People v. Perna

• Decision Date: 20 February 1964
• Citation: 246 N.Y.S.2d 920,20 A.D.2d 323
• Parties: The PEOPLE of the State of New York, Appellant, v. Michael PERNA, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 920

246 N.Y.S.2d 920

20 A.D.2d 323

The PEOPLE of the State of New York, Appellant, v. Michael PERNA, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Feb. 20, 1964.

George R. Blair, Buffalo (Thomas Daley and Irma R. Thorn, Buffalo, of counsel), for appellant.

Condon, Klocke, Ange, O'Donnell & O'Brien, Buffalo, for respondent (John W. Condon, Jr., and Grace Marie Ange, Buffalo, of counsel).

Before WILLIAMS, P. J., and BASTOW, GOLDMAN, NOONAN and DEL VECCHIO, JJ.

BASTOW, Justice.

In March, 1962 a grand jury sitting in Erie County returned an indictment charging defendant in each of eight counts with the crime of perjury, first degree. After an order had been made on defendant's motion granting him an inspection of the grand jury minutes a further motion was made to dismiss the indictment. The motion was granted and the People appeal. In dismissing the indictment the court made no written or oral statement so we do not know by what reasoning the decision was reached.

Defendant owned certain realty in the city of Buffalo which he had purchased from his son-in-law, Frank Pusatier, for $10,000. No consideration passed except that defendant gave Pusatier a promissory note for $10,000. On June 13, 1961 Pusatier and another were apprehended inside of the building while attempting to start a fire. The building had been insured by defendant for $24,000. Pusatier was charged with the crime of attempted arson.

Subsequently, a grand jury commenced an investigation of the circumstances surrounding the attempt to burn the building. For some three months law enforcement officials sought defendant to subpoena him before the grand jury. He finally appeared before that body in January, 1962--some seven months after the claimed attempted arson.

Defendant testified that during the months of June, July and August, 1961 he was sojourning at the home of a friend in the Buffalo suburb of Angola. He read and knew at the time of the attempted burning of his building. He admitted journeying to the city of Buffalo to visit the home of his daughter. He persistently denied, however, that he was staying at his home. It thus becomes apparent from reading the grand jury minutes that the investigating body had certain definite targets including where defendant was on the 13th of June, and the reasons for his departure and long absence from his home thereafter. Defendant, as has been stated, painted a word picture to the grand jury that he was sojourning with his friend near the lake front during the warn summer months.

Defendant was married and crucial to his account of his summer activities was the whereabouts of his wife. Early in his examination he had answered in the affirmative to the question as to whether he lived with his wife. Defendant then volunteered 'My wife was in Florida at the time because her father had a stroke and she was taking care of her father.' Later in his questioning defendant admitted he was in Buffalo the day after the fire but when asked if he was home replied 'No, I wasn't staying at home because my wife wasn't there.' At another point defendant testified that his wife went to Florida the latter part of May or in early June.

To avoid needless repetition, it is sufficient to state that some 10 or 12 times during the course of his grand jury examination defendant either directly testified that his wife was in Florida during the summer months of 1961 or sought refuge in the claimed fact that she was in Florida to explain why he did or did not do certain acts. There was a wealth of proof before the grand jury to present a question of fact as to the truthfulness of these statements. Defendant's wife, son, daughter and daughter-in-law testified before that body. The wife testified without equivocation that she went to Florida in August, 1961. In answer to direct questions she stated that she was not in Florida in June or July of 1961. During those months she was at her Buffalo home with trips from time to time to visit her father in the nearby community of Orchard Park.

The grand jury selected eight excerpts from defendant's several statements that his wife was absent from the Buffalo home and in Florida during June and July, 1961 and they are the basis for the counts in the indictment charging that Perna willfully testified falsely to propounded questions material to the investigation. There can be no doubt from the foregoing recital that a triable issue was presented as to whether the statements were true or false. It follows that the indictment must have been dismissed upon a finding that the testimony was not material.

Prior to 1935 the question as to whether in a prosecution for perjury the testimony, the falsity of which was charged, was material or not was one of law for the court. (People ex rel. Hegeman v. Corrigan, 195 N.Y. 1, 9, 87 N.E. 792, 794-795) In 1935 'materiality' was removed from the general definition of perjury and the crime was divided into two degrees (L.1935, ch. 632). Section 1620-a of the Penal Law defines perjury, first degree, as perjury as to any material matter while perjury, second degree (§ 1620-b) is the commission of perjury under circumstances not amounting to perjury in the first degree. By chapter 93 of Laws of 1936 perjury, second degree was made a misdemeanor. (§ 1633)

These amendments were considered in People v. Samuels, 284 N.Y. 410, p. 414, 31 N.E.2d 753, 754, where it was said: 'The section as amended defines one crime, perjury. To constitute that crime, materiality is no longer of the essence. Its existence may warrant an indictment for perjury in the first degree, but it does not constitute a different crime, so as to make such an indictment requisite. The degrees of the crime are not mutually exclusive. Notwithstanding the negative definition of perjury in the second degree, swearing falsely to an immaterial matter is in a legal sense necessarily contained within a description of false swearing to a material matter.'

In view of these amendments doubts remained as to whether the question of materiality was solely one of law for the court (as had been the rule prior to the 1935 amendment) or one of fact for the jury. These doubts were resolved by People v. Clemente, 285 App.Div. 258, 136 N.Y.S.2d 202, 62 A.L.R.2d 1009, affd. 309 N.Y. 890, 131 N.E.2d 294. The applicable rule was thus stated by the Appellate Division (285 App.Div. pp. 261-262, 136 N.Y.S.2d pp. 205-206, 62 A.L.R.2d 1009): 'Apart from authority, we cannot agree with the District Attorney in his argument addressed to the principle of the matter, contending that the question of materiality is obviously a legal question for the court and one which is beyond the jury's province and capabilities. * * * What the law really does, in the interest of a fair...