author: Froessel, J. Desmond, J. (dissenting). Fuld, J. (dissenting).

text:
    The People of the State of New York, Respondent, v. John G. Broady, Appellant.
    Argued November 18, 1958;
    decided April 9, 1959.

      Harris B. Steinberg and Leo H. Hirsch, Jr., for appellant.
    I. The trial court erroneously failed to submit an essential element of the crime to the jury for its consideration. (Morissette v. United States, 342 U. S. 246; People v. Walker, 198 N. Y. 329; People v. Flack, 125 N. Y. 324; People v. Clemente, 285 App. Div. 258, 309 N. Y. 890; Hewitt v. Newburger, 141 N. Y. 538; Wass v. Stephens, 128 N. Y. 123; Grew v. Mountain Home Tel. Co., 192 App. Div. 863, 233 N. Y. 560; People v. Raeder, 161 Misc. 557; People v. Appelbaum, 277 App. Div. 43, 301 N. Y. 738; People v. Senes, 210 App. Div. 845, 242 N. Y. 556; People v. Hebberd, 96 Misc. 617.) II. Unless subdivision 6 of section 1423 of the Penal Law is construed as a malicious mischief statute, it is unconstitutional since it offends against the “ supremacy clause ”—■ article VI, clause 2 — of the Federal Constitution. (Benanti v. United States, 355 U. S. 96; Auto Workers v. Wisconsin Bd., 351 U. S. 266; Pennsylvania v. Nelson, 350 U. S. 497; Rice v. Santa Fe Elevator Corp., 331 U. S. 218; Schwartz v. Texas, 344 U. S. 199; Erie R. R. Co. v. New York, 233 U. S. 671; Southern Ry. Co. v. Railroad Comm., 236 U. S. 439; Garner v. Teamsters Union, 346 U. S. 485; Hines v. Davidowitz, 312 U. S. 52; International Shoe Co. v. Pinkus, 278 U. S. 261; Prigg v. Commonwealth of Pennsylvania, 16 Pet. [U.S.] 539; People v. Saperstein, 2 N Y 2d 210, 353 U. S. 946; People v. Feld, 305 N. Y. 322; People v. Stemmer, 298 N. Y. 728, 336 U. S. 963, 337 U. S. 921; Matter of Harlem Check Cashing Corp. v. Bell, 296 N. Y. 15.) III. The trial court failed to instruct the jury properly. The court’s charge was unduly long and prolix. (People v. Kresel, 243 App. Div. 137.) IV. The court failed to instruct the jury on the precise, conflicting issues with regard to the evidence. (People v. Montesanto, 236 U. Y. 396; People v. Birch, 283 App. Div. 844; People v. Lashkowitz, 257 App. Div. 518; People v. Cohen, 243 App. Div. 245.) V. The trial court erroneously failed to instruct as to what evidence in the case was properly to be considered as corroborative of the accomplices. (People v. Cilento, 2 N Y 2d 55; People v. Kress, 284 N. Y. 452; People v. O’Farrell, 175 N. Y. 323.) VI. Defendant was deprived of a fair trial by the prosecutor’s erroneous and prejudicial remarks in summation. (People v. Lovello, 1 A D 2d 162, 1 N Y2d 436; Berger v. United States, 295 U. S. 78; People v. Tassiello, 300 N. Y. 425; People v. Stratton, 286 App. Div. 323, 1 N Y 2d 664; People v. Burley, 282 App. Div. 408; People v. Swanson, 278 App. Div. 846; People v. Carborano, 301 N. Y. 39.)

      Frank S. Hogan, District Attorney (Richard G. Denzer and Harold Roland Shapiro of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. II. The wire-tapping statute underlying most of the charges (Penal Law, § 1423, subd. 6) is not unconstitutional. (People v. Appelbaum, 277 App. Div. 43, 301 N. Y. 738; Auto Workers v. Wisconsin, 351 U. S. 266; California v. Zook, 336 U. S. 725; Matter of Harlem Check Cashing Corp. v. Bell, 296 N. Y. 15; People v. Fury, 279 N. Y. 433; People v. Welch, 141 N. Y. 266; Pennsylvania v. Nelson, 350 U. S. 497; Kelly v. Washington, 302 U. S. 1; Gilbert v. Minnesota, 254 U. S. 325; Reid v. Colorado, 187 U. S. 137; Benanti v. United States, 355 U. S. 96.) III. The prosecutor’s summation was not prejudicial. (Berger v. United States, 295 U. S. 78; People v. Dixon, 231 N. Y. 111; People v. Gibson, 218 N. Y. 70; People v. Barnes, 202 N. Y. 77; People v. Wilson, 141 N. Y. 185; People v. Lovello, 1 N Y 2d 436; People v. Tassiello, 300 N. Y. 425; People v. Kay, 278 App. Div. 927, 303 N. Y. 760; People v. Burley, 282 App. Div. 408; People v. Swanson, 278 App. Div. 846.) IV. The court’s charge was proper, was not toe long and prolix, and did not fail to relate the law to the facts and to narrow the issues. (People v. Feld, 305 N. Y. 322; People v. Lee, 300 N. Y. 422.) V. The court clearly and repeatedly charged concerning the corroborative proof required to tend to connect defendant with the commission of the crimes. (People v. Henderson, 298 N. Y. 462; People v. Jelke, 1 A D 2d 666, 1 N Y 2d 321; People v. Lashkowitz, 257 App. Div. 518.) VI. In its charge the trial court correctly instructed the jury concerning the question of criminal intent and the meaning of an “ unlawful ” and “ wilful ” wiretapping violation. (Hewitt v. Newburger, 141 N. Y. 538; Wass
      v. Stephens, 128 N. Y. 123; Grew v. Mountain Home Tel Co., 192 App. Div. 863, 233 N. Y. 560; People v. Appelbaum, 277 App. Div. 43, 301 N. Y. 738; United States v. Polakoff, 112 F. 2d 888, 311 U. S. 653; People v. Senes, 242 N. Y. 556; People v. Hebberd, 96 Misc. 617.)
   Froessel, J.

Defendant was convicted of (1) one count of conspiracy in violation of subdivision 1 of section 580 of the Penal Law; (2) 11 counts of aiding and employing others to wire tap unlawfully in violation of subdivision 6 of section 1423 of the Penal Law; (3) 2 counts of using rooms and apparatus for unlawful wire tapping in violation of subdivision 6 of section 1423 of the Penal Law; and (4) 2 counts of unlawfully possessing wire-tapping instruments in violation of section 552-a of the Penal Law; and sentenced to a total term of two to four years.

The evidence showed that with the aid of two telephone company employees, Buh and Asmann, and an expert on telephonic communications and recording devices named Shannon, the defendant, who was an attorney and a private investigator, established and maintained wire-tapping plants in two apartments in midtown Manhattan. Taps were placed on the telephones of business concerns such as Bristol-Meyers, E. B. Squibb, Inc., the Knoedler Art Galleries and private individuals, including the chairman of the board of Pepsi-C'ola. Numerous recordings of telephone conversations were made for the purpose of securing information of value to defendant’s clients.

All three accomplices testified against defendant. The testimony of other witnesses established, among other things, that defendant had rented one of the apartments under an assumed name and that special wiring had been installed there; that defendant employed messengers to transport packages — containing recordings of conversations, according to Shannon— from one of the apartments used as a wire-tapping headquarters to defendant’s office; and that defendant had negotiated with clients or prospective clients to supply them with information about the persons and concerns whose telephones were tapped. Defendant does not contest the legal sufficiency of the proof on this appeal, but attacks the validity of his conviction on other grounds.

His first contention relates to the meaning of the word “ wilfully ” in subdivision 6 of section 1423 of the Penal Law. That subdivision, as it read when the offenses were committed, made it a felony punishable by two years’ imprisonment to ‘‘ unlawfully and willfully cut, break, tap, or make connection with any telegraph or telephone line, wire, cable or instrument, or read or copy in any unauthorized manner any message, communication or report passing over it, in this state ” (emphasis supplied). The trial court charged the jury that “‘Wilful’ does not mean that a person does an act motivated by feelings of spite, malice or hate. It merely means intentionally doing an act and knowing that the act is being done ’ ’. An exception to the above definition was taken by the defense attorney.

Defendant argues that the word “ willfully ”, as used in subdivision 6, means ‘ ‘ ‘ wantonly ’ and ‘ maliciously ’, as differentiated from merely ‘ intentionally ’ or ‘ knowingly ’ ’ ’, and that, because of the erroneous nature of its charge, the trial court ‘ ‘ failed to submit an essential element of the crime to the jury for its consideration ”. He also argues for the first time that “wilfully” must be interpreted to mean “maliciously” to save the constitutionality of said subdivision 6 of section 1423 since if the statute is construed as intended to protect the privacy of telephone conversations — as contended by respondent—rather than as a malicious mischief statute “ intended to prevent harm to local property ” — as contended by defendant — then it was pre-empted by the enactment of section 605 of the Federal Communications Act and offends the supremacy clause of the Federal Constitution (art. VI, § 2). He bases this contention on three decisions of the Supreme Court of the United States (Benanti v. United States, 355 U. S. 96 [1957]; Auto Workers v. Wisconsin Bd., 351 U. S. 266 [1956] ; Pennsylvania v. Nelson, 350 U. S. 497 [1956]) which were handed down between April 2, 1956 and December 9, 1957, before the affirmance by the Appellate Division in this case on May 13, 1958 (6 A D 2d 674).

