270 A.D. 261, People v. Fay

Citation:270 A.D. 261, 59 N.Y.S.2d 127
Party Name:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSEPH S. FAY and JAMES BOVE, Appellants.
Case Date:December 20, 1945
Court:New York Supreme Court Appelate Division, First Department

Page 261

270 A.D. 261

59 N.Y.S.2d 127



JOSEPH S. FAY and JAMES BOVE, Appellants.

Supreme Court of New York, First Department.

December 20, 1945

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APPEALS, by separate notices of appeal, from judgments of the Supreme Court rendered at a Trial Term in New York County (MUNSON, J.), on April 5, 1945, upon a verdict convicting defendants of the crimes of conspiracy and extortion (Penal Law, § § 580, 850, 851). The appeals bring up for review (1) an order of the Court of General Sessions of the County of New York which denied a motion by defendants for permission to inspect the minutes of the grand jury; (2) an order of the Supreme Court at a Trial Term (MUNSON, J.), which granted a motion by plaintiff for a special jury; (3) an order of the same court which denied a motion by defendants for a bill of particulars (see 184 Misc. 684); (4) an order of said court which denied a motion by defendants to dismiss the special panel of jurors, and (5) an order of the same court which denied a motion by defendants to set aside the verdict of the jury. Upon

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the trial a witness called by the People, Thomas J. Walsh, was permitted to testify on his redirect examination, over objection and exception, to a conversation had in the absence of defendants with one Charles Shea, who died about two years before the trial. There was evidence that Walsh was president of a construction company having a contract connected with the construction of the Delaware Water Supply System to furnish water for the city of New York and that his conversation with Shea, a fellow contractor, related to certain labor leaders.


Stephen Callaghan of counsel (Thomas R. Fay, Robert J. Fitzsimmons and Ralph Stout with him on the brief), for Joseph S. Fay, appellant.

Moses Polakoff of counsel (Samuel Mezansky with him on the brief), for James Bove, appellant.

Whitman Knapp of counsel (Joseph A. Sarafite, John D. J. Moore and Vincent A. G. O'Connor with him on the brief; Frank S. Hogan, District Attorney), for respondent.

Per Curiam.

One of the defendants-appellants, Joseph S. Fay, called thirteen character witnesses who testified to his reputation for honesty and fair dealing. It is claimed that the District Attorney improperly cross-examined eight of such witnesses.

A defendant who calls character witnesses makes his own reputation a subject of inquiry at the trial and the People have the right to cross-examine such witnesses upon the subject of inquiry thus presented and may properly ask if the witnesses heard particular reports derogatory to defendant's character to determine credibility and to show the witnesses' grounds of knowledge, provided the inquiry is directed to the witnesses' hearing of the disparaging report as negativing the reputation and provided the inquiry is conducted in good faith. (People v. McKane, 143 N.Y. 455, 473, affg. 80 Hun 322, 347 [Gen. Term, 2d Dept.]; People v. Laudiero, 192 N.Y. 304, 309; People v. Jefferey, 82 Hun 409, 413; People v. Manganaro, 261 A.D. 891 [1st Dept.]; People v. Watson, 54 Hun 637, opinion in 7 N.Y.S. 532 [Gen. Term, 1st Dept.]; Lawrence v. United States, C. C. A., 56 F.2d 555, 556; 3 Wigmore on Evidence [3d ed.], § 988, and cases cited in almost all jurisdictions; see, also, State v. Crow, 107 Mo. 341, 346-347.)

Discussing character witnesses, Wigmore says (3d ed., Vol. 3, § 988, p. 618): 'Such a witness virtually asserts either (a) that the testifier has never heard any ill spoken of the other or (b)

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that the sum of the expressed opinion of him is favorable. Now if it appears that this sustaining witness knows of bad rumors against the other, then, in the first instance, his assertion is entirely discredited; while, in the second instance, his assertion is deficient in good grounds, according to the greater or less prevalence of the rumors. On this principle, then, it is proper to probe the asserted reputation by learning whether such rumors have come to the witness' knowledge; for if they have, it is apparent that the alleged reputation is more or less a fabrication of his own mind.'

In People v. McKane (supra) the cross-examination of character witnesses included questions about accusations appearing in the public press and the Court of Appeals said (p. 473): 'The defendant having made reputation a subject of inquiry, the People had the right to put before the jury just what that reputation was, though it included the ability to influence and control elections.'

In People v. Jefferey (supra) the court held: 'Nor do we think...

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