People v. Morhouse

Citation21 N.Y.2d 66,286 N.Y.S.2d 657,233 N.E.2d 705
Parties, 233 N.E.2d 705 The PEOPLE of the State of New York, Respondent, v. L. Judson MORHOUSE, Appellant.
Decision Date07 December 1967
CourtNew York Court of Appeals

Page 657

286 N.Y.S.2d 657
21 N.Y.2d 66, 233 N.E.2d 705
The PEOPLE of the State of New York, Respondent,
L. Judson MORHOUSE, Appellant.
Court of Appeals of New York.
Dec. 7, 1967.

Page 659

[233 N.E.2d 706] [21 N.Y.2d 67] Harris B. Steinberg and Stanley S. Arkin, New York City, for appellant.

[21 N.Y.2d 69] Frank S. Hogan, Dist. Atty. (Michael Juviler and H. Richard Uviller, New York City, of counsel), for respondent.

[21 N.Y.2d 70] BURKE, Judge.

Defendant appeals, by leave of a Judge of this court, from a judgment of the Appellate Division, First Department, affirming a judgment of the Supreme Court, New York County, convicting him of the crimes of bribery (former Penal Law, Consol.Laws, c. 40, § 378) and taking unlawful fees (former Penal Law, § 1826), respectively, counts three and six of his six-count indictment. Defendant's conviction for these crimes was predicated upon his allegedly having aided and abetted in their commission (see former Penal Law, § 2). He was sentenced to concurrent two to three-year sentences on each count.

Page 660

[233 N.E.2d 707] The factual background of this case is relatively simple. The defendant Morhouse, a prominent political leader at the time in question, is accused of having been a party to the bribing of Martin Epstein, former Chairman of the State Liquor Authority, by the backers of the New York Playboy Club. The object of the bribe was the securing of a restaurant liquor license for this establishment.

The People's case, developed through Arnold Morton and Robert Preuss, both officers of Playboy International Clubs, and Ralph Berger (whose conviction in our courts was recently reversed by the Supreme Court, Berger v. State of New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040), all ruled accomplices by the trial court, established that [21 N.Y.2d 71] before Morhouse came into the picture there had been a corrupt understanding between Epstein and the Playboy people that Epstein in return for a $50,000 bribe would help the Playboy people with certain 'problems' blocking their obtaining a liquor license; that this deal fell through when Hyman Siegel, an attorney retained by the Playboy people at Epstein's suggestion, told them that, because a $25 purchase of a key was to be required for admission, only a private club license, not a restaurant license, could be issued; that, at Epstein's suggestion, Morhouse was then brought into the matter; that Morhouse assured Morton and his associates that he would handle their problems with Epstein in return for $100,000 plus other considerations; that Morhouse indicated he was aware of the corrupt arrangement with Epstein *; that following Morhouse's agreement with Morton and Preuss to help them secure their license, Berger received a telephone call from Epstein, reporting that Epstein and Morhouse had discussed the deal that the Playboy people had made with Morhouse and instructing Berger to collect Epstein's $50,000 as soon as possible; and that subsequently Epstein was paid, through Berger, one half of his $50,000 bribe.

Under the People's theory of the case Morhouse occupied a dual role, on the one hand as aider and abettor of the Playboy people in bribing Epstein and on the other as aider and abettor of Epstein in the taking of an unlawful fee. This, of course, would be perfectly possible if Morhouse, with the requisite intent to aid both the Playboy people and Epstein, aided and abetted, counseled, commanded, induced or procured the actual perpetrators of these separate crimes to commit them (see former Penal Law, § 2.) This the jury found, on evidence which we feel was sufficient as a matter of law.

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Among other grounds for reversal urged by defendant on this appeal is the sufficiency of the People's proof, with defendant claiming that the circumstantial evidence placed before the jury by the prosecution did not lead exclusively to the inference of [21 N.Y.2d 72] defendant's guilt of the crimes of which he was convicted and that the accomplice testimony was not sufficiently corroborated.