Section 1423 is found in article 134 of the Penal Law, entitled “Malicious Mischief”. That part of the section prohibiting wire tapping was inserted in 1892, long after the property damage provisions were enacted (Report of N. Y. State Joint Legislative Committee to Study Illegal Interception of Communications, N. Y. Legis. Doc., 1956, No. 53, p. 13). The various subdivisions of section 1423 define a host of offenses involving injury or damage to highways, bridges, dams, sewers, telephone or telegraph lines and the like. All of these offenses, according to the language of the statute, must be committed “ wilfully or maliciously ” (emphasis supplied), except certain offenses like wire tapping, specified in subdivision 6, which must be committed “ unlawfully and wilfully”.

The word “wilfully”, as used in the phrase “wilfully or maliciously ” in section 1423, has been held to include the element of malice — Wass v. Stephens (128 N. Y. 125, 129). That case, however, was decided in 1891, when every act in the statute had to be committed, according to its terms, ‘ ‘ wilfully or maliciously ”. It was not until the following year (L. 1892, ch. 372) that the statute (then Penal Code, § 639, subd. 7) was amended to include the telephone, and as to the tapping of a telephone the amendment merely required that it be done ‘ unlawfully and wilfully”. And in People v. Senes (210 App. Div. 845, affd. 242 N. Y. 556), which apparently was the only conviction for wire tapping ever reported in this State prior to the instant ease (see N. Y. Legis Doc., 1956, No. 53, supra, pp. 14, 29), while the trial court instructed the jury that the word 1 ‘ wilfully ”, as used in the phrase “unlawfully and wilfully” in section 1423, included a malicious intent to injure someone, the correctness of this charge was not raised on appeal since it was most favorable to defendant. No appellate court in this State has ever imported the element of malice into the word 1‘ wilfully ” as used in the phrase “ unlawfully and wilfully” in subdivision 6 of section 1423. By specifying that the crime of wire tapping was committed when one acted “ unlawfully and wilfully ”, in contradistinction to the many crimes of property damage outlined in section 1423, which required that a person act ‘ ‘ wilfully or maliciously ’ ’, it is fair to assume that the Legislature indicated that the word “wilfully”, as used in subdivision 6, meant deliberately, as opposed to maliciously or viciously.

Moreover, in People v. Applebaum (277 App. Div. 43, affd. 301 N. Y. 738), it was recognized that subdivision 6 of section 1423 was intended to protect the privacy of telephone conversations as well as to prohibit physical damage to telephone equipment. Defendant here concedes in effect that, if the statutory provision prohibiting wire tapping was aimed at invasions of privacy, then the element of malice or spite, a natural ingredient of the many crimes of property damage listed in section 1423, would not be comprehended in the word ‘ wilfully ’ ’ as used in subdivision 6 of section 1423.

In 1957 the crime of wire tapping was taken out of subdivision 6 of section 1423 and placed in a new article and section of the Penal Law (art. 73, § 738) entitled “Eavesdropping”. The 1957 Interim Report of the Joint Legislative Committee on Illegal Interception of Communications (N. Y. Legis. Doc., 1957, No. 29, p. 13 et seq.), insofar as relevant here, emphasized that one of the purposes of the proposed legislation, subsequently enacted into law, was to ‘ ‘ Consolidate present scattered laws on interception of communications ” (p. 14), including ‘ ‘ the rephrasing of the present law against wiretapping, now inappropriately classified as malicious mischief, along with damage to sewers, water mains, and piers.” (P. 16, emphasis supplied.) One of the objectives of the consolidation was to ‘ ‘ make it clear that the evil of wiretapping is not merely in the offense against property but particularly in the violation of privacy — the eavesdropping.” (P. 14, emphasis supplied.)

We think it beyond dispute that the prohibition against wire tapping, as it existed in subdivision 6 of section 1423, was primarily designed to protect the privacy of telephone conversations. This being so, the word ‘ ‘ wilfully ’ ’, carried over from subdivision 6 of section 1423 into the new statutory section forbidding ‘‘ eavesdropping ’ ’, would logically refer to an act consciously and deliberately done and would not include the element of malice. The invasion of privacy implicit in wire tapping is the same, whatever the motives of the unauthorized tapper may be.

This brings us to the more serious question involved in this case, namely, whether the prohibition against wire tapping contained in subdivision 6 of section 1423, intended to prevent invasions of privacy, was pre-empted by section 605 of the Federal Communications Act. That Act was enacted by Congress in 1934 (48 IT. S. Stat. 1064, 1103; U. S. Code, tit. 47) and its main purpose was “to extend the jurisdiction of the existing Radio Commission to embrace telegraph and telephone communications as well as those by radio.” (Weiss v. United States, 308 U. S. 321, 328; see, also, Benanti v. United States, 355 U. S. 96, 104, n. 14, supra.) The Supreme Court has recently emphasized (Benanti v. United States, supra, p. 104) that the Act “is a comprehensive scheme for the regulation of interstate communications ”.

Section 605 of the Act is entitled Unauthorized publication or use of communications ” (emphasis supplied), and that portion of section 605 which is claimed to have pre-empted subdivision 6 of section 1423 of our Penal Law reads as follows : “ nó person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person” (emphasis supplied). Section 501 of the Act makes a violation of section 605 punishable by a $10,000 fine or imprisonment for one year or both, and is applicable to Any person who willfully and knowingly does or causes or suffers to be done any act * * * in this chapter prohibited or declared to be unlawful ” (emphasis supplied).

In Weiss v. United States (supra, pp. 327, 329) the Supreme Court held that the above-quoted clause of section 605 was applicable to the interception and divulgence ” of intrastate as well as interstate communications. Such a holding was necessary, explained the court in the Benanti case {supra, pp. 104-105), “ In order to safeguard those interests protected under Section 605 ’ ’, and in view of the practical consideration that ‘ the interceptor cannot discern between the two and will listen to both ’ ’.

The New York statutory scheme relative to wire tapping is far more comprehensive than section 605 in that section 552-a (now § 742) of the Penal Law renders criminal the possession of wire-tapping instruments with intent to use them unlawfully, and subdivision 6 of section 1423 punishes the use of rooms and apparatus for illegal wire tapping, as well as wire tapping itself. We are here concerned only with whether section 605 pre-empts that part of subdivision 6 of section 1423 which makes it criminal to ‘ ‘ tap, or make connection with any telegraph or telephone line, wire, cable or instrument ”. Twelve of the counts of which defendant was convicted charged substantive crimes of unlawful wire tapping, reciting specific interceptions between certain dates with respect to specific telephone numbers and subscribers, and it was on four of these counts that defendant was sentenced to a prison term.

In resolving the pre-emption issue, it is first necessary to decide the preliminary question of whether subdivision 6 of section 1423, insofar as it prohibits wire tapping, impinges on Federal jurisdiction. This question is important because it has been long established that “ the same act might, as to its character and tendencies, and the consequences it involved, constitute an offence against both the State and Federal governments, and might draw to its commission the penalties denounced by either, as appropriate to its character in reference to each.” (United States v. Marigold, 9 How. 560, 569; see, also, Abbate v. United States, 359 U. S. 187, and Barthus v. Illinois, 359 U. S. 121, decided March 30, 1959, and pertinent cases therein cited; Cross v. North Carolina, 132 U. S. 131, 139; Sexton v. California, 189 U. S. 319, 322-323; Southern Ry. Co. v. Railroad Comm. of Indiana, 236 U. S. 439, 445; People v. Welch, 141 N. Y. 266, 276; People v. Fury, 279 N. Y. 433, 437.)

In Pennsylvania v. Nelson (350 U. S. 497, supra), where a State sedition statute was held pre-empted by the Smith Act, the Supreme Court pointed out, at the outset of their opinion (p. 500), that the decision in that case did not prevent the State from prosecuting where the same act constitutes both a federal offense and a state offense under the police power, as was done in Fox v. Ohio, 5 How. 410, and Gilbert v. Minnesota, 254 U. S. 325 ”. In discussing the two cited cases, the Supreme Court noted (pp. 500-501): “In neither of those cases did the state statute impinge on federal jurisdiction.” (Emphasis supplied.)

The question has a dual aspect in the instant case, namely, whether our penal provision against wire tapping impinges either on Federal constitutional jurisdiction under the commerce clause, or on Federal criminal jurisdiction under section 605. As to the former, we do not look upon subdivision 6 of section 1423 as an attempted regulation of telephonic communications, but simply as a local police measure ” designed to protect the people of this State against unwarranted intrusions into their privacy. As the Supreme Court noted in the Nelson case (supra, p. 517), in quoting from Gilbert v. Minnesota (254 U. S. 325, 330-331), “ ‘ To do so is not to usurp a National power, it is only to render a service to its people ’ As to the possibility of encroachment on Federal criminal jurisdiction, the problem arises here because the nature of the offense made punishable by section 605 of the Federal Act is not clear. While subdivision 6 of section 1423 of our Penal Law clearly makes criminal the act of wire tapping, section 605 seems to require both an interception and a divulgence or publication of ‘ ‘ the existence, contents, substance, purport, effect, or meaning of such intercepted communication ’ \ In other words, section 605, on its face, does not appear to prohibit wire tapping as such, but seems to make it criminal only when the tapper divulges or publishes the existence of the tap or the information obtained (see article by former Atty. Gen. Brownell, 39 Cornell L. Q. 195, 197-198).

