People v. Rosenfeld

• Decision Date: 10 May 1962
• Citation: People v. Rosenfeld, 229 N.Y.S.2d 360, 11 N.Y.2d 290, 183 N.E.2d 656 (N.Y. 1962)
• Parties: , 183 N.E.2d 656 The PEOPLE of the State of New York, Respondent, v. Leonard ROSENFELD, Philip J. Buckles and James Kelly, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 360

229 N.Y.S.2d 360

11 N.Y.2d 290, 183 N.E.2d 656

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

Court of Appeals of New York.

May 10, 1962.

Harris B. Steinberg and Robert Kasanof, New York City, for Philip J. Buckles and James Kelly, Appellants.

Jacob Shientag, New York City, for Leonard Rosenfeld, appellant.

Frank S. Hogan, Dist. Atty. (H. Richard Uviller, William F. Reilly and Peter J. O'Connor, New York City, of counsel), for respondent.

DESMOND, Chief Judge.

In June, 1958 when the alleged acts charged in this indictment were committed defendants Buckles and Kelly were detectives of the Narcotic Squad of the New York City Police Department and defendant-appellant Rosenfeld was a New York City lawyer.All three were convicted on count numbered 2 of the indictment which alleged that defendants Buckles and Kelly (and another detective who was acquitted of all charges) committed the crime of attempted extortion by trying to extort money from one Shimon Tamari by threatening to accuse him of a crime and which count further charged defendant Rosenfeld with having aided and abetted the others in this attempt.The trial at General Sessions lasted seven weeks.Appellate Division, First Department, unanimously affirmed the conviction with an opinion which deals mainly with alleged prejudicial conduct of the Assistant District Attorney who tried the case.The Appellate Division concluded, however, that while some of the activities of the prosecutor were not justified they were not such as to deprive appellants of a fair trial.There is grave doubt of the validity of this conclusion.There is no doubt as to the sufficiency of the evidence.

Since the appellants do not argue inadequacy of proof, we can limit ourselves to a comparatively short summary of a very long record.The narrative starts in June, 1958.The theory of the prosecution was that from June 3 to June 21 all four of the defendants were conspiring to extort money from Shimon Tamari by threatening to accuse him of a crime involving narcotics.Testimony produced by the People showed that detectives Kelly and Buckles (and another detective named Powers not indicted), following up on information that one Michael Nichols was a marijuana vendor, went to Nichols' apartment on West 56th Street, Manhattan, got into the apartment, told Nichols that they were searching for a gun and in the course of the search found or claimed to find some marijuana in the apartment.The officers found in the apartment and apparently took away with them a book kept by Nichols in which there were a number of names, presumably of customers of his, including the name and address of Shimon Tamari.While the officers were there Nichols was allowed to telephone to a woman named Maguire who was in Ohio.During that conversation Nichols told the Maguire woman to come home because he needed help and the officers told her that Nichols was going to jail.A friend of Nichols named Kraft came to the apartment while the officers were there and later the officers and Nichols and Kraft went to the latter's apartment where the officers claimed to find some more marijuana.Kraft telephoned to defendant Rosenfeld who was said to be the lawyer for both Kraft and Nichols.Defendant attorney Rosenfeld came to the Kraft apartment.Rosenfeld talked privately with Nichols, then talked with the officers, then told Nichols that he would not be arrested provided he became an informer.Nichols gave Rosenfeld $300 allegedly for past services.It was the theory of the prosecution that the police officers had while in the apartment picked up Nichols' address book containing among others the name and address of Shimon Tamari.When the Maguire woman came back to town she was asked by defendant Rosenfeld if she knew one Shimon Tamari and she replied that Tamari was a friend of Nichols.

Shimon Tamari testified that he had been buying marijuana from Nichols for some time before June, 1958 when Nichols sold Tamari a quantity of marijuana, some of which Tamari gave away and some of which he sold.On June 18, 1958 the detectives Buckles, Kelly and a third detective came to Tamari's apartment and searched it.Some marijuana in a hiding place in the Tamari apartment was turned over to the officers by Mrs. Tamari.Tamari told the officers that he had bought the marijuana from Nichols.Detectives Buckles and another, according to Tamari, told the latter that they would forget the whole thing for $500 each and Tamari said he did not have that much money at the time.The officers then drove Tamari in their car to a bar.Defendant Buckles went into the bar, came out and told Tamari to go into the bar and see the man who was to 'handle things'.Tamari went into the bar and met defendant Rosenfeld whom he had never seen before.According to Tamari defendant Rosenfeld said that Tamari would have to bring to Rosenfeld's office the next day $1,500 'for Tamari' and $1,000 'for Nichols' and that the officers would never bother Tamari again.That same night Tamari and his wife spoke to a New York City lawyer as a result of which conference Tamari and the attorney went the next day to the New York County District Attorney's office.At the District Attorney's office Tamari was equipped with a hidden 'Minifon' recorder which he turned on later when he went to Rosenfeld's office.

According to Tamari, he and Rosenfeld had a long conversation in which Tamari said that he and his wife wanted to see the money passed directly to one of the police officers and Rosenfeld said the officers did not want anyone to see this and that everything would be all right.That afternoon Tamari telephoned Rosenfeld and in the course of the phone conversation Rosenfeld said that the officers insisted on using an intermediary but that the officers would not break their word.During this conversation an arrangement was made for Tamari to bring the money to Rosenfeld's office the next day.On the next day Tamari was at Rosenfeld's office with $1,500 in marked money but Tamari refused to give the money to Rosenfeld unless one of the officers was present.Later on that second day Tamari came to the place, saw Rosenfeld standing in front of the building, followed Rosenfeld down into the subway and again into the street where they hailed a cab and police officers who were observing nearby jumped into the cab and arrested Rosenfeld.Mrs. Tamari corroborated her husband and testimony which furnished some corroboration was given by others.The Minifon recordings were never read to the jury because the court held that they were unclear.

We will take up in the order of their importance several of the serious charges against the prosecution of misconduct or improprieties.The first of these concerns the recordings by a minifon device secreted on Tamari's body of conversations which Tamari had with the defendant lawyer Rosenfeld at the latter's office on June 19 and 20.Those recorded conversations were never received in evidence.We have been furnished with exhibits for identification 11 and 12 purporting to be the stenographic transcripts of the Minifon recordings and from reading those exhibits we learn that, while Tamari's end of the conversations was recorded the device got only a very little of what Rosenfeld said.The defense apparently never saw these transcripts and never objected to them.Reading them to the jury would have harmed defendants very little if at all but grave and unfair damage was done to defendants by the suggestions to the jury that these suppressed 'spools' contained strong evidence against defendants.Tamari's veracity was disputed and it was fatal to defendants to suggest to the jury that there was undisclosed corroboration of Tamari's testimony.The prosecution's several allusions to them in the presence of the jury and his several efforts to get them into evidence culminating in his references to them in summation must have been seriously damaging at least to defendant Rosenfeld and probably to all three defendants.At one point in the trial an investigator for the District Attorney's office was called to the stand, apparently to put these Minifon recordings into evidence.During the discussion as to whether they were admissible the court announced, and defense counsel learned for the first time, that the witness a few days earlier in the Judge's chambers had played the spools for the Judge, that the Judge had before him at the same time a transcript of what could be heard on the spools.The Judge on the basis of that preview announced that the 'recording is not sufficiently complete to justify its admission in evidence.'Counsel for defendant Rosenfeld then asked some questions about the entries on a file card which contained dates and other data concerning these recordings.Defense counsel...