Opinion · Appellate Division of the Supreme Court of the State of New York
People v. Seligman
People v. Seligman, 35 A.D.2d 591 (Appellate Division of the Supreme Court of the State of New York 1970)
- Type
- Opinion
- Court
- Appellate Division of the Supreme Court of the State of New York
- Jurisdiction
- New York
- Date
- 1970-07-20
- Topic
- general
*594Christ, P J., Rabin, Hopkins, Munder and Martuseello, JJ., concur.
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UpLaw has not yet analyzed People v. Seligman. The absence of a flag is not a finding that it is good law.
- Authority status
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- Cited by
- 10 opinions
PEOPLE v. SELIGMAN,35 A.D.2d 591[2d Dept 1970]
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ARTHUR SELIGMAN and
MILTON NADEL, Appellants.
Appellate Division of the Supreme Court of New York, Second Department.
Appeal by defendants from two judgments (each as to a separate one of the defendants) of the County Court, Dutchess County, both rendered September 11, 1968, convicting them of various crimes, upon a jury verdict. Judgments modified, on the law and the facts, by deleting the convictions of common-law larceny, attempted common-lawPage 592larceny and corrupt influencing, and dismissing the counts of the indictment therefor (Nos. 6, 7, 14, 15, 16 and 19). As so modified, judgments affirmed. Defendants were retained by the Poughkeepsie Urban Renewal Agency to appraise certain real property. The indictment charged them with bribery, larceny and cognate crimes committed in three separate transactions. Each transaction involved solicitation and, in two instances, acceptance of a bribe to inflate the appraisal of affected property. Defendants were apprehended when Julius Schiller, one of the property owners approached, reported their scheme to the authorities. A plan was devised whereby Schiller, equipped with a miniature tape recorder and $5,000 in marked bills, was to meet defendants in a Bronx restaurant and consummate his transaction under the watchful eye of the police. Everything went according to plan and defendants were arrested as they left the restaurant. An immediate search of their persons resulted in the seizure of the marked currency as well as another $5,000, packaged in bank wrappers — $3,000 being found upon defendant Nadel and $2,000 upon defendant Seligman. This unmarked $5,000 was eventually traced to another Poughkeepsie property owner, Leslie Roe, who admitted paying defendants a $10,000 bribe to secure an inflated appraisal. Further investigation revealed a third instance of bribe solicitation involving property owner Anthony Ranco. Ranco, however, had rejected defendants' overtures. Defendants raise numerous claims for reversal of their convictions which, with two exceptions, are devoid of merit. They urge that the electronic recordings of their conversation in the restaurant, surreptitiously made by Schiller without prior judicial authorization, were inadmissible upon trial. We disagree. The requirement of prior judicial approval laid down inKatzv.United States(389 U.S. 347) is not applicable to electronic recordings made by a party to the conversation (see concurring opinion of White, J., pp. 362, 363.;Peoplev.Gibson,23 N.Y.2d 618). It would avail defendants nothing ifKatzwere applicable to such recordings since they were made prior to December 18, 1967, the date of theKatzdecision, and its holding is not retroactive (Desistv.United States,394 U.S. 244; see, also,United Statesv.Kaufer,406 F.2d 550, affd.sub. nom. Kauferv.United States,394 U.S. 458). Nor was admission of these tapes into evidence erroneous because of alleged unintelligibility (seePeoplev.Roper,17 N.Y.2d 711). Defendants also urge that the unmarked $5,000 found upon their persons was unlawfully seized. That money constituted the fruits of another, related crime of which the police, at the time of defendants' arrest, admittedly had no definite knowledge. Whether or not there exist constitutional limits with regard to an incidental search of the person, it is manifest that the instant seizure was justified (cf.Abelv.United States,362 U.S. 217). The police, knowing of defendants' general scheme and having just witnessed the passage of a $5,000 bribe, had reasonable cause for suspecting this $5,000 to be another bribe paid to defendants by a second Poughkeepsie property owner (seeStatev.Elkins,245 Or. 279). When questioned by the police as to the source of the $3,000 found upon his person, defendant Nadel explained that the money had been given to him by friends, including one Leonard Schechter. On the trial, the People introduced Nadel's explanation as part of their direct case and then set about to prove it false by calling Schechter as their own witness. The admission of Nadel's statement did not violate Seligman's rights. The latter was not thereby implicated in any of the crimes charged (cf.Brutonv.United States,391 U.S. 123). Nor was Seligman prejudiced because the District Attorney variously referred to the unmarked $5,000 as the bribe paid by Roe, the money found on defendants, and the money allegedly given Nadel by Schechter. The District Attorney specifically informedPage 593the jury that Nadel's explanation referred only to the $3,000 found uponhisperson. His references to the sum of $5,000, when speaking of Schechter, were based on the latter's testimony that he had given Nadel that amount. The trial court committed no error in allowing the District Attorney to cross-examine Schechter as he did. Schechter was obviously a hostile witness (Code Crim. Pro. § 8-a;Peoplev.Sexton,187 N.Y. 495,509;Beckerv.Koch,104 N.Y. 394,401; see, also,Peoplev.Berger,18 N.Y.2d 638, revd. on other gds.sub nom. Bergerv.New York,388 U.S. 41). Nor did it err in charging the jury that Schiller and Ranco were not accomplices as a matter of law. Schiller was at all times co-operating with the police once defendants actually offered to accept a bribe (seePeoplev.Bennett,182 App. Div. 871). Ranco, while failing to report defendants' offer