People v. Richter's Jewelers, Inc.

• Decision Date: 21 October 1943
• Citation: 51 N.E.2d 690,291 N.Y. 161
• Parties: PEOPLE v. RICHTER'S JEWELERS, Inc., et al.
• Court: New York Court of Appeals Court of Appeals

291 N.Y. 161

51 N.E.2d 690

PEOPLE

v.RICHTER'S JEWELERS, Inc., et al.

Court of Appeals of New York.

Oct. 21, 1943.

Appeal from Sureme Court, Appellate Division, First Department.

Richter's Jewelers, Inc., and others were convicted of false advertising, and they appealed to the Appellate Division of the Supreme Court, First Judicial Department. From a judgment of the Appellate Division, 265 App.Div. 767, 40 N.Y.S.2d 751, unanimously affirming a judgment of the Court of Special Sessions of the City of New York, McDonald, Hackenburg and Perlman, JJ., the defendants appeal by permission of the Chief Judge of the Court of Appeals.

Affirmed. Melvin A. Albert and Milton C. Weisman, both of New York City, for appellants.

Frank S. Hogan Dist. Atty., of New York City (David Riesman, Stanley H. Fuld, and Bernard L. Alderman, all of New York City, of counsel), for respondent.

LEHMAN, Chief Judge.

An Inspector of Weights and Measures of the Department of Markets of the City of New York, accompanied by another employee of the Department, entered a store operated by the defendant Richer's Jewelers, Inc., and asked to be shown a ring which was displayed in the store window with a tag attached stating: ‘1 Ct. Perfect Diamond. Platinum setting $265.’ She was assured by the salesman, the defendant Cutler, that the diamond in the ring was, in fact, a perfect one-carat stone and that the price had been reduced from $350 ‘to stimulate business.’ Believing, or at least suspecting, that the diamond weighed less than one carat and was imperfect, the inspector insisted on retaining the ring and the tag, promising to return the ring if upon examination it met the description upon the tag. Her right to retain the ring and tag was immediately challenged by the defendant Morris Richter, the president and manager of the corporation. He sent for his attorney, but the inspector refused to give up either the ring or the tag. Richter took the tag away from her but was told by his attorney to return it. An information was filed charging the three defendants with violation of section 421 of the Penal Law, Consol.Laws, c. 40, the offense which is popularly known as ‘Publishing a misleading advertisement.’ The defendant Richter was charged also with assault and unlawfully interfering with a public officer in the performance of her duty.

The defendants do not dispute that the ring was imperfect and that it weighed less than a carat. They produced evidence intended to show that the tag, intended for a perfect, one-carat diamond, had been attached by innocent mistake to an inferior smaller stone. The Court of Special Sessions might have accepted the explanation if it had chosen. It was not bound to do so. In any event, though innocent error might render the offense venial, a statement of fact which is untrue, deceptive, or misleading, placed upon a tag ‘with intent to sell or in any wise dispose of merchandise’ constitutes a violation of section 421 of the Penal Law even when the statement is made without ‘actual evil design or contrivance to perpetrate fraud or injury upon others.’ The statutory offense is committed by ‘material misrepresentations intended to influence the bargain’ though at times such misrepresentations may be due to lack of care rather than to dishonesty. People v. Federated Radio Corp., 244 N.Y. 33, 39, 41, 154 N.E. 655, 656.

The Court of Special Sessions found all the defendants guilty of a violation of section 421 of the Penal Law, as charged in the information, and found the defendant Richter guilty also of assault as charged. The Appellate Division unanimously affirmed the judgments convicting the defendants upon the charge of violation of section 421 but reversed, Martin, P. J., dissenting, the judgment convicting Richter upon the charge of assault and dismissed that charge. The court held that the seizure of the ring and tag was unlawful, and that the defendant Richter committed no offense by using force to prevent an officer of the law from doing an unlawful act. The defendants have appealed to the court by permission of the writer of this opinion. No appeal has been taken by the People. The evidence produced at the trial, if competent, is sufficient to sustain the judgments of conviction which we must review and we find no merit in the claim that the information charging the offense is fatally defective. The appellants rely mainly upon the contention that the ring and tag were seized unlawfully by the inspector and that property so seized cannot be received in evidence without violation of the right or privilege of the defendants, guaranteed by the Constitution of the State ‘to be secure * * * against unreasonable searches and seizures' (ar. 1, s 12) and that they shall not be compelled to be witnesses against themselves. (Art. 1, s 6.)

The People urge, at the outset, that in this case there has been no unreasonable or unlawful seizure. We do not pass upon that contention now. The Appellate Division has, as we have said, held otherwise, and no appeal has been taken from its judgment in favor of the defendant Richter based upon that holding. In People v. Adams, 176 N.Y. 351, 358,68 N.E. 636, 638,63 L.R.A. 406, 98 Am.St.Rep. 675, this court said ‘that the court, when engaged in trying a criminal cause, will not take notice of the manner in which witnesses have possessed themselves of papers or other articles of personal property which are material and properly offered in evidence.’ That is true, the court held, even where the evidence to which objection is made consists of the papers of a defendant relating to his private affairs which were offered in evidence only for the purpose of furnishing stadards of the defendant's handwriting and showing that the office in which other papers relating to the alleged offense were found was occupied by the defendant. ‘The manner in which the witnesses for the people became possessed of the documentary evidence is a matter of no importance.’ Page 359 of 176 N.Y.,page 638 of 68 N.E.,63 L.R.A. 406, 98 Am.St.Rep. 675. Its introduction in evidence, even if illegally seized by public officers, the court said, constitutes no violation either ‘of the Bill of Rights, which protects a citizen against unreasonable searches and seizures' or of the constitutional right of a defendant in a criminal case, to refuse to become a witness against himself. The judgments of conviction which we are now reviewing must be affirmed unless the court now rejects what was said and decided in People v. Adams.

We should not upon this appeal consider the question whether the seizure of the ring and tag was unlawful an in violation of the provisions of the Constitution if we adhere to the ruling that ‘the manner in which the witnesses for the peope became possessed of the * * * evidence is a matter of no importance.’

The decision in People v. Adams was affirmed by the Supreme Court of the United States in February 1904 (Adams v. People of State of New York, 192 U.S. 585, 597, 24 ,.sCt. 372, 375, 48 L.Ed. 575), the court saying: ‘We think there was no violation of the constitutional...