In the Benanti case (supra), which held that wire-tap evidence was not admissible in a Federal court in a prosecution for a Federal crime, even when obtained by State law-enforcement officers under a court order, the Supreme Court expressly left the issue open when it stated (p. 100, n. 5): “ Because both an interception and a divulgence are present in this ease we need not decide whether both elements are necessary for a violation of § 605. Also because here the disclosure was of the existence of the communication, it is not necessary for us to reach the issue whether § 605 is violated by an interception of the communication and a divulgence of its fruits without divulging the existence, contents, etc. of the communication.” (See, also, Rathbun v. United States, 355 U. S. 107, 108, n. 3.) It is clear, as noted, that subdivision 6 of section 1423 is violated by an interception alone, whether or not there is a divulgence of the communication and/or its fruits. If section 605, on the other hand, does not make criminal the act of wire tapping, then there would appear to be no impingement on Federal criminal jurisdiction.

A persuasive argument for reading section 605 as requiring both an interception and a divulgence, in addition to the plain wording of the statute and its title, and the long-established canon of construction that a penal statute must be strictly construed (Yates v. United States, 354 U. S. 298, 30A-305), is that a contrary holding would result in making the act of divulging itself criminal, even when done by someone unrelated in any way to the interception of the communication. This would necessarily follow from a construction of the statute that made the act of interception alone criminal, since section 605 forbids the interception and divulgence of a communication, and if interception alone is a crime so must divulgence alone also be a crime. And the divulgence necessary to constitute the crime would not necessarily have to be of the content of the intercepted communication, since, as pointed out in the Benanti case (supra,' p. 100), section 605 “forbids the divulgence of 1 the existence * * * ’ of the intercepted message ” (emphasis in original). It is difficult to believe that in enacting section 605 Congress meant to punish one who, having no part in the actual wire tapping itself, merely made it known that there had, in fact, been a tap.

Assuming arguendo, however, that subdivision 6 of section 1423 of our Penal Law does impinge on Federal jurisdiction, we must then decide whether the Federal statutory provision was intended to supersede our statute. In the absence of section 605 it seems clear that New York, as a legitimate exercise of its police power, could make wire tapping a crime so as to protect its citizens from the invasion of privacy implicit in wire tapping. Congress did enact section 605, but in so doing it did not indicate whether it meant to preclude the States from themselves punishing wire tapping. Faced with a similar situation in the Nelson case (supra, p. 501) —wherein it was noted: ‘ ‘ Congress has not stated specifically whether a federal statute has occupied a field in which the States are otherwise free to legislate ” — the Supreme Court invoked three criteria to aid in determining’ whether the State statute was superseded.

The first of these criteria (350 U. S. 502) was whether “ ‘ [t]he scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it’ ”. In the recent Benanti case (supra), in answer to the argument that the interception and divulgence involved in that case did not violate section 605, since the State officers in placing the taps had acted pursuant to a court order authorizing them to wire tap (N. Y. Const., art I, § 12; Code Grim. Pro., § 813-a), the court, in indicating that section 605 evidenced a public policy against the interception and divulgence of communications, stated (355 U. S. 105-106) that Congress, setting out a prohibition in plain terms, did not mean to allow state legislation which would contradict that section and that policy ” (emphasis supplied). (See, in this connection, Schwartz v. Texas, 344 U. S. 199; People v. Variano, 5 N Y 2d 391.) We do not think that, in so stating, the court meant to imply that section 605 was so pervasive as to preclude a State penal statute punishing wire tapping. It is, of course, true that once Congress has occupied a field a State statute is superseded whether it contradicts or merely supplements the Federal statute (see Pennsylvania v. Nelson, supra, p. 504). But whether Congress has occupied the field to the exclusion of State laws is a matter of intention (see California v. Zook, 336 U. S. 725, 729-730) and, reading the language in Benanti in context, we do not think it was intended to indicate that Congress had occupied the field of wire tapping. Certainly, when the single clause of section 605 is compared with the broad sweep of the Smith Act (54 U. S. Stat. 670; U. S. Code, tit. 18, §§ 2385, 2387) and the Communist Control Act (68 U. S. Stat. 775; U. S. Code, tit. 50, § 841 et seq.), the Nelson case is hardly persuasive authority for holding the States pre-empted from punishing wire tapping. The Supreme Court, in the Nelson case, emphasized the comprehensive nature of Federal anti-subversive legislation in concluding (350 U. S. 504) that, ‘ ‘ Taken as a whole, they evince a congressional plan which makes it reasonable to determine that no room has been left for the States to supplement it.”

Unlike the New York statutory provisions, section 605 does not attempt to deal with the preparatory and attendant activities essential to wire tapping, such as the acquisition of premises and equipment, the assembling of apparatus and the like. It is a general interdiction against the interception and divulgence of any type of ‘ * communication ’ ’ and it does not, in our opinion, evince a congressional plan ” to occupy the field of wire tapping. On the contrary, we think it reasonable to assume that Congress intended to leave room for a State to punish the tapping of telephones within its borders.

The second criterion set forth in the Nelson case (supra, p. 504) was whether ‘ ‘ the federal statutes ‘ touch a field in which the federal interest is so dominant that the federal system [must] be assumed to preclude enforcement of state laws on the same subject.’ ” In pointing to the “ all-embracing program for resistance to the various forms of totalitarian aggression ” (p. 504, emphasis supplied) devised by Congress, the court (p. 505) underlined the fact that “ ‘ Sedition against the United States is not a local offense. It is a crime against the Nation.’ ” (Emphasis in original.) While it is true that, broadly speaking, interstate telephonic communications fall under the Federal aegis, and that section 605, in order to be effective, applies equally to intrastate communications, this hardly imports that a State is powerless to protect the privacy of its own citizens by forbidding the tapping of telephones within the State. It would seem that protecting the individual’s right of privacy is an area primarily entrusted to the care of the States rather than the Federal Government, falling logically within the ambit of the State’s police power. In any case, the field of wire tapping would not appear to be so peculiarly affected with a Federal interest that State regulation ‘ ‘ must be assumed ’ ’ to be precluded.

The third and final criterion of supersession discussed in the Nelson case (supra, p. 505) was whether enforcement of the State statute presents a serious danger of conflict with the administration of the federal program ”. We perceive no such danger of conflict ” here. Entirely lacking in the instant case is evidence of any requests to local authorities, by the President or the Director of the Federal Bureau of Investigation, in the nature of those present in the Nelson case, to turn over to Federal authorities all information concerning wire-tapping activities so as to “ avoid a hampering of uniform enforcement of its program by sporadic local prosecutions ” (supra, pp. 505-509). The sparsity of prosecutions under section 605 (see annotations in 47 U. S. C. A.) indicates the absence of any 11 federal program ’ ’ to combat wire tapping, and the recent Congressional efforts at legislation in this field have been in the direction of legalizing wire tapping by Federal officers in certain circumstances (39 Cornell L. Q., supra, p. 209, n. 53). Permitting the States to punish wire tapping would appear to present none of the difficulties outlined by the Supreme Court in the Nelson case.

We cannot help but conclude that subdivision 6 of section 1423 of our Penal Law punishes the conscious and deliberate tapping of telephones within the State and in so doing does not offend the supremacy clause of the Federal Constitution.

Defendant next attacks the court’s charge to the jury on the grounds that it was too long, that it failed to indicate what evidence could be properly considered as corroborative of the testimony of the accomplices, and that it generally failed to relate the evidence to the questions posed; as to the last ground, no exception was noted. We find no merit in these arguments. A reading of the charge as a whole demonstrates that it was clear as well as thorough, and provided the jury with a comprehensive summary of the evidence, the issues involved and the applicable legal principles. The court clearly and repeatedly charged that the corroborative proof necessary to convict had to be independent evidence tending to connect defendant with the commission of the crimes, and that evidence tending to show only that a crime was committed, as well as evidence of mere association of the accomplices with defendant, was insufficient.

Finally, defendant contends that he was deprived of a fair trial by several allegedly prejudicial remarks made by the prosecutor in his summation. In the first two challenged statements, the District Attorney, in reply to implications of the defense counsel that he had deliberately failed to call two material witnesses and had withheld evidence implicating one Gfris as the real mastermind of the wire-tap operations, improperly supported his case by the weight of his personal integrity and position (see People v. Lovello, 1 N Y 2d 436). No objection was registered to either of these statements, however, nor were they made the grounds of a motion for a mistrial; hence they are not open to us for review (People v. Pindar, 210 N. Y. 191, 196; People v. Levine, 297 N. Y. 144, 148; People v. Tassiello, 300 N. Y. 425; People v. Lovello, supra). As to the prosecutor’s assertion of the “ axiom ” that in a hopeless case the tactic is to try the District Attorney, there is also no ruling before us to review. The defense attorney’s objection was sustained, the jury was instructed to disregard the statement, and the defense attorney not only failed to move for a mistrial but apparently acquiesced in the court’s handling of the matter when he finally said ‘ ‘ All right ’ ’.

There are only two statements which were the subject of a motion for a mistrial and only two court rulings which we are enabled to review as rulings of law. One was the remark 1 How does he [defense attorney] know what I know, or I don’t know? ”, to which no objection was taken at the time but which was made the subject of a motion for a mistrial at the close of the prosecutor’s summation. The'court denied the motion, but instructed the jury to disregard the remark. Defendant claims that under our decision in People v. Tassiello (supra, p. 430), which cited Berger v. United States (295 U. S. 78, 88), his motion for a mistrial with respect to this remark 1 ‘ should have been granted, as a matter of right ” since “ the prosecutor was baldly hinting at his personal knowledge of matters outside the record which could well influence the jury’s verdict”.

