People v. Scheppa

• Decision Date: 06 June 1946
• Citation: 295 N.Y. 359,67 N.E.2d 581
• Court: New York Court of Appeals Court of Appeals
• Parties: PEOPLE v. SCHEPPA.

295 N.Y. 359

67 N.E.2d 581

PEOPLE

v.SCHEPPA.

Court of Appeals of New York.

June 6, 1946.

Appeal from Supreme Court, appellate Division, Second Department.

John J. Scheppa was convicted in the County Court of Kings County, Leibowitz, J., of the crime of extortion. From a judgment of the Appellate Division of the Supreme Court, entered October 15, 1945, 269 App.Div. 949, 58 N.Y.S.2d 332, which affirmed the judgment of the County Court, the defendant appeals by permission of an associate judge of the Court of Appeals.

Affirmed.

The crime of extortion, unlike crimes of riot or conspiracy, can be committed by one person without any confederate. Samuel Bader and Harry G. Anderson, both of New York City, for appellant.

Miles F. McDonald, Dist. Atty., of Brooklyn (William I. Siegel, of Brooklyn, of counsel), for respondent.

DESMOND, Judge.

Appellant and a codefendant, Calabria, were accused by one Ambrogi, proprietor of a Brooklyn garage, of obtaining money from Ambrogi by threats. The joint indictment on which appellant and Calabria were tried contained two counts: one for extortion, the other for conspiracy to extort. The same alleged taking of money was pleaded as the extortion and as one of the overt acts in the conspiracy count. At the close of the trial the County Judge, without objection, dismissed the conspiracy charge. The jury then acquitted Calabria and convicted appellant, of extortion, and the Appellate Division affirmed the judgment of conviction.

In appellant's main point he argues that the verdict against him was inconsistent with the jury's finding that his codefendant was innocent. If the conspiracy charge had gone to the jury and the jury had found one man guilty and the other not, that verdict would have been so self-contradictory as to be a nullity. ‘Upon an indictment (for conspiracy) against two only, where no others are named, the rule commonly stated is that an acquittal or reversal as to one is an acquittal or reversal as to the other.’ People v. Kuland, 266 N.Y. 1, 2, 193 N.E. 439, 97 A.L.R. 1311. This is so because ‘conspiracy imports a corrupt agreement between not less than two with guilty knowledge on the part of each.’ Morrison v. People of State of California, 291 U.S. 82, 92, 54 S.Ct. 281, 285, 78 L.Ed. 664. ‘If the act is indivisible, such as conspiracy or riots, then one cannot be convicted without the other.’ Klein v. People, 31 N.Y. 229, 235. Here the conspiracy accusation had been stricken from the indictment before the case went to the jury. Appellant's counsel, however, says that even without the express charge of conspiracy, the theory of the prosecution throughout was that the two defendants had acted in concert, and that the rule hereinabove quoted from People v. Kuland should, therefore, apply.

The People did assert and insist at the trial that the two defendants were acting together, each with the same guilty intent. But the crime of extortion, unlike the crimes of riot or conspiracy or the crime charged in People v. Munroe, 190 N.Y. 435, 83 N.E. 476, can be committed by one person without any confederate. Calabria, the acquitted defendant, did take part in the conversation in which, as the jury found, the threats were made which influenced Ambrogi to part with his money. Indeed Calabria, talking to the complainant out of appellant's hearing, elaborated on appellant's threatening statements and urged the complainant to make the payment demanded. The money was later actually paid to Calabria, to be turned over to appellant, and there is no proof that Calabria did turn it over. But there was testimony from which the jury could find that Calabria was acting not as an agent for, or collaborator with, appellant, but as a friend of complainant, believing, however mistakenly, that discretion in compliance would serve complainant better than valor in resistance. Calabria was complainant's acquaintance, appellant...