogan, Macner, Custodero and Fragetta: Judgments affirmed.
On the appeals of defendants Fiore and O’Dowd: Judgments modified, etc.