People v. Rutigliano

• Decision Date: 28 February 1933
• Citation: 184 N.E. 689,261 N.Y. 103
• Parties: PEOPLE v. RUTIGLIANO et al.
• Court: New York Court of Appeals Court of Appeals

261 N.Y. 103

184 N.E. 689

PEOPLE

v.RUTIGLIANO et al.

Court of Appeals of New York.

Feb. 28, 1933.

Marcus Blumenthal, alias John Markham, Nicholas Rutigliano, alias Nick Green, and others were convicted of kidnapping in violation of Penal Law, § 1250 (Consol. Laws, c. 40). The conviction was affirmed by the Appellate Division (235 App. Div. 542, 257 N. Y. S. 814), on appeal of defendant last named, and such defendant, by permission, appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, First department.

Jacob A. Segal, of New York City, for appellant.

Thomas C. T. Crain, Dist. Atty., of New York City (Felix C. Benvenga and LeRoy Mandle, both of New York City, of counsel), for the People.

POUND, Chief Judge.

The indictment charges the kidnapping of Charles M. Rosenthal on August 11, 1931, and accuses four persons besides the appellant, namely: Marcus Blumenthal, alias John Markham; Albert Sileo, alias John Rocco; Theodore Adinolfi, alias ‘Teddy,’ alias ‘Harry,’; Betty Stewart Green, alias Selma Gross. All the defendants were tried together and, with the exception of Betty Green, were convicted.

The principal question involved on this appeal relates to the admissibility and effect of statements made by defendant Blumenthal in the presence of the appellant.

There is no question of the sufficiency of the evidence against appellant. He confessed to a substantial participation in the crime. He, however, remained silent when Blumenthal made statements, when both were in custody at police headquarters, which statements implicated appellant as the leader and instigator and master mind of the plot to kidnap Rosenthal. The admissibility of these statements against appellant was objected to but the objection was overruled and the court substantially charged the jury that such statements in connection with appellant's silence were evidence against him which might be considered by it as tending to show guilty participation in the crime.

The learned court in holding that the silence of appellant in such circumstances was evidence against him, permitting the inference of an implied acquiescence in the truth of Blumenthal's statements, seems to have followed the rule laid down in Kelley v. People, 55 N. Y. 565, 571, 572,14 Am. Rep. 342, where the court said broadly that: ‘Where an individual is charged with an offence, or declarations are made, in his presence and hearing, touching or affecting his guilt or innocence of an alleged crime, and he remains silent when it would be proper for him to speak, it is the province of a jury to interpret such silence, and determine whether his silence was, under the circumstances, excused or explained. * * * It is no objection to the admission of the declarations of the accused, as evidence, * * * either express or inplied, of the truth of a statement made by others under the same circumstances is equally admissible. His conduct and acts, as well when in custody as when at large, may be given in evidence against him, and their cogency as evidence will be determined by the jury.’

The question when it would be proper for one accused to remain silent arose later. It was held that defendant's silence could constitute no admission when he was accused in a language he did not understand and he did not know he was being accused (People v. Cascone, 185 N. Y. 317, 78 N. E. 287;People v. Lewis, 238 N. Y. 1, 5, 143 N. E. 771); or when statements were made in the course of judicial proceedings (People v. Willett, 92 N. Y. 29); or when accused was unconscious or shamming unconsciousness (People v. Koerner, 154 N. Y. 355, 48 N. E. 730); or when the district attorney sought to examine him and he refused to answer by advice of counsel (People v. Conrow, 200 N. Y. 356, 367,93 N. E. 943); or when silence was enjoined (People v. Kennedy, 164 N. Y. 449, 58 N. E. 652). These cases and others hold that proof of such declarations made in the presence of the accused, even when competent, is dangerous evidence which should always be received with caution and only under such circumstances as would justify an inference of assent from the fact that the accused remained silent.

In People v. Smith, 172 N. Y. 210, 234,64 N. E. 814, and in People v. Marendi, 213 N. Y. 600, 613,107 N. E. 1058, the court said that silence could not be construed as an admission when accused was under arrest and that he was not then called upon to speak or deny an accusation, thus adopting the law as laid down in the Massachusetts case of Commonwealth v. McDermott, 123 Mass. 440, 25 Am. Rep. 120, and in other jurisdictions [McCarthy v. United...