People v. Mann

• Decision Date: 28 September 1972
• Parties: , 288 N.E.2d 595, 61 A.L.R.3d 286 The PEOPLE of the State of New York, Respondent, v. Lawrence MANN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 633

336 N.Y.S.2d 633

31 N.Y.2d 253, 288 N.E.2d 595, 61

A.L.R.3d 286

The PEOPLE of the State of New York, Respondent, v. Lawrence MANN, Appellant.

Court of Appeals of New York.

Sept. 28, 1972.

Ronald Podolsky, New York City, Irving Kaufman and Philip B. Fogel, New City, for appellant.

Robert R. Meehan, Dist. Atty. (Reuben Ortenberg, New City, of counsel), for respondent.

JASEN, Judge.

The principal issues on this appeal involve the admissibility of evidence of prior crimes as part of the People's case in chief where the defendant has raised the defense of entrapment, and the jurisdiction of the trial court to hear and determine the charge against the defendant.

Defendant was convicted, after a trial by jury, in Justice Court, Town of Ramapo, of taking deer in violation of section 152 (subd. (1)) of the Conservation Law. ¹ At the trial, the People's case was based primarily on the testimony of a Deputy Sheriff of Rockland County and two State conservation officers. Deputy Sheriff Francis Butrico testified that in January, 1969, the defendant had admitted to him that he had recently taken three white-tailed doe deer, and that the defendant arranged a meeting place for the delivery of these deer to him. Butrico further testified that on January 14, 1969, at approximately 6:30 in the evening, he arrived at the intersection of Maple Avenue and Route 306 in the Town of Ramapo, Rockland County. Accompanying Butrico in his car was Conservation Officer Howard Wendler, and following them in another car was Conservation Officer Anthony Mazza. At the time of their arrival, the defendant was already present. According to the testimony of Butrico, Mazza and Wendler, the defendant then led them to an abandoned bungalow near the intersection, and brought out three white-tailed doe deer. As he began to place the deer in the back of Mazza's stationwagon, the defendant was placed under arrest. ²

On cross-examination of Butrico, defense counsel subjected him to lengthy questioning. As indicated by the majority of his questions, an attempt was made to establish that Butrico induced the defendant to take part in an illegal transaction when otherwise he would not have done so. In response to these questions, Butrico admitted on cross-examination that he had discussed with the defendant on numerous occasions during the months of November, December and January, the possibility of the defendant 'getting' some deer for him.

The People, thereupon, introduced into evidence, over objection, testimony of admissions made by the defendant that he had killed 181 deer during the past two years and certified conviction records showing that the defendant had been convicted of illegally taking wild life during the closed season on two prior occasions. This evidence was admitted by the trial court solely on the issue of entrapment which, the People argued and the court agreed, the defendant raised, prior to trial, by way of pleading an affirmative defense. In addition, the People contended the defense attempted to establish that defense in its opening to the jury, as well as on cross-examination of Butrico, the People's first witness.

After the introduction of this evidence, the People rested. While the defendant did not take the stand, his wife testified that during the month of January, Deputy Sheriff Butrico called their home 'many times' and repeatedly asked whether Larry had obtained the deer he wanted.

Upon this evidence, the defendant was convicted of illegally taking deer out of season, and pursuant to section 387 (subd. (4)) of the Conservation Law, which designates this offense as a misdemeanor, he was sentenced to six months' imprisonment.

Initially, we turn to defendant's jurisdictional argument--that the Justice Court was without jurisdiction to hear and determine the misdemeanor of which the defendant was convicted. The contention is premised on section 386 (subd. (3), par. (b)) of the Conservation Law, which provides, in pertinent part, that Courts of Special Sessions ³ shall not have jurisdiction of misdemeanors specified in section 387 (subd. (4)) of the Conservation Law, and section 386 (subd. (3), par. (a)) of the Conservation Law, which specifies that only courts of record ⁴ may impose the fines and imprisonments enumerated in section 387 (subd. (4)) of the Conservation Law. The People, on the other hand, urge that paragraphs (a) and (b) of subdivision (3) were impliedly repealed by the enactment of the Uniform Justice Court Act (UJCA) (L.1966, ch. 898, eff. Sept. 1, 1967), which specifically granted all town and village courts of the State, regardless of the name applied to such a court, trial jurisdiction of all misdemeanors. (UJCA, § 2001, subd. (a) ⁵; UJCA, § 2300, subd. (b), par. 1.)

