People v. Lenti

• Court: New York County Court
• Writing for the Court: JAMES L. DOWSEY, Jr.
• Citation: People v. Lenti, 260 N.Y.S.2d 284, 46 Misc.2d 682 (N.Y. Cty. Ct. 1965)
• Decision Date: 03 June 1965
• Parties: PEOPLE of the State of New York v. Robert LENTI et al., Defendants.

Page 284

260 N.Y.S.2d 284

46 Misc.2d 682

PEOPLE of the State of New York v. Robert LENTI et al., Defendants.

Nassau County Court, Special Term, Part I.

June 3, 1965.

William Cahn, Dist. Atty., Nassau County, Mineola, for the People.

Ray M. Brand, Garden City, for defendant Robert Lenti.

Henry W. Schober, Mineola, for defendant Francis Gannon.

JAMES L. DOWSEY, Jr., Judge.

The trial of this case has proceeded for approximately two weeks. The prosecution has presented its case and rested. The indictment accuses the defendants of the crime of 'hazing,' in violation of Section 1030 of the Penal Law of the State of New York, committed as follows: 'The defendants, Robert Lenti, Robert Pellegrino, Gaetano Aliseo and Frank Gannon, each aiding and abetting the other and acting in concert, and accompanied by juveniles, in the County of Nassau, State of New York, on or about the 4th day of April, 1964, did willfully and unlawfully engage in what is commonly called 'hazing', while attending an institution of learning in Union Free School District No. 11, Oceanside, County of Nassau, State of New York, to wit, the defendants, Robert Lenti, Robert Pellegrino, Gaetano Aliseo and Frank Gannon, each aiding and abetting the other and acting in concert, and accompanied by juveniles, during an installation of pledges in an initiation known as 'Hell Night', for the purpose of inducting certain pledges into a fraternal organization, known as Omega Gamma Delta Fraternity, did willfully, wrongfully and knowingly assault Michael Kalogris, Daniel William Alexander, John Thomas Brennan, David Dennis and Richard Stewart by (sic) striking them about the body and face with clenched fists, open hands, forearms and feet.'

The indictment also accuses the defendants of the crime of assault, in the third degree (five counts), in violation of Section 244 of the Penal Law, committed as follows: 'The defendants, Robert Lenti, Robert Pellegrino, Gaetano Aliseo and Frank Gannon, each aiding and abetting the other and acting in concert, and accompanied by juveniles, in the County of Nassau, State of New York, on or about the 4th day of April, 1964, willfully, wrongfully, unlawfully and knowingly, assaulted Michael Kalogris, about the body and face with their clenched fists and open hands.'

Defense counsel have made the usual motions concerning failure of the prosecution to establish a prima facie case and guilt beyond a reasonable doubt; in addition certain motions concerning the validity of Section 1030 of the Penal Law, which reads in applicable part as follows, have been made: 'It shall be unlawful for any person to engage in or aid or abet what is commonly called hazing * * * and whoever participates in the same shall be deemed guilty of a misdemeanor.'

This Court's decision on these motions involve inextricable questions of law and fact. It is the responsibility of this Court, at the conclusion of a case of this type, to charge the Jury as to the law; however, the novel questions of fact presented clearly reveal the lack of guide lines in Section 1030 of the Penal Law, which a normal criminal statute provides to the Court for the purpose of instructing the Jury on the elements of a specific crime. Section 1030 is not only vague, but also ambiguous. It refers to participants, which of necessity must include the pledges, the individuals for whom this statute was enacted to protect. Are pledges who participate equally guilty of hazing under the terms of this statute? Does this in law make them accomplices, therefore, requiring corroboration of their testimony? And what of their consent to participation in the hazing procedures? When does the hazing treatment administered exceed the consent given? If the consent is given intelligently, voluntarily and free of deceit or fraud, is this a complete bar and a defense to the acts prohibited by the Section? Do the participants have a legal obligation to abandon the activities, or resort to acts of self-defense in order to dissolve the consent as a defense to make it no longer binding? It is strongly urged that the Penal Law involving hazing contain guide lines and criteria to resolve these queries.

The testimony elicited upon the People's case was limited to 'brothers' and 'pledges' of the fraternity involved; they consented and participated in the hazing practices administered. Ordinarily, the paramount question of whether the pledges were accomplices and their testimony was sufficiently corroborated would be one of fact for the Jury to determine. This Court contends, however, as a matter of law, that due to the nature of the testimony and the ambiguity of the use of the term 'participant' in the statute, that the pledges were participants, consequently accomplices and the required corroboration of their testimony was lacking. On this theory, not only the hazing count, but counts two to six, inclusive involving assault, second degree, against these defendants are dismissed.

The District Attorney's office has conducted itself in an admirable fashion in attempting to enforce the law as it is written; it is not the responsibility of the prosecution to interpret the statute; this function is relegated exclusively to the Court.

In a preliminary motion this Court passed upon the validity of the statute in question, People v. Lenti, 44 Misc.2d 118, 253 N.Y.S.2d 9; it is well established practice that the prior decision established the law of the case, to be adhered to by Judges of co-ordinate jurisdiction. The rationale of the rule is to avoid protracted litigation, to promote harmony and to foster the exercise of comity and courtesy. Matter of Hines, 2 Cir., 88 F.2d 423, 425; People ex rel. Manceri v. Doherty, Sup., 192 N.Y.S.2d 140; George W. Collins, Inc. v. Olster-McLain, Ind., 22 A.D.2d 485, 257 N.Y.S.2d 201; Field v. Public Administrator of New York County, 10 A.D.2d 197 N.Y.S.2d 652; Mutual Life Insurance Co. of N. Y. v. 160 East 72nd Street Corp., 272 App.Div. 48, 69 N.Y.S.2d 2.

In the context of the pattern of facts that has been presented by the People's case, and after profound thought and meditation, reservations in the thinking of the Court exist as to the validity and enforceability of the hazing statute. This comment is in complete harmony with the prior ruling, and the chronological perspective completely consistent therewith, and made merely to focus legislative attention on the unenforceable aspects of the statute; and if as a consequence of extended elaboration by this Court of the shortcomings of the existing statute, a new statute adequately recognizing the contemporary problems of hazing is promulgated, the end of justice will be considerably enhanced.

A new statute should be sufficiently informative on its face and so explicit that 'all men subject to [its] penalties may know what act it is their duty to avoid.'...