People v. Kohut

• Citation: 25 A.D.2d 10,266 N.Y.S.2d 141
• Parties: The PEOPLE of the State of New York, Appellant, v. Philip B. KOHUT, Defendant-Respondent.
• Decision Date: 18 January 1966
• Court: New York Supreme Court — Appellate Division

Page 141

266 N.Y.S.2d 141

25 A.D.2d 10

The PEOPLE of the State of New York, Appellant, v. Philip B. KOHUT, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

Jan. 18, 1966.

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

Maurice Edelbaum, New York City, for respondent.

Before BOTEIN, P. J., and VALENTE, McNALLY, EAGER and STALEY, JJ.

BOTEIN, Presiding Justice.

An indictment found against defendant by the grand jury of New York County charged him with the crime of taking unlawful fees in violation of section 1826 of the Penal Law. Defendant moved to dismiss the indictment on various grounds, only one of which was considered by the court and need be considered here; namely, that New York County lacked jurisdiction to indict since the crime, if any, was committed in Nassau County. The People, in opposing the motion, argued that the venue was properly laid in New York County by reason of section 134 of the Code of Criminal Procedure, which reads as follows: 'When a crime is committed, partly in one county and partly in another, or the acts or effects thereof, constituting, or requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either county.' After examining the grand jury minutes the court held the indictment jurisdictionally defective and dismissed it. The People appeal.

The indictment relates to a period during which defendant was Commissioner of Public Safety of the City of Long Beach, Nassau County. His alleged misfeasance is that he 'asked for, received and consented and agreed to receive' substantial sums to influence the City to purchase parking meters from Duncan Parking Meter Corporation and its sucessor in interest. As gleaned from the grand jury minutes, the elements of the People's case relevant to the present appeal are in substance as follows. Defendant and one Robinson, Duncan's chief officer, came to their illicit understanding in Chicago, where Duncan's office was located. The arrangements between them for payment of the unlawful fees contemplated the execution of a sham licensing agreement by which defendant would license Duncan to manufacture and vend a cigarette lighter purportedly invented by defendant. In purported consideration Duncan would pay defendant royalties computed on the number of lighters sold, with the proviso, however, that a minimum annual amount would be payable in any event.

The executed license agreement named 1176 Broadway Corporation as licensor. Defendant was the sole stockholder of this corporation. Duncan in fact manufactured no lighters, but it transmitted the annual minimum payments called for by the agreement to defendant in Nassau County.

On behalf of 1176 Broadway Corporation the license agreement was executed in New York County; that fact is the foundation of the People's jurisdictional claim. A friend of defendant maintained an office in Manhattan in which three women were employed. At defendant's request their employer had asked them to act as the incorporators of Broadway and they had signed the certificate of incorporation. Similarly, a number of months later, copies of the license agreement were placed before two of these employees, which they signed as president and as secretary of Broadway and which also bear the signature of a notary public having an office in the same building. The employee who signed as secretary also signed a certificate that the board of directors of the corporation had duly adopted a resolution authorizing the corporate officers to execute the license agreement. After execution of the copies of the agreement on behalf of Broadway they were evidently sent to Duncan in Chicago for execution by that corporation; but how or from where they were thus transmitted does not appear.

Execution of the license agreement was plainly an integral part of the criminal scheme--both the method of effecting the unlawful payment and the means of concealing complicity--and in any pragmatic sense an act 'requisite to the consummation of the offense.' In a legal sense, however, it is contended that the act is not within the compass of the quoted words, since execution of the license agreement was neither criminal on its face nor a substantive element of the offense as defined by statute. Concretely, Penal Law, § 1826, is directed to the public officer 'who asks or receives, or consents or agrees to receive' the unlawful fees. The substantive elements of the offense relevant here are, on the one side, asking, consenting or agreeing to receive--acts occurring in Illinois--and, on the other, receiving--acts occurring in Nassau County. Signing the license agreement, the argument goes, formed no part of any of these acts, was therefore not a substantive element of the offense, and accordingly was not an act requisite to consummation of the offense within the intendment of section 134, notwithstanding it was essential to the carrying out of the offense as conceived and plotted. While the considered opinion below upholds such an interpretation of section 134, it seems to us unduly narrow.

