author: Ftjld, J. Dye, J. (concurring). Btjbke, J. (dissenting).

text:
    The People of the State of New York, Appellant, v. Ernest A. Steuding, Defendant, and Morgan D. Ryan, Respondent.
    Argued May 28, 1959;
    decided July 8, 1959.

      Bernard Tompkins, Special Assistant Attorney-General (Leonhard E. R,eisman, Wilfred R. Caron and Robert Orseck of counsel), for appellant.
    I. Respondent Ryan was properly summoned and sworn and his constitutional privilege was in no way infringed. (Matter of Doyle, 257 N. Y. 244; People v. Anhut, 162 App. Div. 517, 213 N. Y. 643; Matter of Bojinoff v. People, 299 N. Y. 145; People v. Gowasky, 244 N. Y. 451; People ex rel. Jannicky v. Warden, 231 App. Div. 131; People v. Molineux, 168 N. Y. 264; Teachout v. People, 41 N. Y. 7; People v. Hendrickson, 10 N. Y. 13; People ex rel. Hummel v. Davy, 105 App. Div. 598,184 N. Y. 30; People v. Burke, 72 Misc. 336.) II. Defendant Ryan did not receive immunity. The Appellate Division erroneously declared section 2447 of the Penal Law unconstitutional. (People v. De Feo, 308 N. Y. 595; People v. Freistadt, 6 A D 2d 1053; People ex rel. Coyle v. Truesdell, 259 App. Div. 282; People v. Bermel, 71 Misc. 356; People v. Singer, 18 Abb. N. C. 96; People v. Caminito, 3 N Y 2d 596; People v. Doran, 246 N. Y. 409; People v. Barbato, 254 N. Y. 170; Kaplan v. United States, 7 F. 2d 594, 269 U. S. 582.) III. The Appellate Division in dismissing the indictment violated the principle of res judicata. IV. The indictment, based solely on legal and sufficient evidence, was improperly dismissed. (People v. Howell, 3 N Y 2d 672; People v. Nitzberg, 289 N. Y. 523; People v. Glen, 173 N. Y. 395; People v. Freistadt, 6 A D 2d 1053; People ex rel. Coyle v. Truesdell, 259 App. Div. 282; People v. Bermel, 71 Misc. 356; People v. Singer, 18 Abb. N. C. 96; People v. Leary, 282 App. Div. 476; People v. Anhut, 162 App. Div. 517, 213 N. Y. 643.)

      Edward S. Silver, District Attorney (William Sonenshine and Aaron E. Koota of counsel), for New York State District Attorneys’ Association, amicus curiae, in support of appellant’s position.
    No constitutional prerogative of a witness is violated where he testifies before a Grand Jury without raising his privilege against self incrimination although fully advised of his rights. (People v. Gardner, 144 N. Y. 119; People v. Gillette,
      126 App. Div. 665; People ex rel. Coyle v. Truesdell, 259 App. Div. 282; People v. De Feo, 308 N. Y. 595; People v. Bermel, 71 Misc. 356; People v. Reiss, 255 App. Div. 509; People ex rel. Hofsaes v. Warden of City Prison, 277 App. Div. 398, 302 N. Y. 403; People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253; People v. Burke, 72 Misc. 336.)

      N. Le Van Haver and John E. Egan for respondent.
    I. Ryan was one of the targets of the investigation and it was, therefore, a flagrant violation of his constitutional right against self incrimination to subpoena him before the Grand Jury, swear him as a witness and compel him to give self-incriminating testimony which, in whole or in part, supplied the basis for the indictment against him. (People v. Ferola, 215 N. Y. 285; People v. Gillette, 126 App. Div. 665; People v. Cahill, 193 N. Y. 232; People v. Cummins, 153 App. Div. 93, 209 N. Y. 283.; People v. De Feo, 308 N. Y. 595; People v. Seaman, 174 Misc. 792; People v. Luckman, 164 Misc. 230; People v. Rauch, 140 Misc. 691; People v. Bermel, 71 Misc. 356; People ex rel. Hummel v. Davy, 105 App. Div. 598; Counselman v. Hitchcock, 142 U. S. 547; People v. Singer, 18 Abb. N. C. 96.) II. Since the indictment was based, in whole or in part, on testimony wrongfully procured from defendant in violation of his constitutional rights, it was entirely void and properly dismissed. (People ex rel. Coyle v. Truesdell, 259 App. Div. 282; Counselman v. Hitchcock, 142 U. S. 547.) III. To allow the People the opportunity of resubmitting the case to another Grand Jury, even though sans defendant’s original testimony, would be a serious violation of defendant’s constitutional rights because, while it would be possible, on such resubmission, to exclude consideration of defendant’s original testimony, per se, it would not be possible to exclude the evidence derived from the links and leads furnished by that testimony. Thus, by indirection, the prosecutor would, by allowance of a resubmission, be able to circumvent defendant’s rights. (People v. Freistadt, 6 A D 2d 1053; People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253; Matter of Doyle, 257 N. Y. 244; People ex rel. Kenny v. Adams, 292 N. Y. 65.)
   Ftjld, J.

By virtue of the Constitution of this State (art. I, § 6) — and it is solely the Constitution of New York with which we are now concerned — a prospective defendant or one who is a target of an investigation may not be called and examined. before a Grand Jury and, if he is, his constitutionally-conferred privilege against self incrimination is deemed violated even though he does not claim or assert the privilege. (See, e.g., People v. De Feo, 308 N. Y. 595, 603; People v. Ferola, 215 N. Y. 285, 289-290; People v. Gillette, 126 App. Div. 665, 667 et seq.) People v. Bermel, 71 Misc. 356, 359 et seq.) An automatic result of the violation of this constitutional privilege is that the defendant is protected not only from indictment based on any incriminating testimony which he may have given, but also from use of such evidence. And the right and protection thus accorded by the Constitution may not be taken away or cut down by statute.

Section 2447 of the Penal Law, which prescribes the method by which an “ immunity ” may be conferred upon witnesses,” is unquestionably constitutional and valid, insofar as it is applied to witnesses who are, in truth and fact, witnesses. The statute does not apply in terms to a defendant or to one who is in the shoes of a defendant, insofar as it provides that the burden is cast upon him of claiming privilege, and any attempt to invoke it against such a person would offend against the constitutional provision to which we have referred above. In other words, since the right granted by the Constitution is automatically conferred, section 2447 is ineffectual to destroy or curtail it and any attempt to do so must be stricken as unconstitutional.

A violation of the constitutional privilege carries with it a dismissal of the indictment returned by the Grand Jury before which the defendant testified. Whether, however, it also cloaks him with an immunity, a freedom from prosecution for the crime for which he has been indicted, is a question with which we are not now concerned. Its answer must await a case in which it is presented.

The order appealed from should be affirmed.

Dye, J. (concurring).

I concur with what has been said by Fuld, J. I would like to add that the refusal of the defendant witness to sign a general waiver of immunity was tantamount to a claim of privilege against self incrimination for, under the facts of this case, he was the target of the investigation, or close to it (N. Y. Const., art. I, § 6). It cannot reasonably be said that the defendant witness waived his constitutional privilege within the provisions of section 2447 of the Penal Law because he was warned in advance of interrogation and, after his request for an adjournment to consult counsel had been denied, that his answers would be used against him and that there would be “ consequences ”. On this record then it may not be said that defendant witness waived his constitutional privilege or that he did not gain immunity when required to testify under compulsion of the subpoena. When properly applied, section 2447 is not constitutionally defective. I vote to affirm.

Btjbke, J. (dissenting).

On October 23, 1958 Morgan D. Ryan, Esq., a public official, was called as a witness to appear pursuant to subpoena before the Extraordinary Grand Jury which is investigating official corruption in Ulster County.

After Ryan was initially sworn, he agreed to execute a written waiver of any immunity or privilege concerning all interrogations bearing on his official conduct as Resource Assistant in the Welfare Department (as required by N. Y. Const., art. I, § 6, which provides that a refusal to sign the waiver will result in a discharge from public employment). Thereupon, he was fully advised that aU testimony that he might give on any other matter may be used against him and that the Grand Jury was not conferring any immunity on him. Ryan was further informed that he had a right under the Constitution of the State of New York and the Federal Constitution to refuse to answer any question if he believed the answers would incriminate him.

Not only did Ryan expressly declare that he understood the admonitions, but he also evidenced his familiarity with the legal implications of these statements by stating that he had discussed and been advised, on the matter of his constitutional privilege, and on the questions of waiver and immunity, on a previous occasion in the presence of his attorney.

Ryan was thereupon questioned and gave testimony, which occupies 101 printed pages of the record before us, without refusing to answer on the grounds of self incrimination.

Ryan returned to the Grand Jury room on October 27 and requested additional time to prepare certain financial data, stating that if the request was refused he would invoke his constitutional privileges on the advice of counsel. The examination of Eyan was deferred until November 6 when he returned and handed the foreman a letter stating that on the advice of counsel he declined to testify on the ground of self incrimination. Then Ryan was cited for contempt.

The Grand Jury after hearing testimony given by other witnesses, and after receiving instructions to disregard Ryan’s testimony, indicted him for conspiracy to bribe public officers and of giving a bribe to such officers.

The questions raised arc: (1) Did Ryan receive complete immunity by reason of the subpoena to appear before the Extraordinary Grand Jury? (2) Is the testimony which Ryan gave without invoking his privilege deemed “ compelled ” so that the indictment against him must be dismissed?

By its plain language, section 2447 of the Penal Law only confers immunity after a witness (or a prospective defendant) invokes his privilege against self incrimination and is then directed to answer the questions propounded. There is no dispute that the immunity so offered is as broad as the privilege. Hence, after the grant of immunity, the invocation of the privilege against self incrimination is not legally possible, and further refusal to answer is contumacious.

