Summary
In People v. Yore (36 A.D.2d 818), although the prosecutor twice committed error when he commented that a police officer's version of a bribe offer made to him by the defendant was uncontradicted, the conviction was approved because the trial court immediately intervened and clearly explained the defendant's constitutional rights.
Summary of this case from People v. WheelerOpinion
April 29, 1971
Judgment, Supreme Court, New York County rendered August 18, 1970, unanimously modified, on the law and facts and in the exercise of discretion, so as to dismiss one of the two counts of bribery, and further to modify the sentence to an unconditional discharge on the remaining count and, as thus modified, affirmed. Defendant, a practicing New York City lawyer in his sixties, stands convicted of bribing a police office by paying him $75 to enlist his aid in obtaining the dismissal of a Criminal Court case against one Sandra Lawson, represented by defendant. We have carefully examined defendant's various claims of prejudicial error and while we find error, as hereinafter indicated, we conclude that the verdict was not thereby influenced and, therefore, defendant's substantial rights were not thereby affected (Code Crim. Pro., § 542). During summation the District Attorney twice stated that the policeman's crucial testimony as to the offer of the bribe and his meeting with the defendant was uncontradicted. The only person who could have contradicted this testimony was the defendant. Hence the implications of the prosecutor's comment tended to violate defendant's rights under the Fifth Amendment of the United States Constitution (Code Crim. Pro., § 393; People v. Leavitt, 301 N.Y. 113, 118; People v. Gould, 25 A.D.2d 160; Griffin v. California, 380 U.S. 609). However, the court having made a timely intervention in clarification of the defendant's constitutional privilege, we find this error harmless beyond a reasonable doubt. (See Chapman v. California, 386 U.S. 18.) The court's charge to the effect that the availability of the defense of entrapment was to discourage the "use of overzealous methods of law enforcement officials to trap the unwary innocent" was likewise error. The defense is available to all defendants and is not limited to the "unwary innocent". Since the defendant was a lawyer, he could not very well claim to be an "unwary innocent" victim of entrapment, and the charge therefore served to dilute the force of the entrapment defense. The patrolman's testimony to the effect that the complainant in the Criminal Court case had stated that this defendant had threatened that complainant was clearly inadmissible as hearsay, and improper. Moreover, defendant should not have been convicted of two counts of bribery involving one common scheme. The language of section 200.00 Penal of the Penal Law supports the two counts with which appellant was charged and of which he was convicted — one relating to the offer of the bribe and the other to the consummation thereof. However, confronted with similar language under section 72 of the former Penal Law, the Court of Appeals stated in People v. Gibson ( 191 N.Y. 227, 230): "We do not think that this section would be so construed as to mean that a person might be punished for receiving a bribe and also separately and independently for asking and also for agreeing to receive the same bribe, but that these separate acts, when forming a connected series relative to the same subject-matter, would be regarded as constituting a single crime." Since appellant received concurrent six-month sentences on the two counts no actual prejudice to the defendant resulted and we may correct the error by modifying the judgment. (See People v. Chestnut, 26 N.Y.2d 481, 492.) The felony conviction carries with it the automatic penalty of disbarment (Judiciary Law, § 90, subd. 4). After devoting a lifetime as a member of an honorable profession, without any previous disciplinary involvement, this defendant stands, in his declining years, as a convicted felon, disgraced and deprived of earning a living in the only field he knows. We do not minimize the seriousness of his crime. However, he has been sufficiently punished. We can see no useful purpose in inflicting a prison term as further punishment. On the record, including the evidence of good character, and the pretrial disposition of the District Attorney to the acceptance of a trivial plea, and after examining the presentence investigation report, we conclude that the interests of justice will best be served by modifying the judgment as indicated above.
Concur — Capozzoli, J.P., McGivern, Markewich, Nunez, and Kupferman, JJ.