Although the prosecutor’s remark was uncalled for, it certainly lacks the prejudicial content of a claim of personal knowledge “ that defendant’s counsel * * * had become convinced of his client’s guilt ”, as was the situation in Tassiello (supra, p. 430), or of a suggestion “that statements had been made to him [the District Attorney] personally out of court ’ ’, which was only one of many reprehensible tactics employed by the prosecutor in the Berger case (supra, p. 84). The trial court here instructed the jury to disregard the remark, and again cautioned the jury in its charge that “ any suggestions * * * conveyed to your minds -of things not in evidence * * * should be resolutely removed from any consideration by you ’ ’. Under these circumstances, we are unable to say that the trial court abused its discretion in denying the motion for a mistrial.

The final claim of error relates to the prosecutor’s remark: ‘11 am the fellow you should convict if I deliberately permitted that man [Huh] to commit perjury, knowing it in my heart and soul? ”, as to which a motion for a mistrial was promptly made. This statement was similar to those made in the Lovello case {supra). In sharp contrast to Lovello, however (and People v. Swanson, 278 App. Div. 846), where the court overruled the objection taken and thereby “ indicated to the jury that there was no impropriety” (1 N Y 2d 439) and “ sustained, by Ms ruling, the district attorney in this line of argument ” (People v. Minkowitz, 220 N. Y. 399, 405), the trial court here sustained the objection to the remark and twice instructed the jury to completely disregard, in their decision of the case, statements of personal belief by the attorneys. In its charge, the court again emphasized to the jury that they were not to be influenced by unsupported statements of counsel, and said further: “I repeat what I previously told you—what the lawyers said is not evidence. The evidence-came from the witnesses and you alone are the sole judges as to what the witnesses testified and what the facts are.”

In determining whether improper remarks in summation require a new trial, it would seem of vital significance whether the trial court, as stated by Presiding Justice Peck in his dissent in the Lovello case, “ gave standing to the statement of the District Attorney as legitimate argument ” (1 A D 2d 167, 169) or whether, as here, the trial court promptly advised the jury that the statement was improper and must be wholly disregarded. We thus conclude that the prompt and complete instructions of the trial court in the instant case, repeated in his charge, prevented the improper remark from having any serious consequence, and that the court did not abuse its discretion in denying the motion for a mistrial.

The judgment appealed from should be affirmed.

Desmond, J. (dissenting).

Because of the prosecutor’s remarks during summation and because I concur in all that Judge Fuld is writing on that phase of the case, I dissent and vote to reverse. As to the pre-emption point, that has been taken out of this situation, finally and completely, by the United States Supreme Court’s decisions (Abbate v. United States, 359 U. S. 187, and Bartkus v. Illinois, 359 U. S. 121).

Fuld, J. (dissenting).

The Supreme Court declared in the Benanti case that the Federal Communications Act is “a comprehensive scheme ” for the regulation of both interstate and intrastate communications and, in addition, intimated that Congress, by enacting that statute, “and Section 605 in particular,” has exercised its power to forbid wire tapping and prevent a State from authorizing wire tapping even in the exercise of its legitimate police functions. (Benanti v. United States, 355 U. S. 96, 104.) Such language, particularly when considered in light of the authorities cited (355 U. S., at p. 106)—such as Pennsylvania v. Nelson (350 U. S. 497) and Hill v. Florida (325 U. S. 538)—gives me pause as to the correctness of the present holding that the Federal Government has not .fully occupied the field of telephonic communications, including, of course, their interception. And, if Congress “ has taken the particular subject-matter in hand” (Charleston & Car. R. R. v. Varnville Co., 237 U. S. 597, 604), it matters not, contrary to the intimations contained in the court’s opinion (pp. 5091-512), whether the State legislation is in conflict with the Federal law or supplements it. (See, e.g., Pennsylvania v. Nelson, 350 U. S. 497, 504, supra; Southern Ry. Co. v. Railroad Comm., 236 U. S. 439, 448; Erie R. R. Co. v. New York, 233 U. S. 671, 683, revg. 198 N. Y. 369, 381.) Nevertheless, until the Supreme Court has spoken more decisively on the subject, I hesitate to say that Congress has, through section 605, preempted the field so as to supersede and render ineffectual the provisions of this State’s Constitution and Code of Criminal Procedure which authorize wire tapping (N. Y. Const., art. I, § 12; Code Grim. Pro., § 813-a).

I do believe, however, that there should be a reversal of the judgment of conviction and a new trial because of the statements made by the assistant district attorney during his summation, statements by which he made himself “ an unsworn witness * * * supporting his case by his own veracity and position”. (People v. Lovello, 1 N Y 2d 436, 439; see, also, People v. Tassiello, 300 N. Y. 425, 430.) More specifically, the prosecutor told the jurors that, if they believed that he or his associates had “ suppressed ” any evidence, they should acquit this man. I am not worthy of standing here before you ”. He compounded the impropriety of this comment by immediately adding that,

“ if they [the witnesses about whose failure to testify defense counsel had commented] had anything to contribute, they would be on that stand here before you. That is my duty, that is my duty to put them there, and if I didn’t do it it is a damnable and shameful and outrageous thing and I should be convicted.”

And, just a few minutes thereafter, the prosecutor again made himself a witness and again placed his own integrity and standing in the balance against the defendant by telling the jury that

“ Then I put Buh on the stand and permitted him to testify that he did not tap those numbers. I am the fellow you should convict if I deliberately permitted that man to commit perjury, knowing it in my heart and my soul ”

All of these summation statements were highly improper and, when the one last quoted evoked a motion for a mistrial, more was required, in order to overcome and eliminate the prejudice which must have resulted, than the trial court’s perfunctory instructions that the jury must rely on the evidence and disregard the comments. (See, e.g., People v. Carborano, 301 N. Y. 39, 42-43; People v. Levan, 295 N. Y. 26, 36.) ‘ ‘ The virus * * * implanted in the minds of the jury ’ ’, we wrote in the Levan case (295 N. Y., at p. 36), “ is not so easily extracted.”

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

Judgment affirmed.

      . This and the other remarks were quite similar to those condemned in People v. Lovello (1 N Y 2d 436, supra), but it should be noted that the trial against the present defendant was held some months before this court decided the Lovello ease.


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    Joseph Romero, as Administrator of the Estate of Helen Romero, Deceased, Appellant, v. Josephine Sjoberg et al., Respondents.
    Argued March 10, 1959;
    decided April 16, 1959.

      Benjamin Schwarts and Louis J. Opal for appellant.
    I. The court erred in not requiring defendant bank to proceed with its burden of proof of its affirmative defense that the attorney in fact was empowered to withdraw the funds of the principal, and the court committed reversible error in relieving said defendant of said burden of proof. (Churchill Grain & Seed Co. v. Buchman, 204 App. Div. 30; Wells v. Chaffee, 207 App. Div. 467; Dudley v. Perkins, 235 N. Y. 448; Levine v. Potter, 220 App. Div. 242; Walsh v. Howard & Childs, 61 Misc. 328; Gearns v. Bowery Sav. Bank, 135 N. Y. 557; Kelley v. Buffalo Sav. Bank, 180 N. Y. 171; Smith v. Brooklyn Sav. Bank, 101 N. Y. 58; Porges v. United States Mtge. & Trust Co., 203 N. Y. 181; Keyes v. Metropolitan Trust Co., 220 N. Y. 237.) II. The language of the power of attorney was clear and unambiguous and contained no power for the agent to withdraw moneys, from which the bank could derive authority for its payment of the principal’s moneys to the agent. (Sims v. United States Trust Co. of N. Y., 103 N. Y. 472.) III. Assuming, but not conceding, that the power of attorney authorized payments from the bank account to the attorney in fact, the state of the proof at the time of the dismissal of plaintiff’s case showed that the payments made by defendant bank to defendant Josephine Sjoberg were not payments to the principal but were in fact and in form payments made to the individual defendant Josephine Sjoberg and, accordingly, the bank should have been required to proceed with its second affirmative defense which alleged that it had paid out to the attorney in fact. (Hoffman v. Union Dime Sav. Inst., 109 App. Div. 24.) IY. The findings of the courts below are patently contrary to the documentary proof and to the testimony, are contrary to law, are inconsistent with each other, and require reversal of the judgment, and judgment in favor of plaintiff against both defendants. (North Riv. Bank v. Aymar, 3 Hill 262; Cosgriff v. Hudson City Sav. Inst., 24 Misc. 4; Allen v. Williamsburgh Sav. Bank, 69 N. Y. 314; Gearns v. Bowery Sav. Bank, 135 N. Y. 557; Kelley v. Buffalo Sav. Bank, 180 N. Y. 171; Smith v. Brooklyn Sav. Bank, 101 N. Y. 58.) V. By granting defendant Josephine Sjoberg a new trial, at her option, with a like right to replead her answer and counterclaims, where the record shows defendant had her day in court, and no exceptional circumstances exist to warrant such gratuitous relief, the granting of same by the Appellate Division in its discretion is error, being based on sympathy and not on fact.

