People v. Sugarman

• Decision Date: 29 May 1928
• Citation: 162 N.E. 24,248 N.Y. 255
• Parties: PEOPLE v. SUGARMAN.
• Court: New York Court of Appeals Court of Appeals

248 N.Y. 255

162 N.E. 24

PEOPLE

v.SUGARMAN.

Court of Appeals of New York.

May 29, 1928.

Solomon Charles Sugarman was convicted of second degree forgery. The conviction was affirmed by the Appellate Division (222 App. Div. 726, 225 N. Y. S. 882), and defendant appeals.

Reversed, and new trial ordered.

Cardozo, C. J., dissenting.

Appeal from Supreme Court, Appellate Division, First department.

John J. Curtin, and Wesley S. Sawyer, both of New York City, for appellant.

Joab H. Banton, Dist. Atty., of New York City (Robert Daru, of New York City, of counsel), for the People.

POUND, J.

The indictment charges defendant with forgery, second degree, in two counts; i. e., one, that defendant, having in his possession a check for $25,000, dated June 26, 1919, made by S. Barkin, payable to the order of George P. Smith, forged the indorsement of the name of the payee on the back thereof, and another, that he uttered the same.

Smith, whose signature defendant is charged with having forged, was a young man, somewhat under 30 years of age at the time of the transaction complained of. He had had business transactions with defendant, who was a lawyer. He had indorsed and made notes for defendant, who claimed to be engaged in an enterprise with Smith, in connection with the purchase of war material from the United States government. Defendant asked him for $25,000.

Smith was entitled to receive $300,000 from the estate of his grandfather, under the terms of his will, on arriving at the age of 30 years. The trustees had power to advance money for his education and maintenance. They had made substantial advancements to him. He had made assignments of the fund as security for loans. Defendant testified that Smith was willing to raise $25,000 for the Washingtonenterprise and agreed to assign his interest in his grandfather's estate as security; that the assignment was drawn up and signed by Smith; six notes were signed by Smith representing the loan in question and the money was obtained from Samuel Barkin, a money lender, who gave the check therefor payable to the order of Smith. Smith denied that he signed the assignment, or the notes, or that he indorsed the check. The money was deposited in Sugarman's bank account by his brother and associate Joseph H. Sugarman and was drawn out by checks signed in defendant's name by Joseph. The interest and stamps amounted to $433. Smith admitted that he gave defendant his check for this amount, but says that he gave it to him for cash and that he was induced to add the words ‘interest and stamps' to carry out some purpose of defendant unconnected with the forgery here charged.

[1][2] The people make no claim that defendant personally forged the disputed indorsement or uttered the check. The evidence tends to establish that Joseph H. Sugarman did so, being thereto aided and abetted by defendant. The defense is that the indorsement is the genuine signature of George P. Smith, arising out of a legitimate business transaction. A question of fact was thus presented for the jury. It cannot be said that there was no evidence of defendant's guilt. The verdict is conclusive unless material error appears reviewably on the record.

[3] I think that material error does appear. The court made an order on March 21, 1924, that the case be peremptorily set down for trial on March 24, 1924, if the defendant did not file a consent that Smith, the complaining witness, be examined conditionally on behalf of the people and waive his right to confrontation by the witness on the trial. The consent was filed to obtain an adjournment of the trial and the deposition of Joseph H. Sugarman as a witness for the defense. The latter deposition was not obtained and Joseph was not a witness on the trial. The condition was a proper one, which defendant complied with to obtain a favor. He merely waived the right to be confronted by one of the people's witnesses. The right of confrontation is a privilege extended to the accused which he may waive. Diaz v. U. S., 223 U. S. 442, 32 S. Ct. 250, 56 L. Ed. 500, Ann. Cas. 1913C, 1138.

The deposition of Smith was taken by the people before one of the judges of the Court of General Sessions a year or more before the trial. Smith left the state and did not return. The deposition consisted of 274 pages of stenographer's minutes. On the taking of the deposition the people offered 16 written exhibits and the defendant offered 5 written exhibits. They included the check described in the indictment; written indorsement thereon; the assignment of Smith's interest in his grandfather's estate; six promissory notes signed in the name of Smith representing a loan of $25,000; a letter signed in the name of Smith to Barkin, directing him to deliver to defendant a check for the proceeds of the loan of $25,000; a concededly genuine check for the $433, ‘for interest and stamps' above mentioned; and five exhibits offered by defendant containing the genuine signature of George P. Smith, offered for the purpose of comparison of handwriting. The exhibits were not attached to and made a part of the deposition, but were filed separately with the clerk of the Court of General Sessions. On the trial of the case it appeared that they had been lost and could not be introduced as a part of Smith's deposition. Photostatic copies had been made by the district attorney of some of the exhibits, including the check and the indorsement, but not of all of them. The people's evidence tended to show the forgery of the several writings, made for the purpose of indicating that the check in question was part of a legitimate business transaction. Smith testified, in giving his deposition, that none of the people's exhibits were signed by him, except the check for $433. The deposition was used on the trial after a motion to suppress by reason of the loss of the exhibits had been made and denied and over defendant's objection.

[4][5] This, I think, was reversible error. The loss of the exhibits destroys...