Opinion
286 A.D. 946 143 N.Y.S.2d 165 The PEOPLE of the State of New York, Respondent, v. Samuel ABELSON, James Lagala, Hyman Becker, Arthur J. Fromen, Jules Kramer, Anthony Perrone, Joseph Lape, Samuel Siegel, Harry A. Rosen, alias Al Rosen, Appellants. Supreme Court of New York, Fourth Department July 14, 1955.
John F. Dwyer, Buffalo (Merrill G. Windelberg, Buffalo, of counsel), for respondent.
William B. Mahoney, Buffalo, for appellants Abelson, Becker, Fromen, Kramer, Perrone and Siegel.
John S. McGovern, Buffalo, for appellant, Lape.
Michael Catalano, Buffalo, for appellant Rosen.
John I. O'Day, Buffalo, for appellant Lagala.
Before McCURN, P. J., and VAUGHAN, PIPER, WHEELER, and VAN DUSER, JJ.
PER CURIAM.
The initial identification of the accused having been testified to by the chief witness for the prosecution, we cannot invade the province of the jury as to credibility. We find no prejudicial error in this record, and find the evidence sufficient to sustain the verdicts as to each appellant except those in regard to the fourth count charging Hyman Becker with violation of Section 986 of the Penal Law, and the first count, charging conspiracy in violation of Section 580 of the Penal Law, as to Joseph Lape. The telephone conversation on April 22, 1954 (Exhibit 98) ascribed to appellant Becker was not admitted into evidence with respect to the fourth count, and the only remaining conversation which might be construed as having anything at all to do with baseball games (Exhibit 23, April 13th at 2:50 P. M.) which has been ascribed to this appellant does not in any way support the charge leveled in that count. As the purported conversation of April 13, 1954 is the sole evidence upon which the finding could have been founded as to the fourth count, the verdict of guilty on this count cannot be sustained. The judgment convicting Becker must, therefore, be reversed as to the fourth count. As to appellant Lape, there is no evidence of his complicity in any conspiracy between any of the defendants, or, in fact, with anyone else. While the evidence is sufficient to support the bookmaking charges, we find nothing in the telephone conversations (the sole evidence of Lape's activities) which would implicate him in the conspiracy alleged in the first count. The judgment convicting appellant Lape must, therefore, be reversed as to the first count. With the exception of the reversals above noted, the judgments of conviction against these appellants should be affirmed.
Judgments of conviction and orders as to defendants Abelson, Lagala, Fromen, Kramer, Perrone, Siegel, and Rosen affirmed. Judgment of conviction and order as to defendant Becker reversed on the law and facts as to count No. 4 of the indictment and count No. 4 dismissed and otherwise judgment of conviction and order affirmed. Judgment of conviction and order as to defendant Lape reversed on the law and facts as to count No. 1 of the indictment and count No. 1 dismissed and otherwise judgment of conviction and order affirmed.
All concur.