People v. Gittelson

• Decision Date: 14 April 1966
• Citation: 268 N.Y.S.2d 779,25 A.D.2d 265
• Parties: The PEOPLE of the State of New York, Respondent, v. Bernard GITTELSON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 779

268 N.Y.S.2d 779

25 A.D.2d 265

The PEOPLE of the State of New York, Respondent, v. Bernard GITTELSON, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

April 14, 1966.

Joseph E. Brill, New York City, of counsel (Robert E. Goldman and Bernard J. Levy, New York City, with him on the brief), for appellant.

Burton B. Roberts, New York City, of counsel (H. Richard Uviller, New York City, with him on the brief; Frank S. Hogan, Dist. Atty.), for respondent.

Before BREITEL, J.P., and RABIN, VALENTE, EAGER and WITMER, JJ.

EAGER, Justice:

This is an appeal from a judgment of conviction grounded upon defendant's plea of guilty to 10 of the 27 counts of an indictment charging him with perjury in the first degree (felonies) in many instances of false testimony before a grand jury. The testimony was given in connection with an investigation of an alleged conspiracy to bribe a high ranking New York City official to use his influence in the matter of awarding, without bidding, a contract for the purchase of parking meters by the City.

The defendant was sentenced to the Penitentiary of the City of New York for a term of one year and to pay a fine of $5000 on each of the 10 felony convictions, with a direction that the prison terms of one year on the several counts should run concurrently. An alternate term of six months in the Penitentiary was imposed in lieu of the payment of the $5000 fine on each of the 10 convictions, the ten terms of six months to be served consecutively with each other and with the separately imposed one year penitentiary term.

This appeal is maintained by the defendant solely for the purpose of attacking the sentences which he alleges are unduly harsh and excessive. The sentences imposed were, however, well within the statutory limits--a 'term not exceeding five years, or by a fine of not more than five thousand dollars, or by both'--applicable to each of the 10 convictions. (See Penal Law, § 1633.) Furthermore, it appears that the one year imprisonment in the Penitentiary on each count, to run concurrently, and the fine of $5000 on each count, do represent a very carefully considered and well grounded exercise of the sentencing court's discretion on the basis of the record and the pre-sentence investigation data.

The defendant was the president, treasurer and part owner of a company engaged in public relations work. He or his company was retained by individuals representing a parking meter company interested in selling parking meters to the City of New York. On his representations that money would be needed for the alleged purpose of bribing city officials to purchase the particular meters, he induced the parking meter company or certain individuals associated therewith to pay over to him $50,000 to use for this purpose. As stated by the court at time of sentencing, '* * * this was his scheme and he tempted the others into it. He persuaded one person after another to go along, to accept his own version. He slandered a high public official. He stole $50,000. He hatched stories and conspiracies to cover his transaction.'

While appearing before a grand jury investigating the matter, after having received full immunity, the defendant deliberately chose to commit perjury in an attempt to thwart the investigation. At the time of his plea of guilty, he admitted that he had knowingly and willfully testified falsely in many instances with respect to the sources and purposes of the $50,000 and with respect to his conversations with a certain individual representing the parking meter company. Then, as stated by the court, 'he collapsed only when he was faced by the inevitable'.

At the time of his plea, on the admission that he had received the sum of $50,000 from the parking meter company, he was admonished as follows:

'You understand, Mr. Gittelson, that before you are to be sentenced in this case, before I will impose sentence, you will be called back before the Grand Jury before which you committed these various acts of perjury, and you will then again be called upon to testify in connection with these various matters, and you will then be called upon to tell the absolute truth with respect to all of these matters, fully, completely and fairly; do you understand that?

The Defendant: Yes, sir.

The Court: And do you understand that, in great measure, what happens to you on the sentence will depend upon the degree to which you do precisely that before the Grand Jury?

The Defendant: Yes.

The Court: You understand that?

The Defendant: Yes.'

