People v. Malone

• Decision Date: 20 October 1959
• Parties: PEOPLE of the State of New York, Respondent, v. Bernard MALONE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 717

191 N.Y.S.2d 717

9 A.D.2d 658

PEOPLE of the State of New York, Respondent, v. Bernard MALONE, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Oct. 20, 1959.

Abraham H. Brodsky, New York City, for defendant-appellant.

Peter Preiser, New York City, of counsel (Richard G. Denzer, New York City, on the brief; Frank S. Hogan, Dist. Atty., New York County, New York City, attorney) for respondent.

Before BREITEL, J. P., and RABIN, M. M. FRANK, McNALLY and STEVENS, JJ.

PER CURIAM.

Judgment affirmed.

All concur except STEVENS, J., dissenting in part.

STEVENS, Justice (dissenting in part).

I dissent in part and vote to reverse as to the conviction for perjury under the 4th count of the indictment and as to the convictions for criminal contempt under the 5th and 6th counts of the indictment.

The 4th count charged that the defendant gave false testimony before the Grand Jury when he testified that 'Gruber had told him that be * * * would receive a bill for air conditioning units by November 10, 1957.' The charge involves false swearing to a fact.

Evidence of one witness supported by proof of corroborating circumstances is sufficient to sustain a conviction for perjury but,

'The corroboration of a single witness for the prosecution must be by proof of independent and material facts and circumstances tending directly to corroborate the testimony of the witness, and must be of a strong character and not merely corroborative in slight particulars, and must contradict in positive terms the statement of the accused.' 2 Wharton Criminal Evidence [11th ed.], § 913, p. 1580.

It has been held that this rule has no application when the proof of the crime is necessarily based on circumstantial evidence (People v. Doody, 172 N.Y. 165, 64 N.E. 807). And while the corroborating evidence need not equal the positive testimony of another witness, it must go to material testimony adduced by the state.

Measured by the standard set forth in Wharton's, which I submit is the proper one, the evidence is insufficient to establish proof of guilt of the defendant beyond a reasonable doubt. In light of the nature of the testimony of Gruber, its sometimes contradictory character, while it permits in its most favorable aspect of the inferences sought to be drawn, by the same token it demands that the corroborative evidence offer vital support and be of a convincing tenor. The inference that Gruber could not have told the defendant that he would receive an invoice by November 10, 1957, because Shapolsky ordered the air conditioners from Marathon Air Conditioning Corporation is hardly that clear, positive and strong corroboration to sustain a felony conviction. For while it is true that Gruber was unable to consummate the transaction, he still originally contemplated obtaining the air conditioners from L. & P. Electric Co., Inc., and might, as he so testified, have spoken to the defendant about the invoices. Nor do I consider the testimony of Testa, as to the time or manner in which he would make payment for the air conditioners purchased by him, sufficiently corroborative of this count whether considered singly or in conjunction with other testimony.

The 5th count for criminal contempt charged that the defendant falsely stated that he could not recall if he visited Shapolsky's office less than five or more than 100 times in 1957. The defendant admitted visiting Shapolsky's office not once but several times, though he refused to be bound by any number within the limits charged. The fact of the visits was established. If by such fact there was a design to prove opportunity for wrongdoing, that aim was accomplished. If a wrongful or criminal...