Opinion
March 27, 1950.
Appeal from County Court of the County of Kings.
The defendants appeal additionally from various intermediate orders and two orders made, respectively, on August 2 and October 7, 1949, denying various motions. On the aforesaid pleas of guilty the court sentenced said defendants on each such count to prison terms and fines, the prison terms to run consecutively. Appellant Arra was indicted on all the seventeen counts, except Nos. 8, 12, 13 and 14, and appellant Joseph Valentino on all but No. 14. Counts 3 to 13, inclusive, are for extortion, count 14 is for attempted extortion and count 15 is for conspiracy to commit extortion. The gist of sections 340 Gen. Bus. and 341 Gen. Bus. of the General Business Law is an interdiction of agreements in restraint of trade. Section 580 of the Penal Law, under subdivisions 5 and 6 thereof, interdicts the same conduct, so that any violation of these provisions of the General Business Law is, ipso facto, a violation of the stated section of the Penal Law. (Cf. People v. Sheldon, 139 N.Y. 251.) Count 1 charges a conspiracy under the General Business Law, and count 2 charges the same, together with overt acts, under the Penal Law. Count 16 merely accuses certain of the defendants, including these appellants, of having conspired to refrain from doing some of the things which counts 1 and 2 allege were in pursuance of the original conspiracy. (This subsequent conspiracy was intended to work to the disadvantage of those of the original conspirators who were not participants in the later one.) Count 17 is to the same effect as count 16, except that it adds the claimed overt acts of abstention. Counts 16 and 17, therefore, do not charge the commission of crime, but rather an arrangement not to commit certain criminal acts, and the carrying out of the arrangement. These counts, therefore, should have been dismissed. In any event, the factual bases set forth in counts 1 and 16, and the overt acts charged in counts 2 and 17, were all part of one plan, scheme and agreement violative of the above-mentioned statutes, and would not, as to these appellants, constitute separate crimes. Accordingly, even if counts 16 and 17 did state facts which constitute a crime, there would still be but one crime, though forbidden by two statutes, and, if we were not about to reverse the judgment, and dismiss counts 16 and 17 for the above-stated reasons, we would reverse the orders which denied the motions in arrest of judgment as to those counts, grant such motions, and modify the order of August 2, 1949, so as to dismiss counts 2, 16 and 17, in view of the punishment meted out under count 1. (Penal Law, § 1938; People ex rel. Tweed v. Liscomb, 60 N.Y. 559; People v. Edwards, 173 App. Div. 375, 376; People ex rel. Thornwell v. Heacox, 231 App. Div. 617.) The pleas of guilty were entered upon an understanding with the Attorney-General that they would be dispositive of the remaining counts of the indictment. In accordance, the Attorney-General moved to dismiss the remaining counts, but the court denied his motions. While the court was not bound by any understanding between the prosecutor and these defendants, it should, under the circumstances, have permitted a withdrawal of the pleas of guilty, the substitution of not guilty pleas, and permitted the defendants to go to trial on all the counts (except counts 16 and 17, which should have been dismissed for the reasons above stated). ( Matter of Lyons v. Goldstein, 290 N.Y. 19, 25; People v. Gowasky, 244 N.Y. 451, 465.) Count 1 is not defective merely because of the format employed as to the defendants' names. The defendants therein charged are not only named by reference to the caption of the indictment, but are several times named in the body of the count. The question as to whether appellant Arra gained immunity because he was called upon to testify before the Attorney-General and before the Grand Jury must await the trial. Judgments of conviction reversed on the law and the facts. Orders which denied appellants' motions (made before judgment) for leave to withdraw their pleas of guilty and to substitute pleas of not guilty reversed on the law and the facts and said motions are granted. Order of August 2, 1949, modified on the law and the facts by providing that appellants' motions to dismiss counts 16 and 17 are granted. As so modified, the order is unanimously affirmed as to these appellants. All other orders are unanimously affirmed. Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur. [ 196 Misc. 604.]