People v. Formato
| Decision Date | 08 July 1955 |
| Parties | , 64 A.L.R.2d 812 The PEOPLE of the State of New York, Respondent, v. John FORMATO, James Morello, Pasquale Lepore and Hugo Torre, Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
A. Jack Rappaport, Binghamton, for defendants-appellants, James Morello and Pasquale Lepore.
Remo A. Allio, Johnson City, Smyk & Schwab, Binghamton, for defendants-appellants, John Formato and Hugo Torre.
Robert E. Fischer, Dist. Atty., of Broome County, Binghamton, for the People (Louis M. Greenblott, First Asst. Dist. Atty., Binghamton, of counsel).
Before FOSTER, P. J., and BERGAN, HALPERN and ZELLER, JJ.
The defendants were indicted for the crime of common gambling in violation of section 970 of the Penal Law and for the crime of conspiracy under section 580 of the Penal Law, the conspiracy charged being one to keep a gambling establishment in violation of section 973 of the Penal Law.
The indictment, as amended, charged that the common gambling had occurred between September 1, 1952 and January 18, 1953. An additional indictment charged three of the defendants (Formato, Lepore and Torre) with engaging in gambling from January 19, 1953, to the date of the additional indictment, April 6, 1953.
The proof indicated that the defendants had been under surveillance by the police authorities during the fall and winter of 1952. This culminated in a raid, on January 18, 1953, at the home of one Frank Biros in the City of Binghamton. The raid disclosed that the four defendants and others had been engaged in shooting dice in Biros' home. All the participants, with a single exception, were arrested and charged with being common gamblers but the charges were pressed only against the four defendants.
The People's proof showed that during the period from October 1, 1952, to the date of the raid, January 18, 1953, the defendants had participated in dice games at the homes of various householders in the City of Binghamton, upon over thirty occasions. The householders were called as witnesses but their testimony was extracted with great difficulty; it had to be eked out by reading to them portions of their testimony before the Grand Jury, which they reluctantly verified. It appeared from this proof that the householders, six in number, had agreed to hold dice games in their respective homes upon various nights. It may fairly be inferred from the evidence that their consent had been given in response to requests by one or more of the four defendants. The evidence also tended to establish that the defendants had invited or induced other players to attend the games. However, the defendants apparently participated in the games as ordinary players on a parity with the other players; they did not appear to be in control of the games. In some instances, the householders themselves participated in the games. In most instances, the players paid $2 each to the householder for the privilege of using the premises for the game; upon occasion, the householder also furnished light refreshments. In some instances, the defendants paid the $2 fee; in others, they did not. It is clear from the evidence that no part of the fee went to the defendants. It is also clear from the evidence that no percentage or cut of the money bet was taken out either for the householders or for any one else. There were no special rules of the game giving the defendants any advantage or 'edge' over the other players such as is given, according to the testimony, to the operator of a game played in a regular gambling house. When Biros' house was raided, loaded dice were found by the police but the defendants were not charged with cheating in violation of section 988 of the Penal Law, and there was no proof that the loaded dice had been put into the game by the defendants or had been used by them, so it must be assumed that any success which the defendants may have had in playing the game was not attributable to the use of loaded dice.
The prosecution was under the necessity of establishing, under the authorities construing section 970 of the Penal Law, that the defendants had not participated in the dice games merely as casual players but that they had participated in the games as a business or moneymaking pursuit. As the County Judge put it to the jury in his charge, in order to find the defendants guilty of the crime it had to be established that their participation in the games had 'a professional or commercial aspect'. The court further charged: . Furthermore, the court charged that there was another .
The charge correctly laid down the essential elements of the crime of common gambling. People v. Bright, 203 N.Y. 73, 96 N.E. 362; Watts v. Malatesta, 262 N.Y. 80, 186 N.E. 210, 88 A.L.R. 1072; People v. Farone, 308 N.Y. 305, 125 N.E.2d 582.
In addition to the evidence referred to above, there was some incidental testimony elicited by the prosecution from the householders and other participants in the games that, although they had known the defendants for a considerable length of time, they did not know of their being engaged in any business or regular occupation during the period covered by the indictment. This evidence was countered by testimony by witnesses called by the defendants that, during at least part of the period covered by the indictment, the defendant Formato worked part-time as a bricklayer's assistant, the defendant Lepore worked part-time at a parking lot operated by his wife, the defendant Morello worked at a grocery store operated by his sister and the defendant Torre worked as a waiter. This proof was, however, rather vague in character and was unsupported by payrolls or any other documentary evidence.
The additional indictment against three of the defendants, referred to above, charged that they played in a dice game with one Capalupo at the home of the defendant Formato on February 27, 1953, several weeks after the raid on Biros' home. The only proof of the charge was the testimony of Capalupo, who testified not only to the defendants' playing in the game but also to catching Formato using 'crooked' dice. The defendants assert that Capalupo was an accomplice as a matter of law and that, in the absence of corroboration, the charge based upon his testimony should have been dismissed. The court submitted the question of whether Capalupo was an accomplice as a question of fact to the jury. In view of the holding of the Bright case, supra, this was a correct disposition of the question since it could not be said as a matter of law that Capalupo had participated in the game as a professional gambler.
The conspiracy count also was submitted to the jury in a fair charge. It was the prosecution's contention, based upon the proof reviewed above, that it had established that the defendants had conspired with each other and with the householders to use the premises of the householders for gambling in violation of section 973 of the Penal Law.
The jury found that the defendants were guilty of the crimes charged in the indictments. This appeal followed.
Upon the whole record, the question of the guilt of the defendants was a question of fact for the jury and we would not disturb the verdict, if it were not for an error of law in the admission of evidence. The People were allowed to prove, over the objection of the defendants, seven prior convictions of the defendants for offenses relating to gambling.
The dates, places and nature of the convictions were as follows:
Defendant's Date of Conviction Nature of Offense Place of
Name Conviction
1. Formato November 21, 1950 Establishing a Pennsylvania
gambling place
November 11, 1949 Frequenter of gambling Binghamton
(for violation on establishment in violation
November 10, 1949) of section 12, Title IV,
Article 1 of city ordinance
2. Morello April 21, 1951 Playing in a gambling Binghamton
game in violation of
section 10, Title IV,
Article 1 of city ordinance
December 29, 1951 Violation of section 970, Binghamton
Penal Law
3. Lepore November 30, 1947 Violation of section 970, Owego,
Penal Law Tioga
County
December 29, 1951 Violation of section 970, Binghamton
Penal Law
4. Torre November 7, 1951 Violation of sections Binghamton
(for crime alleged to 970 and 986, Penal Law
have been
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