      Casimir J. F. Patrick for New York Savings Bank, respondent.
    I. Appellant cannot appeal, as of right, to this court. (Berkowitz v. City of New York, 283 N. Y. 772; Zirn v. Bradley, 292 N. Y. 581; Palmer v. New York Herald Co., 254 N. Y. 563; Frisch v. Dulany, 263 N. Y. 684; Dorochuk v. Skrobot, 256 N. Y. 641.) II. The power of attorney authorized the bank’s payments to the attorney in fact. (Oquendo v. Federal Reserve Bank of N. Y., 98 F. 2d 708, 305 U. S. 656; People v. Mechanics & Traders’ Sav. Inst., 92 N. Y. 7; Mierke v. Jefferson County Sav. Bank, 208 N. Y. 347; People ex rel. Bridgeport Sav. Bank v. Barker, 154 N. Y. 128; McQuade v. Springfield Safe Deposit & Trust Co., 333 Mass. 229; Keyes v. Metropolitan Trust Co., 220 N. Y. 237; Sims v. United States Trust Co. of N. Y., 103 N. Y. 472.) III. The form and manner of the payments made by the bank constituted payment to its depositor through her attorney in fact. (Hoffman v. Union Dime Sav. Inst., 109 App. Div. 24; Matter of McArthur, 173 App. Div. 517; Matter of Hoffman, 175 Misc. 607.) IV. The court below properly dismissed the complaint against the bank at the end of plaintiff’s case. (Geitelsohn v. Citizens’ Sav. Bank, 17 Misc. 574.)
   Desmond, J.

The trial court dismissed the complaint as against both defendants. The Appellate Division reversed as to defendant Sjoberg and ordered a new trial as to her but affirmed the dismissal as to defendant New York Savings Bank. Plaintiff appealed here from that latter part of the Appellate Division’s determination. We have before us, therefore, so much of the Appellate Division judgment as unanimously affirmed the dismissal on the merits of plaintiff’s complaint as against respondent bank. Although that part of the Appellate Division judgment was a unanimous affirmance, plaintiff has validly appealed from it as of right since the Appellate Division judgment of which it forms a part is treated for our purposes as a modification giving any party the right to appeal here (Zirn v. Bradley, 292 N. Y. 581; Unger v. Village of Falconer, 2 N Y 2d 731).

The controversy arose because defendant Josephine Sjoberg in 1950 withdrew from the New York Savings Bank account of Helen Romero, plaintiff’s intestate since deceased, about $11,300, being almost the whole of Helen Romero’s balance at the bank. The first two causes of action in the complaint are brought by Helen Romero’s administrator against defendant Sjoberg only, demanding an accounting from Sjoberg, and so are not before us on this appeal.

Plaintiff’s causes of action against New York Savings Bank with which we are concerned on this appeal are numbered Third and Fourth in the complaint. The third cause of action alleges that the payments of the late Helen Romero’s funds by the bank to defendant Sjoberg were not authorized by plaintiff’s intestate and so amounted to a conversion by the bank. The fourth cause of action alleges that defendant bank has refused to turn over to plaintiff approximately $11,300 which is the same sum which other parts of the complaint allege were illegally withdrawn by defendant Sjoberg. The complaint includes as an exhibit the power of attorney on which the bank relies as its authority for the payments to Sjoberg.

The answer of the bank says that the account was originally opened in 1936 by the plaintiff’s intestate and her husband (who died some years before these withdrawals), that from time to time deposits were made in the account, that on various dates in 1950 defendant Josephine Sjoberg as attorney in fact for Helen Romero presented to the bank the passbook of the Romero account together with signed withdrawal slips, and that the bank paid to defendant Sjoberg pursuant to the order of plaintiff’s intestate the sums alleged in the complaint totaling about $11,300. As a separate defense in its answer the bank alleged that at the time the account was opened plaintiff’s intestate had signed an agreement whereby she agreed to be bound by all the rules of the bank including section 7 which said that the bank would endeavor to prevent frauds on its depositors but that all payments made to persons producing the bankbook would be deemed good and valid payments.

In affirming the dismissal of the complaint as to the bank the Appellate Division pointed out that the bank paid out the money on presentation of the bankbook and a duly authenticated power of attorney, that there was no evidence that the bankbook or the power of attorney were obtained by fraud or duress, and no evidence that the delivery of the passbook or the execution of the power of attorney were anything but voluntary. The only question before us is as to the meaning of the power of attorney—that is, whether it sufficiently authorized the payments from the bank account. We think it was clearly sufficient for that purpose. It appointed defendant Sjoberg the true and lawful attorney in fact for plaintiff’s intestate in her name and stead to demand, sue for, and receive all debts, moneys, securities for moneys ” to which plaintiff’s intestate was or might become entitled or which were or might become due, owing and payable to plaintiff’s intestate from any person or persons and in her name to give receipts and discharges for payment, with full power and authority in the attorney to do anything necessary in the premises as fully as the principal might or could do. Since the relationship between savings bank and depositor is that of debtor and creditor (Mierke v. Jefferson County Sav. Bank, 208 N. Y. 347, 350) there is no reason why this power of attorney was not sufficient to authorize the bank to pay out the money.

Appellant in his first point argues that the court committed error in relieving defendant bank of what plaintiff says was the bank’s burden of proof as to the authority of defendant Sjoberg to withdraw the money. But plaintiff himself affirmatively established such authority by attaching the power of attorney to the complaint and offering it in evidence. The same answer goes to the assertion of plaintiff that the bank did not use appropriate care. Its duty of care to its depositors was performed when it acted on a duly authenticated power of attorney in proper form and on production of the passbook.

The judgment so far as appealed from should be affirmed, with costs.

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

Judgment affirmed.


author: Dye, J. Burke, J. (dissenting).

text:
    The People of the State of New York, Respondent, v. Edward McGuire, Appellant.
    Argued January 20, 1959;
    decided April 16, 1959.

      John W. Condon, Jr., and Grace Marie Ange for appellant.
    I. The facts set forth in the information do not state a crime. Accordingly, the court was without jurisdiction and the judgment of conviction is a nullity. II. Mere possession of the material is not a crime, unless coupled with the intent to sell, lend, etc., as stated in the statute. Nowhere in the information laid against appellant is this essential element alleged. (People v. Patrick, 175 Misc. 997; People v. Bertram, 302 N. Y. 526; People v. Belcher, 302 N. Y. 529; People v. Jacoby, 304 N. Y. 33; People v. Love, 306 N. Y. 18; People v. Zambounis, 251 N. Y. 94.)

      Carman F. Ball, District Attorney (Leonard F. Walentynowicz of counsel), for respondent.
    I. Appellant cannot raise any other errors upon argument except those stated in his affidavit of appeal. (People v. Prior, 4 N Y 2d 70.) II. Defendant was properly convicted on the evidence adduced at the trial. III. The facts set forth in the information do state a crime, and sufficiently apprised appellant of the charges against him. (People v. Belcher, 302 N. Y. 529; People v. Bertram, 302 N. Y. 526; People v. Schultz, 301 N. Y. 495; People v. Jacoby, 304 N. Y. 33; People v. Love, 306 N. Y. 18.)
   Dye, J.

The defendant-appellant appeals by permission of a Judge of this court from a judgment of conviction rendered in the City Court of Buffalo, following trial, without a jury, upon an information charging violation of subdivision 1 of section 1141 of the Penal Law (possession of obscene prints and articles). On appeal to the Supreme Court, Erie County, the judgment was affirmed.

The facts are undisputed. In a raid by Buffalo police officers certain pornographic pictures and printed material, concededly lewd and obscene, were found on the defendant’s person and in the bookstore operated by him at 83 West Chippewa Street. Two informations were lodged, both for acts violative of subdivision 1 of section 1141: (1) by John Ferenc, a citizen, for unlawfully selling obscene photographs and books which were described; and (2) by Police Officer Ball for unlawful possession. At the trial, the first charge (selling) was dismissed without prejudice for failure of the complainant to appear. We are not now concerned with it on this appeal.

Defendant went to trial on the second information which, insofar as pertinent, charged that defendant: ‘ ‘ did unlawfully and wilfully possess and have under his control a quantity of obscene, lewd, lascivious and indecent pictures and books,” (describing same).

At the opening of the trial, and again at the close of the People’s proof, defendant’s counsel moved to dismiss the information for failure to state a crime in that it omitted to state that the defendant possessed the contraband material ‘ ‘ with intent to sell ”, as required by subdivision 1 of section 1141 of the Penal Law. The People contend that such omission may be disregarded, since the proof adduced at the trial tended to establish that the possession was for the purpose of sale. This may not be done.

It is fundamental that an information must state the crime with which the defendant is charged and the particular facts constituting that crime (People v. Zambounis, 251 N. Y. 94; People v. Patrick, 175 Misc. 997). The degree of exactitude may well differ with the circumstances. For instance, when the information is used as a basis for obtaining a warrant for an arrest, mere hearsay unsupported by a sworn statement or an examination by the Justice is not enough (People v. Bertram, 302 N; Y. 526). On the other hand, when a valid arrest is made without a warrant, the information serves as a pleading for the trial and is sufficient in and of itself to establish prima facie each of the essential elements of the crime charged without the necessity of a further deposition to particularize the evidence relied on (People v. Belcher, 302 N. Y. 529); but this presupposes an information clearly setting out the elements of the crime charged for the very good reason that the defendant ‘ ‘ should be informed of the nature of the charge against him and of the act constituting it, not only to enable him to prepare for trial, but also to prevent him from again being tried for the same offense’” (People v. Schultz, 301 N. Y. 495, 497), which, in the broad sense, is to say that the crime charged should be stated with such accuracy that the defendant may know the offense which it is claimed he has committed (People v. Love, 306 N. Y. 18). Omission of a necessary statutory ingredient is quite another matter which is sharply illustrated by this very case. Here, the crime sought to be charged is defined in subdivision 1 of section 1141 of the Penal Law as possession “ with intent to sell”. By subdivision 4 of section 1141 possession of six or more identical articles or similar, coming within the provision of this section, is presumptive evidence of a violation of the section. While this may be a rule of evidence as to proof of intent whenever six or more articles are possessed, it cannot be read so as to cure an otherwise defective information, nor may such omission be supplied by simply charging unlawful possession in the information. Before possession becomes unlawful under the statute, either actually or presumptively, it must be with intent to do one of many enumerated things which, in the language of the statute, includes not only to sell”, but also “to lend, distribute, give away, show or transmute, or advertise in any manner ’ ’, etc.