In this regard the comparatively new section 2447 does not deny to anyone who might deem himself incriminated the right to invoke the privilege nor does it in any way limit the immunity that was granted under the former procedure. The difference between section 2447 and its predecessor statute is that the prior statute granted complete immunity in advance to any witness subpoenaed, and, in order to preclude any immunity, a written waiver was required. The wisdom of this procedure was examined by the New York State Crime Commission, and, upon its recommendation, the entire concept of immunity statutes was revised in order to preclude hasty and possibly unjustified grants of immunity. In this regard the distinction or difference between section 2447 and the previous section is merely one of procedure and not of substance. The applicability of the privilege is not limited nor is the immunity, when offered, any less than the immunity that was offered previously.

We believe that the Legislature may change the procedural rules as to when and how immunity should be granted if in doing so the rules do not impair any of the constitutional rights of a witness or prospective defendant.

The Act of Congress of February 11,1893, chapter 83 (27 U. S. Stat. 443; now U. S. Code, tit. 49, § 46), of the United States (like the rule which obtained prior to the enactment of section 2447 [see L. 1953, chs. 891, 892]) provided for a complete immunity at the outset of the hearing which prevented the invocation of any privilege against self incrimination since there no longer wa's anything that could be incriminating. The constitutionality of the Act of Congress of February 11, 1893 of the United States was upheld by the Supreme Court in Brown v. Walker (161 U. S. 591).

A similar Federal statute (U. S. Code, tit. 18, § 3486) gave immunity to subpoenaed witnesses (or prospective defendants) before congressional investigating committees or Federal Grand Juries at the outset so that they could not rely upon the Fifth Amendment privilege. The constitutionality of this section was upheld and interpreted to preclude even State prosecutions based upon the testimony of the witness that was obtained in such a manner (Adams v. Maryland, 347 U. S. 179).

However, section 3486 of title 18 of the United States Code was amended in 1954 by Congress. It is apparent that this statute does not give complete immunity to a subpcenaed'witness (or prospective defendant) at the outset but requires him to invoke his constitutional privilege in order to prevent the Government from using the evidence obtained against him in any subsequent proceeding. After the privilege is invoked the Grand Jury or the United States Attorney may make an application for a court order directing the witness to answer and any evidence obtained therefrom cannot be used against the defendant. The statute grants complete immunity which precludes the further invocation of the privilege.

Section 3486 of title 18 of the United States Code is substantially the same as section 2447 of the Penal Law. Moreover, both statutes change the procedure for the granting of immunity from the predecessor statutes in the same manner. The same reason prompted the change in both instances, i.e., to prevent a hasty and unjustified grant of immunity in advance. (See H. R. Rep. No. 2606, 83 Cong., 2d Sess. [1954]; 3rd report of N. Y. State Crime Comm., N. Y. Legis. Doc., 1953, No. 68, pp. 14-17, 26-29.)

The constitutionality of the amended statute was upheld by the United States Supreme Court in Ullmann v. United States (350 U. S. 422 [1956]).

There Ullmann, a prospective defendant, was subpoenaed to appear before a Federal Grand Jury in the Southern District of New York. Upon examination, Ullmann repeatedly invoked his Fifth Amendment privilege against self incrimination (since he was not under any immunity). Upon application of the United States Attorney, Ullmann was directed by the District Court to answer which he refused to do, again invoking his privilege (although he was now under a grant of complete immunity pursuant to the terms of the statute). Ullmann was thereupon convicted of contempt. The United States Supreme Court granted certiorari in the Ullmann case in view of the differences between the legislation sustained in Brown v. Walker (161 U. S. 591, supra) and the act under which Ullmann was cited for contempt (see Ullmann v. United States, 349 U. S. 951, 350 U. S. 422, 425). Upon the appeal the Supreme Court sustained the act and Ullmann’s contempt citation for failing to answer when directed.

Therefore, the choice of the witness or prospective defendant is either to invoke the privilege because he deems the testimony incriminating, or to respond freely to questions. This choice is entirely within his province. (See United States v. Burr, Fed. Cas. No. 14692e, 25 Fed. Cas. 38, 40.) If he testifies knowing that he has no immunity and that he can invoke the privilege against self incrimination (if he determines that would be the result of his answers) without invoking the privilege, such testimony is deemed to be freely given and may be used against him at some future date.

Historically, the constitutional privilege has been recognized only as an option.

As Judge Samuel Seabury of this court said: “As we look at some of the uses which the criminal classes have made of the constitutional provisions, one might suppose that the far-seeing barons who wrung the Charter from King John at Runnymede were intent upon safeguarding the twentieth century racketeer, gangster, kidnaper, gunman and corrupt political leader in the prosecution of their sinister vocations. It ought to be possible to find a way, by judicial interpretation, to use these constitutional provisions for the protection of liberty without giving them such fanciful and far-fetched interpretations as to convert them into a weapon by which criminals can make war safely upon organized society and its law-abiding members. * * * Let me refer to the privilege against self-incrimination. It is not derived from the Magna Carta, Bill of Bights or other great charters which have marked the progress of English liberty * * * it is, as the Supreme Court has held, not one of the basic and fundamental rights which is incapable of change by the people of any state". (8 Wigmore, Evidence [3d ed.j, § 2275o.)

The Constitutions of this State and of the United States only forbid compelling a person to be a witness against himself.

The privilege against self incrimination, like all personal privileges, may be waived (8 Wigmore, op. cit., supra). In furtherance of this fundamental proposition it has been uniformly held that when a witness, even a prospective defendant witness, is subpoenaed by a Grand Jury or other investigative body, and is fully informed and apprised of his rights and voluntarily testifies, he is deemed to have waived his privilege and to have testified freely (People v. Molineux, 168 N. Y. 264; Teachout v. People, 41 N. Y. 7; People ex rel. Hummel v. Davy, 105 App. Div. 598, 603, affd. 184 N. Y. 30; Rogers v. United States, 340 U. S. 367, 370-371; Smith v. United States, 337 U. S. 137; United States v. Cleary, 265 F. 2d 459 [2d Cir., March 30, 1959]).

It is obvious that if we accept defendant’s position that the constitutional privilege is infringed by the Grand Jury’s subpoena and the oath so that the testimony that Byan gave must be deemed compelled ” then no question of the waiver of the privilege could have been raised in the cited cases.

In People ex rel. Hummel v. Davy (105 App. Div. 598, 603, affd. 184 N. Y. 30, supra), the court said: “ Merely being compelled to appear in pursuance of a ¡subpoena, and be sworn, is no violation of a constitutional privilege, for the witness may take the oath so that his assertion of privilege shall be made under the sanction of an oath.”

In United States v. Cleary (supra, pp. 462-463), the United States Court of Appeals for the Second Circuit declared:

“ On the record before us we have no doubt that Cleary’s testimony was completely voluntary. Appearing before a grand jury is not in itself an unduly coercive situation. * * * And there are no additional facts here to indicate coercion. * * * The important factor is the lack of even the slightest suggestion that government officials applied any pressure or engaged in any form of misconduct which contributed to his testifying. * * *
Our law endeavors to establish a fair balance between proper and useful police investigation and coercive attempts at surprise or forced confession. * * * we are not disposed to elevate to the dignity of a constitutional right restrictions on ordinary investigation which in the present condition of society may be an unwarranted extravagance.”

In Kaplan v. United States (7 F. 2d 594, 597 [2d Cir., 1925], cert, denied 269 U. S. 582), Judge Learned Hand said: “ there is not the slightest warrant of law for saying that in the absence of statute any one may be quit of his crimes by testifying either before a grand jury or anywhere else. * * * A man has, of course, the right to stand mute if he will; but, if he speaks, he does not by that purge himself of his crime. He may be indicted, tried and convicted, quite as though he had stood on his privilege. The contrary notion is a thorough perversion of the whole principle of self-incrimination, perhaps arising from a misunderstanding of those statutes which, in order to compel persons to testify at all, give them plenary absolution.” (See, also, 3 Wharton, Criminal Evidence [12th ed.], § 733, p. 45; 8 Wigmore, Evidence [3d ed.], § 2281, p. 467.)

These principles were carefully considered by experts who are responsible for the enactment of section 2447. (Cf. 3rd Report of N. Y. State Crime Comm., N. Y. Legis. Doc., 1953, No. 68, p. 15; 1943 Report of N. Y. Law Rev. Comm., N. Y. Legis. Doc., 1943, No. 65[B].)

Section 2447 in no way violates the right of a prospective defendant to assert his privilege. Indeed, it contemplates that he may. In fact, it cannot become operative until he asserts his privilege.

Consequently, the pivotal point of the discussion must then turn on whether Ryan testified without invoking his privilege with complete knowledge of the consequences and his rights. We acknowledge that, even though the rules may be changed by the Legislature or Congress, we have to determine whether the witness or prospective defendant was informed of the purposes of the inquiry, advised of his rights and warned of the consequences of his refusal to testify. (People v. De Feo, 308 N. Y. 595, 604.)

In People v. De Feo (supra) this court found that De Feo when questioned as a witness under section 2447 did not know the purpose of the inquiry; was not informed of his rights (i.e., invoke the self incrimination privilege) as a prospective defendant ; did not claim his privilege and did not sign any waiver of immunity.

However, Ryan has appeared as a witness pursuant to subpoena. He waived immunity and the right to invoke the privilege (written waiver) as to any questions that might be asked concerning his official duties and acts in the Welfare Department. Ryan further had the advice of an attorney on these matters. He was informed that any testimony that he might give at the examination could be used against him. He was also informed that he had a right to invoke the privilege against self incrimination and that the Grand Jury was not conferring any immunity upon him. Moreover, Ryan knew the purpose and scope of the Grand Jury hearing before he appeared. With all this in mind, Ryan testified freely without invoking the privilege.

We do not believe that section 2447 in the light of the facts of this case can be held to be unconstitutional.

