People v. Atkins

• Decision Date: 17 March 1959
• Parties: , 43 L.R.R.M. (BNA) 2805, 36 Lab.Cas. P 65,280 PEOPLE of the State of New York, Respondent, v. Charles T. ATKINS and Lee M. Barlow, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 336

183 N.Y.S.2d 336

7 A.D.2d 393, 43 L.R.R.M. (BNA) 2805,

36 Lab.Cas. P 65,280

PEOPLE of the State of New York, Respondent, v. Charles T. ATKINS and Lee M. Barlow, Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

March 17, 1959.

Abraham J. Gellinoff, New York City, of counsel (Frank Brenner, New York City, with him on the brief; Gershman & Gellinoff, New York City, attorneys), for defendant-appellant Charles T. Atkins.

Thomas Frawley, New York City, of counsel (Jacob Rassner, New York City, attorney), for defendant-appellant Lee M. Barlow.

Harold Roland Shapiro, New York City, of counsel (Frank S. Hogan, Dist. Atty., New York City, attorney), for respondent.

Before BOTEIN, P. J., and BREITEL, FRANK, McNALLY and STEVENS, JJ.

BOTEIN, Presiding Justice.

The only question presented on this appeal is whether testimony, otherwise inadmissible, was properly received in evidence when offered by the People solely for the purpose of furnishing allegedly necessary background material to make the proof of the crimes with which defendants were charged intelligible to the jury. Without the challenged testimony there was abundant evidence to justify the jury in finding defendants guilty beyond a reasonable doubt.

Defendants were convicted after trial in the Court of General Sessions of violating Section 380 of the Penal Law (Bribing of Labor Representatives). The indictment charged them with selling to one Sullivan, for the sum of $100, a job which it was within their power to assign to him, but which under the union's prescribed hiring formula should have gone to another union member. This single transaction was charged as the substantive count under Section 380, and also as the basis of a conspiracy count.

Defendant Atkins was president of Local 88, International Organization of Masters, Mates & Pilots, and defendant Barlow was its dispatcher. The local's rules provided that members could register with the local for off-shore jobs. They were given numbered registration cards and placed on a rotary hiring list in order of registration. When the dispatcher received a request to fill a vacancy, he would post a description of the job on the bulletin board in the hiring hall. After a particular job was posted, every member who desired it threw his card on the dispatcher's table and he was required to assign the job to the holder of the lowest number card.

Sullivan, the complainant, testified that he was a member of the International Union and as a qualified holder of a Master's license, registered with Local 88 for an off-shore job as a deck officer. He visited the hiring hall several times but no jobs of that description were announced. He then had occasion to accompany a friend to a navigation school operated by a Captain Bowen. Upon learning that Sullivan had a license, Bowen asked him if he would like to get a job. When answered in the affirmative, Bowen told him he could get one if he put one hundred dollars in an envelope and kept his mouth shut. Sullivan rejected the proposal, at that time, but some time later reported the overture to the District Attorney.

Acting thereafter pursuant to instructions received in the District Attorney's office, Sullivan returned to Bowen's office, and informed him he was now receptive. Bowen instructed him to take his, Bowen's, business card, on which he underlined his name, to place one hundred dollars in an envelope, give the envelope and card to either of the defendants and said he would get a job. Bowen emphasized the importance of presenting the card.

There followed several visits to the local union office, in the course of which Sullivan testified he made arrangements with Atkins and Barlow, was told to wait until a job was available, and soon did receive from Barlow the first job that became available. He thereupon turned over to Atkins an envelope containing bills furnished him for that purpose by the District Attorney. When the defendants were taken into custody each was in possession of fifty dollars in bills with serial numbers corresponding to those on the bills contained in the envelope.

Most of the conversations Sullivan had with defendants and Captain Bowen were recorded by a Minifon recording device concealed on his person.

Defendants testified that information about the job given Sullivan was not posted on the bulletin board because he was regarded as a hardship case, for whom a departure was made from the usual procedure. Also, they testified the hundred dollars had been pressed upon them as a sort of tip or gratuity, that the proffer of it did not influence them to give Sullivan the job, and that they had pocketed the money for subsequent disbursement to indigent seamen.

Sullivan testified to three conversations with Bowen--none in the presence of defendants--over strenuous objections that was made by defendants' counsel when the promise of producing such testimony was first adverted to by the prosecutor in his opening statement. These objections were repeated many times thereafter, but the testimony was admitted by the trial court 'for the limited purpose of lending clarity or significance or color to the sequence of events.'

The first conversation, which took place when Sullivan accompanied his friend to Bowen's school, was not recorded by mechanical device. He testified Bowen then told him he could get a job if he put a hundred dollars in an envelope and kept his mouth shut. Over a month later he reported this offer to the District Attorney, and then was instructed to telephone Bowen from the prosecutor's office. This conversation was recorded. Bowen was cautious about speaking on the telephone and told Sullivan to come to his office. Later that day Sullivan went to Bowen's school, and Bowen gave him explicit directions about giving the one hundred dollars to either defendant. This third conversation was recorded by the Minifon device, attached to Sullivan's person.

In People v. Gleason, 285 App.Div. 278, 136 N.Y.S.2d 220, this court had under consideration the admission of otherwise inadmissible background evidence on the theory that only against such a setting could the jury comprehend and knowledgeably resolve the issues presented by the indictment. In that connection we said:

'* * * It goes without saying that the introduction of such evidence must be carefully monitored by the trial judge, as it is an accommodation that the general rules of evidence must at times make to the exigencies of the particular instance. It is difficult to enunciate rules in anything but the most general of terms. Too much depends on the cast of the particular case and the techniques employed by the particular judge in guiding and instructing the jury. Background material of this nature is received as an explanatory preamble to the evidence on which the guilt or innocence of the defendant will be determined. Every precaution must be taken lest it spill over its barriers and distort the jury's contemplation of...