People v. Malizia
| Decision Date | 28 February 1958 |
| Citation | 4 N.Y.2d 22,148 N.E.2d 897,171 N.Y.S.2d 844 |
| Parties | , 148 N.E.2d 897 The PEOPLE of the State of New York, Respondent, v. John MALIZIA, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Maurice Edelbaum, New York City, for appellant.
Frank S. Hogan, Dist. Atty., New York City (Lawrence Feitell and Richard G. Denzer, New York City, of counsel), for respondent.
Defendant-appellant has been convicted on two counts of crimes in relation to narcotics. The first count of the indictment charges that in the county of New York, on or about November 3, 1955 defendant unlawfully bartered and exchanged, and sold, gave and offered to give to Calvin Malone a quantity of a narcotic drug, of wit, a quantity of heroin. This count, if established, would constitute a violation of section 1751 of the Penal Law, Consol.Laws, c. 40, in the language of which this part of the indictment is couched. Section 1751 of the Penal Law refers to such conduct as criminal where it is in violation of any section of article 33 of the Public Health Law, Consol.Laws, c. 45, § 3300 et seq. There would be no doubt that this crime was committed if the facts charged in count 1 of the indictment had been established beyond a reasonable doubt.
The fourth count in this indictment, on which appellant was also convicted by the jury, charges that from on or about August 1, 1955 to on or about November 11, 1955 defendant conspired with Calvin Malone to commit the crimes of feloniously selling a narcotic drug, feloniously possessing a narcotic drug with intent to sell, and to commit acts injurious to public health and morals. Overt acts charged in furtherance of said alleged conspiracy are the transaction of November 3, 1955, which is the subject of the first count, and a meeting by pre-arrangement with Malone on November 11, 1955 to accomplish a similar transaction which was intercepted by the police when defendant-appellant was arrested. There is also in the fourth count a general allegation that appellant met Malone at various times and places in Manhattan between August 1 and November 11, 1955 for similar purposes. The defendant has been out on bail since the date of sentence.
The trial court charged the jury that for the purposes of the fourth count (conspiracy) Calvin Malone was a co-conspirator if the jury were to find a conspiracy, and that on that count Malone's testimony would need to be corroborated by other evidence tending to connect the defendant with the commission of the crime for the reason that Malone would be an accomplice (Code Crim.Proc. § 399). No corresponding instruction was given in relation to the first count of the indictment the alleged sale to Malone of heroin on November 3, 1955. The jury were not instructed in regard to any need for corroboration on the first count, either as a question of fact or of law. Defense counsel excepted and requested the court to charge with respect to the first as well as the fourth count that Malone was an accomplice as a matter of law, or, in the alternative, if that request were to be denied, that it was for the jury to decide whether Malone was an accomplice, and that the defendant must be acquitted if he were found to have been an accomplice. At the close of the evidence defense counsel moved to dismiss these counts separately on similar grounds. Exceptions were duly taken.
We think that Malone was an accomplice of defendant as matter of law, respecting both the transactions of November 3 and November 11, 1955, and in connection with both causes of action. As has been stated, the trial court charged the jury that as matter of law Malone was an accomplice respecting the conspiracy charge (fourth count), and this count in the indictment set forth the transaction of November 3, 1955 (which is the subject of the first count) as one of the overt acts performed in pursuance of the conspiracy. In other words, under the allegations of the fourth count, Malone...
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