Finally, the refusal of Ryan to sign a general waiver of immunity cannot be found to be an invocation of the privilege in view of the fact that he gave his testimony after the following colloquy:

Q. As to any other testimony that you may give, or any questions that may be asked of you, I must advise you now that any answers you may give or any testimony that you may give, may be used against you in any proceeding at any time. In other words, the Grand Jury, by calling you before it at this time, is not conferring any immunity on you, and that any testimony you may give may be used against you. Bo you understand that? A. Yes sir.
Q. I might also advise you that you have a right, under the Constitution of the State of New York, and the Federal Constitution, to refuse to answer any questions if you feel that the answers to those questions will incriminate you. Bo you understand that? A. Yes, sir.
By Mr. Beisman:
Q. Has your attorney gone over this matter of incrimination and immunity with you at a previous date ? A. This was months ago, sir. I haven’t seen him lately.
By Mr. Tompkins:
Q. As a matter of fact, Mr. Byan, in your attorney’s presence in the past, when you were questioned by Commissioner Beuter’s staff, you refused to answer any questions and claimed your constitutional privilege; is that so? A. That’s right.
Q. So that you did discuss that with your attorney. A. At that time, that was months ago.
Q. You were advised on that subject, were you not? A. That was mentioned, yes sir.” (Emphasis added.)

The order of the Appellate Division dismissing the indictment should be reversed and the indictment reinstated.

Judges Froessel and Van Voorhis concur with Judge Fuld; Judge Dye concurs in a separate opinion; Judge Burke dissents in an opinion in which Chief Judge Conway and Judge Desmond concur.

Order affirmed.

      . Since we deal with a provision of New York’s Constitution, we need not become involved, as has the dissent, with a discussion or treatment of eases in the Federal courts relating to the validity and effect of Federal compulsory testimony legislation under the Fifth Amendment of the Constitution of the United States.

       “ It [the privilege] has no place in the jurisprudence of civilized and free countries outside the domain of the common law, and it is nowhere observed amdng our own people in the search for the truth outside the administration of the law.” (Twining v. New Jersey, 211 U. S. 78, 113 [Moody, J.]) “This [privilege against self incrimination] too might be lost, and justice still be done. Indeed, today as in the past there are students of our penal system who look upon the immunity as a mischief rather than a benefit, and who would limit its scope, or destroy it altogether. No doubt there would remain the need to give protection against torture, physical or mental. * * * Justice, however, would not perish if the accused were subject to a duty to respond to orderly inquiry.” (Palko v. Connecticut, 302 U. S. 319, 325-326 [Cardozo, J.].)


source: Caselaw Access Project

author: Van Voorhis, J. Desmond, J. (dissenting). Fuld, J. (dissenting).

license: Public Domain

text:
    The People of the State of New York, Appellant, v. Carmine Alfonso and Andrew Alfonso, Respondents.
    Argued January 9, 1959;
    decided July 8, 1959.

      Joseph F. Oagliardi, District Attorney (Warren J. Schneider of counsel), for appellant.
    The order of the County Court dismissing the indictments against defendants was an abuse of discretion since the record reflects that good cause to the contrary was shown. (United States v. Provoo, 17 F. R. D. 183; People v. Prosser, 309 N. Y. 353; People v. Hall, 51 App. Div. 57; Ponzi v. Fessenden, 258 U. S. 254; United States v. Holmes, 168 F. 2d 888; Kong v. United States, 216 F. 2d 665.)

      Joseph S. Bagno for respondent.
    I. Defendants did not waive, directly or indirectly, any rights that section 668 of the Code of Criminal Procedure conferred upon them. (People v. Martin, 99 App. Div. 372; People v. Shimko, 111 Misc. 487.) II. So-called “ inherent delays ” in our judicial system were not responsible for the delay in the trial of defendants’ case. III. It was not error for one Judge, presiding over the Criminal Part of the County Court, to dismiss indictments for lack of prosecution after another Judge adjourned the trial of said indictments to a later date, where the same Judge one year before had passed upon a similar iriotion made by defendants herein. (Kamp v. Kamp, 59 N. Y. 212.) IV. The order of the County Court dismissing the indictments against defendants was not an abuse of judicial discretion. (People v. Smith, 2 N. Y. Crim. Rep. 45; People v. Corrado, 150 Misc. 787; People v. Exter, 4 Misc 2d 651; People ex rel. Ianik v. Daly, 30 N. Y. Crim. Rep. 47; People v. Harris, 182 Misc. 787; People ex rel. Seiler v. Warden of City Prison, 199 Misc. 570.) V. Defendants were prejudiced by the long delay in preparing their defense and further prejudiced in their social and business life.

      David Diamond and Edward S. Silver for New York State District Attorneys’ Association, amicus curies.

    I. It was error for one Judge to dismiss indictments for lack of prosecution after another Judge of the same court had previously adjourned the trial of said indictments peremptorily against all the parties to a later date. (Kamp v. Kamp, 59 N. Y. 212; People v. National Trust Co., 31 Hun 20; Willard v. Willard, 194 App. Div. 123; People v. Prosser, 309 N. Y. 353.) II. The dismissal of all the indictments pending against respondents for lack of prosecution was an abuse of judicial discretion. (People v. Martin, 99 App. Div. 372; People v. Shimko, 111 Misc. 487; People v. Shufeldt, 61 Mich. 237; People ex rel. Ianik v. Daly, 30 N. Y. Crim. Rep. 47; Matter of McDonald v. Goldstein, 273 App. Div. 649.)
   Van Voorhis, J.

The memorandum opinion of the Westchester County Court, in dismissing these indictments for failure to prosecute, states: ‘ ‘ The facts are such as to bring the matter squarely within the holding of the Court of Appeals in People v. Prosser (309 N. Y. 353).”

This court held that the facts in the Prosser case compelled dismissal of the indictment for delay as matter of law, without leaving the question of dismissal within the area of discretion of the trial court. By stating that the facts in the instant case brought it squarely within the holding of Prosser, the County Judge held that no area of discretion was open to him in deciding the motion to dismiss these indictments, and that the Prosser case required their dismissal as matter of law. Rule 72 of the Rides of Civil Practice (formerly General Rule of Practice 3) provides that this memorandum of opinion is ‘ ‘ part of the record on which the order was made.” “By rule 3 of the General Rules of Practice, as amended in 1910, we are authorized to look to the opinion of the court to find the ground upon which the order was made in the absence of a statement of such grounds in the order itself.” (Matter of Trombley, 150 App. Div. 14, 17.) This is now the recognized rule (Cohen and Karger, Powers of the New York Court of Appeals, § 120). The effect is the same as though the County Court had stated in its order that these indictments were dismissed on the law and not in the exercise of discretion. Neither section 543-a of the Code of Criminal Procedure nor section 602 of the Civil Practice Act relates to this situation.

The Appellate Division affirmed without opinion (People v. Alfonso, 6 A D 2d 892). Although the Court of Appeals lacks power to review where it is not clear whether the Appellate Division has decided upon the law, or upon the facts or in the exercise of discretion, it has been ruled that where the court of first instance has made clear that its decision has been upon the law alone, and the Appellate Division has affirmed without specifying the grounds, it is presumed to have affirmed on the law only (Equitable Life Ins. Soc. v. Stevens, 63 N. Y. 341, 343; Hewlett v. Wood, 67 N. Y. 394; Metropolitan Sav. Bank v. Tuttle, 293 N. Y. 26; Matter of Haydorn v. Carroll, 225 N. Y. 84). Cohen and Karger, citing these cases, state: “ If the Appellate Division affirms a determination which was stated below to be on the law alone, without itself stating the grounds of its decision, the possibility of the decision having been on the facts or in discretion is also considered to have been negatived.” (Op. cit., § 120, n. 55.)

That the Appellate Division decided this case on the law is further attested by the certificate allowing the appeal to this court under section 520 of the Code of Criminal Procedure by Associate Justice Mubphy, who certified as a member of the majority of that court in this case that “ questions of law are involved which ought to be reviewed by the Court of Appeals ”.

It is thus clear that neither the Westchester County Court nor the Appellate Division dismissed these indictments in the exercise of discretion, but as matter of law, for the reason that they considered dismissal on the law to be compelled by the holding of this court in People v. Prosser (supra). The facts in the instant case are materially different from those in Prosser, and consequently these indictments were not required to be dismissed on the law. Upon the other hand, this record, in my opinion, does not establish that there is no room under the facts and history of this case for the exercise of discretion, or that it would have constituted an abuse of discretion as matter of law to have dismissed these indictments as a discretionary matter under section 668 of the Code of Criminal Procedure. The Westchester County Court and the Appellate Division should have exercised their sound judicial discretion to determine whether the motion to dismiss the indictments should have been granted or denied. Inasmuch as these indictments have been dismissed erroneously on the law and without the exercise of discretion, the orders appealed from should be reversed and the matter remitted to the Appellate Division to determine whether these indictments should be dismissed under section 668 of the Code of Criminal Procedure in the exercise of a sound judicial discretion.

Desmond, J. (dissenting).

Reversal of this purely discretionary order dismissing an indictment for lack of prosecution is beyond our powers and without precedent in this court. Such dismissals are always considered to be discretionary with the lower courts (see 22 C. J. S., Criminal Law, § 472, subd. b, and, as to similar dismissals of civil causes, see Quick Service Novelty Corp. v. Scharf, 4 N Y 2d 799). In New York State the statute itself makes it so. Section 668 of the Code of Criminal Procedure says: “ If a defendant, indicted for a crime whose trial has not been postponed upon his application, be not brought to trial at the next term of the court in which the indictment is triable, after it is found the court may, on application of the defendant, order the indictment to be dismissed, unless good cause to the contrary be shown.”

We may assume that the “ Court [of Appeals] may interfere in the rare situation where there has been an abuse of discretion as a matter of law” (Cohen and Karger, Powers of the New York Court of Appeals, Review in Criminal Cases, p. 745). But if such abuses are theoretically possible, this is certainly not one of them. The first indictment against these defendants had been pending for 21 months and the second for 8 months when dismissal was ordered. In June, 1957, 6 months before the dismissal, these defendants had demanded immediate trial and objected to postponement. Again in October, 2 months before dismissal, these defendants had objected to further delay. In November, 1957, in an effort to get immediate trial, they had demanded a severance but this, too, was denied. Of course, in each instance the County Court had some reason or other for the postponement but it is certainly not the job of this court to decide whether they were good reasons. To attempt such a task is to move outside our constitutionally limited jurisdiction to review in criminal cases (N. Y. Const., art. VI, § 7).

