People on Complaint of Emuru v. Rosenberg

Decision Date14 February 1957
Citation6 Misc.2d 529,159 N.Y.S.2d 912
PartiesThe PEOPLE of the State of New York, on complaint of Policewoman Evelyn EMURU, v. Mae ROSENBERG, Defendant. City Magistrate's Court of City of New York, Williamsburg Court, Borough of Brooklyn
CourtNew York Magistrate Court

Rose Weisler, New York City, Police Legal Bureau, for the people.

Leonard R. Arnberg, Brooklyn, for defendant.

WALLACH, City Magistrate.

The defendant was charged with being a disorderly person, and is alleged to have violated Section 899, subdivision 3 of the Code of Criminal Procedure.

The issue involved herein, is one of law, since the defendant offered no proof at the end of the People's case and rested upon the whole case and relied upon the presumption of innocence and the correlated duty cast upon the People to prove her guilty beyond a reasonable doubt.

The facts elicited, briefly, are as follows:

On November 5, 1956, at about one o'clock in the afternoon of that day, the complainant, a policewoman, called at the tearoom premises of the defendant at 233 Duffield Street, Brooklyn, New York, and ordered a lettuce and tomato sandwich and a cup of tea. After her 'repast,' the complainant was escorted over to a table where the defendant was seated, and the defendant spread cards in front of the complainant, and proceeded to predict the future course of events in the life of the complainant, observing very prophetically that the review of the cards in the hands of the defendant indicated that the same looked very good for her, telling her of the forthcoming mixed happy events in her life, and that she (the complainant), was the first customer that she (the defendant) had for the day.

As the complainant proceeded to leave, she noticed a plate with 50cents on the side of it, which was placed before her.

The complainant thereupon also left 50cents, although the defendant did not ask or request this fee in question. All that the defendant did was to set up the proverbial 'props' for a contribution by the complainant, of the same or similar sum, or for that matter, any sum, depending upon the self-will of the hearer of the prognostications as to future events by the defendant. The proof also indicated that there was a sign on the wall of this particular tearoom, which indicated that readings were for pleasure and for fun only, and this same characterization of the act of 'soothsaying' by the defendant was contained on the menu, which read:

'Free readings for entertainment and amusement also. No charge. In requesting a free reading, whatever is told you is in the spirit of fun and amusement only and in no way to be considered as fortune telling.' (Italics the writer's.)

Additionally, on a slip of paper signed by the complainant, the following was contained thereon:

'Scotch Tearoom & Luncheon

'I, being of full mind and intelligence, and knowing full well that future events cannot be predicted, or foretold, by requesting this free character reading agree that it shall in no way be interpreted by me, nor does it represent the telling or prediction of the future; that it is being given to, and accepted by me solely and only for my entertainment and amusement and no fee has been requested or charged therefor; and that I have read, do understand and agree to the statements made herein.' (Italics the writer's.)

The defendant, in having rested at the end of the People's case, after motions were made by her to dismiss the complaint upon grounds that the People failed to prove the guilt of the defendant, decision in connection therewith had been reserved by the Court, contended, amongst other things that

(a) the wording of the statute; as well as

(b) the definitve, exculpatory written clause signed by the complainant,

precluded the defendant from being adjudged guilty.

For the sake of clarity, the statute in question provides, as follows:

' § 899. * * * The following are disorderly persons:

'1. * * *

'2. * * *

'3. Persons pretending to tell fortunes, or where lost or stolen goods may be found; but this subdivision shall not be construed to interfere with the belief, practices or usages of an incorporated ecclesiastical governing body or the duly licensed teachers or ministers thereof acting in good faith and without personal fee, nor shall it be construed to prohibit or prevent any show, trick, feat, display or other act or exhibition, performed by a magician or mentalist for purposes of amusement or entertainment and without personal fee.'

Historically, the statute in question, originally, was contained in the Revised Statutes and ultimately found its way into the body of the present Code. It was amended in 1929, and thereafter further amended in 1949, Chapter 803, laws of 1949, in effect April 25, 1949, so as to take from the orbit of its applicability, in so far as penal offenses are concerned, the acts performed by magicians or mentalists, for the purpose of amusement and entertainment and without personal fee.

Great reliance is placed by the defendant upon the exculpatory provision, signed by the complainant at her behest, in an attempt to seek to relieve and insulate her of the consequences of her act and to detract from its element of wrongdoing. However, an analysis of the statute, its prime social objective, and the reason for its enactment and enforcement, leads the Court to the...

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1 cases
  • People v. Fyfe
    • United States
    • New York County Court
    • February 25, 1957

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