In determining whether one statute impliedly repeals an earlier one, the primary and fundamental question to be resolved is what did the Legislature intend. (People ex rel. Bronx Parkway Comm. v. Common Council, 229 N.Y. 1, 8, 127 N.E. 593, 594; People v. Dwyer, 215 N.Y. 46, 51, 109 N.E. 103, 104; Matter of Tiffany, 179 N.Y. 455, 457, 72 N.E. 512; cf. Abood v. Hospital Ambulance Serv., 30 N.Y.2d 295, 332 N.Y.S.2d 877, 283 N.E.2d 754.) Since repeal by implication is not favored (see, e.g., Naramore v. State of New York, 285 N.Y. 80, 84, 32 N.E.2d 800, 802; Matter of Washington St. Asylum & Park R.R. Co., 115 N.Y. 442, 449, 22 N.E. 356, 358; 1 Sutherland, Statutory Construction (1943 ed.), § 1913, at p. 366) ⁶, it will be decreed only where the intent to effect such a repeal is clear. (Cimo v. State of New York, 306 N.Y. 143, 148, 116 N.E.2d 290, 292; City of New York v. Maltbie, 274 N.Y. 90, 97, 8 N.E.2d 289, 292; Smith v. People, 47 N.Y. 330.) Such an intent, however, will be clearly manifested by an inconsistency between the statutes which is such as to preclude giving effect to both. (See Matter of Board of Educ. of City of N.Y. v. Allen, 6 N.Y.2d 127, 141--142, 188 N.Y.S.2d 515, 524, 160 N.E.2d 60, 67; People v. Thames & Mersey Mar. Ins. Co., 176 N.Y. 531, 68 N.E. 888; Mongeon v. People, 55 N.Y. 613, 615; McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 398.) Expressed another way, a more general statute (like UJCA, § 2001, subd. (a)) will not repeal a more specific one (like Conservation Law, § 386, subd. (3), pars. (a), (b)), unless there be a patent inconsistency and the two cannot stand together, so that the 'Legislature is clearly shown to have intended such a result'. (Cimo v. State of New York, 306 N.Y. 143, 149, 116 N.E.2d 290, 293, Supra; People ex rel. Fleming v. Dalton, 158 N.Y. 175, 184, 52 N.E. 1113, 1116; People ex rel. Savory, Inc. v. Plunkett, 295 N.Y. 180, 183, 66 N.E.2d 46, 47; Crawford, Statutory Construction (1940 ed.), § 311.)

In the instant case, subdivision (3) (pars. (a), (b)) of section 386 of the Conservation Law and UJCA section 2001 cannot both be enforced. The former prohibits the Justice Court, Town of Ramapo, from entertaining jurisdiction of misdemeanors specified in section 387 (subd. (4)) of the Conservation Law, while the latter vests this court with jurisdiction to try all misdemeanors. Consequently, under the rule stated above, the conflict between section 386 (subd. (3), pars. (a), (b)) of the Conservation Law and UJCA section 2001 (subd. (a)) must be resolved by holding that the latter impliedly repealed the former insofar as they are inconsistent, with the result that the latter is controlling. ⁷ The Justice Court, therefore, did have jurisdiction of the crime of which the defendant was convicted.

We turn now to the question of whether the defense of entrapment ⁸ may be properly rebutted upon the People's case in chief.

At the outset, it should be noted that while ordinarily evidence of other criminal acts of a defendant are inadmissible (Richardson, Evidence (9th ed.), § 175; 1 Jones, Evidence (1958 ed.), § 162), there are instances where such evidence is, in fact admissible. (See, e.g., People v. Molineux, 168 N.Y. 264, 61 N.E. 286; 2 Wigmore, Evidence (3d ed.), §§ 300--373; McCormick, Evidence (1954 ed.), § 157, p. 327.) One of these instances, we recently held in People v. Calvano (30 N.Y.2d 199, 331 N.Y.S.2d 430, 282 N.E.2d 322), is that such evidence is admissible to refute the defense of entrapment asserted against the crime charged. As the Supreme Court stated in Sorrells v. United States (287 U.S. 435, 451--452, 53 S.Ct. 210, 216, 77 L.Ed. 413): 'The predisposition and criminal design of the defendant are relevant * * * if the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue. If in consequence he suffers a disadvantage, he has brought it upon himself by reason of the nature of the defense.' (See, also, 1 Wigmore, Evidence (3d ed.), § 58; A.L.I., Model Penal Code (Tent.Draft No. 9, May 8, 1959), § 2.10, Comments at p. 21; Comment, Entrapment Doctrine in the Federal Courts and Some State Court Comparisons, 49 J.Crim.L., C. & P.S. 447, 450--452.)

Defendant, acknowledging the Calvano rule, and that the People's evidence relating to this exception was competent, argues that the trial court nevertheless erred when it permitted the introduction of such evidence as part of the People's direct case. In short, he urges that our court should embrace the position that no evidence of a predisposition to commit the crime may ever be introduced by the People except in rebuttal to affirmative evidence of entrapment adduced 'during the defense portion of the case and after the People have rested.'

Since this position would, as the Second Circuit noted in United States v. Sherman (240 F.2d 949, 952, revd. on other grounds 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848) 'emasculate the rule and work grave prejudice' to the People where a defendant would go to the jury on the entrapment issue on the proof adduced by the People on its direct case (see,...