The order should be affirmed.

Fuld, J. (dissenting).

I agree with Judge Desmond and add these few additional lines.

The facts of this case are, of course, different from those presented in People v. Prosser (309 N. Y. 353), but the principle there announced requires an affirmance here. “ The inquiry in each case ”, we wrote in Prosser, “ is factual and, like the question whether there has been undue delay, depends ‘ upon the circumstances of each particular case.’ ” (309 N. Y., at p. 360.) Both courts below found as fact that the defendant was deprived of the speedy trial guaranteed to him and, since there is evidence to support that conclusion, this court may not upset it.

What the law condemns is the denial of a speedy trial and, if there be such denial, it matters not that the delay may have been occasioned by adjournments granted by the court rather than by refusal on the part of the prosecutor to bring the defendant to trial. In either case, the impact upon the accused, the harm done to him, is no less because the State action taken was by a judge instead of a prosecutor. (See People v. Prosser, 309 N. Y. 353, 356-357, supra.)

Chief Judge Conway concurs with Judge Van Voobhis ; Judges Fboessel and Bubke concur in result; Judge Desmond dissents in an opinion in which Judge Dye concurs and Judge Fuld dissents in a separate opinion.

Orders reversed, etc.


author: Van Voorhis, J.

text:
    The People of the State of New York, Appellant, v. William I. Armlin, Jr., Respondent.
    Argued May 21, 1959;
    decided July 8, 1959.

      T. Paul Kane, District Attorney, for appellant.
    I. The indictment is sufficient to charge the crime. (People v. Farson, 244 N. Y. 413; People v. Williams, 243 N. Y. 162.) II. Defendant was properly convicted. (People v. Bogdanoff, 254 N. Y. 16.)

      David B. Alford for respondent.
    I. The indictment does not ■ state facts sufficient to constitute a violation of section 58 of the Vehicle and Traffic Law. (People v. Zambounis, 251 N. Y. 94; People v. Sas, 172 Misc. 845; People v. Wojcinski, 5 Misc 2d 292; United States v. Hess, 124 U. S. 483.) II. The verdict is clearly against the evidence. (People v. Angelo, 246 N. Y. 451; People v. Bearden, 290 N. Y. 478.) III. The admission of evidence relating to defendant’s operation of his automobile two miles from the scene and evidence of the speed of the trooper’s car was prejudicial. (People v. Fitzgerald, 156 N. Y. 253.)
   Van Voorhis, J.

Appellant has been convicted of the misdemeanor of reckless driving in violation of section 58 of the Vehicle and Traffic Law. He was arrested following an accident which occurred on August 24, 1957 at about six o’clock in the afternoon at the intersection of Route 145 and Gates Hill Road in the hamlet of Franklintón, in the Town of Broome in Schoharie County. The charge was preferred by indictment of a Grand Jury, the defendant was tried and found guilty by a jury in the County Court. On appeal the Appellate Division reversed the judgment of conviction and granted defendant’s motion to dismiss the indictment upon the basis that it was insufficient in law, saying: ‘1 The indictment charged the violation of section 58 of the Vehicle and Traffic Law, whereby the crime is defined, and then alleged that defendant drove an automobile ‘ in such a manner as to interfere with the free use of the public highway and did thereon endanger the users of the public highway ’. Thus the indictment departed from the language of the statute in several respects, the most important being the failure to allege that the manner of defendant’s driving ‘ unreasonably ’ interfered with the free ‘ and proper ’ use of the public highway or unreasonably ’ endangered users thereof.”

Although ‘ ‘ unreasonableness ” is a necessary constituent of the crime, we think as did Justice Bergan at the Appellate Division, that the indictment pleads sufficient facts from which the characterization may be inferred that defendant’s operation of this automobile “unreasonably” interfered with the free and proper use of the highway, and “ unreasonably ” endangered users thereof.

The language of the indictment is as follows: “ The defendant, in the County of Schoharie, on the 21st day of August, 1957 along the Public Highway Route #145 in the Town of Broome, Schoharie County, New York did drive a 1948 Buick Convertible Sedan in such a manner as to interfere with the free use of the public highway and did thereon endanger the users of the public highway, and that the said defendant did operate the said vehicle across the center line of said highway into the path of an approaching car without any warning and at a high rate of speed causing same to be compelled headlong into the vehicle approaching from the opposite direction on its own proper side of the highway.”

Prior to this statement of the facts charged as constituting a crime, the indictment accuses the defendant “ with the crime of Reckless Driving in violation of Section 58, Article 5, of the Vehicle and Traffic Law of the State of New York, a misdemeanor ”. It seems to us that unreasonable interference with the free and proper use of the public highway and unreasonable danger to the users of the public highway inevitably resulted from defendant’s driving his automobile across the center line into the path of an approaching car, if he did what the indictment charges, going headlong without any warning and at a high rate of speed into a vehicle approaching from the opposite direction on its own proper side of the highway. Where the facts constituting the crime charged are spelled out with as great particularity as has been done here, it seems to us that the conduct described could not have been other than unreasonable. For practical purposes, therefore, the unreasonableness of the manner of driving was expressed in the language of the indictment, and if respondent had any defense such as mechanical failure or sudden skidding he was obliged to offer evidence of it at the trial. On the whole case the burden rested on the People.

“Words used in a statute to define a crime need not be strictly pursued in the indictment; but other words, conveying the same meaning, may be used.” (Code Crim. Pro., § 283).

“No indictment is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of an imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant, upon the merits.” (Code Crim. Pro., § 285.)

An indictment is sufficient if it identifies the charge against the defendant so that his conviction or acquittal will prevent a subsequent charge for the same offense, and if it notifies him of the nature and character of the crime charged so that he may prepare his defense (People v. Farson, 244 N. Y. 413; Code Crim. Pro., §§ 284, 285).

The evidence was ample to sustain the conviction, as the Appellate Division has held.

The order appealed from should be reversed and the judgment of conviction of the Schoharie County Court reinstated.

Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel and Burke concur.

Order reversed, etc.


text:
    The People of the State of New York ex rel. Amos Williams, Respondent, against Robert E. Murphy, as Warden of Auburn State Prison, Appellant. The People of the State of New York, Appellant.
    Argued May 18, 1959;
    decided July 8, 1959.

      Louis J. Lefkowitz, Attorney-General (Joseph J. Bose and Paxton Blair of counsel), for appellants.
    I. The writ of habeas corpus cannot be used to attack collaterally the judgment of a court of competent criminal jurisdiction. (People ex rel. Carr v. Martin, 286 N. Y. 27 ; People ex rel. Miller v. Martin, 1 N Y 2d 406; People v. Sullivan, 3 N Y 2d 196; People ex rel. Wachowicz v. Martin, 293 N. Y. 361; People ex rel. Lee v. Jackson, 285 App. Div. 33, 309 N. Y. 676; Matter of Morhous v. Supreme Court, 293 N. Y. 131; People ex rel. Sedlak v. Foster, 299 N. Y. 291; People ex rel. Martine v. Hunt, 294 N. Y. 651; Matter of Hogan v. Supreme Court, 295 N. Y. 92.) II. As a matter of law, there was no evidence to support the finding of the Appellate Division that the relator had sustained the burden of proving noncompliance with section 480. (People v. Smyth, 3 N Y 2d 184; People v. Oddo, 283 App. Div. 497.)

      Amos Williams, respondent in person.
    I. Habeas corpus is the proper remedy. (People v. Taras, 269 App. Div. 694.) II. Section 480 of the Code of Criminal Procedure was not substantially complied with. III. The fact that relator was represented by counsel, and the subsequent reply made by him, does not infer that relator was asked the question. (People v. Nesce, 201 N. Y. 111; People ex rel. Miller v. Martin, 1 N Y 2d 406.) IV. The mandate of section 480 must be followed at the time defendant appears for sentencing. (People v. Cioffi, 1 N Y 2d 70; People v. Shaw, 1 N Y 2d 30.) V. It was not enough that the record showed conviction and sentence, but it had to distinctly appear also that the accused was asked after conviction what he had to say why judgment should not he pronounced. And its omission was fatal to judgment. (Graham v. People, 63 Barb. 468.)
   Van Voorhis, J.

The order appealed from sustains relator’s writ of habeas corpus, and directs that he be resentenced upon his conviction on plea of guilty of the crime of manslaughter in the first degree. Relator had been indicted for murder in the first degree.

This writ of habeas corpus has been sustained after a hearing, upon the ground that when relator was sentenced he was not asked by the Clerk of the court whether he had any.legal cause to show why judgment should not be pronounced against him, as required by section 480 of the Code of Criminal Procedure. Relator did not testify at the hearing. His petition does not state what he would have said in extenuation or to bar the sentence if he had been given the opportunity which he avers was denied to him. The stenographic minutes show that at the time when sentence was pronounced he was represented by counsel, who made a plea to the court in his behalf. None of these factors would be a substitute for allocution under section 480 of the Code of Criminal Procedure, which has been held to be a jurisdictional prerequisite to sentence’ (People ex rel. Miller v. Martin, 1 N Y 2d 406), but on this record it is established that section 480 was complied with as matter of law.

