People v. Kohut

CourtNew York Court of Appeals
Writing for the CourtBREITEL; JASEN; BURKE; JASEN; BURKE, J., dissents and votes to reverse in a separate opinion in which FULD
Citation30 N.Y.2d 183,282 N.E.2d 312,331 N.Y.S.2d 416
Parties, 282 N.E.2d 312, 52 A.L.R.3d 910 The PEOPLE of the State of New York, Respondent, v. Philip B. KOHUT, Appellant.
Decision Date22 March 1972

Page 416

331 N.Y.S.2d 416
30 N.Y.2d 183, 282 N.E.2d 312, 52
A.L.R.3d 910
The PEOPLE of the State of New York, Respondent,
Philip B. KOHUT, Appellant.
Court of Appeals of New York.
March 22, 1972.

Page 418

[282 N.E.2d 313] [30 N.Y.2d 185] Maurice Edelbaum and Lawrence K. Feitell, New York City, for appellant.

[282 N.E.2d 314] William Cahn, Dist. Atty. (Henry P. DeVine, Mineola, of counsel), for respondent.

[30 N.Y.2d 186] BREITEL, Judge.

Defendant attacks an indictment charging him with the felony of taking unlawful fees as a public officer (former Penal Law, Consol.

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Laws, c. 40, § 1826). The issues turn on the failure of the indictment to allege facts tolling the Statute of Limitations, the applicable tolling statute, and the sufficiency before the Grand Jury of nonaccomplice corroboration (former Code Crim.Pro., § 399).

Philip Kohut, one-time dominant political leader in the City of Long Beach and Commissioner of Public Safety, was indicated in New York County in 1964 for accepting unlawful fees. The indictment was dismissed on motion upon the ground that New York County lacked territorial jurisdiction, with direction, however, that the matter be submitted to the Nassau County Grand Jury (49 Misc.2d 1035, 269 N.Y.S.2d 350; see 17 N.Y.2d 705, 269 N.Y.S.2d 715, 216 N.E.2d 708 as to direction to resubmit). The Appellate Division reversed and reinstated the indictment (25 A.D.2d 10, 266 N.Y.S.2d 141). This court, two Judges dissenting, reversed and held that the indictment had been properly dismissed (17 N.Y.2d 705, 269 N.Y.S.2d 715, 216 N.E.2d 708, Supra).

The present indictment was handed up in Nassau County 18 days after the dismissal of the earlier New York County indictment. The County Court, Nassau County, dismissed the indictment for untimeliness and insufficient accomplice corroboration. The Appellate Division unanimously reversed and reinstated the indictment (36 A.D.2d 953, 321 N.Y.S.2d 614).

The order should be affirmed. Limitation-tolling facts, saving an otherwise untimely prosecution, need not be alleged in an indictment. Moreover, the defense of time bar, absent a statute to the contrary, is to be raised on the trial and not on motion addressed to the sufficiency of the indictment. When properly raised the prosecution has the burden of establishing beyond a reasonable doubt facts tolling the limitation. There is an applicable[30 N.Y.2d 187] tolling statute. Nonaccomplice corroboration before the Grand Jury was adequate.

Defendant is charged with accepting.$23,500, in four installments of $5,875 each, from a manufacturer of parking meters. In return for these sums defendant, then Commissioner of Public Safety, allegedly induced the City of Long Beach to purchase approximately 1,500 to 2,000 meters. The indictment alleges these events to have occurred between 1957 and January, 1960. The indictment was handed up July 9, 1965, beyond the five-year period of limitation stipulated for felonies (Code Crim.Pro., § 142). No facts are alleged in the indictment which would toll the limitation.

To sustain the timeliness of the prosecution the People rely on section 144--a of the Code of Criminal Procedure which extends the time limit when a prior and timely indictment has been dismissed under circumstances allowing reindictment. Assuming the statute's

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applicability, a matter discussed later, defendant argues that the failure to allege tolling facts renders the indictment defective. A preliminary issue, therefore, is whether an indictment must allege the facts of a crime within the period of limitation, else allege further facts saving the prosecution under an applicable tolling statute.

Of statutes setting forth necessary allegations in indictments, none requires allegations avoiding time limitations (Code Crim.Pro., §§ 280, 284, subd. 5; 295--a; see, also, new CPL 200.50). The requirement, if any, is found in general principles of criminal pleading. Essential allegations are generally determined by the statute defining the crime. If the defining statute contains an exception, the indictment must allege that the crime is not [282 N.E.2d 315] within the exception. But when the exception is found outside the statute, the exception generally is a matter for the defendant to raise in defense, either under the general issue or by affirmative defense. (Compare People v. Devinny, 227 N.Y. 397, 401, 125 N.E. 543, 544 with People v. Bradford, 227 N.Y. 45, 47, 124 N.E. 118, 119; People v. Stedeker, 175 N.Y. 57, 66--67, 67 N.E. 132, 135; Fleming v. People, 27 N.Y. 329, 332--333; 1 Bishop, Criminal Procedure (2d ed., 1872), § 639; 1 Chitty, Criminal Law (5th ed., 1847), p. 223; Wharton, Criminal Practice and Pleading (9th ed., 1889), § 238.)

