18 Misc. 2d 561 | N.Y. Sup. Ct. | 1959
After conviction on three counts of an extortion indictment and sentence of Vincent Squillante to 7% to 15 years, Nunzio Squillante to 2 to 5 years, and Bernard Adelstein to 5 to 10 years, the defendants, having appealed, seek a certificate of reasonable doubt and the fixation of bail. Application granted as to all three defendants. Suggestions as to bail will be received with the proposed order to be entered on this decision, Avhich order may be settled on one day’s notice.
The inquiry AAdiich this court is required to make is not of the guilt or innocence of the defendants nor Avhether their convictions will be reversed on appeal, but simply whether ‘ ‘ in the opinion of said court there is reasonable doubt whether the judgment should stand”. (Code Crim. Pro., § 527.) In other words, the only problem before the court is whether any question of substance has been raised for consideration by the Appellate Division. (People v. Saperstein, 206 Misc. 482; People v. Brody, 190 Misc. 351; People v. Nisonoff, 181 Misc. 696.)
The crime Avith which these defendants are charged is extortion. The theory of the indictment is that they aided and abetted each other and one Nolan is obtaining from the stores named in the indictment sums of $20 or more per month by demanding under threat of picketing that the stores cease dealing with a nonunion eartman and deal instead with General Sanitation Service Corporation and other union eartmen, while in truth General Sanitation and other firms named by defendants were not union businesses. A number of errors are urged by defendants. It is necessary to consider only three.
First, defendants urge that the only money paid was for services rendered, the amount paid was the same as that paid
Apparently recognizing that there is some validity to defendant’s argument, the People reply that the stores lost the freedom to contract with the cartmen of their choices, and that that right
Second, defendants moved at the end of the People’s case and at the end of the whole case to dismiss the indictment on the ground that the proof was insufficient. The weight of the evidence, in any event, is one of the factors which section 527 of the Code of Criminal Procedure, leaves to the Appellate Division’s determination “ whether any exception shall have been taken or not, in the court below.” (See People v. Caverio, 1 N Y 2d 657; People v. Savage, 5 A D 2d 846.)
As the court charged, the entire case for the People was. circumstantial. It is well settled that the sufficiency of such evidence depends on whether the proof points logically to' defendant’s guilt and excludes to a moral certainty every other reasonable hypothesis, and that the facts from which the inferences are to be drawn must be established by direct proof: the inferences may not be based upon conjecture, supposition, suggestion, speculation or upon other inferences. (People v. Leyra, 1 N Y 2d 199; People v. Harris, 306 N. Y. 345; People v. Taddio, 292 N. Y. 488.) Circumstantial evidence is of no value if consistent with either the hypothesis of innocence or the hypothesis of guilt. It is not enough that the hypothesis of guilt will account for all the facts proven. (People v. Suffern, 267 N. Y. 115; People v. Razezicz, 206 N. Y. 249.)
In the instant case defendants are charged with extortion by aiding and abetting the threat to picket certain stores unless they changed from nonunion cartmen to General Sanitation Service Corporation or others said to be, but which in fact were not, union carting companies. It is not necessary to extend
Third, defendants object that evidence was introduced concerning events occurring after April, 1955 which related to conversations with or actions by some but not all of the defendants, as to which the court failed to give instructions limiting consideration of the evidence to the defendant involved. The instances referred to are detailed at S.M. pages 711-713. In some of the later instances instruction was given at the time the evidence was introduced, and the matter was also referred to in the charge. The People reply that no exception was taken to the charge and that in any event each of the defendants is bound by the acts of the others until the conspiracy between them ends and the conspiracy must be held to continue at least until arrest. The fact that no exception was taken to the charge at the end of the case will not prevent the appellate courts from considering whether it was not error to refuse to charge concerning the limited effect of the' evidence at the time it was introduced, as People v. Marshall (306 N. Y. 223) requires. The defendants did object and take exceptions as the testimony was introduced. Unless, therefore, it can be said that the conspiracy continued for the entire period during which the conversations or actions referred to occurred, evidence which constituted narration of past fact by one conspirator would be inadmissible against the others. (People v. Marshall, supra.) The case relied upon by the People, Krulewitch v. United States (336 U. S. 440), ruled that conspiracy could not be held to continue after arrest so as to make post arrest statements by one conspirator admissible against the others. That holding does not necessarily imply that a conspiracy will be held in every case to continue until
For the above reasons, the court is of the opinion that there is reasonable doubt whether the convictions here can stand on appeal.