The presumption of regularity of official proceedings would require the denial of the writ in the absence of any evidence concerning what did occur when relator was sentenced (People v. Smyth, 3 N Y 2d 184,187). Relator did not testify that he was not asked by the Clerk whether he had legal cause to show why sentence should not be pronounced against him. The Appellate Division by citing its memorandum of decision in People ex rel. Sheehan v. Murphy (7 A D 2d 889) were careful to point out in their memorandum of affirmance that they were not holding that there was any burden on the People to disprove the claims of error contained in the petition. The only evidence that compliance with section 480 was omitted has to be found, if anywhere, in the stenographic minutes of the testimony and in the Clerk’s minutes of what occurred when sentence was imposed. This, is seems to us, supports the presumption of regularity instead of overcoming it. Relator was sentenced on February 27, 1950. Immediately before the plea by his counsel in his behalf on that date, the transcript of the stenographic minutes contains the following notation:

“ (The defendant was arraigned for sentence and asked the usual formal question.) ” Moreover, as was stated at the Appellate Division in the dissenting opinion of Justice Halpebn : ‘ ‘ After the handing down of the decision by the Special Term, the Attorney-General procured a photostatic copy of page 109 of Liber 597 of the minutes of the Clerk of the County Court of Kings County, showing the proceedings held on February 27, 1950, the day of the relator’s sentence. A copy of the photostat was sent to the relator prior to the submission of the appeal to this court and a certified photostatic copy has been submitted to the court. Since this is a matter of official record which is in its nature indisputable, it may properly be received by this court upon appeal (Ripley v. Storer, 309 N. Y. 506, 518). The clerk’s minutes show the following: ‘ The following defendants were duly arraigned for sentence, pursuant to Sec. 480 C. C. P., with dispositions as follows: ’ Immediately thereafter there follows in one column the notation: ‘ #1062-1949 J. Amos Williams ’ and in the other column the following: ‘ Convicted of manslaughter, first degree, armed, Defendant present with counsel Leo Healy, Esq., M. Steinberg, Esq., H. Walters, Esq. Sentence to Sing Sing Prison for ten (10) to twenty (20) years for the crime plus five (5) to ten (10) for being armed, Total Fifteen (15) to thirty (30) years.’ The reference in these minutes to section 480, coupled with the reference to ‘ the usual formal question ’ in the stenographer’s minutes, demonstrates clearly that the question under section 480 had been asked. ’ ’

The excerpt from the Clerk’s minutes to which reference was made bears out that conclusion. There is no indication of any informality in the keeping of the stenographic or Clerk’s minutes, nor did any witness testify that the allocution was not spoken.

The order appealed from should be reversed, the petition dismissed and relator remanded to the custody of the Warden of Auburn State Prison.

Chief Judge Conway and Judges Desmond, Dye, Fxjld, Froessel and Burice concur.

Order reversed, etc.


author: Van Vookhis, J.

text:
    The People of the State of New York ex rel. John Sheehan, Respondent, against Robert E. Murphy, as Warden of Auburn State Prison, Appellant. The People of the State of New York, Appellant.
    Argued May 18, 1959;
    decided July 8, 1959.

      Louis J. Lefkowits, Attorney-General (Joseph J. Rose and Paxton Blair of counsel), for appellants.
    I. The writ of habeas corpus cannot be used to attack collaterally the judgment of a court of competent criminal jurisdiction. (People ex rel. Carr v. Martin, 286 N. Y. 27; People ex rel. Miller v. Martin, 1 N Y 2d 406; People v. Sullivan, 3 N Y 2d 196; People. ex rel. Wachowicz v. Martin, 293 N. Y. 361; People ex rel. Lee v. Jackson, 285 App. Div. 33, 309 N. Y. 676; Matter of Morhous v. Supreme Court, 293 N. Y. 131; People ex rel. Sedlak v. Foster, 299 N. Y. 291; People ex rel. Martine v. Hunt, 294 N. Y. 651; Matter of Hogan v. Supreme Court, 295 N. Y. 92.) II. As a matter of law, there was no evidence to support the finding of the Appellate Division that the relator had sustained the burden of proving noncompliance with section 480. (People v. Smyth, 3 N Y 2d 184; People v. Oddo, 283 App. Div. 497; People v. Sheehan, 4 A D 2d 143.)

      Hayden H. Dadd for respondent.
    I. By established precedent, habeas corpus is available to respondent. (People ex rel. Miller v. Martin, 1 N Y 2d 406; People v. Sullivan, 3 N Y 2d 196; People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People ex rel. Carollo v. Brophy, 294 N. Y. 540.) II. The law clearly requires that the record show compliance with section 480. (Messner v. People, 45 N. Y. 1; Safford v. People, 1 Parker Cr. Rep. 474; Graham v. People, 63 Barb. 468; People v. Canepi, 181 N. Y. 398.) III. The determination of the Cayuga County Supreme Court is amply supported and should be affirmed. (People ex rel. Dold v. Martin, 284 App. Div. 127; People v. Shaw, 1 N Y 2d 30; People v. Carpus, 2 A D 2d 653; People v. Robson, 285 App. Div. 1112.)
   Van Vookhis, J.

This relator pleaded guilty October 14, 1930, in the Court of General Sessions of the County of New York, with counsel, to armed robbery in the second degree. He was sentenced to from 12% to 25 years’ imprisonment, including an additional term for being armed under section 1944 of the Penal Law. He was paroled on February 20, 1939, but in 1953, while on parole, he was convicted in the State of Connecticut of a crime which would have been a felony if committed in New York State. He was sentenced there to a term of from 3 to 15 years, was paroled from Connecticut in 1955 and returned to Sing Sing Prison on July 26 of that year, charged with 15 years, 7 months and 28 days delinquent time pursuant to section 219 of the Correction Law. His maximum term after parole jail time credit will expire March 24, 1971.

This relator has applied for habeas corpus on the ground that section 480 of the Code of Criminal Procedure was not followed when he was sentenced. His writ has been sustained. As in the appeal in the case of Amos Williams (6 N Y 2d 234), decided simultaneously herewith, he did not take the stand when this habeas corpus proceeding was tried, but this record lacks the entries in the stenographic minutes and in the minutes of the Clerk of the court which existed in the Amos Williams case, indicating that the question required by section 480 was addressed to the relator. The burden here, as in the Williams case, is on the relator to overcome the presumption of official regularity, but this was done by the introduction into evidence of the stenographic minutes and the Clerk’s minutes which disclosed no compliance with section 480. A consecutive narrative of what occurred at the time of sentence appears to be furnished by the stenographic minutes, and the omission of compliance with section 480 of the Code of Criminal Procedure, at least in the absence of support from the Clerk’s minutes, is thereby established sufficiently to create a question of fact.

It is true that the Clerk’s minutes contain an oblique reference to the allocution required by section 480 where, in reference to another defendant previously sentenced, the Clerk’s minutes say: ‘ ‘ The defendant having nothing further to say, etc. Ordered by the Court that sentence be suspended ”.

When it came to sentencing relator, the Clerk’s minutes read: “ ‘ The Like as to each Judgment as to Sheehan: State Prison at hard labor for the term of not less than Seven Years Six Months nor more than Fifteen years.

The above sentence shall be increased by imprisonment in State Prison for a term of not less than Five Years nor more than Ten Years as provided by Section 1944 of the Penal Law. ’

F. Howard Barrett,

F. Howard Barrett,

(Seal) Clerk of Court ”

A footnote says:

“ The word ‘ LIKE ’ refers to a previous entry on page 180, to wit: ‘ The Defendant having nothing further to say etc.’ ” The inference is sought to be drawn that when it came to recording the proceedings had in imposing the sentence on Sheehan, the Clerk referred back to the entry regarding the first convict to be sentenced on the same day, viz., 6 ‘ The Defendant having nothing further to say, etc. Ordered by the Court” and so forth. We need not decide whether this could be enough, combined with the presumption of regularity, to uphold the sentence if it had been decided as a question of fact on the trial of this habeas corpus proceeding that the allocution had been given. It is not sufficient to require a determination as matter of law that it was given. We have held that habeas corpus may be invoked under these circumstances (People ex rel. Miller v. Martin, 1 N Y 2d 406).

The order appealed from should be affirmed.

Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel and Burke concur.

Order affirmed.


author: Desmond, J.

text:
    The People of the State of New York, Respondent, v. Matilda Carman, Appellant.
    Argued May 20, 1959;
    decided July 8, 1959.

      Harry Sacher for appellant.
    I. Respondent failed to prove an essential element of the crime of perjury, namely, that the Department of Investigation of the City of New York had jurisdiction and authority under the Security Risk Law to conduct the hearing or inquiry in which appellant was placed under oath. The information should, therefore, have been dismissed. (State v. McCarthy, 41 Minn. 59; Lambert v. People, 76 N. Y. 220; People v. Martin, 175 N. Y. 315; State v. Dallagiovanna, 69 Wash. 84; Ruch v. State, 111 Ohio St. 580; Eighmy v. People, 79 N. Y. 546; People v. Scharfstein, 162 App. Div. 642; Clyatt v. United States, 197 U. S. 207; Maggio v. Zeitz, 333 U. S. 56; Matter of Herlands, 170 Misc. 131, 257 App. Div. 935, 288 N. Y. 708; Matter of Dairymen’s League Co-op. Assn. v. Murtagh, 274 App. Div. 591, 299 N. Y. 634; Matter of Ellis, 176 Misc. 887; Watkins v. United States, 354 U. S. 178; Garner v. Los Angeles Bd., 341 U. S. 716; Matter of New York City Housing Auth. v. Falk, 10 Misc 2d 355; Matter of Cherkis v. Impellitteri, 307 N. Y. 132; Matter of Lerner v. Casey, 2 N Y 2d 355, 357 U. S. 468.) II. The information was insufficient in law because it failed to set forth, as required by section 291 of the Code of Criminal Procedure, “ the substance of the controversy or matter in respect to which the crime was committed.” (People v. Schultz, 301 N. Y. 495; People v. Grogan, 260 N. Y 138; People v. Zambounis, 251 N. Y. 94; People v. Carter, 4 A D 2d 879; People v. Ercole, 308 N. Y. 425; People v. West, 106 N. Y. 293; People v. Gillette, 126 App. Div. 665; People ex rel. McClelland v. Roberts, 148 N.Y. 360; Matter of Di Brizzi [Proskauer], 303 N. Y. 206; People v. Hirsh, 258 App. Div. 947, 283 N. Y. 638.)

      Casper & Nehbras for New York Civil Liberties Union and another, amici curice, in support of appellant’s position.
    The jurisdiction of the Commissioner of Investigation does not extend to examination into the political beliefs of persons without regard to their status in relation to the public service. (Matter of Ellis, 176 Misc. 887; Matter of Lerner v. Casey, 2 N Y 2d 355.)

