Opinion
Argued June 3, 1974
Decided June 14, 1974
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Maurice H. Nadjari, Special State Prosecutor ( Bennett L. Gershman and Stephen E. Powers of counsel), for appellant.
Irwin N. Wilpon for respondent.
MEMORANDUM. The court affirms on the memorandum at the Appellate Division with the added comment as to the second count of the indictment that the purported corroboration required under section 210.50 of the Penal Law was insufficient. The purported corroboration related to an inference drawn by defendant in his 1973 Grand Jury testimony regarding who was present at a 1966 meeting. That inference, it eventuated, from the testimony of the corroborating witness, was an incorrect inference. Perjury depends upon a false assertion, not upon an inference stated to be such and which turns out to be incorrect. The testimony of the corroborating witness tended to establish that defendant incorrectly inferred who had been at the meeting, but did not corroborate, as required by law, the testimony of the other witness denying that any meeting had ever taken place.
Defendant's relevant testimony reads as follows:
"A. Well, when we got there, I said I want to talk to Cahn. They said Cahn is on vacation.
"Q. You said you wanted to speak to District Attorney Cahn?
"A. That's right, but Cahn was on vacation and Devine was in charge.
"Q. Was Mr. Marchese present?
"A. He could have been. I don't recall. If he was the District Attorney that was in the case, then he would be the one. If he wasn't, I don't know who —
"Q. He was the District Attorney —
"A. Every day we would have a different District Attorney, or every week." The former Assistant District Attorney testified as follows:
"Q. Judge Marchese, throughout this plea bargaining stage and the sentencing and so on, were you the only trial assistant who was handling this particular case?
"A. No. This case had gone through a number of hands.
"Q. If I may rephrase that, when it was in front of Judge Rinaldi.
"A. Yes, I was the only trial assistant."
I would modify the order of the Appellate Division by reversing so much thereof as dismissed the second count of the indictment and, as so modified, affirm. The defendant testified that he met with the Acting District Attorney and reported an allegation that a certain case before him in 1966 had been fixed. He further testified that the Assistant District Attorney in charge of the case was present at this meeting. Both the Acting District Attorney and the assistant in charge of the case denied that such a report had been brought to their attention and that such a meeting had occurred. If unexplained and uncontradicted, this evidence would be sufficient to warrant conviction by a trial jury. ( People v. Ward, 37 A.D.2d 174, 176.) Moreover, the testimony of the Assistant District Attorney, whom defendant placed at the alleged meeting, sufficiently corroborated that of the Acting District Attorney. (Penal Law, § 210.50.)
Chief Judge BREITEL and Judges GABRIELLI, JONES, WACHTLER and STEVENS concur in memorandum; Judge JASEN dissents in part and votes to modify in a separate opinion; Judge RABIN taking no part.
Order affirmed.