Limitations are imposed by independent statute. They are neither exceptions nor provisos as categorized in the cases. [30 N.Y.2d 188] Hence, in an analogous, if not a stronger sense, they are matters of defense, and avoidance need not be alleged in the indictment. The conclusion is reinforced by a long and all but unbroken series of precedents holding that indictments are not insufficient merely because on the facts alleged the crime may be time-barred.

The rule was first expressed in this State in 1821 in People v. Santvoord (9 Cow. 655), in which the issue had been extensively briefed. In a prosecution for forgery it appeared from the face of the indictment that the crime might be time-barred. On the trial and following objection of untimeliness by defense counsel, the People proved that the defendant had been outside the jurisdiction thus tolling the limitation. Defendant argued that the indictment was defective unless it alleged the tolling. The court in concluding that 'the day laid in the indictment must be regarded as wholly immaterial for all purposes' rejected contrary English authorities. The court noted the practice that untimeliness be raised under the general issue with the prosecution given an opportunity to prove facts to toll the limitation. (Id., at p. 660.)

For well over a century this rule of pleading and practice had been followed consistently. Once timeliness was raised under the general

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issue the prosecution had the burden of persuasion beyond a reasonable doubt that the limitation was tolled. (People v. Roe, 5 Parker Cr.R. 231 (Court of Oyer and Terminer, 1862); People v. Durrin, 2 N.Y.Crim.Rep. 328, 330--334 (Court of Oyer and Terminer, 1884); People v. Willis, 23 Misc. 568, 573, 52 N.Y.S. 808, 811--812 (1898); People v. Bailey, 103 Misc. 366, 171 N.Y.S. 394 (Goff, J., in an exhaustive opn., 1918); People v. Kaplan, 143 Misc. 91, 93--94, 256 N.Y.S. 874, 876--877, 878 (Rosalsky, J., 1932); People v. Brown, 238 App.Div. 155, 157, 263 N.Y.S. 267 (1933); People v. Brady, 257 App.Div. 1000, 13 N.Y.S.2d 789 (1939).) 1 True, other jurisdictions require that the indictment appear timely on its face and that tolling facts be pleaded (e.g., People v. Ross, 325 Ill. 417, 420--422, 156 N.E. 303; State v. Colvin, 284 Mo. 195, 198, 223 S.W. 585; State v. Tupa, 194 Minn. 488, 260 N.W. 875; Ann., Indictments--Showing As To Limitation,[30 N.Y.2d 189] 99 A.L.R. 153; 42 C.J.S. Indictments And Informations § 125, subd. e, pp. 1010--1011). Nevertheless, commentators at one time were unanimous that in New York, as in some other States, the rule was otherwise (1 Chitty, Criminal Law (5th ed., 1847), p. 223, Supra; 1 Bishop, Criminal Procedure (2d ed., 1872), § 405, pp. 244--245, Supra; 1 Bishop, Pleading and Evidence and the Practice in Criminal Cases (4th ed., 1895), pp. 251--252; Wharton, Criminal Practice and Pleading (9th ed., 1889), § 318, pp. 217--218, Supra). Bishop on Criminal Procedure, after noting that in reviewing the sufficiency of an indictment the time stated[282 N.E.2d 316] will be assumed to be true, observed: 'From this principle it might seem to follow, that, if, taking the time alleged in the indictment to be the true time, the offense is barred by the Statute of Limitations, the indictment will be adjudged insufficient, unless it contains also some allegation showing the case to come within an exception in the statute. Some courts have so held (footnote omitted). And if the statute is so general that there cannot be an exception to its operation in the particular case, plainly the indictment is bad if the offence appears on the face of it to be barred by the statute (footnote omitted). But the better doctrine (citing New York and other jurisdictions) seems also to be, that the prosecutor is not bound to set out in an indictment such facts as he may rely on in avoidance of the more general provisions of the statute; therefore, though the offense appears by the general provisions to be barred, yet, if in truth it is not by reason of some exception, he may state the true time, and the indictment will not be held to be bad on its face' (at pp. 244--245).

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The Supreme Court, in a Federal prosecution, required untimeliness to be raised at trial and not by preliminary motion (United States v. Cook, 84 U.S. 168, esp. at pp. 179--180, 21 L.Ed. 538). In preferring this practice the court was persuaded by the general principle that exceptions to criminal statutes are matters of defense to be raised at trial. It said: 'Accused persons may avail themselves of the statute of limitations by special plea or by evidence under the general issue, but courts of justice, if the statute contains exceptions, will not quash an indictment because it appears upon its face that it was not found within the period prescribed in the limitation, as such a proceeding would deprive the prosecutor of the right to reply or give evidence,[30 N.Y.2d 190] as the case may be, that the defendant fled from justice and was within the exception. Nor is it admitted that any different rule would apply in the case even if the statute of limitations did not contain any exception, as time is not of the essence of the offense; and also for...

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