People v. Duffy

• Decision Date: 09 June 1914
• Citation: 212 N.Y. 57,105 N.E. 839
• Parties: PEOPLE v. DUFFY.
• Court: New York Court of Appeals Court of Appeals

212 N.Y. 57

105 N.E. 839

PEOPLE

v.DUFFY.

Court of Appeals of New York.

June 9, 1914.

Appeal from Supreme Court, Appellate Division, First Department.

Peter J. Duffy was convicted of bribery, and, from a judgment of the Appellate Division (160 App. Div. 385,145 N. Y. Supp. 699) affirming the conviction, he appeals. Affirmed.

Henry W. Unger, of New York City, for appellant.

Charles S. Whitman, Dist. Atty., of New York City (Robert S. Johnstone, of New York City, of counsel), for the People.

HISCOCK, J.

The defendant, who was a police sergeant, was indicted for, and convicted of, the crime of bribery in receiving a bribe or collecting ‘hush money’ from one Roth as a consideration for allowing the latter to maintain in the city of New York a gambling resort in defiance of the law. Although the defendant both by his own testimony and otherwise denied the charge, the evidence as a whole presented for the jury a fair question of fact whether he was guilty or innocent, and of the various reasons assigned by his counsel why the judgment should be reversed only two seem to us to require discussion, and the facts will be stated only so far as may be necessary for their consideration and decision.

The first contention is that the term of court at which the defendant was tried and convicted was not legally convened and organized, and the second one is that evidence was improperly received tending to show the commission by the defendant and another of other similar crimes. These contentions will be considered in the order stated.

[1] In November, 1912, the justices of the First Appellate Division concededly in accordance with law appointed a series of trial terms of the Supreme Court to be held in and for the county of New York, and amongst them a term commencing on the first Monday in June, 1913, and duly assigned Mr. Justice Page to hold said term. There is no question that a list of these appointments was duly filed with the Secretary of State and a copy thereof published as required by section 33 of the Executive Law.

Thereafter, also concededly in accordance with law, said justices designated Mr. Justice Goff in the place of Mr. Justice Page to preside at said term of court. The justice so last designated duly convened the court and held the same until June 12th, when an order was entered on the minutes of the court adjourning the term without day. June 18, 1913, the justices of the Appellate Division made a new order, a copy of which is not printed in the record, but by which it seems permissible to assume that they appointed a new Trial Term commencing Monday, June 23d, and assigned Mr. Justice Seabury to hold the same. It was at the term commencing on the last-mentioned day that the defendant was tried and convicted, and the complaint against the legality of the term seems to be confined to the assertion that it was not lawfully held because no notice of the appointment of said term was or could be published once a week for three consecutiveweeks before the term commenced, as it is asserted was necessary under the provisions of section 33 of the Executive Law (Cons. Laws, c. 18), which reads:

‘The Secretary of State must immediately publish a copy of an appointment, filed with him, * * * in the newspaper printed in Albany in which legal notices are required to be published * * * of a term or terms of the Supreme Court * * * at least once in each week, for three successive weeks before the holding of a term in pursuance thereof.’

It seems to be assumed by the defendant's counsel that the justices of the Appellate Division did, and had the right to, appoint this as a new term of court under section 84 of the Judiciary Law (Cons. Laws, c. 30), which provides:

‘The justices of the Appellate Division in each department may fix the times and places for holding special and trial terms therein, and assign the justices of the departments to hold such terms; * * * and may from time to time make additional appointments and designations, or change or alter those already made. The justices of the Appellate Division in the first department shall on or before the first day of December in each year, fix a time and place for holding special and trial terms of the Supreme Court in the first judicial district, and assign the justices to hold the same, such designations to be filed in the office of the Secretary of State.’

We do not think that the objection to the legality of this term is well founded for various reasons.

