People v. Pieri

• Decision Date: 07 January 1936
• Citation: 199 N.E. 495,269 N.Y. 315
• Parties: PEOPLE v. PIERI et al. SAME v. BERMAN et al. SAME v. ARCIDIACO et al.
• Court: New York Court of Appeals Court of Appeals

269 N.Y. 315

199 N.E. 495

PEOPLE

v.PIERI et al.

SAME

v.BERMAN et al.

SAME

v.ARCIDIACO et al.

Court of Appeals of New York.

Jan. 7, 1936.

Sam Pieri and others were convicted of a violation of section 722 of the Penal Law, and they appeal by permission of a justice of the Appellate Division, and Sam Berman and others, and Salvatore Arcidiaco and another were likewise convicted of a violation of section 722 of the Penal Law (156 Misc 461, 281 N.Y.S. 872), and they appeal by permission of a judge of the Court of Appeals.

Reversed and informations dismissed.

FINCH, J., dissenting in part.Appeal from Court of Special Sessions, City of New York, Appellate Part, First Department.

Samuel M. Fleischman, of Buffalo, for appellants Pieri, Perna and tronolone.

Harry G. Anderson, of New York City, and Sol A. Klein and Abraham H. Kesselman, both of Brooklyn, for appellants Berman and others.

Elvin N. Edwards and Leo Fishel, both of Mineola, L. I., and Maurice F. Cantor and Robert J. Fitzsimmons, both of New York City, for appellants Arcidiaco and Spitale.

Walter C. Newcomb, Dist. Atty., of Buffalo (W. J. Wetherbee and David F. Doyle, both of Buffalo, of counsel); William F. X. Geoghan, Dist. Atty., of Brooklyn (Ralph K. Jacobs, of New York City, of counsel); and William Copeland Dodge, Dist. Atty., of New York City (Felix C. Benvenga and LeRoy Mandle, both of New York City, of counsel), for the People.

Paul Windels, Corp. Counsel, of New York City (Paxton Blair, Seymour B. Quel, and Ambrose J. Haddock, all of New York City, of counsel), amicus curiae for Police Department of the City of New York.

CRANE, Chief Judge.

The appeal in these three cases challenges the constitutionality of subdivision 11 of section 722 of the Penal Law (Consol.Laws c. 40). As there appears to be some uncertainty as to the meaning of the section, we must at the very beginning analyze its provisionsto ascertain just what acts are made criminal. Section 722: ‘Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct: * * *

‘Who bears an evil reputation and with an unlawful purpose consorts with thieves and criminals * * * consorting with persons of like evil reputation, thieves or criminals shall be prima facie evidence that such consorting was for an unlawful purpose.’ (Subd. 11.)

This is the offense and these the acts which must be proved to convict. Let us take them one by one:

First. The people must prove an intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned. What is a breach of the peace? ‘It is a disturbance of public order by an act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community.’ People v. Perry, 265 N.Y. 362, 364, 193 N.E. 175, 177. There are two intents mentioned, one, the intent to provoke a breach of the peace, the other, the consorting for an unlawful purpose. The statute is loosely drawn, as a meeting of criminals for an unlawful purpose is a meeting with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned. The combination of intents, however, indicates that the association of these evil-minded persons must be to do or plan something unlawful. The consorting alone is no crime. The prima facie evidence provision in this section, however, would apply to the intent to provoke a breach of the peace as well as to the unlawful purpose.

Second. There must be proof of defendant's evil reputation. Reputation is a very indefinite and uncertain matter to prove; one neighbor may strenuously disapprove of habits or conduct which another neighbor may consider harmless. In this connection where we find the words in a criminal statute, we must assume that they mean ‘bad’ reputation; that the character imputed to the person in the community is bad, generally bad. That bad reputation is a fact which the law recognizes as capable of proof, see People v. Pasquale, 206 N.Y. 598, 100 N.E. 413;Woods v. People, 55 N.Y. 515, 14 Am.Rep. 309; Brennan v. People, 7 Hun, 171.

