Opinion
Argued March 3, 1942
Decided April 23, 1942
Appeal from the Supreme Court, Appellate Division, Second Department, MacCRATE, J.
Jacob Shientag for appellant.
John J. Bennett, Jr., Attorney-General ( William J. Butler and John Harlan Amen of counsel), for respondent.
Our modification of the judgment of conviction requires the reversal of so much of the judgment as convicts the defendant, under count two of the indictment, of an attempt to commit the crime of bribery. (Penal Law, §§ 2, 378.) "Acts in furtherance of a criminal project do not reach the stage of an attempt unless they carry the project forward within dangerous proximity to the criminal end to be attained." ( People v. Werblow, 241 N.Y. 55, 61, 62; People v. Collins, 234 N.Y. 355, 359, 360.) In an effort to establish the defendant's guilt under count two the prosecution introduced testimony by three witnesses, each of whom was thereafter ruled by the trial justice to be an accomplice as a matter of law. We conclude that the testimony of the three witnesses mentioned above, when considered with the remaining evidence of record in the case, is not sufficient in law to warrant the conviction of the defendant under count two of the indictment. (Code Crim. Proc. §§ 395, 399.)
The judgment of the Appellate Division in so far as it affirms the judgment of the trial court convicting the defendant of an attempt to commit bribery (count two) should be reversed and a new trial ordered as to that count; otherwise the judgment should be affirmed.
LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur.
Judgment accordingly.