      Leonard B. Boudin for Emergency Civil Liberties Committee, amicus curios, in support of appellant’s position.
    I. Since there is no evidence that appellant ever held a security risk position, the Commissioner of Investigation had no jurisdiction to conduct the hearing in which the alleged perjury occurred. (Adler v. Board of Educ., 342 U. S. 485; Matter of Hughes v. Board of Higher Educ. of City of N. Y., 309 N. Y. 319; Matter of New York City Housing Auth. v. Falk, 10 Misc 2d 355; Matter of Lerner v. Casey, 2 N Y 2d 355, 357 U. S. 468.) II. A designation of the position of social worker as a security risk position would be so irrational as to constitute a denial of due process. (Communications Assn. v. Douds, 339 U. S. 382; Herndon v. Lowry, 301 U. S. 242.) III. To construe the Security Risk Law as applicable to appellant would be a denial of due process because of the absence of any mechanism for appellant’s challenge of the designation. (Anti-Fascist Comm. v. McGrath, 341 U. S. 123.)

      Frank 8. Hogan, District Attorney (Lawrence K. Feitell and Richard G. Denser of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. (Matter of Lerner v. Casey, 2 N Y 2d 355, 357 U. S. 468; Matter of Cherkis v. Impellitteri, 307 N. Y. 132; Matter of Blitzer v. Bromberger, 295 N. Y. 596; Matter of Dairymen’s League Co-op. Assn. v. Murtagh, 299 N. Y. 634; Matter of Edge Ho Holding Co., 256 N. Y. 374; Matter of Wallstein, 178 App. Div. 140; Matter of Weiner [Comr. of Investigation of City of N. Y.], 183 Misc. 267; Matter of New York City Housing Auth. v. Falk, 10 Misc 2d 355.) II. The information was sufficient. 9People v. Weldon, 111 N. Y. 569; People v. King, 110 N. Y. 418; People v. West, 106 N. Y. 293; People v. Williams, 243 N. Y. 162; People v. Gillette, 126 App. Div. 665; People v. Hirsh, 258 App. Div. 947, 283 N. Y. 638; Beilan v. Board of Educ., 357 U. S. 399; Garner v. Los Angeles Bd., 341 U. S. 716.)
   Desmond, J.

Defendant appeals from an affirmance of a misdemeanor conviction of perjury, second degree, after a trial before a Court of Special Sessions. The notice of appeal to this court states that there is brought up for review, also, an order which overruled defendant’s demurrer to the information. In other words, defendant on this appeal disputes the sufficiency of the information itself besides asserting that there was a failure of proof as to an essential element of the crime of perjury, namely, an alleged absence of proof that the New York City Department of Investigation had jurisdiction and authority to conduct the hearing or inquiry in which appellant made the sworn answers found by this perjury verdict to have been intentionally false.

There is no contention—and could hardly be on this record — that the sworn answers which defendant gave to the City Commissioner of Investigation were true. Those answers were categorical denials by defendant that she was at the time of the hearing a member of the Communist party, that she had ever been a member of the Communist party, that she had been solicited or recruited for membership in the Communist party, that she had ever belonged to any organization which to her knowledge advocated or taught the overthrow of the Government by force or violence, that she had ever made any financial or other contribution to the Communist party, that she had ever attended any meetings of the Communist party, or that she had ever held any meetings of the Communist party in her home. Four witnesses testified for the prosecution at the perjury trial and there was no defense testimony. Each witness for the prosecution swore that he or she had been employed with defendant in the New York City Department of Welfare in 1934, 1935 and 1936. Three of them testified to attending Communist party meeting’s at defendant’s home in 1935 and 1936, and the fourth witness testified that in or about 1937 he attended three Communist party meetings where defendant was present. Each of these four witnesses testified that he or she belonged to the same Communist party “cell” or “fraction” to which defendant belonged, that defendant was active in various respects in these organizations and that this particular “cell” consisted of employees of the City Welfare Department.

We take up first the question raised by the demurrer to the information. The information accused defendant of second degree perjury in that on an occasion in which an oath was required by law and was necessary, etc., defendant was duly sworn to testify truthfully as a witness “in a hearing and inquiry being conducted under the New York State Security Bisk Law by the Department of Investigation of the City of New York ” at its office, the oath being administered by an Examining Inspector of said department who was duly authorized to administer said oath by designation of the Commissioner pursuant to chapter 34 of the New York City Charter, and that at said time and place defendant willfully and knowingly testified falsely under said oath that she had never been a member of the Communist party and had never attended meetings of that party, whereas in truth and fact, as she well knew, that testimony was false and the truth was that she had been a member of the Communist party and had attended meetings thereof.

Defendant’s assertion that the information is insufficient is based on a theory that the pleading fails to comply with section 291 of the Code of Criminal Procedure. That statute says that in a perjury indictment (we will assume this refers to informations, also) it is sufficient to set forth the substance of the controversy or matter in respect to which the crime was committed and before whom the oath was taken, that the person taking the oath had authority to administer it, with proper allegations of falsity of the matter claimed to be perjurious, etc. Defendant says that there was in this instance a failure to comply with the requirement of section 291 that there be set forth ‘ ‘ the substance of the controversy or matter in respect to which the crime was committed ”. We hold that this information satisfied that demand when it said that the perjury was committed in a hearing and inquiry being conducted under the New York State Security Bisk Law by the City Department of Investigation at its office and by its authorized Examining Inspector, etc. Defendant’s principal reliance at this point is on the famous case of People v. Gillette (126 App. Div. 665). At page 670 of the Gillette opinion the Appellate Division analyzed the Gillette indictment and concluded that it was insufficient. In reading that opinion, however, it must be remembered that Gillette was indicted at a time when there were not two degrees of perjury in New York State but one crime only and that conviction of that crime required allegation and proof of the materiality of the false testimony. However, perjury second degree, with which our present defendant was charged (Penal Law, § 1620-b), dóes not require that the matter sworn to be material.

In the Gillette case the charge was that Gillette had sworn falsely in a Grand Jury inquiry, the purpose of which was to ascertain whether officers or employees of any life insurance company in the State had violated the criminal laws of the State. Gillette was asked before the Grand Jury whether a certain bank account standing in his name as trustee was his individual property and from what source the money had come. He falsely swore that it was his own personal money and that it had come from his own personal bank account. The Appellate Division in Gillette pointed to the then statutory requirement of establishing materiality in a perjury prosecution and concluded that the Gillette indictment did not charge materiality since all it said was that Gillette had given false testimony about a personal bank account in an investigation as to whether any officers or employees of any life insurance company had violated any of the New York penal laws. In other words, the Gillette indictment was faulty because it stated much too broadly the subject matter of the alleged investigation and gave no clue as to how or in what way questioning as to the ownership of a bank account had any materiality. It seems to us that the information in the present case (which did not have to allege materiality since this was second degree perjury) sufficiently complied with section 291 of the Code of Criminal Procedure as to setting forth ‘ ‘ the substance of the controversy or matter ” in respect to which defendant was questioned and as to which she was guilty of false swearing.

That brings us to defendant’s other point: that the People failed to prove as an essential element of the crime that the City Department of Investigation had jurisdiction and authority under the Security Bisk Law to conduct the hearing and inquiry in which defendant gave false sworn answers. The information charges that this was an investigation under the New York State Security Bisk Law (L. 1951, ch. 233, as amd.). There cannot be any doubt on this record and on the statute (see exhibits, and see Security Bisk Law [L. 1951, ch. 233, as alud.], § 5) that the Mayor had validly designated the Commissioner of Investígation as the city officer responsible for carrying out the city’s obligation under the New York State Security Bisk Law, nor any doubt that the Examining Inspector who conducted these hearings was duly authorized, nor any doubt that the city Department of Welfare had been designated as a security agency under this statute, nor any doubt that the Mayor by executive order had set in motion a “ security risk program ” to ascertain whether there were any public employees concerning whom there was reasonable doubt as to whether because of doubtful trust or reliability their employment in security positions would endanger the security or defense of the Nation, State or city. Defendant points out that this record contains no proof that at the time she was questioned by the Commissioner she was an employee of the city Welfare Department. Of course, there is no requirement that the witnesses called before the Commissioner in these investigations must be city employees. Defendant says, however, that such an inquiry is authorized by the Security Bisk Law “ only if the evidence shows that it was conducted with respect to a person then employed in one of the positions to which the section applies ”. We will assume that to be true. However, every investigation must start some place and the whole inquiry cannot be expressed in one question or even in a half dozen questions. The questioning before the Commissioner was as to whether defendant, who had been a Welfare Department employee at some time, had ever been a member of the Communist party or active in its affairs or even solicited for membership. When she gave false negative answers to these questions she prevented any further inquiry and we do not know what direction the inquiry would have taken had she told the truth to the Commissioner. The Commissioner was performing his assigned duty in investigating to see whether there were subversive persons in the security agencies of the city (see Security Bisk Law, § 5, supra). These questions asked of defendant were not so totally unrelated to any such inquiry that we can hold as matter of law that it was not perjury second degree for defendant to answer them falsely.

This is no Matter of Lerner v. Casey situation (2 N Y 2d 355, affd. 357 U. S. 468) where the city employee refused to answer the questions, claiming Fifth Amendment protection. The issue in Lerner was whether that failure to answer could be a ground for discharging the employee. This defendant took no such position but answered the questions perjuriously.

The judgment should be affirmed.

Chief Judge Conway and Judges Dye, Ftjld, Feoessel, Van Voorhis and Burke concur.

Judgment affirmed.


author: Vaf Vooehis, J. Fttld, J. (concurring). Burke, J. (dissenting). Desmond, J. (dissenting).

text:
    The People of the State of New York, Respondent, v. Enrico Porcaro, Appellant.
    Argued January 23, 1959;
    decided July 8, 1959.

