People v. Levia
| Decision Date | 20 December 1956 |
| Citation | 158 N.Y.S.2d 448,3 A.D.2d 42 |
| Parties | The PEOPLE of the State of New York, Plaintiff-Appellant, v. Carl LEVIA, Clark Dishaw, James H. Mashaw, Edward Kiah, Robert T. Gilbert and Peter Gilbo, Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Jacob K. Javits, Atty. Gen., of New York (William D. Bresinhan, Asst. Atty. Gen., James O. Moore, Jr., Albany, and George J. L. Taylor, Plattsburgh, of counsel), for plaintiff-appellant.
Richard C. Algie, Ogdensburg, for defendants-respondents Carl Levia, Clark Dishaw, James H. Mashaw and Peter Gilbo.
Charles D. Campbell, Potsdam, for defendant-respondent Edward Kiah.
Before FOSTER, P. J., and BERGAN, COON, HALPERN and GIBSON, JJ.
This is a civil action to recover penalties from each of the defendants for alleged violations of the Conservation Law, tried in Supreme Court, St. Lawrence County. The People appeal from five judgments in favor of the five defendants entered upon order of the trial court at the close of the People's case, dismissing the complaint on the ground that the People had failed to establish a prima facie case.
The essence of the complaint is that the defendants 'acting in concert' unlawfully 'took' three pike perch from the Oswegatchie River during the closed season, and that the defendants 'acting in concert' unlawfully 'possessed' the fish. It is undisputed that the alleged violations took place on April 18, 1954, during the closed season for pike perch. Section 380, subdivision 27 of the Conservation Law provided, among other things, that "taking' * * * includes every attempt to take and every act of assistance to any other person in taking', and, 'A person who counsels, aids or assists in a violation * * * or knowingly shares in any of the proceeds * * * by receiving or possessing either fish * * * shall be deemed to have incurred the penalties * * *'. L.1941, ch. 257, repealed by L.1955, ch. 630.
In accordance with the well-established rule on a motion for a nonsuit, the truth of the evidence offered by the plaintiff must be assumed, including every reasonable inference that may be drawn therefrom. The jury could have found or reasonably have inferred that the defendants were together, with full knowledge and approval of what was going on, and that each participated and assisted, at least as a 'look out', and that all of the defendants save two performed some overt act of assistance beyond that of 'look out.' It could then be found that the defendant Levia was fishing from an abutment with a rod and line and that he caught three fish identified as pike perch; that the fish were 'gaffed' and pulled on to the abutment by another defendant using a stick with a hook on the end; that one defendant procured a weight and 'stringer' which were used to 'string' and conceal the fish under water at a point about four feet from where Levia was standing; that when approached by game wardens who had been watching from...
To continue reading
Request your trial
-
Soulier v. Hughes
...surrounding its taking provided a sufficient foundation for further testimony relative to the skidmark (see, People v. Levia, 3 A.D.2d 42, 158 N.Y.S.2d 448; see also, People v. Mirenda, 23 N.Y.2d 439, 452-454, 297 N.Y.S.2d 532, 245 N.E.2d 194). The absence of direct evidence simply affected......
-
People v. Lewis
...to Burmaster. With a fungible property such as beer, no witness can be expected to positively identify it (see, People v. Levia, 3 A.D.2d 42, 43, 158 N.Y.S.2d 448). Witnesses identified the beer as the same brand with the same appearance as was present in the beverage center and sold to Bur......
-
People v. Gilmour
...stolen some of the wine in that cellar, though you could not prove that any was stolen or any wine was missed.' In People v. Levia, 3 A.D.2d 42, 158 N.Y.S.2d 448 (3rd Dept.), it was sought to recover penalties for violation of the Conservation Law on the ground that the defendants concerted......
-
People v. Levia
...of dismissal were reversed and a new trial ordered upon the ground that the case should have been submitted to the jury. People v. Levia, 3 A.D.2d 42, 158 N.Y.S.2d 448. On April 23, 1957, this action came on again for trial, this time before Justice Andrew W. Ryan and a jury. Unanimous verd......
-
Chapter 7
...501 N.Y.S.2d 480 (3d Dep’t 1986); Gallo v. Supermarkets Gen. Corp., 112 A.D.2d 345, 491 N.Y.S.2d 796 (2d Dep’t 1985); People v. Levia, 3 A.D.2d 42, 158 N.Y.S.2d 448 (3d Dep’t See model questions for introducing photographs through a witness who is not the photographer, set forth in QS7-11. ......
-
17.1 - II. Application Of Rules Of Evidence
...501 N.Y.S.2d 480 (3d Dep’t 1986); Gallo v. Supermarkets Gen. Corp., 112 A.D.2d 345, 491 N.Y.S.2d 796 (2d Dep’t 1985); People v. Levia, 3 A.D.2d 42, 158 N.Y.S.2d 448 (3d Dep’t 1956). ...