Section 134, to be sure, has often been construed to confer jurisdiction where the ultimate commission of the offense has been preceded by an act in another county which by the very definition of the offense is essential to its commission. Thus, when the Penal Law provided that a person is punishable 'who, under the promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaster character,' it was held that an indictment which alleged commission of the seduction and intercourse in Jefferson County could be found by a grand jury in Oswego County because the promise of marriage was there made (People v. Crotty, 55 Hun 611, 9 N.Y.S. 937, 30 St.R. 44). In larceny by false pretenses, 'the place where the crime is completed is the place where the money or other property was obtained by the offender. * * * There, under the rule at common law, and not at the place where the pretenses were made, was the seat of jurisdiction' (People v. Werblow, 241 N.Y. 55, 60, 148 N.E. 786, 788). But by virtue of section 134 the seat of jurisdiction has been extended to include the place where the false pretenses were made (People v. Wicks, 11 App.Div. 539, 42 N.Y.S. 630, affd. 154 N.Y. 766, 49 N.E. 1102; People v. Hudson Valley Construction Co., 165 App.Div. 626, 151 N.Y.S. 314, affd. 217 N.Y. 172, 111 N.E. 472; People v. Deinhardt, 179 App.Div. 228, 166 N.Y.S. 502; 22 C.H.S. Criminal Law § 185(14), pp. 473, 474). Similarly, where a statutory definition of manslaughter in the first degree requires that the homicide be committed by a person engaged in committing or attempting to commit a specified type of misdemeanor, the county in which the misdemeanor was committed or attempted is a proper place of trial although the death occurred elsewhere (People v. Licenziata, 199 App.Div. 106, 191 N.Y.S. 619; cf. People v. Mitchell, 49 App.Div. 531, 63 N.Y.S. 522, affd. 168 N.Y. 604, 61 N.E. 182).

In each of these cases the acts within and without the county of indictment may properly be termed 'the constituent acts, which in their union are the crime' (People v. Werblow, supra, 241 N.Y. 55, at 60, 148 N.E. 786, at 789 (emphasis added)); and there is no reason to believe that the decisions would have differed had section 134 omitted reference to acts 'requisite to the consummation' of the offense and confined itself to acts 'constituting' the offense. Doubtless each of the acts 'constituting' the offense may also be said to be an act 'requisite to the consummation' of the offense. The expressions, however, are not textually synonymous, and, since the enactment of section 134 had the remedial purpose of overcoming early common law restrictions found hampering proper administration of the criminal law (see Matter of Murtagh v. Leibowitz, 303 N.Y. 311, 316, 101 N.E.2d 753, 754, 30 A.L.R.2d 1259; People v. Kastel, 221 App.Div. 315, 317, 222 N.Y.S. 744, 746, affd. 250 N.Y. 518, 166 N.E. 307), they should not be forced into an identity of meaning. If a person performs 'an overt act which is and is intended to be a material step toward accomplishing the crime'--to adopt language of Justice Holmes in Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560, 55 L.Ed. 735--the conclusion that the act is 'requisite to the consummation of the offense' is consonant both with the text of section 134 and with its policy.

Nor does the conclusion lack decisional support. Courts have frequently remarked that the site of preparation and planning of the crime, when different from the site of its commission, presents what is tantamount to a section 134 situation (People v. Werblow, supra, 241 N.Y. 55, at 62, 148 N.E. 786, at 789; People v. Hudson Valley Construction Co., supra, 217 N.Y. 172, at 176, 111 N.E. 472, at 473; People v. Licenziata, supra, 199 App.Div. 106, at 110, 191...