      Herbert S. Siegal for appellant.
    I. The order of the trial court refusing to direct a physical examination by a physician of the prosecutrix under the circumstances was error and constituted an arbitrary abuse of discretion. (People v. Thompson, 212 N. Y. 249; McGuff v. State, 88 Ala. 147; McQuigan v. Delaware, L. & W. R. R. Co., 129 N. Y. 50; Goldsmith v. Goldsmith, 279 App. Div. 579; Trovato v. Trovato, 262 App. Div. 276.) II. The suppression of evidence in the hands of the prosecutor inconsistent with the sworn testimony of the prosecutrix was tantamount to a fraud upon the court and jury, and constituted reversible error. (Berger v. United States, 295 U. S. 78; Matter of Lyons v. Goldstein, 290 U. Y. 19; Matter of Morhous v. Supreme Court, 293 N. Y. 131; United States v. Reynolds, 345 U. S. 1; Matter of Dreiband, 273 App. Div. 413; People v. Riley, 191 Misc. 888; People v. Fielding, 158 N. Y. 542.) III. The complaining witness, an accomplice under the law, must be corroborated by such other evidence as tends to connect defendant with the commission of the crime charged, and, in the absence thereof, the judgment of conviction herein may not be upheld. (People v. Gibson, 301 N. Y. 244.) IV. The judgment of conviction herein obtained by proof of other crimes dehors the indictment constituted reversible error. (People v. Molineux, 168 N. Y. 264; People v. Thompson, 212 N. Y. 249.)

      Daniel V. Sullivan, District Attorney (Irving Anolik of counsel), for respondent.
    I. The instant appeal brings up for review questions of law only. The sworn testimony of Linda Maria Caradonna, which required no corroboration, was sufficient in law to establish guilt beyond a reasonable doubt. (People v. Howell, 3 A D 2d 153, 3 N Y 2d 672; People v. Peary, 249 App. Div. 851; People v. Johnson, 185 N. Y. 219; People v. Linzey, 79 Hun 23; People v. Sanducci, 195 N. Y. 361; People v. Lytton, 257 N. Y. 310; People v. McCallam, 103 N. Y. 587; People v. Sutherland, 154 N. Y. 345; People v. Walker, 198 N. Y. 329.) II. The testimony of the child complainant as to other similar sexual abuses committed upon her person by defendant, indicated a continuing course of depraved conduct on Porcaro’s part and negatived the possibility of mistake on the victim’s part. Such evidence did not necessarily constitute proof of “ other crimes ” since the incidents involved only defendant and the complainant. (People v. Thompson, 212 N. Y. 249; People v. Molineux, 168 N. Y. 264; People v. Swift, 172 Mich. 473; Whiteman v. State, 119 Ohio St. 285; Boyd v. State, 81 Ohio St. 239; People v. Anderson, 375 Ill. 163; State v. Girone, 91 N. J. L. 498; State v. Sebastian, 81 Conn. 1; State v. Schueller, 120 Minn. 26.) III. The court did not err in denying defendant’s motion to have Linda Maria Caradonna examined by a physician. (McGuff v. State, 88 Ala. 147; State v. Hilton, 119 Ore. 441.) IV. Defendant received a fair trial and no evidence was suppressed by the People or the court. V. The jury was properly instructed on the law. In any event, defendant took no exceptions to the charge and his only request was substantially granted. Linda Maria Caradonna was not an accomplice. (People v. Seidenshner, 210 N. Y. 341; People v. Lee, 300 N. Y. 422; People v. Johnson, 185 N. Y. 219; People v. Gibson, 232 N. Y. 458; People v. DeAngelis, 262 App. Div. 970, 288 N. Y. 630.)
   Vaf Vooehis, J.

Appellant was indicted for first degree sodomy, second degree assault and impairing the morals of a minor in violation of subdivision 2 of section 483 of the Penal Law. These charges arose out of one incident alleged to have occurred on January 1, 1957. The jury acquitted appellant of the first two charges but found him guilty of the last charge, which is a misdemeanor. As in the case of People v. Oyola (6 N Y 2d 259), decided simultaneously, the evidence against appellant consisted entirely of testimony by a 10-year-old child, who in this instance testified to having regular and frequent sexual intercourse with appellant (her stepfather) during four years, in the usual manner as well as through her mouth. Appellant denied this testimony completely. Ho circumstantial evidence attests its veracity. Although, according to complainant’s version, this course of conduct began when she was 6 years old and continued until she was 10, this child named Linda said that she did not tell her mother anything about it until January 27, 1957. Then she said that she told the whole story.

Here, as in Oyóla, a matrimonial dispute is in the background. Linda is Ida’s child by a previous marriage. In 1950 Ida and appellant, while each was married to another, left Hew York City taking Linda with them to Florida, where they lived in the same room until Ida and appellant obtained divorces from their respective spouses and were married. In 1951 the couple returned to Hew York City as man and wife. In January, 1957, when Linda testified that she first informed her mother of her lurid past, appellant’s former wife Elizabeth was arranging to take him back. When his former wife was reminded upon the witness stand that he was no longer her husband, she answered: “Ho, he is not my husband yet.” When Ida Porcaro was questioned upon the same topic, she testified:

“ Q. Do you know today, madam, whether or not he is back with his first wife and three children? A. I take it for granted he is, sir.”

Although Ida denied telling appellant that she would see him rot in jail before rejoining his first wife, a remark ascribed to her elsewhere in the testimony, this pivotal event occurred precisely when the child is supposed to have unfolded this long, sordid story of her personal life. In fact Linda testified that she told her mother that she had sexual intercourse with her stepfather through her genitals again on that very day.

Two days after this conversation and on January 29, 1957 (the day on which appellant was arrested) the mother took this child to a doctor for physical examination, but the doctor’s findings were not disclosed. Timely and repeated demands by appellant were refused for a physical examination of the child. When on the trial appellant’s counsel called upon the prosecution to stipulate that Linda was examined at her mother’s instance by a doctor on January 27th, 28th or 29th, 1957 and found to be virginal, the Assistant District Attorney refused to concede this “ on the ground it is immaterial.” The theory on which it was claimed to be immaterial is that penetration is not an element of oral sodomy, second degree assault, or impairing morals for which appellant was indicted. This reasoning misses the point that penetration would have occurred if the morals of this child had been impaired in the manner to which she testified. In answer to questions by the Assistant District Attorney, she testified that during four years appellant repeatedly inserted his sexual organ into her private parts, the last occasion on January 27, 1957. The prosecution depended entirely upon the truth of the narrative of this child. If a physical examination of the child had revealed a broken hymen, appellant would not necessarily have been implicated. Upon the other hand, if her hymen were found to have been intact, the child’s entire testimony would have been discredited. Whatever may be the rule regarding physical examinations under other circumstances, common fairness requires that a defendant in a criminal action shall be allowed to have a physical examination in order to learn whether a complaining witness is in a condition in which she would be likely to have been if her testimony were true, provided that the testimony is material as this was.

Although this child was sworn, so that the express statutory requirement of section 392 of the Code of Criminal Procedure does not apply, the evidence against appellant in this record is not of the clear and convincing kind which is necessary in order to sustain a conviction of this type (People v. Meyers, 309 N. Y. 837; People v. Dutton, 305 N. Y. 632; People v. Rosen, 293 N. Y. 683; People v. Derner, 288 N. Y. 599; People v. Slaughter, 278 N. Y. 479; People v. churgin, 261 N. Y. 661).

For the reasons stated in People v. Oyola (6 N Y 2d 259, supra), the judgment of conviction should be reversed and the indictment dismissed.

Fttld, J. (concurring).

I agree with Judge Vah Voobhis for reversal both in this case and in People v. Oyóla (6 N Y 2d 259), but I would place my decision upon the ground that, as matter of law, no conviction for impairing the morals of a child may validly rest on the uncorroborated testimony of the child victim. Indeed, I have long believed that such was the law. (See, e.g., People v. Meyers, 309 N. Y. 837; People v. Rosen, 293 N. Y. 683; People v. Derner, 288 N. Y. 599; People v. Slaughter, 278 N. Y. 479; People v. Churgin, 261 N. Y. 661.) The need for such a rule is obvious for, as Wigmore has observed, 111 The most dangerous witnesses in prosecutions for morality offences are the youthful ones (often mere children) in whom the sex-instinct holds the foremost place in their thoughts and feelings. * * * It is just such witnesses that often bring into their picture individuals who have never been near them and that throw suspicion recklessly on the most worthy persons.’” (3 Wig-more, Evidence [3d ed., 1940], p. 463.) Anyone who has had experience in prosecuting this type of case can document this observation with graphic illustrations.

The Legislature has expressly provided that no person may be convicted of a crime upon the unsworn testimony of a child under 12 “ unsupported ” by other evidence (Code Crim. Pro., § 392), but such a restriction does not, indeed cannot, preclude the court from making corollary provisions to safeguard the accused where judicial experience indicates the necessity. In this connection, it is noteworthy that no morals conviction based solely on the unsupported testimony of a child, sworn or unsworn, has ever survived in this court. (See People v. Meyers, 309 N. Y. 837, supra, and other cases cited above.) I would make explicit the rule of law implicit in these decisions.

Burke, J. (dissenting).

This court lacks the power to reverse the judgment of conviction on the ground that the sworn testimony of the child witness is uncorroborated.

At common law, the testimony of a female victim in any case of sexual offense was not required to be corroborated. Such testimony alone was sufficient to support a conviction (7 Wig-more, Evidence [3d ed.], § 2061). The requirement of corroboration, that is the necessity to produce independent evidence supporting the testimony of the injured female, is of statutory origin. Thus corroboration is required by statute in cases of abduction (Penal Law, § 71), adultery (id., § 103), compulsory prostitution of a wife (id., § 1091), compulsory marriage (id., § 1455), rape (id., § 2013), seduction (id., § 2177), and compulsory prostitution (id., § 2460). Moreover, the unsworn testimony of a child under 12 years -of age (Code Crim. Pro., § 392) and also the testimony of an accomplice (Code Crim. Pro., § 399) must be corroborated.