People v. Paolillo (15 Misc 2d 1031, affd. 307 N. Y. 736) requires no different holding. Supplying an omission which in no way affects the obvious purport of the information is an entirely different situation from that where the omitted matter is essential to spell out the crime charged. The particular acts constituting a crime are more than a technicality. It is fundamental that a person accused of crime is not required to speculate as to what crime, if any, the information charges, for he is entitled to know in advance of trial what crime he is called upon to defend. WLen the information fails to state facts sufficient to constitute the crime charged, it is jurisdictionally defective and must be dismissed.

The judgment of conviction should be and hereby is reversed and the information is dismissed.

Burke, J. (dissenting).

The defendant who was represented by counsel was tried and convicted on an information charging that defendant 44 did unlaAvfully and wilfully possess and have under his control a quantity of obscene, lewd, lascivious and indecent pictures and books * * * All in violation of Sec. 1141 Subd 1 of Penal Law.”

The cited subdivision of the section of the statute, in its relevant parts, states that 44 A person who * * * has in his possession with intent to sell, lend, distribute, give away, show or transmute or advertise in any manner, * * * any obscene, lewd, lascivious, filthy, indecent * * * or disgusting book, magazine * * * is guilty of a misdemeanor ”.

The defendant although not disputing possession of a quantity of obscene pictures and boohs maintains that the failure of the information to allege, in terms, that intent described in the statute is a jurisdictional defect which renders the judgment of conviction a nullity.

It is true that under the section of the statute cited the possession of less than six books and pictures is not a violation of law unless such possession is coupled with an intent to sell, lend, distribute, give away, show or etc. There can be no doubt that it is the intent to do any one of the enumerated acts which makes the possession wrongful.

But 44 However awkwardly an information may be drawn, if it charges an offense knoAvn to the law and states acts done by the accused that constitute it, that avíII be sufficient ”. (People v. Love, 306 N. Y. 18, 23.)

Hence this information cannot be assailed as fatally defective because it does not, in terms, contain the words 4 4 Avith intent to sell,” etc. An information, as we have said, is not required to be drawn in accordance with a prescribed formula or in the exact words of a statute. (See People v. Jacoby, 304 N. Y. 33.) The purpose and function of an information is to identify the charge against the accused so that his conviction or acquittal may prevent a charge for a subsequent offense and also to notify him of the charge pending against him to the end that he prepare his defense (People v. Schultz, 301 N. Y. 495). It simply must inform the Magistrate that4 4 a person has been guilty of some designated crime ”. (Code Crim. Pro., § 145.) In other words the information must allege that a defendant has committed the acts under the circumstances defined by the statute. But the omission of the words “ with intent to sell,” etc., is not reversible error if the language used states the elements of the crime charged. It is apparent that in the case of this specific offense it is the unlawfulness of the possession which turns an otherwise lawful possession into a crime. Here mere possession is not alleged, but unlawful possession of a quantity of lewd pictures and booJcs.

In People v. Paolillo (15 Misc 2d 1031, affd. 307 N. Y. 736) we agreed that there was nothing sacrosanct about the particular words “with intent”. In that case we found that that element of the crime was sufficiently covered in the information by the words “ wrongfully ” and “ unlawfully ”.

There is nothing in the statutory definition of the crime charged against this defendant which indicates that such an expression as “ with intent ” is necessary to save the information. Whether the possession was lawful was a matter of defense. In Paolillo (supra) the defendant was presumed to know what kind of “taking” was larcenous, i.e., unlawful. Here the defendant may be presumed to know what kinds of possession of a quantity of obscene prints are unlawful.

In this ease the allegation of possession of a quantity of obscene pictures and books is not an allegation of a perfectly innocent act (Penal Law, § 1141, subd. 4). Surely, then, the alleg-ation that the possession of the quantity of obscene prints was unlawful indicates that the requisite criminal intent was present. Hence the term ‘ ‘ unlawful possession” considered with the incorporation of the specific section and subdivision of the. Penal Law was sufficient to apprise the defendant of the crime charged as well as the act constituting the crime. Indeed, it is extremely unlikely that any defendant concededly possessing a quantity of filthy pictures and books could read this information and not know the crime he is charged with having committed.

Therefore, since the information set forth all the elements necessary to constitute a violation of subdivision 1 of section 1141 of the Penal Law, viz., possession which was unlawful, it is jurisdietionally sufficient.

Accordingly the judgment of conviction should be affirmed.

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

Judgments reversed and information dismissed.


author: Chief Judge Conway. Van Voorhis, J. (dissenting).

text:
    In the Matter of the Claim of Rose Palermo, Respondent, against Samuel Gallucci & Sons, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued January 6, 1959;
    decided April 16, 1959.

      Ralph S. Stowell and Joseph D. Edivards for appellants.
    Substantial and probative evidence does not support the finding of the Workmen’s Compensation Board of causally related death upon which the awards herein were predicated. (Matter of Carroll v. Knickerbocker Ice Co., 218 N. Y. 435; Strohm v. New York, L. E. & W. R. R. Co., 96 N. Y. 305; Briggs v. New York Cent. & H. R. R. R. Co., 177 N. Y. 59; Matter of Riehl v. Town of Amherst, 308 N. Y. 212; Matter of Du Cennois v. Daisy Dairy, 286 App. Div. 923.)

      Louis J. Lefkowitz, Attorney-General (Daniel Polansky, Paxton Blair and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
    Substantial evidence supported the finding of the Workmen’s Compensation Board that decedent’s death was causally related to his accident of July 1, 1954. (Matter of Altschuller v. Bressler, 289 N. Y. 463; Matter of Suschinski v. Allegheny Ludlum Steel Corp., 5 A D 2d 903, 4 N Y 2d 677; Matter of Boltrak v. Mike Schechter, Inc., 5 A D 2d 725; Matter of Wachsstock v. Skyview Transp. Co., 5 A D 2d 1028; Matter of Mathiez v. Meyer, 6 A D 2d 741, 5 N Y 2d 705 ; Matter of Green v. Geiger, 253 App. Div. 469; Matter of Zaepfel v. du Pont de Nemours & Co., 284 App. Div. 693, 309 N. Y. 962; Matter of Malgieri v. General Elec. Co., 258 N. Y. 620; Matter of Ruzsjak v. Metal Stamping Co., 259 N. Y. 575; Matter of Roblee v. New York Tel. Co., 235 App. Div. 754; Matter of Peirano v. Brooks Transp. Co., 1 A D 2d 713, 309 N. Y. 1034.)

      Abraham Markhoff for claimant-respondent.
   Chief Judge Conway.

The Workmen’s Compensation Board (hereinafter referred to as the Board) has made an award to the claimant widow of one Anthony Palermo. Mr. Palermo suffered a fatal coronary attack on July 31, 1954 which the Board found was causally related to injuries he sustained in an auto collision on July 1, 1954 during the course of his employment. The question presented for our decision is whether there is substantial evidence to support that finding.

On July 1, 1954 Mr. Palermo was operating his employer’s truck when it was struck by a United States mail truck. The impact caused him to be thrown to the pavement and he was unconscious for several minutes. He was taken to a hospital where his injuries were diagnosed as contusion of the right elbow and abrasion of the scalp in the frontal and occipital region. X-ray of the skull failed to disclose any evidence of fracture of the cranial vault, and there was no sign of intracranial pathology. Mr. Palermo was referred to his own physician. On the next day he consulted Dr. Arnold Nathan who made a diagnosis of contusion and abrasion of the right forehead, swelling and abrasion of the right posterior vertex, abrasion of the right hypochondrium (described by Dr. Nathan as the right lower chest), and tenderness and stiffness of the right shoulder. Iu a report of July 6, 1954 Dr. Nathan noted: “ Cerebral concussion ”. Mr. Palermo made no complaints of a cardiac nature, and Dr. Nathan found no evidence of any cardiac ailment. Mr. Palermo returned to work on July 12th and continued to do his regular work until his death on July 31st. It was at 3:10 a.m. of that day when Dr. Polikronas Kusa was called to the Palermo home. Mr. Palermo was acutely ill and was suffering from severe chest pains which Dr. Kusa characterized as precordial pain. After the doctor administered morphine Mr. Palermo was rushed to the hospital where he died at 4:10 a.m. The death certificate shows the cause of death to be coronary occlusion and coronary thrombosis.

