34 N.Y.2d 81 | NY | 1974
Defendant, former President of the Lackawanna School Board, appeals from a conviction, upon a jury verdict, for the felonies of bribe receiving (Penal Law, § 200.10) and receiving a reward for official misconduct (Penal Law, § 200.25) and two misdemeanors of official misconduct (Penal Law, § 195.00, subds. 1, 2). The conviction arose from defendant’s alleged solicitation of a “ kickback ” from the general contractor of a school construction project. He was sentenced to concurrent terms of imprisonment up to four years.
Defendant contends that there was reversible error in admitting proof, over objection, that the architect on the project had previously made unlawful payments to defendant. Defendant had never been indicted for these payments. Under the facts presented there was no proper purpose for such proof on the case in chief and the conviction should therefore be reversed.
The school board was responsible for awarding construction contracts. The criminal charges against defendant stem from a meeting with a general contractor who had bid on a contract for the construction of an addition to an elementary school. According to the contractor, the architect had given him two telephone numbers and stated that before acceptance of the bid the board wished to speak with him. Later that evening the contractor called one of the numbers and defendant answered. A meeting at a restaurant was arranged for the next day, at which only defendant and the contractor were present. Defendant, purporting to speak on behalf of the board, advised the contractor that the board customarily received 10% of the contract price. The contractor testified that he refused to pay.
The architect testified that he had designed the project for an architect’s fee of 10% of the cost of construction. He said that he had paid to the defendant, in cash, 20% of each fee check he had received. These payments, he said, were pursuant to an “ arrangement ” and were neither a gift nor repayment of a loan. He testified further that defendant had requested him to have the general contractor get in touch with defendant.
Evidence of unconnected, uncharged criminal conduct is inadmissible if the purpose is to establish a predisposition to commit the crime charged (People v. Dales, 309 N. Y. 97, 101; Coleman v. People, 55 N. Y. 81, 90). The basis for the rule is the fear that a jury might convict not for the crime charged, but because, as evidenced by other criminal conduct, the accused is a person deserving of punishment (People v. Molineux, 168 N. Y. 264, 292; see, also, People v. Zackowitz, 254 N. Y. 192, 198).
When evidence of uncharged criminal conduct is offered for a relevant purpose other than to establish criminal propensity, it may be admissible (see, e.g., People v. McKinney, 24 N Y 2d 180, 184; People v. Gaffey, 182 N. Y. 257, 262; People v. Molineux, 168 N. Y., at pp. 291-294, supra). Jury instructions limiting the purpose for which evidence of uncharged crimes is offered are not always adequate; and this court has, on occasion, reversed convictions where the probative value of the uncharged crime was considered substantially outweighed by its prejudicial effect (see, e.g., People v. McKinney, supra, at p. 185; People v. Liller, 20 N Y 2d 727, and dissenting opn., esp. at pp. 732-733).
The only purpose suggested for the architect’s testimony was to show a common scheme or plan to receive similar corrupt payments from those engaged in the particular project (see People v. Harvey, 235 N. Y. 282, 290; People v. Molineux, 168 N. Y., at pp. 293, 305-310, supra). From the existence of this plan or scheme the jury could infer that defendant solicited a kickback from the contractor (see 2 Wigmore, Evidence [3d ed.], § 304, p. 202).
There are the exceptional circumstances which permit proof of other criminal conduct to establish a common scheme or plan (see People v. Molineux, supra, and cases cited). Mere simi
Thus, in People v. Grutz (212 N. Y. 72) an arson conviction was reversed because of testimony regarding several uncharged arsons. Defendants Grutz and Stein had been charged with the arson of a dwelling owned by one Gold. The prosecution theory was that Grutz, an insurance broker, and Stein had entered into a conspiracy whereby persons, such as Gold, would insure their household effects through Grutz and then Stein would set a fire to destroy the property.
The prosecution offered proof of an agreement between Stein and Grutz, but also elicited testimony from Stein about nine other incendiary fires involving property insured through Grutz. While concluding it proper to prove the agreement between Grutz and Stein the court held it reversible error to receive evidence of other unconnected, uncharged arsons. The court observed (p. 79) “ that each of the nine other fires was a separate and independent transaction entered into as the occasion arose and not in pursuance of any preconcerted general plan or design. There was between them no such relationship of time, place or circumstance that the bare evidence as to the origin of any one of these fires, in and of itself, tended to prove the origin of the Gold fire ”. Gruta, in effect, holds that it is impermissible to offer proof of uncharged crimes committed pursuant to a common plan unless the uncharged crimes support the inference that there exists a single inseparable plan encompassing both the charged and uncharged crimes, typically, but not exclusively, embracing uncharged crimes committed in order to effect the primary crime for which the accused has been indicted. The rule of exclusion, of course, is not always compelled by logic, because on the contrary the evidence is often logically relevant. The rule rests on grounds of policy in the criminal law (see People v. Zackowitz, 254 N. Y., at pp. 192, 197-198, supra).
The difference in result between the Duffy case, on the one hand, and the Grutz case, on the other, is the very close relationship in Duffy between the scheme or system and the many bribes which had been regularly received first by Fox and then by Duffy from the same owners of various gambling houses (see, also, People v. Ryan, 12 A D 2d 841, 843; cf. People v. Warder, 231 App. Div. 215, 219-220). On the other hand, in the Grutz case, the several fires were separate, independent transactions, separately planned and effected, albeit due to an initial overall agreement between the two culprits.
Beturning to this case, there is no evidence of a single scheme to collect corrupt payments from the architect and the contractor other than the inference to be drawn from the payments by
Moreover, in Duffy and in Grutz, it happens that there was direct testimonial evidence of a scheme or plan, not that circumstantial evidence of a common scheme or plan will not suffice. In Duffy, too, there was evidence of a considerable number of bribes over an extended period of time from the same persons, involving the same gambling places, establishing circumstantially a single scheme to take bribes. In short, merely showing two or more similar crimes does not necessarily establish a common scheme. To some extent every criminal repeater has a modus operandi. But a modus operandi alone is not a common scheme; it is only a"repetitive pattern. This is not to say, however, that in establishing a common scheme in a proper case it might not be admissible to show a modus operandi, as one of the elements of proof.
Since a new trial is required it is necessary to comment on the prosecutor’s inquiry of defendant, about his refusal, after being subpoenaed, to waive immunity and testify before the Grand Jury (cf. Grunewald v. United States, 353 U. S. 391, 418-424). To bolster his denials, defendant, on redirect examination, testified that before indictment he was not asked, by the District Attorney or any other person, to make a statement. In fact, he had been called to the Grand Jury but was not permitted to testify because he refused to waive immunity. If defendant’s
Accordingly, the order appealed from should be reversed, the conviction vacated, and a new trial ordered.
Judges Jasen, Gabrielli, Jones, Wachtler, Rabin and Stevens concur.
Order reversed, etc.