People v. Luciano

• Citation: 14 N.E.2d 433,277 N.Y. 348
• Parties: PEOPLE v. LUCIANO et al.
• Decision Date: 12 April 1938
• Court: New York Court of Appeals

277 N.Y. 348

14 N.E.2d 433

PEOPLE

v.LUCIANO et al.

Court of Appeals of New York.

April 12, 1938.

Charles Luciano and others were convicted of conducting a large scale business of prostituting women, and they appeal. An order denying a motion for a new trial, 164 Misc. 167, 299 N.Y.S. 132, was affirmed in 251 App.Div. 887, 298 N.Y.S. 629, and an appeal was dismissed, 275 N.Y. 547, 11 N.E.2d 747.

Judgment affirmed.

RIPPEY, J., dissenting. Appeal from Supreme Court, Appellate Division, First Department.

Martin Conboy, of New York City, for appellant Charles Luciano.

David P. Siegel, of New York City, for appellants David Betillo and Abraham Wahrman.

Joseph Rolnick, of New York City, for appellant Ralph Liguori.

Thomas E. Dewey, Dist. Atty., of New York City, for respondent.

CRANE, Chief Judge.

The indictment returned by the grand jury against appellants contained ninety counts, each charging a separate crime in violation of one of the subdivisions of section 2460 of the Penal Law relating to the compulsory prostitution of women. The crimes were joined as separate counts in the one indictment under the authority of section 279 of the Code of Criminal Procedure, as amended by Laws 1936, c. 328, § 1. Prior to the submission of the case to the jury, twenty-eight counts were withdrawn and the jury rendered a verdict of guilty on each of the sixty-two remaining counts.

In general, the indictment charged three distinct types of the crime, each a violation of one of the subdivisions of Penal Law, section 2460. The defendants were charged with placing a female in a house of prostitution, in violation of subdivision 2; with receiving money for having placed her in a house of prostitution, in violation of subdivision 4; and with receiving money from the earnings of the women so placed, without giving a consideration therefor in violation of subdivision 8. The various counts of the indictment charge a crime under one of these subdivisions, specifying the names of the different women and the time, place, and manner of the commission of the crime.

Without going into great detail, we may outline the scheme simply as follows: Appellants are all members of a combination to control commercialized vice in the city of New York. It attempted to gain a monopoly on prostitution and to exact tribute from those engaged in that unlawful calling. Prostitutes were obliged to operate through agents of the combination, or ‘combine,’ as it was called, and each week would be instructed by these agents or ‘bookers' as to the location of the house where she was to work during the ensuing week. For this service, the booker collected a commission.

The keeper of the house received a portion of the girl's earnings and in addition was paid a further sum for board. Each booker paid to the appellants a certain sum from his earnings each week, or in some cases, turned over all his commissions and was paid a stated salary. In addition, every prostitute was obliged to pay weekly to the ‘combine’ the sum of $10 for protection. In return for this sum, the ‘combine’ supplied her bail if she were arrested, and assisted her in her defense, or in otherwise escaping punishment for her crime. The operations of the conspirators were extended by force and violence so that all engaged in that vice would be brought under their control.

The appellant Luciano was the head of this enterprise; Pennochio was the treasurer; Betillo was in active charge; Frederico was sort of a manager; Wahrman was leader of the collectors and strong-arm man; Liguori was a strong-arm man.

As the principal and leader of the whole enterprise, Luciano did not take an active part in the daily operations of the business, but that he was the directing head and moving force behind it all, the evidence adduced on the trial leaves no doubt. A man by the name of Bendix sought an interview with Luciano in 1935 for the purpose of procuring a job. Luciano offered him a job as a collector for some of the houses of prostitution. Frederico was with Luciano at that time. Luciano told him: ‘If you are willing to work for $40 a week, it is O. K. with me. It will tell Little Davie to put you on.’ Betillo introduced Luciano to the witness, Mildred Balitzer, saying, ‘I want you to meet my boss.’ The same witness intended to marry a man who was involved in the vice combination and she asked Betillo to let him quit and make a new start. On his refusal to assent, she threatened to appeal to Luciano and was met by Betillo's reply that Luciano approved of everything he did. She saw Luciano, who told her that he would see Betillo about it, and later was told by him that he had spoken to Betillo but that nothing could be done until the man had paid up his indebtedness.

