People v. Vario

• Decision Date: 21 January 1938
• Court: New York County Court
• Parties: PEOPLE v. VARIO et al.

165 Misc. 842

2 N.Y.S.2d 611

PEOPLE

v.VARIO et al.

County Court, Queens County, New York.

Jan. 21, 1938.

Charles P. Sullivan, Dist. Atty., of Long Island City (J. Irwin Shapiro, of New York City, of counsel), for the People.

Edward U. Green, of Long Island City, and Douglas & Douglas, of Brooklyn, for Benjamin Israel.

Sydney Rosenthal, of Long Island City, for Anthony Romano.

Michael A. Coviello, of New York City, for Paul Vario and Stephen Oddo.

COLDEN, Judge.

The defendant Israel has interposed a demurrer, in writing, specifying his grounds of objection to the indictment herein. The indictment contains six counts. The first count charges all of the defendants with the crime of conspiracy. The second count charges the defendant Israel alone with the crime of inducing another to commit perjury, in violation of section 813 of the Penal Law. The third count charges the defendants Oddo and Zummo alone with the crime of subornation of perjury in the first degree, in violation of section 1632 of the Penal Law. The fourth count charges the defendant Vario alone with the crime of subornation of perjury in the first degree, in violation of section 1632 of the Penal Law. The fifth count charges the defendants Oddo and Zummo alone with the crime of violating section 2440 of the Penal Law. The sixth count charges the defendant Paul Vario alone with the crime of violating section 2440 of the Penal Law.

Each of the counts in the indictment, subsequent to the first count charging all of the defendants with the crime of conspiracy, affirmatively alleges ‘that the commission of the acts set forth in this and the preceding counts of this indictment constitutes two or more acts or transactions connected together and forming parts of a common scheme or plan and which are all of the same or similar character.’

Before going into the particular grounds set forth by the defendant Israel in his demurrer, it may be well, in order that an intelligent discussion of said demurrer may be had, to briefly recite the facts appearing in the indictment. The first count of the indictment, which charges all of the defendants with the crime of conspiracy, alleges that on September 13, 1936, in the county of Queens, the complaining witness was forcibly raped and assaulted by the defendants Vario and Romano; that said defendants were thereafter arrested and taken into custody by the police; that a hearing on the complaint against the said defendants was had in the Magistrates' Court and that said defendants Vario and Romano were remanded, without bail, upon said charges of rape and assault to await the action of the grand jury of the county of Queens; that thereafter and on April 5, 1937, testimony and evidence concerning the said rape and assault charge against the said defendants Vario and Romano was presented to the April, 1937, grand jury in and for the county of Queens; that on April 8, 1937, the said April, 1937, grand jury voted to indict the said Vario and Romano for the crime of rape in the first degree and assault in the second degree upon the body of the complainant; that thereafter the defendants Vario and Romano were duly arraigned upon the said indictment, pleaded not guilty thereto, and that the trial thereof was thereupon set for the 17th day of May, 1937; that by reason of adjournments the actual trial of said indictment did not commence until November 3, 1937.

The first count of the indictment then proceeds to charge that beginning on or about the 5th day of March, 1937, which is the day that the complaint was filed against the defendants Vario and Romano in the Magistrates' Court, all of the defendants did unlawfully, willfully, knowingly, and corruptly conspire and combine and confederate and agree together and with each other and with various other persons to commit acts for the perversion and obstruction of justice by attempting to impede and prevent the indictment, trial, and conviction of said defendants Vario and Romano upon said charge of rape and assault; and that in furtherance of said conspiracy all of the defendants conspired: (1) To intimidate and conceal witnesses for the People whose testimony was material and necessary in the prosecution of the said Vario and Romano; (2) to induce witnesses to withhold information from and make untrue statements to the district attorney of Queens county and members of his staff; (3) to induce witnesses to withhold information from and testify untruthfully before the said April grand jury; (4) to induce witnesses to withhold information from and testify untruthfully before the County Court of Queens County and the petit jury therein upon the trial of the aforesaid indictment charging the defendants Vario and Romano with rape and assault.

The indictment then sets forth in detail ten overt acts alleged to have been committed by the defendants in furtherance of said conspiracy to pervert and obstruct justice.

