Opinion
July 2, 1970
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered March 18, 1969, convicting him of two counts of perjury in the first degree, upon a jury verdict, and sentencing him to concurrent terms of one year on each count. Judgment reversed, on the law and on the facts, and indictment dismissed. Defendant testified under subpoena and a grant of immunity before a Grand Jury investigating racket activities. Over the 18-month period between September, 1965 and March, 1967, he appeared 10 or 12 times and was asked and answered between 1,000 and 2,000 questions. Among those questions were some which sought the names of businesses in which he had an interest and banks in which he had accounts. In response, he furnished the names of certain businesses and banks. Four months after his last appearance, the Grand Jury learned for the first time of the name Carsan Realty Company. It ascertained that since March, 1963, a business certificate had been on file in the office of the County Clerk of Kings County, listing defendant and his nephew as the principals of Carsan. It also ascertained that since August, 1963 Carsan had a bank account at a bank never mentioned by defendant and that he was an authorized signatory. Without being recalled and confronted with this information, defendant was indicted for perjury for failing to mention Carsan and its bank account when asked whether he had named all his business interests and bank accounts. At the trial, defendant's nephew testified that defendant had loaned him $5,000 to help him get started in business and that defendant's name had been placed on the business certificate, at the nephew's suggestion, solely to protect the loan, the nephew having no collateral. The nephew said that defendant was not a partner, had no ownership interest whatsoever, and did not sign any checks. There was no evidence that defendant had ever drawn any Carsan checks. On the record before us, there appeared to be no advantage to be gained from willful falsification about a matter of public record. The business certificate had been filed more than two years before the Grand Jury inquiry about defendant's business interests. The bank agreement had been made approximately three years before the questions as to defendant's bank accounts. Under all of the circumstances, it cannot be said that defendant's failure to mention Carsan or its bank account was deliberate concealment. A perjury conviction cannot be based on evidence that is as consonant with fallibility of memory as with willful falsification ( People v. Samuels, 284 N.Y. 410). The evidence was insufficient in law to warrant a finding of guilt beyond a reasonable doubt ( United States v. Rose, 215 F.2d 617; Fotie v. United States, 137 F.2d 831). Christ, P.J., Rabin, Hopkins and Munder, JJ., concur. (Beldock, P.J., deceased.)