The witness Nancy Presser saw Luciano twice during 1933, or early 1934, with appellants Wahrman, Frederico, and Pennochio, at which Luciano received reports and gave orders relative to forcing operators of houses to work with appellants. On one occasion, she witnessed a conversation between Luciano and Betillo concerning the running of the prostitution and bonding business. Luciano stated to her that he would be better off if he himself handled the ‘thing’ instead of trusting it to Betillo, and he spoke of his plan of taking over all houses of prostitution, raising prices, and placing the madams on a salary basis, with Betillo in charge of the business.

The witness Flo Brown saw Luciano, Pennochio, Betillo, and Frederico in conference on numerous occasions. On one occasion they discussed the conduct of bookers and Luciano directed Frederico respecting the handling of bookers. On other occasions she was present at conversations between them in the course of which the prostitution racket was discussed, where Luciano gave instructions, and advice. At one time Luciano suggested that inasmuch as the vice investigation was pending, ‘it may get tough, and I think we ought to fold up for a while.’ Betillo argued against this stand, and Luciano discussed the syndication of all the houses and the placing of the operators on a salary or commission basis. Luciano said: ‘Well, all right, then let it go. I will let it go for a couple of more months, and if things are the same, you will have to let it drop.’

One of the bookers, Harris, asked appellant Wahrman who was behind Betillo; and Wahrman answered: ‘Don't worry about it. * * * Charlie Lucky is behind him; he is behind Little Davie,’ i. e. Betillo. At one time trouble developed with a booker named Montana. Frederico told Luciano that Montana had been collecting money and failing to pass it in and Luciano replied, ‘Well, have them all come down and we will straighten the matter out.’

The appellant Luciano took the stand in his own behalf and testified that he did not know any of the defendants except Betillo. In this, he was contradicted not only by the women witnesses, but by employees of two different hotels.

This evidence cogently proves Luciano's connection with this nefarious enterprise. His position as head of this combination did not bring him in direct contact with the victims of this scheme, and he displayed an anxiety that his name be not too openly associated with the bonding enterprise. Thus the evidence against him is not so easily available as it was against some of those lower in the organization, but the evidence produced against him is amply sufficient to warrant the verdict of guilty against him. Much of this evidence, it will be observed, consists of acts and statements of Luciano himself. Other evidence is supplied by the acts and statements of coconspirators in furtherance of the joint enterprise. While no conspiracy is charged in the indictment, there was ample proof of a conspiracy among appellants to organize prostitution on a basis most profitable for them. Their bookers placed the girls in the houses, collected a commission for so locating them, and their collectors levied upon each girl who operated in any of the houses. The acts and declarations of the conspirators in furtherance of the joint enterprise were admissible against all of those participating in the conspiracy.

‘When a conspiracy is shown, or evidence on the subject given sufficient for the jury, then the acts and declarations of the conspirators, in furtherance of its purpose and object, are competent, and in a case like this it is not necessary, in order to make such proof competent, that the conspiracy should be charged in the indictment.’ People v. McKane, 143 N.Y. 455, 470,38 N.E. 950, 954. See, also, People v. Cassidy, 213 N.Y. 388, 391,107 N.E. 713, 714, Ann.Cas.1916C, 1009;People v. Becker, 215 N.Y. 126, 109 N.E. 127, ann.Cas.1917A, 600; People v. Miles, 192 N.Y. 541, 84 N.E. 1117.

It is not necessary ‘in order to make such proof competent that the conspiracy should be charged in the indictment.’ People v. Cassidy, supra.

People v. McKane is an outstanding case in this state. McKane was not charged with conspiracy. He was charged with a felony for violating the Election Law. The members of the board of registry were induced by him willfully to violate the Election Law, Laws 1892, c. 680. McKane was not a member of...