Pursuant to this understanding, the defendant again appeared before the grand jury and testified at length in response to questions intended to elicit from him information concerning his disposal of the $50,000. The court, after reading some 500 pages of the grand jury testimony and on consideration of the exhibits, remarked:

'Here was a man who was in the habit of paying by check; who used accountants regularly, but who, all of a sudden spent a lot of cash, he said--cash, he said, which was all gone by May of 1962. And he kept switching from one story to another before the grand jury.

One of the things he said is that he had spent this missing money out of pocket in some four-months period of time. This takes a lot of doing over and above one's regular income, over and above the regular salary that he was receiving and over and above the other cash that he had and he gave another explanation.

He said that the reason that a lot of this money was claimed by him to have been spent a long time after his last visit to the box was that he took out ten thousand dollars in cash and had that lying around the house all of this time. Then he said that he used it on a number of trips to Europe, but it developed that he had only made one trip to Europe before May of 1962 from the time he got the second payment from Mr. D--- in Chicago.

Then he said he bought art in Europe and the reason there was no customs declaration to back him up was that all of this was stuff that didn't have to be declared and as the district attorney indicated, this came to a maximum of $200 a picture. And how this could have been brought back from Europe without records of some kind, I don't know.

'Then he said he used it to buy things for the house, but the people who were the suppliers for the house came in and said in certain instances--indicated that they were not paid in cash, they were paid by check and he was given credit for the cash payments that were actually made.

The grand jury felt that his story was incredible. I arrive at the same conclusion. This man has failed to account for the money which he got from Mr. D---. He has failed to account for at least one-third of the second twenty-five thousand dollars and probably more. It isn't necessary to pinpoint this.'

These conclusions of the court were fully justified and, certainly, the court in fixing the sentences, properly took into consideration the defendant's evasiveness and lack of cooperation in his testimony before the grand jury.

On imposing sentences, the court stated specifically that 'there was an automatic, or built in, stay of the fines, or the alternative six months jail sentences, until he (the defendant) has finished with the Penitentiary sentences (one year)'. The court undoubtedly had in mind the possibility that the defendant might yet fully cooperate with the district attorney; the court stating that he was 'quite certain that the District Attorney will be glad to hear him and I will hear anything the District Attorney may have to say to me in the interval'. It is well to note that, under the Code of Criminal Procedure (§ 484), the power exists in the court to remit a fine or any portion thereof; and insofar as defendant's lack of cooperation may have been a factor in fixing the fine, the defendant was not left without a remedy in case he demonstrated his willingness to assist the District Attorney or present satisfactory proof of his actual and truthful inability to give further material information in aid of the investigation.

Independent of and without regard, however, to the impression of the court that the defendant may have withheld information from the grand jury, the court undertook to and did impose proper and well-grounded sentences. The court was duly attentive to its responsibility to 'evaluate the possibilities of the rehabilitation of the defendant as a useful and responsible member of the community.' (See People v. Silver, 10 A.D.2d 274, 276, 199 N.Y.S.2d 254, 256 (Valente, J.). In this connection, the defendant's present mental and emotional problems were fully considered as well as his alleged need for psychiatric therapy. On consideration of psychiatric reports submitted prior to sentence, the court observed that the defendant 'was a neurotic with a strong drive to get things done * * * This type of person is always full of anxieties, but withall, well adjusted because by his very anxiety, by his attention to detail, by his continually working and operating, he has been able to accomplish many things.' The court noted that one of the psychiatrists had given the opinion that incarceration would be destructive of the defendant's chances for rehabilitation, but he also noted that another psychiatrist had in effect indicated that the psychiatrists' opinion may not 'usurp the judicial prerogative in which many other social factors come into play in arriving at a decision other than psychiatric disability.' Although conceding defendant's need for therapy, the court further observed that it was also imperative that people know that adequate punishment would be meted out for serious criminal acts, such as those committed by the defendant.

Notwithstanding the importance of the rehabilitative aspect in imposing sentence, a court should give due consideration to the fact that a sentence should 'encompass the community's condemnation of the defendant's misconduct'. (...