People v. Rosenfeld

• Decision Date: 07 December 1961
• Citation: 221 N.Y.S.2d 740,15 A.D.2d 459
• Parties: PEOPLE of the State of New York, Respondent, v. Leonard ROSENFELD, Philip J. Buckles and James Kelly, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 740

221 N.Y.S.2d 740

15 A.D.2d 459

PEOPLE of the State of New York, Respondent, v. Leonard ROSENFELD, Philip J. Buckles and James Kelly Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

Dec. 7, 1961.

Jacob Shientag, New York City, for appellant Rosenfeld.

Harris B. Steinberg, New York City, of counsel (Robert Kasanof, New York City, with him on the brief), for defendants Buckles and Kelly.

H. Richard Uviller, New York City, of counsel (Peter J. O'Connor, New York City, with him on the brief, Frank S. Hogan, Dist. Atty., New York City), for respondent.

Before VALENTE, J. P., and STEVENS, EAGER, STEUER and BERGAN, JJ.

PER CURIAM.

These are appeals by each of the three defendants from a judgment of the Court of General Sessions convicting each of them, after trial by court and jury, of an attempt to commit the crime of extortion (Penal Law, §§ 2, 850, 851).

The indictment on which the appellants were tried was in three counts, the first count charging them and the defendant Mallon of conspiracy to commit the crime of extortion, the second count charging said defendants of attempting to extort money from one Shimon Tamari by accusing him of a crime and to cause his arrest and prosecution therefor, and the third count charging said defendants with an attempt to extort money from Shimon Tamari by threatening to accuse his wife, Joan Tamari, of a crime. The jury acquitted the defendant Mallon on all counts and acquitted the appellants on the first and third counts of the indictment.

The convictions of the appellants of the second count charging them with attempting to extort money from Shimon Tamari are well supported by the evidence. In fact, appellants Buckles and Kelly raise no question on this appeal as to the legal sufficiency of the evidence. As to appellant Rosenfeld, who questions the sufficiency, the evidence of his guilt is clear and convincing; and, in our opinion, the case against him is even stronger than that against his co-defendants.

We find no merit in many of the claims of prejudicial error or alleged instances of trial misconduct urged by the appellants as a basis for a reversal and new trial. For instance, we conclude that it was proper for the trial court to receive as against all defendants the testimony with respect to the events and the conversations in the Nichols and Kraft apartments on June 3rd, including the testimony with respect to the payment of the $300 by Nichols to Rosenfeld. Clearly, such testimony was admissible against them in connection with the conspiracy charge which was also being tried. (See People v. Davis, 56 N.Y. 95, 103; People v. McKane, 143 N.Y. 455, 470, 38 N.E. 950, 954; People v. Luciano, 277 N.Y. 348, 358, 14 N.E.2d 433, 435; People v. Vaccaro, 288 N.Y. 170, 172, 42 N.E.2d 472.) Furthermore, the events of June 3rd were relevant in connection with the attempted extortion charge in that it was claimed by the People that the defendants' plans originated on that day upon the obtaining of Tamari's name from Nichols' address book. While there is no evidence directly contradicting the claim of the appellants that the $300 paid to Rosenfeld was a proper payment to him as a fee, the testimony concerning this payment was admissible as part of the over-all picture of what took place on June 3 and as showing the relationship of the parties, particularly in view of the conspiracy charge.

The appellants complain of the assistant district attorney's use of the record of the prior statement made to his office by the witness Kraft, and of the use of the grand jury testimony of Kraft and Nichols. These witnesses, called by the People, were not fully co-operative and Kraft was definitely a hostile witness. The use of the Kraft statement and the grand jury testimony was proper for the purpose of refreshing the recollection of the witnesses and for impeachment purposes. (See Code of Criminal Procedure, § 8-a; People v. Ferraro, 293 N.Y. 51, 56, 55 N.E.2d 861, 863; Roge v. Valentine, 280 N.Y. 268, 276, 20 N.E.2d 751, 754; People v. Portese, 279 App.Div. 63, 65, 108 N.Y.S.2d 471; People v. Bishop, 270 App.Div. 133, 135, 58 N.Y.S.2d 711; People v. Steffens, 12 A.D.2d 962, 211 N.Y.S.2d 249; People v. Hernandez, 12 A.D.2d 607, 208 N.Y.S.2d 91, aff'd 10 N.Y.2d 774, 219 N.Y.S.2d 617, 177 N.E.2d 56.) In connection with the use of the same, the court repeatedly instructed the jury that these items were received solely for the limited purpose of refreshing the recollection of the witnesses and on the issue of their credibility, and that the items were not to be relied upon as evidence in chief; and the assistant district attorney so noted in his summation. In any event, it is clear that the use of the Kraft statement and grand jury testimony did not tend to mislead or confuse the jury in their determination of the issues in connection with the extortion charge. It is important to bear in mind that the testimony of Kraft and Nichols related to the June 3rd episode, and not directly to the attempted extortion charge upon which the appellants were convicted; that their testimony came early in this long trial; that the charge of attempted extortion, of which the appellants were convicted, hinged principally upon the occurrences beginning in Tamari's apartment on June 18th and developed later on in the trial.

Notwithstanding that the minifone recordings of the conversations between Rosenfeld and Tamari were incomplete and that Rosenfeld's remarks were in the...