In the first place, there does not appear to have been any omission to comply with the terms of the statutes governing the subject. Section 33 of the Executive Law only, and of necessity, requires publication of a ‘copy of an appointment’ which by law is filed with the secretary of state. Section 84 of the Judiciary Law requires the filing in the office of the secretary of state of ‘such designations” as said section requires the justices to make on or before the 1st day of December in each year, and so far as I can discover there is no law, whether it be an intentional omission or not, which required to be filed with the secretary of state a copy of an appointment of the extra or additional term which was appointed to be held in June, and at which the defendant was tried.

[2] But if it should transpire that through failure to discover some other applicable statutory provision there is some flaw in this answer to defendant's contention, another effective one may be made on the broad merits of the proposition which he argues.

The defendant was not indicted at the term of court referred to, but at a preceding term, the legality of which is undisputed . He had timely notice of the term at which he was tried, and there is no doubt that the jury before whom he was tried was selected from a panel summoned under and in accordance with the provisions of a valid statute. The court itself was appointed by the Appellate Division which had power to appoint it, and all of its proceedings were conducted in accordance with the due forms of law as prescribed by the Constitution and by the statute. It is not claimed that the defendant's rights were in any manner diminished or prejudiced by the alleged omission of which he complains, and under such circumstances his objection of a purely technical nature and outlining no real harm to him, even if otherwise well made, will not be upheld for the purpose of reversing the judgment. People v. Youngs, 151 N. Y. 210, 45 N. E. 460;People ex rel. Weick v. Warden, 117 App. Div. 154,102 N. Y. Supp. 374, affirmed on opinion below, 188 N. Y. 549, 80 N. E. 1118;People v. Sullivan, 115 N. Y. 185, 21 N. E. 1039;People v. Borgstrom, 178 N. Y. 254, 70 N. E. 780;People v. Ebelt, 180 N. Y. 470, 73 N. E. 235.

[3][4] We next proceed to the consideration of the other error alleged by the defendant, that evidence of the commission of other crimes by him, as well as by another person, was improperly admitted. The evidence thus referred to was of very substantial importance, and if it was improperlyadmitted a serious error was committed which calls for a reversal of the judgment.

The facts necessary for the consideration and determination of this assignment of error are as follows:

The indictment charged defendant with collecting a bribe on or about September 3, 1912, from one Roth, as a consideration for unlawfully allowing him to maintain a gambling house, and subsequently by amendment this date was changed to September 10, 1912. The gambling rooms maintained by Roth were at all times situated in the Sixth inspection police district. Prior to July 1, 1912, they were also located in the Forty-Third police precinct, but on said last-mentioned date they became included in a new precinct defined as number Thirty-Seven. The defendant was a sergeant of police assigned to duty in this last precinct. During most of the time covered by the evidence one Fox was a patrolman assigned to duty in the earlier Forty-Third precinct.

Evidence was received, the competency of which cannot be seriously challenged, that at about the date when the creation of the new precinct became effective defendant sought an interview with Fox and asked him for a list of the places from which he had been collecting, telling him that he was going to collect from them in the future. The defendant said to Fox:

‘I want a list of the places from which you have been collecting from, that were formerly in the Forty-Third precinct, that go into the new Thirty-Seventh precinct; I want the names of the persons from whom you received the money; I want the time that you receive it and the amount;’ that he wanted this information because he was going to collect from them in the future.

Fox gave him the list of places with names and details as requested, and the defendant wrote them down in a memorandum book. This list comprised the names or designations of six individuals with the location of their respective ‘places' and the respective amounts and monthly dates of collections made from them. Amongst the names so included were those of Roth and of three other individuals, Quackenbush, Lennon, and Wilkins, who the jury had a right to find were also keepers of gambling resorts. Then was given the evidence complained of and which may be divided into two classes. Roth and the three other persons mentioned were allowed to testify that for a considerable period prior to the formation of the new precinct they had respectively made monthly payments to Fox, which the jury could find were bribes for police protection. The other class of evidence consisted of testimony given by said individuals other than Roth that during the period ensuing the formation of the new precinct down to and in one case after the date of the bribe mentioned in the indictment they made monthly payments to the defendant, and which payments it is assumed the jury could also find were bribes for police protection.

In addition to this evidence, and as of importance in the...