Opinion
July 7, 1948.
These four defendants have been convicted in Schenectady County Court of book-making in violation of section 986 of the Penal Law of the State of New York. On Saturday afternoon, April 5, 1947, members of the police force of the City of Schenectady and a representative from the District Attorney's office of the county, with a search warrant, went to the residence of the defendant Tony Bernardi, entered and found him and the other defendants, two using the telephone and the other writing. The premises were equipped with three telephones. The toll messages for thirty days at about this time aggregated $735.20. The premises were connected with a Western Union leased wire attached to a teletype which printed a tape giving the results of races in various States, including New York, Florida and Maryland, on the day in question. The building was equipped with racing paraphernalia and publications. None of the defendants was sworn. Some of the officers testified to admissions. There was no exception to the charge of the court. Judgments of conviction affirmed. Hill, P.J., Foster and Deyo, JJ., concur; Heffernan and Brewster, JJ., dissent on the ground that incompetent testimony was received against the defendants and that the sentence of imprisonment imposed in each case is excessive.