The defendant makes much of the fact that it was the People's theory that Epstein's going through with his corrupt agreement was 'contingent' upon the Playboy officers' making a deal with Morhouse. He argues that the evidence does not exclude the possibility that Morhouse was ignorant of such a 'condition precedent.' Be this as it may, however, we hold that it was sufficient for Morhouse to be held liable as an aider and abettor of the bribers, count 'three' of the indictment, that he knew, as Berger's and Morton's testimony indicated he knew, that Epstein was to be bribed and that he attached himself to the cause of the bribers and encouraged them to continue with the corrupt agreement. His representation[233 N.E.2d 708] to the bribers that he could handle Epstein surely, at least indirectly, induced them to continue with and consummate the agreement with Epstein, which before Morhouse's entry upon the scene had fallen through. So, also, his knowledge of Epstein's agreement to take a bribe in return for favorable action on the Playboy application, coupled with his active assistance in bringing about Epstein's receipt of the unlawful payment, was sufficient to hold the defendant liable on the sixth count as an aider and abettor of Epstein in the crime of taking unlawful fees. While in one sense Morhouse might have been indifferent as to whether Epstein ever got paid, his own payment depended upon his success in getting the license for the Playboy Club, which required getting Epstein to go through with his bargain with the Playboy people. This establishes a sufficient identity of interest between Epstein and Morhouse for Morhouse to be held as an aider and abettor of Epstein.

The question of whether an accused aider and abettor sufficiently shared the intent of the actual perpetrator of a crime to make him liable as a principal is very often a difficult one. However, such was the stake the defendant Morhouse had in the outcome of the Epstein-Playboy transaction that we cannot see how he had anything less then the strongest interest in seeing this deal go through. The situation here is not at all like that obtaining in a number of the cases cited by defendant on this issue. In Morei v. United States, 127 F.2d 827 (6th Cir., 1942), for instance, the defendant Platt, who had referred the [21 N.Y.2d 73] Government informer to Morei as one from whom heroin might be obtained, ostensibly for the purpose of 'doping' race horses, had no personal interest in seeing

Page 662

the crime committed. (See, also, to the same effect, United States v. Moses, 220 F.2d 166 (3d Cir., 1955); Robinson v. United States, 262 F.2d 645 (9th Cir., 1959). Here, in contrast, the accomplice testimony, if believed, compels the inference that the defendant Morhouse's attitude toward the commission of these crimes, in whose commission he knowingly played a positive role, was 'purposive'. (See the opinion of Judge Learned Hand in United States v. Peoni, 100 F.2d 401 at p. 402 (2d Cir., 1938), cited by defendant as the classic exposition on this subject.)

More closely analogous to this case is United States v. Manna, 353 F.2d 191 (2d Cir., 1965), cert. den. 384 U.S. 975, 86 S.Ct. 1868, 16 L.Ed.2d 685 (1966). There the defendant Manna was convicted as an aider and abettor in the sale of narcotics on far less evidence of participation than appears here. Manna, himself a narcotics dealer, when approached by an undercover Government agent seeking to purchase drugs, explained that his supply was short and, therefore, the could not provide the drugs, but he referred the agent to another dealer, one Ray, with a message that the defendant wanted Ray to take good care of the agent. There was evidence that Ray made the sales reluctantly and only because of the defendant's requests. Manna was held by the Court of Appeals for the Second Circuit to be an aider and abettor of Ray, on the basis of the fact that he 'had sufficient ability, influence and control here to bring about a sale that, without his participation, would not have been made' (353 F.2d supra, p. 192). Similarly, in the instant case, the bribe of Epstein would not have taken place without the influence and encouragement of Morhouse. The deal had collapsed and he revived it.

Our decision in People v. La Belle, 18 N.Y.2d 405, 276 N.Y.S.2d 105, 222 N.E.2d 727, is not inconsistent with what we hold today. There we held a defendant could not be held liable as an aider and abettor of premeditated murder where the People's circumstantial evidence did not lead exclusively to the inference that the alleged aider and abettor had actual Knowledge of his codefendant's intention to kill the victim (18 N.Y.2d supra, pp. 411--413, 276 N.Y.S.2d pp. 109--111, 222 N.E.2d pp. 730--731). Here, in contrast, if the accomplice testimony is believed, there is no question but [21 N.Y.2d 74] that Morhouse had knowledge of and [233 N.E.2d 709] shared the guilty purposes of Epstein and the bribers.

The defendant's claim that the accomplice testimony given in evidence against him on his trial was insufficiently corroborated must also be rejected. As we indicated in People v. Fiore, 12 N.Y.2d 188, 201, 237 N.Y.S.2d 698, 706, 188 N.E.2d 130, 136, the corroboration requirement of section 399 of the Code of Criminal Procedures is fully met when there is some nonaccomplice evidence 'fairly tending to connect the defendant with the commission of the crime' (quoting from People v. Elliott, 106 N.Y. 288, 292, 12 N.E. 602, 603). The corroboration need not, as must circumstantial evidence, lead exclusively to the inference of

Page 663

the defendant's guilt. As this court has noted, even 'Matters in themselves of seeming indifference * * * may so harmonize with the accomplice's narrative as to have a tendency to furnish the necessary connection between defendant and the crime.' (People v. Dixon, 231 N.Y. 111, 116--117, 131...

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