People v. Fiore
| Decision Date | 31 December 1962 |
| Citation | 188 N.E.2d 130,237 N.Y.S.2d 698,12 N.Y.2d 188 |
| Parties | , 188 N.E.2d 130 The PEOPLE of the State of New York, Respondent, v. Vincent D. FIORE (Also Known as 'Cricky' Fiore), Dennis P. O'Dowd, RobertBogan, Frank S. Macner, Leonard Custodero and Pasquale Fragetta, Appellants. |
| Court | New York Court of Appeals Court of Appeals |
Edward H. Levine and Vernon C. Rossner, New York City, for Vincent D. Fiore, Appellant.
Paul R. Shanahan, Syracuse, for Dennis P. O'Dowd, appellant.
Henry E. Taylor, Syracuse, for Robert Bogan, Frank S. Macner, Leonard Custodero and Pasquale Fragetta, appellants.
Louis J. Lefkowitz, Atty. Gen. (Robert Fischer and Maxwell B. Spoont, Utica, of counsel), for respondent.
In January, 1958 the Joint Legislative Committee on Government Operations of the New York State Legislature and the Commissioner of Investigations of the State of New York commenced imquiries into law-enforcement practices of the City of Utica. In June the Attorney-General superseded the District Attorney of Oneida County in certain areas of investigation and prosecution, including public offices, prostitution, bribery and official corruption. Thereafter, an Original Grand Jury was impaneled in November in connection with the Extraordinary Special and Trial Term of Supreme Court, Oneida County. In January and February of 1959 this Grand Jury returned felony indictments charging Irene Burke and Lee Clarke with operating houses of prostitution. They were convicted of the crimes charged in May, and, after exhausting appellate review, they testified before the Original and the Additional Grand Jury concerning official protection of their operations in Utica. As a result of this testimony and certain wire intercepts of telephone conversations, introduced at their trial, the Additional Grand Jury indicated appellants in July, 1960.
The indictment charged Fiore, former Senior Deputy Chief of Police of the City of Utica, with aiding and abetting Irene Burke in receiving the proceeds of prostitution by protecting her from danger of arrest from August, 1954 through December, 1956, and during November, 1957. Fiore and the appellant police officers under his command, Bogan, Macner, Custodero and Fragetta, were charged with falsely testifying under oath before Oneida County Grand Juries and the Office of the Attorney-General that they had no knowledge that houses of prostitution were operating in Utica. Fiore, and O'Dowd, a political figure and city official in Utica, were charged in separate counts with attempting to procure Irene Burke to withhold testimony from investigating bodies; and O'Dowd was also charged with bribing Irene Burke during the period from October to December, 1959 to withhold testimony from the Original Grand Jury. Finally, all of the appellants were charged with conspiring to obstruct justice from December, 1957 to July 1960, in that they attempted to conceal from the investigating bodies inquiring into vice and official corruption in Utica the existence of a prior conspiracy, between the appellants and Irene Burke, to protect Burke's prostitution operations.
The People contend that the appellants were parties to a conspiracy which existed from August, 1954 to November, 1957 for the purpose of permitting Irene Burke to operate houses of prostitution in Utica without danger of arrest. Allegedly, O'Dowd gave her permission to operate with the consent of Fiore. Bogan, Macner, Custodero and Fragetta aided in the conspiracy through affirmative acts in furtherance of Burke's criminal activities and through their failure to enforce the prostitution laws or disclose knowledge of her prostitution operations. Thereafter, appellants, in order to conceal their relationships with Irene Burke from the aforementioned Commissioner of Investigations, the Joint Legislative Committee, and the Oneida County Grand Juries, agreed to deny knowledge of the existence and operation of houses of prostitution in Utica, to give false and evasive testimony in relation thereto and to attempt to prevent Irene Burke from disclosing to these investigating bodies her arrangement with appellants.
The proof of the crimes charged consisted of the testimony of Irene Burke and Lee Clarke, denominated as co-conspirators and accomplices, the testimony of prostitutes and other non-accomplice witnesses, the contents of certain telephone conversations intercepted and recorded by Bogan and Macner, and the sworn testimony of Fiore, Bogan, Macner, Custodero and Fragetta before the Commissioner of Investigations, the Joint Legislative Committee and the Oneida County Grand Juries.
