People v. Lombardozzi

• Decision Date: 23 March 1972
• Citation: 283 N.E.2d 609,30 N.Y.2d 677,332 N.Y.S.2d 630
• Parties: , 283 N.E.2d 609 The PEOPLE of the State of New York, Appellant, v. Carmine LOMBARDOZZI, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 630

332 N.Y.S.2d 630

30 N.Y.2d 677, 283 N.E.2d 609

The PEOPLE of the State of New York, Appellant, v. Carmine LOMBARDOZZI, Respondent.

Court of Appeals of New York.

March 23, 1972.

Eugene Gold, Dist. Atty. (Ronald M. Kleinberg and Roger Bennet Adler, Brooklyn, of counsel), for appellant.

William Sonenshine, Brooklyn, for respondent.

Order affirmed.

FULD, C.J., and BURKE, SCILEPPI, BERGAN, BREITEL and GIBSON, JJ., concur.

JASEN, J., dissents and votes to reverse in the following opinion.

JASEN, Judge (dissenting).

The question presented on this appeal is whether the evidence was sufficient for the jury to find beyond a reasonable doubt that the defendant's concededly false testimony, relating to material matter, was given 'wilfully and knowingly'. (Former Penal Law, § 1620.)

The law is well settled that the falsity of one's testimony does not alone establish that it was given 'wilfully and knowingly'. (People v. Samuels, 284 N.Y. 410, 415, 31 N.E.2d 753, 754; People v. Hattemer, 4 A.D.2d 775, 165 N.Y.S.2d 196, affd. 4 N.Y.2d 835, 173 N.Y.S.2d 811, 150 N.E.2d 239; see, also, Perkins, Criminal Law (1957 ed.), pp. 389--390; A.L.I. Model Penal Code T.D. No. 6 (May 6, 1957), p. 125.) Rather there must be proof going beyond the fact of falsity. (See, e.g., People ex rel. Hegeman v. Corrigan, 195 N.Y. 1, 13--16, 87 N.E. 792, 796--798; Lambert v. People, 76 N.Y. 220, 226; People v. Frost, 204 Misc. 44, 48, 120 N.Y.S.2d 911, 915.)

In the absence of an admission by the defendant, the essential element of knowledge and willfulness can be established through circumstantial evidence. (See People v. Doody, 172 N.Y. 165, 172--173, 64 N.E. 807, 810; American Communications Assn. v. Douds, 339 U.S. 382, 411, 70 S.Ct. 674, 94 L.Ed. 925.) Consequently, the jury can infer the state of the defendant's mind from the proof of the falsity itself, from the proof of the presence of a motive to lie, and from other facts and circumstances tending to establish that the defendant did, in fact, know the things he claimed not to know. (United States v. Sweig, 441 F.2d 14, 117 (2d Cir.), cert. den. 403 U.S. 932, 91 S.Ct. 2256, 29 L.Ed.2d 711; United States v. Magin, 280 F.2d 74, 78 (7th Cir.), cert. den. 364 U.S. 914, 81 S.Ct. 271, 5 L.Ed.2d 228; 3 Wharton's Criminal Law and Procedure (R. Anderson ed.), § 1291.) However, bearing in mind the principle that the guilt of an accused must be proved beyond a reasonable doubt, the inference of knowledge and willfulness should not be drawn if the facts permit a reasonable hypothesis which is inconsistent with an intent to commit perjury on the part of the defendant. (People v. Samuels, 284 N.Y., at p. 417, 31 N.E.2d, at p. 755; cf. People v. Wachowicz, 22 N.Y.2d 369, 292 N.Y.S.2d 867, 239 N.E.2d 620; People v. Cleague, 22 N.Y.2d 363, 292 N.Y.S.2d 861, 239 N.E.2d 617.)

In this case there was sufficient evidence for the jury to infer that the defendant really remembered that he had an interest in Carsan Relaty Co., a mortgage loan business, and that there did exist a bank account for such company, when he said he did not. The evidence showed that the defendant and his nephew had signed the partnership certificate for Carsan, and that Carsan maintained a bank account in the partnership name against which defendant and his nephew were authorized to draw checks. Indeed, defendant's nephew testified that defendant had loaned him $5,000 to help him get the business started. There was proof that one borrower negotiated with defendant for two separate mortgage loans on two different occasions, which were thereupon placed with Carsan, and that this borrower issued to defendant, rather than to Carsan, a check for an interest payment. Moreover, there was evidence of the issuance of a check for $2,509...