Opinion
February 3, 1932.
Henry A. Lowenberg, for the appellants.
Thomas C.T. Crain, District Attorney [ Irving Tell of counsel], for the respondent.
The appellants were charged with and convicted of a violation of subdivision 11 of section 722 of the Penal Law (as added by Laws of 1931, chap. 793) of the State of New York. That subdivision reads as follows: "Is engaged in some illegal occupation or who bears an evil reputation and with an unlawful purpose consorts with thieves and criminals or frequents unlawful resorts; provided, however, that the provisions of this subdivision, as added by this act, shall remain in force and effect only until March first, nineteen hundred thirty-two."
It appears from the record that the appellants and one Goldman were seen talking together at the corner of Cannon and Stanton streets in the borough of Manhattan, city of New York. It further appears that the appellants had been convicted of crimes on several previous occasions and that when arrested by the officer they had been consorting together insomuch as two of the said defendants were found seated in an automobile and the third, one Goldman, was on the street talking to them. It nowhere appears in the record that the said defendants were so consorting for an unlawful purpose and the circumstances under which they were found does not permit this court to infer that said defendants were so consorting for such unlawful purpose.
Judgment reversed on the law and facts and a new trial ordered in the Magistrates' Court.
All concur; present, McINERNEY, P.J., HERBERT and SALOMON, JJ.