People v. Potenza

• Decision Date: 28 February 1983
• Citation: 92 A.D.2d 21,459 N.Y.S.2d 639
• Parties: PEOPLE of the State of New York, Respondent, v. Rocco D. POTENZA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 639

459 N.Y.S.2d 639

92 A.D.2d 21

PEOPLE of the State of New York, Respondent, v. Rocco D. POTENZA, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Feb. 28, 1983.

Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, for appellant; Paul Cambria, Buffalo, of counsel.

Richard J. Arcara, Dist. Atty., Buffalo, for respondent; John DeFranks, Asst. Dist. Atty., Buffalo, of counsel.

Before HANCOCK, J.P., and CALLAHAN, DENMAN, BOOMER and MOULE, JJ.

HANCOCK, Justice Presiding:

Defendant, formerly a lawyer in Buffalo, was convicted after a non-jury trial of bribing Richard M. Mancuso, an Erie County Assistant District Attorney, in connection with a consumer fraud case involving defendant's clients. The principal witness against defendant was his accomplice, Mancuso, who had pleaded guilty to bribery in other matters. At issue is whether the evidence offered to corroborate the testimony of the accomplice Mancuso, chiefly taped recordings of two conversations between defendant and Mancuso, meets the requirement of CPL 60.22 that it "tend[s] to connect the defendant with the commission of [the] offense" of bribery, second degree. Defendant does not dispute that he took part in the conversations or that the tapes accurately reflect them. Rather, he points out that portions of the conversations are susceptible to an interpretation consistent with his innocence and urges that, particularly when viewed in light of his exculpatory testimony, they do not satisfy CPL 60.22. We hold that the court could properly find sufficient corroboration in the conversations themselves and in defendant's explanations thereof, which, if deemed unworthy of belief, can support an inference of guilt.

Here, the crime to the commission of which defendant must be linked is bribery: a crime which, if it was committed at all, was committed by defendant. Thus the proof required under CPL 60.22 must do more than tie the defendant to the transaction in which the bribe is said to have occurred (see People v. Morhouse, 21 N.Y.2d 66, 75, 286 N.Y.S.2d 657, 233 N.E.2d 705; People v. Fiore, 12 N.Y.2d 188, 201, 237 N.Y.S.2d 698, 188 N.E.2d 130; People v. Mullens, 292 N.Y. 408, 416, 55 N.E.2d 479). There must also be proof independent of the accomplice's testimony of words and actions of the defendant tending to show that the bribe did occur, i.e., tending to show that defendant "offer[ed] to a public servant a benefit to induce him 'to act or refrain from acting in a matter over which he may be assumed to have power' (People v. Chapman, 13 N.Y.2d 97, 101 [242 N.Y.S.2d 200, 192 N.E.2d 160] )" (People v. Graham, 57 A.D.2d 478, 482, 394 N.Y.S.2d 982, affd. 44 N.Y.2d 768, 406 N.Y.S.2d 36, 377 N.E.2d 480). The evidence, we find, meets this test.

There is little difference between the testimony of Mancuso and defendant with respect to the factual background. In June, 1977 Mancuso was the Assistant District Attorney in charge of the Consumer Fraud Bureau. As a lawyer with 25 years of experience, defendant had in the past represented clients in criminal fraud cases involving household repairs. He and Mancuso were friends and had at one time shared office space. The matter giving rise to the bribery charge involved the possible prosecution of defendant's clients Frustino, Westfall and Palmer in connection with $9,000 paid to them for household repairs by an 84-year-old woman in Cheektowaga, Mabel Hartung. That he and Mancuso held discussions concerning the resolution of the Hartung matter defendant does not deny.

Mancuso testified that on June 2, 1977 defendant called him on the telephone and requested an immediate meeting on the Hartung case at defendant's office. At the meeting, which took place a few days later in the Chemical Bank Building, defendant asked him to send out target letters ¹ to his clients and told him that if he did so, he would make it "economically worthwhile". Mancuso agreed. In a follow-up phone conversation on June 7, Mancuso advised defendant that the target letters would probably go out, that his clients should not testify and that "they'll probably beat it." Defendant told Mancuso that he would have the money for him later in the week. The "scenario" for resolving the matter, as Mancuso described it, included the sending out of target letters to "serve as a spur" to defendant's clients and the ultimate resolution of the case without criminal prosecution in a civil compromise. Although the target letters were prepared, there is no proof that they were sent out. Some time after June 7 Mancuso received $1,000 in cash in a plain white envelope at defendant's office from Lynn Licata, defendant's secretary. On or about June 23, Mancuso prepared separate letters on the District Attorney's stationery addressed to Mabel Hartung and to defendant and a memorandum to the District Attorney, all of which recited his conclusion that the facts did not warrant a prosecution of defendant's clients for criminal fraud.

