People v. Kirkup

• Decision Date: 12 June 1961
• Citation: 13 A.D.2d 987,216 N.Y.S.2d 749
• Parties: PEOPLE of the State of New York, Respondent, v. J. Milford KIRKUP, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 749

216 N.Y.S.2d 749

13 A.D.2d 987

PEOPLE of the State of New York, Respondent, v. J. Milford KIRKUP, Jr., Appellant.

Supreme Court, Appellate Division, Second Department.

June 12, 1961.

Griffing, Smith, Tasker & Lemburg, Riverhead, Herman J. McCarthy, New York City, of counsel, for appellant.

Louis J. Lefkowitz, Atty. Gen., Edwyn Silberling, Huntington, of counsel, for respondent.

Before NOLAN, P. J., and BELDOCK, UGHETTA, PETTE and BRENNAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant: (1) from a judgment of the Extraordinary Special and Trial Term of the Supreme Court, Suffolk County, rendered October 26, 1959, convicting him, after a jury trial, on one count of conspiracy to cheat and defraud, as a misdemeanor (Penal Law, § 580, subds. 1, 4, 6) and on twenty counts of aiding another in obtaining property in the possession of the county of Suffolk (Penal Law, § 1864), and sentencing him to serve a term of 90 days in the Suffolk County Jail on each of said counts, said sentences to run concurrently; and (2) from every intermediate order made in the action.

Judgment reversed on the law and new trial granted. The findings of fact below are affirmed. No separate appeal lies from the intermediate orders, which have been reviewed on the appeal from the judgment.

The proof in support of the indictments was sufficient under the law as previously established in this case (People v. Kirkup, 4 N.Y.2d 209, 173 N.Y.S.2d 574). The judgment must be reversed, however, for the sole reason that defendant was not accorded a fair trial.

Defendant was charged, as a public officer, with permitting the shipment of drugs to a county institution as the ostensible purchaser so that certain drugstore proprietors, the actual purchasers, could have the benefit of an institutional discount.

As the lengthy trial neared its conclusion on October 6, 1959, the prosecutor sought and obtained, over defendant's objection, the Trial Court's permission to cross-examine him again on the basis of an undisclosed letter, in order to show his control over the institution. The cross-examination proceeded with respect to the pruchase of meat for the institution. Then the prosecutor turned to the purchase of bread. Defendant testified that the chef at the institution ordered the bread.

Then the prosecutor asked defendant if he knew a man named John Hulsen. Mr. Hulsen was a political leader in the Town of Huntington who, on May 25, 1959, at the same Extraordinary Term of the Supreme Court, had been convicted of the crimes of conspiracy, attempted extortion and coercion; such conviction, however, having been reversed on July 20, 1960 by this court (People v Hulsen, 11 A.D.2d 816, 205 N.Y.S.2d 213, affirmed 9 N.Y.2d 730, 214 N.Y.S.2d 345). Prior to his conviction, Hulsen had also been tried on a similar charge.

With...