People v. Variano
| Decision Date | 09 April 1959 |
| Citation | 157 N.E.2d 857,185 N.Y.S.2d 1,5 N.Y.2d 391 |
| Parties | , 157 N.E.2d 857 PEOPLE of State of New York, Appellant, v. Peter VARIANO, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Joseph F. Gagliardi, Dist. Atty., White Plains (Leonard Rubenfeld, Peekskill, Warren J. Schneider, New York City, and Arthur Praete, New Rochelle, of counsel), for appellant.
Frank S. Hogan, Dist. Atty., Richard G. Denzer and H. Richard Uviller, New York City, of counsel), for New York State Dist. Attys.' Assn., amicus curiae, in support of appellant's position.
Walter A. Caddell, Ossining, for respondent.
The People appeal from the reversal by the Westchester County Court of a conviction of defendant in the Police Justice Court of the Village of Tarrytown of bookmaking in violation of section 986 of the Penal Law, Consol.Laws, c. 40. He was charged under three informations tried together, which are identical except that they charge the commission of the crime on separate days December 18, 19 and 21, 1956, respectively.
The County Court reversed in the following memorandum:
'Although four errors are assigned for the reversal of the judgment only the contention that the trial court admitted over the objection of the defendant a transcript of a recording of a wire-tapped conversation, need engage our attention.
The County Court erred in basing its reversal on Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126, which is not decisive of this appeal. Assuming for argument only that the wiretaps were illegally obtained, it would not be ground for reversal that illegally obtained evidence was introduced at the trial under New York State policy (People v. Richter's Jewelers, 291 N.Y. 161, 51 N.E.2d 690, 150 A.L.R. 560; People v. Defore, 242 N.Y. 13, 150 N.E. 585, certiorari denied 270 U.S. 657, 46 S.Ct. 353, 70 L.Ed. 784). A State policy of admitting evidence having probative force, even though obtained illegally, does not contravene Federal law (Schwartz v. State of Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231). The opinion of the Supreme Court by Chief Justice Warren in the Benanti case (supra, 355 U.S. at page 101, 78 S.Ct. at page 158), says concerning the Schwartz case: 'The rationale of that case is that despite the plain prohibition of Section 605 (47 U.S.C.A. § 605), due regard to federal-state relations precluded the conclusion that Congress intended to thwart a state rule of evidence in the absence of a clear indication to that effect.'
The only basis on which the judgment of conviction might be attacked is that defendant was not proved guilty of the offenses charged beyond a reasonable doubt. He did not testify. In support of the dismissal of the informations by the County Court, it is urged that the wire-taps of these three days indicated nothing, that the only papers taken from defendant at Pircio's Cleaners (where he was telephoning across the street from Park Inn of which he was the proprietor) were a scratch sheet (National Racing Program) and a single slip of paper containing notations relating to several races being run that day which might have represented bets placed by himself. Section 986 does not proscribe betting, but only the taking of bets from others. When Pircio's Cleaners was searched no gambling material was found there, nor anything in defendant's own Park Inn across the street except a printed manual called 'Parlay Pay-off' found in a drawer in the rear of the counter beneath the bar, and an envelope in the hallway of the Inn containing $26 and three daily double bets aggregating that sum on horses to be run on that day. It is said that these might have been for placement by defendant on his own account. Moreover, this envelope and its contents were not found with the Parlay Pay-off in the drawer under the bar, but in the public hall to which access was had by person going to or from the men's room or the ladies' room in the tavern. It is said that this does not establish...
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