The defendant Israel demurs to the indictment upon five grounds which we will consider seriatim. The first ground of demurrer is ‘that the alleged crimes in the said indictment were not committed in the County of Queens and not within the jurisdiction of this Court.’ Although it is true that most of the allegations in the first count of the indictment show that the alleged conspiracy was hatched in the county of Kings and not in the county of Queens, paragraph 15 of the first count of the indictment alleges that one of the overt acts in furtherance of said conspiracy, and to effect the objects thereof, was committed ‘at Corona, in the County of Queens, City and State of New York.’ It thus appears that at least one of the overt acts ‘in furtherance of said conspiracy and to effect the objects thereof’ was committed in the county of Queens. It has been held, times without number, that an indictment for conspiracy may be found in any county in which it can be proved that an overt act was done by any of the conspirators in furtherance of their common design. People v. Summerfield, 48 Misc. 242, 96 N.Y.S. 502; People v. Peckens, 153 N.Y. 576, 47 N.E. 883; People v. Wicks, 11 App.Div. 539, 42 N.Y.S. 630, affirmed 154 N.Y. 766, 49 N.E. 1102; People v. Murray, Sup., 95 N.Y.S. 107.

Thus the first ground of the demurrer is without merit in so far as it purports to pertain to the first count of the indictment. A different question, however, arises with respect to the second count of the indictment, for in that count it is specifically alleged that ‘the defendant Benjamin Israel in the County of Kings incited and attempted to procure one Millie Handelman to commit perjury and give false testimony and to withhold true testimony from the aforesaid April Grand Jury upon her appearance thereat in the County of Queens * * *.’ The defendant Israel strenuously contends that because this count of the indictment shows upon its face that the affirmative acts alleged to have been committed by the defendant Israel were committed in the county of Kings the grand jury in Queens county had no jurisdiction to find an indictment against the said defendant Israel by reason of the facts alleged in said count of the indictment. At common law the second count of the indictment could not be sustained because the general rule was that criminal offenses must be prosecuted in the county where the crime was committed. 4 Black Com. 305. This rule was regarded as one of the safeguards of the liberties of the individual. 4 Black Com. 349. Under the Federal Constitution (with certain exceptions not here pertinent), every prosecution for a crime against the United States must be had in the state and district in which the crime was committed. Like provisions were found in the Constitutions of many of our sister states (Tennessee, New Hampshire, Massachusetts, Wisconsin, and Nebraska).

In New York, however, the matter was not the subject of constitutional decree but obtained as a common-law rule of procedure. It was to modify the rigors of that rule that section 134 of the Code of Criminal Procedure was enacted. That section reads: ‘When a crime is committed, partly in one county and partly in another, or the acts or effects thereof, constituting or requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either county.’

As a matter of pleading, it may not be doubted that although the alleged incitement and attempt by the defendant Israel to procure the witness to commit perjury and give false testimony took place in the county of Kings, it was with respect to a proceeding then pending in the county of Queens and it was with respect to testimony thereafter to be given by that witness in the county of Queens. In other words, the effects of the alleged acts of the defendant Israel in the county of Kings were intended to take place and occur in the county of Queens. Thus the facts set forth in the second count of the indictment would clearly seem to fall within the scope of cases contemplated by section 134 of the code. That section should be construed to effectuate the purpose intended by its adoption. ‘This statute is remedial in its character, and a careful reading of it as well as an examination of cases wherein it was construed, will show that its object was to extend the lines of jurisdiction beyond the limits prescribed by the common law, and thus prevent a miscarriage of justice.’ People v. Licenziata, 199 App.Div. 106, 110, 191 N.Y.S. 619, 622.

In People v. Mitchell, 49 App.Div. 531, 63 N.Y.S. 522, affirmed in 168 N.Y. 604, 61 N.E. 182, upon the opinion below, the Appellate Division, Fourth Department, thoroughly analyzed the purpose and effect of the statute in question. It was there held that under section 134 of the Code an indictment for larceny in appropriating property in the custody of the defendant, as bailee, might properly be found in the county where the bailment took place, although no wrongful act was alleged to have been committed in that county and the...