to the police, rejected their overtures on three separate occasions and there is no evidence of a subsequent change of heart (seePeoplev.Wood,93 Misc. 701). As to the verdict itself, it is clear that defendants were properly convicted of bribery pursuant to section 374 of the former Penal Law. They were "appraiser[s] * * * authorized by law to hear or determine" the question of property value within the meaning of that statute and solicited bribes to influence their decision. It is not necessary, in our view, that their legal authorization emanate from a court appointment. It is sufficient that the Poughkeepsie Urban Renewal Agency, a governmental unit, was generally empowered by law to employ their services and that specific provision for their employment and duties, as appraisers, was set forth in pertinent Federal urban renewal regulations (the instant renewal project envisioned some contribution of Federal funds). Defendants' activities were a matter of "public concern" (seePeople ex rel. Washingtonv.Nichols,52 N.Y. 478,482) and, in pursuing their criminal ends, they patently betrayed a public trust. Their crime is cognizable under section 374. However, defendants' convictions of corrupt influencing, pursuant to section 439 of the former Penal Law, cannot stand. That section relates only to "commercial fraud" committed by employees of aprivate business(Peoplev.Levy,283 App. Div. 383,384;Peoplev.Graf,261 App. Div. 188). Since these defendants did not betray the interests of a private business in soliciting bribes, the trial court erred in refusing to dismiss these counts. Defendants were also properly convicted of attempted larceny by false pretenses in connection with the Schiller transaction. They had falsely represented to Schiller that their appraisals were subject to review and approval by a certain official in Washington, D.C., and that approval of an inflated appraisal could be secured by paying that official a $5,000 bribe. In fact, no such official existed. When the city would actually pay Schiller an inflated price for his property, a second $5,000 was to be turned over to defendants themselves. On the evidence, the false pretense and bribery charges are not mutually exclusive. The jury could well have found that defendants had offered to accept a bribe to inflate their appraisal and, in addition, had made false representations as to their ability to perform the end result (having the city offer Schiller a large amount for his property). In this sense, the false pretenses induced the bribery agreement. Defendants agreed to inflate their appraisal but, insofar as the guarantee of approval was illusory, Schiller's money was simply going down the drain. [The urban renewal regulations provide for two independent appraisals on each piece of affected property. The second appraisal would presumably be an honest one, resulting in a much lower estimate of value. The price actually offered by the city would no doubt reflect that lower appraisal.] The convictions on the false pretense and bribery charges are not inconsistent and are amply supported by the proof (see, also,Peoplev.Bauer,32 A.D.2d 463, affd.Page 59426 N.Y.2d 915). Nevertheless, under no view of the evidence can defendants be deemed guilty of consummated or attemptedcommon-lawlarceny. The essence of common-law larceny is the taking of property without the owner's consent (Peoplev.Mills,178 N.Y. 274). Neither Schiller nor Roe involuntarily parted with his money. Therefore, these convictions must be reversed (seePeoplev.Rollino,37 Misc.2d 14). One last point, regarding the procedure on jury selection, merits comment. Defendants contend that the trial court committed reversible error in permitting the District Attorney to peremptorily challenge a juror previouslyacceptedby both sides, thereby disregarding the mandate of section 385 of the Code of Criminal Procedure (a challenge to an individual juror "must be taken first by the people and then by the defendant"). Questioning of the first box of prospective jurors resulted in the exercise of two peremptory challenges by the District Attorney and none by the defense. On completing his questioning of the second box, the District Attorney announced that he had "no challenges". The defense exercised eight peremptories, six of which were directed at jurors surviving from the first box. The box was then refilled and questioning resumed. Thereafter, the District Attorney stated that he had "no challenges at this time". The defense excused three of the recent additions. As regards the fourth box, the District Attorney exercised a peremptory against a juror, Mrs. Dey, who had been one of the original twelve picked for the first box. The trial court overruled defendants' vehement objections to the Dey challenge. These facts unquestionably demonstrate that defendants failed to insist upon their right to foreclose the People from further challenge until faced with the loss of Mrs. Dey. They acquiesced in a procedure whereby neither side was foreclosed until the jury was expressly declared satisfactory (seePeoplev.Kaplan,282 App. Div. 889). The District Attorney had never announced acceptance of the box as constituted at any particular point (cf.Peoplev.Williams,26 N.Y.2d 62;Peoplev.Grieco,266 N.Y. 48). His statements of "no challenges" and "no challenges at this time" cannot be deemed formal acceptance of the second or third box. Indeed, the defense itself challenged six jurors in the second box which had been carried over from the first. In exercising these challenges without first compelling the District Attorney to declare his satisfaction with the box, the defense waived its right to insist upon strict enforcement of theorderof challenge and clearly acquiesced in a practice permitting both sides to reserve their right of challenge until the box was actually sworn (Peoplev.Kaplan, supra; Peoplev.Elliott,66 App. Div. 179, affd.172 N.Y. 146; cf.Peoplev.Miles,143 N.Y. 383;Peoplev.McQuade,110 N.Y. 284). Christ, P J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.