An autopsy was performed at the hospital by a Dr. Frederick Weinberg’, a pathologist, at the direction of the Coroner, Dr. P. Jerome Laviano. The autopsy report contained, among other things, a description of the heart, arteries, and the thrombus. In addition, Dr. Laviano requested Dr. Weinberg to perform a microscopic examination, the report of which also contains certain information about the condition of the heart and arteries. Dr. Laviano did not participate in these procedures, but he examined the reports and discussed them with Dr. Weinberg.

At the hearing, Dr. Laviano testified for the employer and Dr. Nathan testified in behalf of the widow. Their opinions were conflicting. Dr. Laviano testified there was no doubt that the heart and other contents of the chest cavity were shaken up by the accident on July 1st. However, he was of the opinion that the condition of the heart, arteries and thrombus as disclosed upon the autopsy and microscopic examination was such that the thrombus could not have been formed more than two weeks before the fatal attack. He said: “ * * * I feel then

that this thrombus was not due to the accident but was something that developed later.” Dr. Nathan, on the other hand, testified that the force of the blow sustained by Mr. Palermo when he was thrown from his truck may well have produced heart injury. He explained: This then results in a reaction where we have the production of or clotting of blood within the vessel wall at the site of the injury. And we have the resultant coronary occlusion.” We agree with the majority of the Appellate Division that Dr. Nathan’s testimony, together with the other evidence in the case, satisfies the requirement that there be substantial evidence underlying the determination of the Board.

It is impossible to reject as insufficient in law the testimony of Dr. Nathan. There can be no doubt of the fact that his opinion was in favor of causal relation whether or not one agrees with it. It was not empty speculation, nor was it a mere general medical lecture. The hypothetical question posed to him contained all of the salient facts of the case, and his opinion was directed to those facts. The record emphatically establishes that in forming his opinion Dr. Nathan considered both the autopsy and microscopic findings. This is not a case where a doctor gives an opinion upon a state of facts not established in the record, and against which there is contrary and overwhelming evidence and opinion. (See Matter of McCormack v. National City Bank, 303 N. Y. 5.) Here there is uncontroverted proof that Mr. Palermo suffered injuries as a result of being thrown from his truck.

Dr. Laviano testified that the autopsy and microscopic findings were in no event susceptible of the conclusion that the accident could have precipitated the fatal coronary. That, of course, was only his opinion—his interpretation of the findings. It would be a gross inaccuracy to attribute to Dr. Laviano’s opinion the character of incontrovertibility. True, the facts upon which his opinion was based, viz., the autopsy report and microscopic findings, were undisputed, but that is all. There is nothing uncontrovertible about Dr. Laviano’s conclusion from those facts. It was both controvertible, and controverted. It may not be said that there was no issue of fact, or no evidence to support the conclusion of causal relation. Dr. Nathan’s opinion was directly contrary to Dr. Laviano’s, and it was based also upon the autopsy report and microscopic findings. Moreover, Dr. Nathan had personally examined Mr. Palermo after the accident. Dr. Laviano had not. It may also be observed that Dr. Nathan was a specialist in cardiology whereas Dr. Laviano" was not.

In sum, therefore, there are in this case two conflicting expert opinions each one based upon the same facts. The selection of either is an exercise of fact-finding power which is entirely within the province of the Board and outside the limited jurisdiction of this CQprt, It is not our function to render a decision upon the basis of which expert opinion we deem is more weighty or persuasive. The testimony of each expert was sufficiently direct and specific to create an issue of fact and to warrant a finding either for or against causal relation. That issue has been resolved by the appropriate body—the Board—in favor of the claimant widow, and the record leaves us no course but to affirm.

The order of the Appellate Division should be affirmed, with costs.

Van Voorhis, J. (dissenting).

On July 1,1954 the decedent, Anthony Palermo, was involved in an automobile accident while driving a truck for his employer, appellant Samuel Gallucci & Sons, Inc. In order to sustain the award, it is conceded that the onset of the coronary attack from which he died a month later must have set in at the time of this accident. He was thrown from the cab of his truck to the street, and taken to a hospital where the diagnosis was made of contusion of the right elbow and abrasion of the scalp in the frontal and occipital region. X-ray examination of the skull failed to disclose any evidence of fracture, and there was no sign of intracranial pathology. He was referred to his own physician. On the next day (July 2), he called at the office of a Dr. Arnold Nathan—on whose testimony claimant’s recovery depends—who discovered nothing at that time of any cardiac ailment, but made a diagnosis of contusion and abrasion of the right forehead, swelling and abrasion of the right posterior vertex, abrasion of the right lower chest and tenderness and stiffness of the right shoulder. In his report of July 6,1954, under the heading of nature and extent of injury”, this doctor noted: Cerebral concussion”. Mr. Palermo returned to work as chauffeur on July 12,1954 and continued until July 31, 1954. Dr. Nathan did not see Mr. Palermo after July 2 until July 22, when he came to the doctor’s office with the complaint that he had been hard of hearing in one ear since the accident. He made no complaints about his chest or his heart at that time. Near the end of July Mr. Palermo drove to his summer home at Rocky Point, Long Island. At 3:10 a.m. on July 31, 1954, Dr. Polikronas Kusa was called to the Palermo home in Rocky Point, where he found Mr. Palermo acutely ill, complaining of severe chest pain, short of breath and restless. Dr. Kusa received a history that he had not had a pain of this kind before. Dr. Knsa described this as severe precordial pain. After being administered morphine, Mr. Palermo was taken by auto to a hospital in Port Jefferson, Long Island, where he died at 4:10 a.m., about an hour after Dr. Kusa had been summoned to see him. The death certificate stated coronary occlusion and coronary thrombosis as the cause of death, stating that there was an interval of about one hour between the onset of the coronary and death.

An autopsy was performed under the supervision of the Suffolk County Coroner, Dr. P. Jerome Laviano, by Dr, Frederick Weinberg who is the pathologist of the John T, Mather Memorial Hospital at Port Jefferson. Dr. Laviano testified, from a study of what was revealed by the autopsy, that the decedent’s heart showed slowly progressive degeneration. The fatal thrombosis or blood clot was disclosed by the incision to be relatively fresh as indicated by its reddish color. “ We could place the time as possibly two or three days, maybe one week, but certainly not longer than two weeks, definitely not longer than two weeks. This is indicated by the materials that form that thrombus while a person is alive and by the retention particularly of the color which at first is quite red, but, with the passage of the time, changes, and this particular thrombus was reddish-brown. It was predominantly red showing that a short time had elapsed. In view of the fact that the accident was one month prior to the death and that a careful and broad analysis of the microscopic findings would not permit more than two weeks, considering all conditions, I feel then that this thrombus was not due to the accident but was something that developed later.” So testified the Coroner, who added that although the heart and other contents of the chest cavity were shaken up in his fall from the truck on July 1, the autopsy gave no evidence of a contusion or hemorrhage to the heart or coronary vessels.

Against these autopsy findings of facts which are not and cannot be disputed, made by disinterested witnesses whose factual testimony is conclusive in the absence of contradiction (Hull v. Littauer, 162 N. Y. 569, 572; Second Nat. Bank v. Weston, 172 N. Y. 250, 258), the only testimony of' causation adduced to support the claim is by Dr. Nathan who, it will be recalled, professed no inkling that any cardiac trouble was involved when he examined Mr. Palermo at his office on July 2 or July 22, 1954, three weeks after the automobile accident had occurred. Dr. Nathan did not venture to go farther than to testify that there was a chance that the trauma on July 1 produced heart injury, and his reasons for this alleged possibility are wholly speculative. His reasoning, unrelated to physical findings of what actually happened to this man, was that hitting the pavement when thrown from a truck produces a sudden compression in the chest and a sudden rise in the chest cavity pressure. This was stated to produce “a contrecoup force” pressing the heart up against the chest wall. He said: The impact there will easily injure the vessels which are on the surface of the heart. Coronaries lie close to the surface and produce an injury to the artery, particularly if it is sclerotic, as this one was. This then results in a reaction where we have the production of or clotting of blood within the vessel wall at the site of the injury. And we have the resultant coronary occlusion. ’ ’

He declined to testify in answer to a question by claimant’s counsel that he believed with reasonable certainty that these sequences of events took place in Mr. Palermo’s case, merely that there is a chance that they might have done so. Medical opinion evidence has no greater probative force than the grounds on which the testimony shows that it is based. It must be viewed in the light of the record as a whole, and evidence which unexplained might be conclusive may lose all probative force when supplemented and explained by other testimony (Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65, 71; Matter of Riehl v. Town of Amherst, 308 N. Y. 212, 215-216). A question of fact is not presented, in our view, between the testimony of Dr. Nathan and the Coroner, Dr. Laviano. The Coroner was testifying to incontrovertible facts as disclosed by the autopsy. Dr. Nathan, who had not the slightest idea when he examined Palermo on July 22 that the onset of a coronary attack had set in three weeks before, was speculating on what might have happened if the event had occurred differently from the manner in which the evidence established that it did. His testimony does not purport to have been directed at the condition of this decedent, Anthony Palermo. He gave a general lecture. When confronted with the facts of this ease in examining the slides made by the autopsy, the most that he was able to say was that in his opinion the onset of this coronary was more than 48 hours prior to his death on July 31.

This is too heavy a load for section 21 of the Workmen’s Compensation Law to bear. The presumption provided by this section “ ‘ cannot be used as a substitute for actual proof ’ ” (Matter of McCormack v. National City Bank, 303 N. Y. 5, 11, quoting Matter of Wilson v. General Motors Corp., 298 N. Y. 468, 472). “The doctor’s surmise of what might have been, may not be regarded as substantial ”. (Matter of McCormack v. National City Bank, supra, p. 9.) “ The substantial evidence in this record is against causal relation ’ ’ as the Compensation Referee stated.