Third. The prosecution must prove that this bad person consorts with thieves and criminals. These words must be examined or else we go astray. The associates must be thieves and criminals, that is, present wrongdoers. Of course, this does not mean that they must be in the act of committing crime, but that they by course of conduct, manner of living, recent criminal records, and other facts and circumstances are shown to the trier of facts to be people who have not reformed, but remain violatiors of the law. We would never go so far, I am sure, as to say that because a man had been in prison he remained a criminal all his life. Some men, as we know, with no criminal propensities at all have made mistakes, been overtaken by temptation, and paid the penalty the state demands. We would not add to their burden by saying or even intimating that they should be shunned or classed as criminals. The people this section points at are those who from their records and present lives are continuing in crimes of a serious nature, such as robberies, burglaries, kidnappings, forgeries, and the like. Each case will depend upon the evidence. Sufficient for this analysis, that the associates must be this kind of persons, ‘thieves and criminals'-a general description of a present state of being. ‘Consort,’ what does this word import? It connotes a union; a continuity of companionship; the noun gives a better expression to the idea-a partner or colleague.

Fourth. And to all these facts is to be added the purpose of this companionship, which must be for an ‘unlawful’ purpose.

Here then is the crime. If a person of bad reputation, with intent to provoke a breach of the peace, keeps company with criminals, makes them his associates, for an unlawful purpose, he is guilty of disorderly conduct. Nothing unconstitutional about such a statute. There may be difficulty in finding the evidence or in proving the case, but when proved, an offense is committed not unlike ‘vagrancy,’ which has been in the statute books for many a day, Code Cr. Proc. § 887, subd 10. It is an attemptto prevent crime by disrupting and scattering the breeding spot.

This section of the Penal Law has not the defects of those statutes in other jurisdictions which have been held invalid. City of St. Louis v. Fitz, 53 Mo. 582. An ordinance making it a crime ‘to knowingly associate with persons having the reputation of thieves' was held to be unconstitutional, if mere association were the crime. See, also, City of St. Louis v. Roche, 128 Mo. 541, 31 S.W. 915, and Ex parte Smith, 135 Mo. 223, 36 S.W. 628,33 L.R.A. 606, 58 Am.St.Rep. 576;People v. Belcastro, 356 Ill. 144, 190 N.E. 301, 92 A.L.R. 1223;Stoutenburgh v. Frazier, 16 App.D.C. 229;People v. Licavoli, 264 Mich. 643, 250 N.W. 520. Mere association of people of ill repute with no intent to breach the peace or to plan or commit crime is too vague a provision to constitute an offense. Neither can reputation alone-bad reputation-be made a crime. Suspicion does not establish guilt. But when we have a person of bad repute in close association and companionship with criminals and thieves, for an unlawful purpose and with intent to breach the peace, we have a set of facts much stronger and more definite than anything in the above cases.

We think these elements comply with the rule that criminal statutes should have a clear meaning and purpose and should not be doubtful and uncertain. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322;People v. Briggs, 193 N.Y. 457, 459,86 N.E. 522.

One fact which must be proved by the people is left in the first instance to a presumption. The fact that the defendant is found consorting with thieves and criminals shall be prima facie evidence that such consorting was for an unlawful purpose. Is this an unreasonable or unnatural presumption? Is there not here some rational relation between the fact proved and the fact presumed? Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78,32 L.R.A.(N.S.) 226, Ann.Cas.1912A, 463. Does not experience warn us that when evil persons associate with those who commit crime or have repeatedly been convicted of violating the law, it is all to no good purpose; such close association immediately suggests that some unlawful scheme is being concocted? Besides, the prosecution, even with the aid of this presumption, must still prove to the satisfaction of the judge, beyond a reasonable doubt, that the consorting was in reality for an unlawful purpose; the burden of proof is not shifted. People v. Cannon, 139 N.Y. 32, 34 N.E. 759,36 Am.St.Rep. 668.

With this explanation and interpretation of section 722, subd. 11, or, rather, taking these provisions as they read, the statute is not unconstitutional. The proof, however, is another matter.

The conviction of Arcidiaco and Spitale was obtained on a misreading of this disorderly conduct statute. They were tried as being persons of evil reputation, meeting and conversing together, and convicted solely on their reputation. There is no such crime, as the above explanation makes clear. The assistant district attorney with his usual frankness admitted this on the argument so far as to the facts which the evidence established.

The case against Berman, Gambino, Moskowitz, Shanker, and Shapiro lacks sufficient proof of consorting with each other for an unlawful purpose. They were seen together for about two minutes.

As to the case from Erie county, wherein the two Pieris, Tronolone, and Perna are defendants, we have different circumstances. Sam and Joseph Pieri are brothers. Anthony Perna had been arrested a number of times for violation of the traffic laws, and in 1927 sentenced to Auburn Prison for a crime...