Defendant agrees that on June 2, after Frustino contacted him, he called Mancuso and asked him to come to his office. Mancuso, however, did not appear. On the next day, June 3, he met with Mancuso and with Assistant District Attorney Herter at Mancuso's office and succeeded in working out a civil compromise. He never asked Mancuso to send out target letters, he said, and, moreover, he didn't know what a target letter was. Neither he nor his secretary, Lynn Licata, gave Mancuso $1,000; nor did he ever promise to make such a payment. The references to money in the conversation of June 7, he explained, were not to a payment to be made to Mancuso but to the sum to be received from his clients and paid to the representative of Mabel Hartung for the civil compromise. Lynn Licata testified that at no time in June of 1977 did she deliver anything contained in a white envelope to Mancuso.

Mancuso and defendant agree that their first contact on the Hartung matter was on June 2, 1977, the first of four taped conversations, ² which follows:

Potenza: Richard?

Mancuso: Yeah. I called you yesterday.

Potenza: Yeah, I know you did. I saw the message. I called you ah--you remember those guys, those guys I told you about that were in that business?

Mancuso: Michaels?

Potenza: Yeah.

Mancuso: Yeah, they conveniently got in trouble.

Potenza: A spin off. Ah--something going on up in Cheektowaga? Did you hear anything about it?

Mancuso: Yeah, yeah sure did. Zablotny called me on it.

Potenza: Oh yeah?

Mancuso: Yeah.

Potenza: What's going to happen?

Mancuso: Wait a minute (puts on hold--talks to someone in the background).

Mancuso: Yeah Rock?

Potenza: Yeah.

Mancuso: Um--I told them to, what the hell, when he called me, he mentioned it. I told him to call me back, to lay ah to get the old broad, and lay an information on it.

Potenza: Well, all right. That's, that's good.

Mancuso: Because he--

Potenza: But, I would like to see you.

Mancuso: Yeah, yeah well I could--

Potenza: I won't come over there. I want you to come over here.

Mancuso: Okay.

Potenza: Come on over. Come on over now.

Mancuso: All right.

Potenza: Have a cup of coffee.

Mancuso: All right. I, I'm waiting for a guy now to pay off his mortgages. As soon as I am done with him I'll shoot over.

Potenza: Okay.

Mancuso: Okay?

Potenza: All right. Okay.

Mancuso: But ah--I told Vince Zablotny that this might merit a direct presentation ....

In his testimony defendant conceded that the references to "those guys * * * that were in that business" and to "Michaels" were intended to signify to Mancuso the type of matter that he was calling about: i.e., a criminal case involving home improvement fraud. His inquiry about "something going on up in Cheektowaga" admittedly was about the Hartung complaint which he understood was being investigated by Officer Zablotny. By "the old broad" he knew Mancuso meant Mabel Hartung.

Defendant acknowledged that he interjected: "Well, alright. That's, that's good" when told that Mancuso had directed Zablotny to "get the old broad, and lay an information on it." The reason for his reaction, defendant said, was his thought that the case would then be in a local court where it would be easier to have a civil compromise approved.

The telephone conversation of June 7 follows:

Potenza: How are things going up there in the (pause) Pole country?

Mancuso: Cold country?

Potenza: Pole, Pole, Pole country.

Mancuso: I don't know if I'm following this. Oh, yes, as a matter of fact, they're coming in to see me.

Potenza: Well that's good. I'll have the ... medicine for that person. (the voices run together--Potenza's voice inaudible)

Mancuso: I'll tell you why. There seems to be a problem with it. Chris Belling called to say they really want to go ahead, but there's some legal problems.

Potenza: Like what?

Mancuso: The old lady who she actually recognizes and so on. So probably target letters will go out. But if these guys don't testify they'll probably beat it, but, you follow me.

Potenza: Well then I shouldn't take the medicine.

Mancuso: Oh yeah. Oh sure.

Potenza: I want to make sure that--I can't take it, and have them coming back.

Mancuso: What do you mean? Oh, no, no, no

Potenza: You sure.

Mancuso: Sure. I'm telling you the scenario of this thing. The best way to do it.

Potenza: I'll have a--I'll have that thing for you, you know later this week.

Mancuso: Yeah, have it because I'm going to see [him?]

Potenza: Oh, absolutely.

Mancuso: Draft up what should be done, and so

Potenza: Later this week.

Mancuso: Okay.

Potenza: All right.

Mancuso: Keep in touch.

In the opening question: "How are things going up there in Pole Country?", both participants agree that they understood the inquiry to be about Cheektowaga and the Hartung case. In telling Mancuso: "I'll have the ... medicine for that person" and in the comments "well then I shouldn't take the medicine" and "I can't take it and have them coming back", defe...