The order of the Appellate Division should be reversed and the claim dismissed.

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

Order affirmed.


author: Fuld, J.

text:
    The People of the State of New York, Respondent, v. Mario Lalli, Victor Lalli, Claude Green and Anthony Alba, Appellants.
    Argued January 21, 1959;
    decided April 16, 1959.

      Sidney Schreiberg for appellants.
    I. Criminal statutes must be strictly construed in favor of the accused. An act which is not specifically prohibited by the language of a statute cannot be ‘ ‘ construed ’ ’ into a crime. It is the Legislature, not the court, which defines crimes. (United States v. Wiltberger, 5 Wheat. [U. S.] 76; People v. Phyfe, 136 N. Y. 554; People v. Nelson, 153 N. Y. 90; People v. Briggs, 193 N. Y. 457; People v. Weinstock, 193 N. Y. 481; People v. Shakun, 251 N. Y. 107; People v. Benc, 288 N. Y. 318; People v. Mangan [Horvatt], 237 App. Div. 289, 262 N. Y. 508; Hornstein v. Paramount Pictures, 292 N. Y. 468; People ex rel. Carollo v. Brophy, 294 N. Y. 540; People v. Adamkiewicz, 298 N. Y. 176.) II. The possession, distribution or sale of the pamphlet mentioned in count 3 of the information, or of the other pamphlet and the dream books, introduced into evidence although not specificaEy named in any count of the information, is not a crime within the contemplation of the statute. (Matter of Schinasi, 277 N. Y. 252; People v. Wolosky, 296 N. Y. 236; Winters v. New York, 333 U. S. 507; International Harvester Co. v. Kentucky, 234 U. S. 216; Titus v. Booker, 244 N. Y. 421; Verona Cent. Cheese Co. v. Murtaugh, 50 N. Y. 314; United States v. Chase, 135 U. S. 255; United States v. Harris, 177 U. S. 305; Fasulo v. United States, 272 U. S. 620; People ex rel. Lichtenstein v. Langan, 196 N. Y. 260.) III. That part of section 974 of the Penal Law which is involved in this information, as it was construed and appHed by the courts below against these defendants, is unconstitutional because it is so vague and indefinite as to set up no ascertainable standard of guüt. (People v. Vetri, 309 N. Y. 401; People v. Stoll, 242 N. Y. 453; People v. Grogan, 260 N. Y. 138; People v. O’Gorman,
      274 N. Y. 284; Trio Distr. Corp. v. City of Albany, 2 N Y 2d 690; People v. Lupo, 305 N. Y. 448; United States v. Reese, 92 U. S. 214; Winters v. New York, 333 U. S. 507; United States v. Brewer, 139 U. S. 278; Connolly v. General Constr. Co., 269 U. S. 385.)

      Joseph F. Gagliardi, District Attorney (Arthur J. Spring, Jr., of counsel), for respondent.
    I. Criminal statutes need not be strictly construed in favor of the accused. (People v. Reilly, 255 App. Div. 109, 280 N. Y. 509; People v. Bell, 306 N. Y. 110; People v. Morton, 284 App. Div. 413, 308 N. Y. 96; Meltzer v. Koenigsberg, 302 N. Y. 523.) II. The possession, distribution, and/or sale of the publications mentioned in count 3 of the information and introduced into evidence constitute a violation of section 974 of the Penal Law of the State of New York. (People v. Hines, 284 N. Y. 93; People v. Engeman, 129 App. Div. 462, 195 N. Y. 591; People v. Wolosky, 296 N. Y. 236; People v. Leavitt, 301 N. Y. 113; People v. Bruno, 4 N Y 2d 832; People v. Hartmann, 274 App. Div. 752; Viertels v. New York, O. & W. R. R. Co., 182 App. Div. 92.) III. Section 974 of the Penal Law of the State of New York, as applied in this case, is constitutional. (Jordan v. De George, 341 U. S. 223.)
   Fuld, J.

The defendants, magazine distributors in the City of Mt. Vernon, had for many years been selling so-called dream books ” and “ tip-sheets ” to which devotees of the game known as policy had recourse in their search for the elusive winning number. Following a police raid and the seizure of those items, an information containing six counts was filed against the defendants. They were found guilty, after trial, upon two counts, of violating section 974 of the Penal Law in that they possessed articles commonly used in promoting ” policy and the convictions were affirmed by the Westchester County Court. The appeal is here by permission of the Chief Judge.

Although the Legislature could, of course, choose to legislate with respect to these dream hooks and tip-sheets, we find nothing in section 974, as it now reads, which renders criminal their possession or sale. The portion of the statute relied upon by the People provides that “ A person * * * who shall have in his possession, knowingly * * * any paper, print, writing, number, device, policy slip, or article of any kind such as is commonly used in carrying on, promoting or playing the game commonly called ‘ policy ’ * * * is a common gambler, and guilty of a misdemeanor.” Concededly, the defendants did not ‘ carry on ” or “ play ’ ’ policy, nor were the books and pamphlets which they sold used in carrying on ” or playing ” this game. Accordingly, since the term “ promote ” necessarily takes its sense and meaning from the terms “ carry on ” and “ play,” it follows that those articles were not used to promote ’ ’ policy.

In point of fact, the statute is aimed only at the players — that is, at those who possess policy slips — and the entrepreneurs and managers of policy and those in pari delicto with them. (See, e.g., People v. Hines, 284 N. Y. 93, 104-105; People v. Wolosky, 296 N. Y. 236, 238; cf. People v. Adams, 176 N. Y. 351, 360, affd. 192 U. S. 585; People v. Engeman, 129 App. Div. 462, 465-467, affd. 195 N. Y. 591.) “ Section 974”, this court wrote in the Hines case, “ prohibits one from keeping an establishment for policy playing', from delivering or receiving money by playing policy, or possessing policy slips, or other articles used in carrying on policy, or owning or being the agent or janitor of any establishment where lottery policies are sold ” (284 N. Y. 93, 104-105). And in People v. Wolosky, after adverting to the Hines case, we stated (296 N. Y., at p. 238): “ Thus, four kinds of activities having to do with policy are forbidden: maintaining a place wherein to play it, having ownership or control of such a place, handling the money involved, or possessing papers, writings or articles commonly used in carrying on this form of gambling.”

The only activities forbidden by section 974, therefore, are those of the operators of games of policy, the entrepreneurs and their henchmen, and the players. Since the defendants, in distributing the reading material before us were neither entrepreneurs of the game (or their accomplices) nor players, and, since they had nothing whatsoever to do with running or operating those games, they may not be brought within the compass of the statute. This conclusion is confirmed by the circumstance that the articles whose possession is forbidden are the essential tools ” of the game, the items actually required to carry it on. (People v. Adams, 176 N. Y. 351, 360, affd. 192 U. S. 585, supra.) A tip-sheet, while it may guide ” one to a particular number, cannot be considered a tool, essential or otherwise, in playing the game. (See People v. Engeman, 129 App. Div. 462, affd. 195 N. Y. 591, supra.) In the Engeman case—involving book-making under old section 344 of the Penal Code (present Penal Law, § 970)—distributors of a race-horse tip-sheet, at a time when betting on horse races even at the track was illegal, were charged with owning a “ device and apparatus for gambling”. Both the Appellate Division and the Court of Appeals affirmed the trial court’s order sustaining the defendants’ demurrer to the indictment and, in the course of its opinion, the Appellate Division stated (p. 466): “ A ‘ device or apparatus for gambling ’ is a device or apparatus designed for carrying on the actual gambling * * * This is the test, whether the implement or device is used in determining who shall win or lose, whether it is an integral part of the actual gambling.” And, added the court (p. 467), “ the mere fact that [the tip-sheet] might afford facts which would be useful to the man of sporting proclivities in making up his mind how he desired to place his wager does not constitute it a device for gambling under any of the definitions which we have been able to find.” By the same token, the possession of articles, having no integral connection with the playing of policy and not used in the actual policy operation, does not fall within the prohibition of section 974.

The Legislature, by denominating as “ a common gambler ” one who violates the statutory proscription, made it exceedingly plain that the activities forbidden are those relating to the gambling operation itself, to the carrying on or the playing of policy. Baleful and wrongful though the sale of dream books and tip-sheets may be, by no reasonable construction can it be said to constitute gambling or to render the vendor a gambler. The situation would, of course, be different if the defendants had allied or associated themselves with the persons actually running or carrying on the games, but there is no evidence of any such connection in the record before us.

The judgments of conviction should be reversed and the information dismissed.

Chief Judge Conway and Judges Desmond, Dye, Froessel and Burke concur with Judge Fuld; Judge Van Voorhis dissents and votes to affirm (People v. Hartmann, 274 App. Div. 752).

Judgments reversed, the information dismissed and the fines remitted.

      . These various booklets and pamphlets are designed to furnish information and hints which the prospective player will find “ helpful ” in selecting the number to be played. A tip-sheet, such as the defendants’ Weekly Piekem Rajah Rabo, consists of records of past winning' numbers, while a dream book, such as the defendants’ Black Cat Dream Book, professes to “interpret * " ** dreams through the science of numerology ”; listing key words of dreams in almost infinite variety, it assigns a number to each dream subject and counsels the dreamer to play the number with which his dream is coupled.