Neither the Code of Criminal Procedure nor the Penal Law require corroborative evidence of a complainant’s testimony to support a conviction for crimes against nature, incest or impairing the morals of a minor. While charges of this nature are easily lodged and men may be maligned, it is also true that these acts usually are performed in secret and far from the view of witnesses.

Professor Wigmore, in his excellent treatise on the law of evidence, makes a plea for the use of psychiatric testimony in connection with the mental state of female complainants in certain sexual cases, viz., rape, rape under age, seduction and assault. However, this is merely a plea for a change in the law and does not deal with crimes against nature, incest or impairing the morals of a minor. In the 1937-1938 Report of the American Bar Association’s Committee on the Improvement of the Law of Evidence, the committee recommended that: ‘ ‘ in all charges of sex offenses, the complaining witness be required to be examined before trial by competent psychiatrists for the purpose of ascertaining her probable credibility, the report to be presented in evidence.” The report of the psychiatrists would only be additional testimony on the credibility of a complainant and, like all opinion evidence, could either be accepted or rejected by a jury or the trier of the facts.

Hence the requirement of corroboration or other additional testimony, whether it be desirable or not, must be left to the Legislature which has not as yet seen fit to require such additional proof in these matters.

Section 392 of the Code of Criminal Procedure provides that testimony similar to that given by the complainant here should not be discredited solely because of age. A child under 12 is merely presumed to be incompetent to be sworn as a witness in a criminal case (the evidence may still be received nevertheless on certain conditions) but this presumption is overcome by a proper preliminary examination after which a child may be sworn (People v. Klein, 266 N. Y. 188). There is no rule in the common law which defines any particular age as conclusive of incapacity and in each instance capacity is to be investigated. (6 Wigmore, op. cit., § 1821.)

In Wheeler v. United States (159 U. S. 523) a boy five years old was not as a matter of law absolutely disqualified as a competent witness in a murder trial. There the disclosures of the child on his voir dire were sufficient to authorize the reception of his testimony as a witness. Mr. Justice Brewer, writing for the court (pp. 524-525), stated: “ [T]here is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question ■rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as his understanding of the obligations of an oath.”

In People v. Johnson (185 N. Y. 219), also involving a murder conviction, Judge Vaste- wrote concerning the unsworn testimony of a child under 12 (p. 231): “ A child may not be able to understand the nature of an oath and yet be capable of telling what he. saw and heard on a certain occasion with entire accuracy. It was to meet such a situation that the statute was passed [Code Grim. Pro., § 392], not to aid the prosecution only, but to aid the accused as well. The old saying that ‘ fools and children always tell the truth ’ rests on the common observation of mankind that while such persons can tell what they saw and heard, they cannot invent a story and stick to it when closely questioned. Of course there are exceptions to that rule, but the persons coming within it would know enough to understand the nature of the oath, if it was explained to them, and could tell the same story whether sworn or not. ” (Emphasis added.)

The voir dire administered here offers strong support to the decision of the trial court to exercise its discretion in favor of the complainant as a witness and permitting her to be sworn. Her testimony, therefore, must be considered in the same light as that of any other sworn witness in a criminal trial (see People v. Washor, 196 N. Y. 104, 109-110; People v. Linzey, 79 Hun 23; People v. O’Brien, 74 Hun 264).

Where convictions of impairing the morals of children, carnal abuse and third degree assault, depending solely on the testimony of minors, have been reversed by this court (People v. Derner, 288 N. Y. 599; People v. Slaughter, 278 N. Y. 479; People v. Churgin, 261 N. Y. 661; People v. Rosen, 293 N. Y. 683; People v. Meyers, 309 N. Y. 837), the ground for reversal was: “ there is not sufficient evidence to find the defendant guilty beyond a reasonable doubt.”

The cases of People v. Klein (266 N. Y. 188), People v. Churgin (supra), People v. Dutton (305 N. Y. 632) and People v. Meeks (283 N. Y. 694) were all decided properly within the mandate of section 392 of the Code of Criminal Procedure, there being no corroborative evidence for the unsworn testimony of witnesses under 12 or, where sworn, no proper preliminary examination was given. The decisions in People v. Derner (supra), People v. Slaughter (supra) and People v. Meyers (supra), where the witnesses were properly sworn, were based solely on the lack of any convincing testimony that should persuade a jury beyond a reasonable doubt.

As we view the record and testimony here, it presents two sharp questions of credibility: (1) an accusation and a denial, and (2) a question of whether the whole matter was one of complete fabrication invented by the child’s mother.

In this case we do not have the vague, indefinite testimony of a child witness who could not testify even to the date of the alleged act by the defendant, a person of previous good reputation (People v. Meyers, supra); or vague and indecisive testimony concerning one isolated incident with a defendant of previous good standing (People v. Rosen, 293 N. Y. 683, supra); or evidence of a fleeting and momentary meeting by a boy of 15 with a defendant of previous good character (People v. Slaughter, supra); or one casual meeting with a defendant (People v. Denner, supra).

The sordid acts which the child asserted were committed upon her person were unquestionably of such a nature to be within the provisions of subdivision 2 of section 483 of the Penal Law and justify a conviction for such, if believed. The defendant, understandably, denied these charges. However, this only creates an issue of credibility. The fact that her testimony Avould also uphold a conviction for sodomy and assault, of which the defendant was acquitted, does not give rise to any inconsistency (cf. People v. Link, 3 N Y 2d 947).

The record contains definite and clear testimony both as to the date and the acts of the defendant on that date and other occasions. The testimony is strong. It was unshaken by an extensive and competent cross-examination. On the other hand, the defendant, who had abandoned his first wife and their children and was an admitted adulterer, merely denied the accusation. Such testimony presented a sharp question of credibility to the jury.

It has always been clear that in noncapital felony cases this court lacks the power to review facts. As this court stated in People v. Lobel (298 N. Y. 243, 251): “ Insofar as our disposition of this noncapital case is concerned — where the weight of evidence is not a subject for our review—it is basic that where there are conflicting inferences from proven facts the verdict of a jury is not to be set aside, in the absence of material error, unless it can be said as a matter of law that there is no evidence to support it. (People v. Sugarman, 248 N. Y. 255, 258; People v. McCarthy, 250 N. Y. 358, 364; People v. Pesky, 254 N. Y. 373.) ” (See, also, Cohen and Karger, Powers of the New York Court of Appeals, § 198, p. 742.)

Therefore, we cannot reverse without breaking doAvn the bounds that separate the fields of action of the jury and of the Appellate Division from the province of reAdew of the Court of Appeals. Hence we think the verdict is supported by evidence sufficient to convict the defendant beyond a reasonable doubt.

The jury has accepted the testimony of the People. Their judgment has been unanimously affirmed by the Appellate Division. The verdict, under such circumstances, is conclusive upon this court.

In People v. Sutherland (154 N. Y. 345, 350) this court wrote: “It is undoubtedly true that this court has power in a capital case to review the facts and set aside a verdict of conviction when not supported by sufficient evidence, or when it appears that injustice has been done. But where there is a conflict in the evidence, or where opposing inferences are to be dra/wn from the facts, it is the province of the jury to determine where the truth is, and the verdict, under such circumstances, is conclusive upon the courts ”. (Emphasis added.)

Defendant argues that the trial court erred in refusing to order , a physical examination of the child. There is, however, no statute and no case in this State which authorizes a physical examination of a complainant in a criminal ease involving a sexual offense. Assuming, however, that this practice is permissible in the absence of any direct authorization therefor, the granting of such a motion would rest in the sound discretion of the court (see, e.g., McGuff v. State, 88 Ala. 147; King v. State, 100 Ala. 85; McArthur v. State, 59 Ark. 431, 436; State v. Pucca, 4 Pennewill [Del.] 71; Thomas v. Commonwealth, 188 Ky. 509; Walker v. State, 12 Okla. Cr. 179; State v. Driver, 88 W. Va. 479).

Assuming arguendo that the trial court had the power to order a physical examination of this child, we do not believe that the denial constituted an abuse of discretion. The crimes charged were oral sodomy, assault, second degree, and endangering morals. We fail to see how the testimony of this child could be seriously affected or the examination probative on these issues when the examination was requested four months after the alleged occurrences. Remembering that rape was not charged and that any penetration, no matter how slight, will suffice, whether or not a physical examination would reveal this child to be virginal would not affect her credibility. It would lack any probative value and be irrelevant on the issues before the trial court.

The trial court did not commit reversible error and did not abuse its discretion in allowing the District Attorney to examine the complainant concerning other similar acts committed on her by the defendant both prior to and subsequent to the offense charged in the indictment. The rule laid down by this court in People v. Molineux (168 N. Y. 264) allows evidence of other similar crimes between the parties. Such evidence here was admissible to show, inter alia, intent, motive and a common plan and scheme.

The argument is advanced that People v. Thompson (212 N. Y. 249), which permitted evidence of other similar crimes in the discretion of the trial court both before and after the act charged in the indictment, by and between the same parties, on the theory that it shows a course of lascivious conduct or predisposition to the commission of the act charged, should be limited to the type of cases mentioned specifically therein, i.e., rape, seduction and incest. We do not agree for the simple reason that the Thompson decision in no way attempted to set down any limitation on the Molineux rule, but rather cited these crimes by way of example only.

We cannot say that the trial court abused its discretion inasmuch as the evidence was properly received. (See People v. O’Sullivan, 104 N. Y. 481; 167 A. L. R. 565 et seq.; 621-622.)

Accordingly, the judgment of conviction should be affirmed.

Desmond, J. (dissenting).

I agree with Judge Burke for affirmance.

The prosecution unquestionably made a prima facie showing of guilt and we are powerless (as in all noncapital criminal appeals) to review the facts. As to the absence of corroboration of the prosecutrix, I refer to my dissenting opinion in People v. Oyola (6 N Y 2d 259, 268, decided herewith).

Chief Judge Conway and Judge Froessel concur with Judge Van Voorhis; Judge Fuld concurs in a separate opinion; Judge Burke dissents in an opinion in which Judge Dye concurs and in which Judge Desmond concurs in a separate opinion.

Judgment reversed, etc.