People v. Nuzzo

Decision Date24 May 1945
Citation294 N.Y. 227,62 N.E.2d 47
CourtNew York Court of Appeals Court of Appeals


Appeal from Supreme Court, Appellate Division, Second Department.

Samuel A. Nuzzo was convicted of grand larceny in the first and second degrees, petit larceny, and forgery in the third degree, by a judgment of the Supreme Court at an Extraordinary Trial Term (Heath, J.), entered in Orange County. From a judgment affirming the conviction, entered December 30, 1943, 267 App.Div. 785, 46 N.Y.S.2d 103, defendant appeals by permission of an Associate Justice of the Court of Appeals.

Reversed and new trial ordered.

DESMOND, J., dissenting.

Henry Hirschberg, of Newburgh, for appellant.

Nathaniel L. Goldstein, Atty. Gen. (Stanley H. Fuld, Irving Galt, and Saul A. Shames, all of New York City, and John F. Tucker, of Albany, of counsel), for respondent.


The defendant was tried upon two consolidated indictments containing eight counts for grand larceny in the first degree, thirteen for grand larceny in the second degree, one for petit larceny, and thirteen for forgery in the third degree. The court dismissed two of the counts of grand larceny in the second degree and reduced one count of grand larceny in the second degree to petit larceny. The jury acquitted the defendant on one count of grand larceny in the second degree and found the defendant guilty upon all the remaining counts. There was a third indictment filed against the defendant which contained fifty-four counts charging various grand larcenies, some in the first and some in the second degree. This indictment was never moved for trial. A large part of the record of the trial of the consolidated indictment was taken up with the introduction of evidence to show that the defendant committed the crimes alleged in this untried indictment as well as many other crimes not specified in any of the indictments.

All the offenses as to which evidence was given upon the trial arose out of the defendant's administration of his office of financial secretary and business agent of a labor union, Local 17 of the International Hod Carriers' Building and Common Laborers' Union of the American Federation of Labor. The affairs of this union were investigated by the Attorney-General (pursuant to directions of the Governor) and the indictments followed this investigation.

In affirming the defendant's conviction the Appellate Division in a brief memorandum based its decision upon section 542 of the Code of Criminal Procedure, thus indicating errors in the trial which it felt constrained to disregard as not affecting the substantial rights of the defendant. This court is agreed that the evidence was sufficient to support the verdict of the jury and that errors were committed in the course of the trial.

As part of their main case, the People called as a witness Mrs. Jennie C. Utter, who testified, over objection and exception, that she accompanied the defendant on trips to conventions of the American Federation of Labor at Atlantic City, New York City and St. Louis; she further testified that she took a trip to Florida with the defendant in January, 1940; that on each one of these trips she stayed in the hotel where the defendant stayed and her expenses were all paid by him; that while they were in Florida together he flew with her to Cuba for a three-day trip and, returning to Miami Beach, he purchased for her a silver fox coat costing $350. The circumstances disclosed by her examination plainly suggested that her relations with the defendant were improper, and it is admitted by the Attorney-General that her testimony relating to the trips which she made with the defendant to St. Louis and to New York should not have been received. The Attorney-General also concedes that if the testimony of this witness were introduced to prove an illicit or meretricious relationship it would have been improper, but asserts that the evidence was adduced solely to discredit the defendant's claim that local funds had been used for union purposes, the defendant having told the Grand Jury prior to his indictment that he had spent $1,500 legitimately in Atlantic City for ten or twelve bodyguards and had paid one Wallace $500 properly while he was vacationing in Florida. If Mrs. Utter's testimony had shown that the defendant's testimony before the Grand Jury with reference to the expenditure of union funds was false, then it would have been competent and highly material. It showed nothing of the kind. Her only testimony relating to bodyguards was that she was never present when the defendant had a conversation concerning bodyguards and she did not hear him discuss them. There was nothing to show that she was present when such matters might have been discussed. The Attorney-General asserts that Mrs. Utter furnished testimony strongly suggesting that the union's money went to cloak her with a $350 fur coat. Certainly there is nothing in her testimony to show that she had any knowledge whatever as to the source of the money which the defendant spent in making this purchase. The defendant testified:

‘Q. While you were down there (in Florida) did you and Mrs. Utter and Angelo Tudico fly over to Cuba? A. Yes, sir.

‘Q. Did Mrs. Utter go as your guest? A. Yes, sir.

‘Q. How long were you in Cuba? A. Three days.

‘Q. And was it before you went or after you came back that you telegraphed to Helen Ronk for the $500? A. I believe it was after I cam back.

‘Q. And how much money did you take with you on that trip, Mr. Nuzzo? A. I had about $500, I believe, $600.’

The defendant admitted he had bought a silver fox coat for Mrs. Utter costing $350, but testified:

‘Q. Now, on this $500 that you got by telegraphing did you give all of that to Wallace? A. Yes, sir.’

It is upon this testimony that the Attorney-General attempts to support his assertion that union funds were used to pay for the fur coat.

Upon this record we are constrained to conclude that there was no legitimate purpose in calling Mrs. Utter as a witness and we are confirmed in this view by the use made of her testimony by the Attorney-General in his summation to the jury. The following comments were made: ‘In 1939, August, I believe, Nuzzo has got to go to Atlantic City, to a meeting of the International Executive Board; so Sam and Mrs. Utter go down to Atlantic City.’ And again, with reference to the convention in New York: ‘So they all go down to New York with Mrs. Utter to the convention.’ ‘Well, in January, 1940, they are going to town on this organization, and what do these books show? In January, 1940, that is just before Sam and Mrs. Utter went to Florida, * * *.’Come on, Mr. Tudico, my brother-in-law, married to my wife's sister. Come on, Mrs. Utter to Florida.' Mrs. Utter as Mr. Nuzzo's guest. Strathaven Hotel, Miami Beach. A week. ‘Come on Tudico. Come on, Mrs. Utter. No, we won't take a boat. Let us fly over to Cuba for three days,’ and we come back. $500. That is all he has got. $500. He traveled down by train state rooms, plural, I mean, Strathaven Hotel, Miami Beach, fly to Cuba, three days, $500. He is back. ‘Hello, Newburgh.’ Is this Miss McKay? Send me down $500, Western Union. I will tell you what it is four when I come back.' * * * And Mrs. Utter gets a silver fox coat for $350. It is not denied but admitted by Nuzzo on cross examination. Take $350 from $500 and you have not got much left.' ‘Oh, I could go on. I could take you to St. Louis, take Mrs. Bilyeu and Mr. Bilyeu and Mr. Russell and Mrs. Utter and Sam, take you to St. Louis and spend $2,500 of the union's money, but I won't take up your time, you remember it as well as I do.’

It is not without significance that the testimony is said to have been introduced to discredit testimony already given by the defendant, not upon the trial but before the Grand Jury, although it had no such effect. What she said about the bodyguards did not discredit the defendant's testimony that such guards were employed and paid and her testimony that the defendant had spent $350 for the coat discredited nothing in defendant's testimony.

It is the established rule that specific acts of a defendant in a criminal trial, unrelated to the offense with which he is charged but tending to show his bad character, may only be proven by his own admissions on cross examination if he chooses to give testimony and then only to the extent that such acts tend to impeach his credibility as a witness. People v. Webster, 139 N.Y. 73, 84,34 N.E. 730, 733. Nor does he put his general character in issue by taking the stand unless he introduces affirmative proof of good character. People v. Richardson, 222 N.Y. 103, 107,118 N.E. 514, 516;People v. Hinksman, 192 N.Y. 421, 85 N.E. 676. These rules of fundamental fairness in the protection...

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