Aware of the importance of determining the sufficiency of the evidence as to each defendant in mass conspiracy trials, we find that there is more than enough legal evidence to support the convictions of (a) Fiore, Bogan, Macner, Custodero and Fragetta for committing perjury, (b) Fiore and O'Dowd for attempting to procure Burke to commit perjury, (c) O'Dowd for bribing Burke to influence her testimony before the Grand Jury, and (d) all of the appellants, except O'Dowd, for conspiring to obstruct justice.
The evidence supports the determination that the police officers agreed to lie about their knowledge of prostitution operations in Utica, and negates the likelihood 'that each (officer) present decided for himself that it would be wiser not to discuss all that he knew' (United States v. Bufalino, 2 Cir., 285 F.2d 408, 411, 415). The chain of command connecting the police officers, exhibited by Fiore's control over the Confidential Squad (Bogan and Macner) and the Pawnshop Detail (Custodero and Fragetta), becomes forged into a conspiratorial bond through evidence of the arrangements made by the police to hospitalize a witness subpoenaed by the Grand Jury investigating vice in Utica, their efforts to compel the prostitutes to leave Utica, their concerted perjuries and the police officers' admissions that they discussed and co-ordinated their testimony before the Grand Jury. However, the necessary link connecting the criminal activities of O'Dowd with the conspiratorial scheme of the police officers is missing. The testimony of Burke and the other witnesses reveals that O'Dowd's sole concern and efforts were in his own behalf and not that of his alleged co-conspirators. There is no testimony implicating O'Dowd with any of the other appellants or with their testimony before any investigative body or agency. The People have not adequately established his guilt of this charge independent of his participation in the antecedent conspiracy.
Fiore's motion to dismiss the count charging him with violating the Penal Law, Consol.Laws, c. 40 (§§ 2, 2460, subd. 8) aiding and abetting Irene Burke in the crime of knowingly receiving money from proceeds earned by women engaged in prostitution should have been granted.
The testimony of Irene Burke, an accomplice, showed quite clearly that Fiore was a puppet in the conspiracy protecting Burke's operations, and not the puppeteer as were the defendants in People v. McKane, 143 N.Y. 455, 38 N.E. 950; People v. Becker, 215 N.Y. 126, 109 N.E. 127; People v. Luciano, 277 N.Y. 348, 14 N.E.2d 433, and People v. Hines, 284 N.Y. 93, 29 N.E.2d 483. At the outset he informed her that he did not have the power to grant her permission to operate a house of prostitution, since he was 'only a police officer' a clear indication that he was subject to the orders and directions of another. At later stages of the operation her activities were suspended without his knowledge and in spite of his wishes. He was, according to Burke, unable to make commitments until he had consulted with an unidentified person or persons. Although Fiore was derelict in his duty by doing nothing to interrupt or prevent Burke's unlawful business, such dereliction does not constitute a violation of section 2 of the Penal Law with regard to subdivision 8 of section 2460 of the Penal Law. The principal object of section 2460 is 'to get the tycoons of organized vice * * * men such as the defendant in People v. Luciano, 277 N.Y. 348, 14 N.E.2d 433 * * * to punish those (People v. Jelke, 1 N.Y.2d 321, 326, 152 N.Y.S.2d 479, 483, 135 N.E.2d 213, 216).
The corroborating evidence relied upon by the prosecution does not satisfy the requirements demanded by section 399 of the Code of Criminal Procedure. The testimony of the prostitutes did not tend to indicate that it was Fiore who aided and abetted Burke. Proof of perjurious statements and his efforts to induce Burke to commit perjury merely established the fact of an acquaintanceship with Burke; it did not indicate the nature of their relationship. Hence, there is no competent evidence in the record which supports a conviction for the commission of the crime defined in section 2 of the Penal Law as applied to subdivision 8 of section 2460 of the Penal Law.
Appellants argue that, even if the evidence is sufficient, reversible error was committed when the trial court permitted the People to utilize a 'conspiracy device' for the purpose of introducing into evidence transactions and conversations otherwise inadmissible. This 'conspiracy device' consisted of charging the appellants with conspiring to conceal from various investigating bodies the existence of a prior conspiracy, not charged in the indictment and prosecution for which was barred by the Statute of Limitations. It is urged that, if appellants cannot be prosecuted for committing a particular crime, the evidence proving the commission of the crime is inadmissible, and the admission of such evidence, regardless of the scheme used, is prejudicial and constitutes error.
It is, of course, axiomatic that evidence improperly admitted cannot be used to sustain a conviction. But proof of the conspiracy charged in the indictment is not...
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