People v. Calandrillo

• Decision Date: 16 May 1961
• Citation: 29 Misc.2d 485,215 N.Y.S.2d 355
• Parties: PEOPLE of the State of New York v. Thomas A. CALANDRILLO, Defendant.
• Court: New York County Court

Page 355

215 N.Y.S.2d 355

29 Misc.2d 485

PEOPLE of the State of New York v. Thomas A. CALANDRILLO, Defendant.

Suffolk County Court.

May 16, 1961.

John P. Cohalan, Jr., Dist. Atty., Suffolk County, Riverhead (Harold Ashare, Asst. Dist. Atty., Patchogue, on the brief), for the People.

Weismann, Meyer & Wexler, Smithtown (Leonard D. Wexler, Smithtown, of counsel), for defendant.

ELLSWORTH N. LAWRENCE, Judge.

The defendant was formerly Executive Secretary of the Civil Service Commission of the County of Suffolk. He is now Commissioner of Jurors of that county.

In the summer of 1960 the Suffolk County Grand Jury commenced an investigation into irregularities in examination papers of candidates for Suffolk County police positions. The investigation was conducted upon a wide scale and continued until December 1960.

The Grand Jury returned an indictment against the defendant containing thirty-five counts. Fourteen of these were for forgery in the third degree; seven were for a violation of Section 1838 of the Penal Law; seven were for a violation of Section 2050 of the Penal Law; the remaining seven were for perjury, first degree allegedly committed before the Grand Jury where the defendant had testified under waiver of immunity.

The specific charges were centered around the examination papers of candidates Silvestri, Hamilton, Scola, Romler, Robertson, Dobler and Getz; the first three of these were candidates for appointment as patrolman in an examination taken April 20, 1957; the next two were candidates for promotion to lieutenant in an examination taken on November 16, 1957; the last two were candidates for promotion to sergeant in an examination taken on November 16, 1957.

All of the examination papers consisted of: First, an identification sheet containing among other things the handwritten name of the candidate and a serial number; secondly an answer sheet containing the same serial number and appropriate spaces for multiple answers to the questions. The examination papers for lieutenant also included essay questions.

At the start of the examination, each candidate was required to fill in the identification sheet in his own handwriting. He was then required to handprint upon the answer sheet such identifying data as the place of the taking of the examination, the position sought and further information.

In order to answer the questions on the answer sheet, the candidate, working with a printed questionnaire prepared for the County Civil Service Commission, was required to mark an 'x' in one of the answer spaces, selecting that space which he believed would correctly answer the question.

Where essay questions were used, they were required to be in the candidate's handwriting.

At the end of the examination, the candidates submitted all their papers to the monitors for the Commission.

The papers were thereafter kept at the Commission offices. In the ensuing weeks they were marked by employees at those offices. The method of marking consisted of placing a punched-out key answer chart over the answer sheet and using a red pencil to mark an 'x' where the space was blank. The person marking the paper, referred to as a 'rator', then tallied the result and graded the paper.

From these grades lists were prepared indicating both the names of those who had passed the examination and the grades received. Later appointments were made from such lists. Certain other factors, not particularly material here, were also involved. These included certain reevaluation of grades made by the Commission, the taking of physical tests and the like.

The obvious purpose of having separate identification and answer sheets was to insure that the 'rator' would not know whose paper was then being graded, for the practice was that the identification sheets and the answer sheets were kept separate from each other during the grading process.

The examination papers were required to be kept in the office of the Civil Service Commission by the provisions of Section 7, subdivision 4 of the Civil Service Law, regulation 4 of the Regulations of the Department of Civil Service and rule VIII Section 7 of the Suffolk County Civil Service Rules. Thus these are records which were deposited in a public office 'by authority of law'.

It is the people's claim that the original answer sheets of the seven persons named herein were removed by the defendant from the Civil Service Office, that the same were, therefore, concealed or destroyed in violation of Sections 1838 and 2050 of the Penal Law, that the answer sheets of such persons found in the office of the Commission during the investigation are forgeries made by the defendant and that the defendant lied in respect thereto during his testimony before the Grand Jury under waiver of immunity. It is upon those bases that the thirty-five counts were returned in the indictment against the defendant.

The defendant has moved to inspect the Grand Jury Minutes or alternatively for dismissal of the indictment. The Grand Jury evidence has been examined by the Court. People v. Gelia, 19 Misc.2d 1056, 1057, 192 N.Y.S.2d 43, 45.

The handwriting experts testified before the Grand Jury that the handprinting on each of the seven answer sheets was in their opinion forged and was forged by the defendant. The witnesses were competent to testify. There is nothing in Section 332 of the Civil Practice Act which precludes the admission of expert testimony of handprinting as distinguished from handwriting. Writing includes printing as well as writing. Penal Law, § 3. See also General Construction Law, § 56, defining the term writing as including every legible representation of letters upon a material substance, except when applied to the signature of an instrument.

So long as the genuine handwriting or handprinting of one person may be found to possess peculiar characteristics, the expert, comparing such with the disputed document, may express an opinion that such was not in the handwriting or handprinting of that one person and the expert may also by comparing the genuine handwriting or handprinting of another person with the disputed document, testify that in his opinion the handwriting or handprinting upon the disputed document was in the handwriting or handprinting of the second person.

Such evidence is competent. Its weight is for the jury. There is nothing to the contrary in Matter of Hopkins' Will, 172 N.Y. 360, 65 N.E. 173, 65 L.R.A. 95, nor Matter of Caffrey, 174 App.Div. 398, 161 N.Y.S. 277, affirmed 221 N.Y. 486, 116 N.E. 1038.

The answer sheets were a part of the examination papers. These were written instruments within the meaning of Section 880 of the Penal Law and subsequent sections. If the answer sheet was forged, then the examination paper was forged and the identification sheet of the examination paper bore a signature. This process might be compared to the raising of the amount payable on a negotiable instrument or the insertion of a different page in a will consisting of several pages.

There is no requirement in Section 889, subdivision 3 nor in Section 881, subdivision 3 of the Penal Law which limits those sections dealing with forgery in the third degree to cases 'designed to protect senders of letters, telegrams, reports, written communications and instruments from the unlawful activities of those who seek to injure and defraud them', as contended by the defendant. People v. Abeel, 182 N.Y. 415, 420-421, 75 N.E. 307, 1 L.R.A., N.S., 730. Intent to defraud is not an essential element of the crime of forgery in the third degree under subdivision 3 of Section 889.

Section 1838, subdivision 1 of the Penal Law is not limited to cases involving peculation by public officers. The charge is that the defendant mutilated, concealed or...