Summary
In People v Pugh (36 A.D.2d 845, affd 29 N.Y.2d 909, cert denied 406 U.S. 921), we squarely and unequivocally held that inconsistency of a verdict rendered by a judge after a bench trial would not lead to reversal so long as the inconsistency related to separate counts of the accusatory instrument, precisely the case here (see also, People v Williams, 47 A.D.2d 262, 266 [Christ, J.]).
Summary of this case from People v. AlfaroOpinion
April 19, 1971
Appeal by defendant from a judgment of the Supreme Court, Westchester County, rendered September 4, 1969, convicting him of operating a policy business in violation of section 974-a of the former Penal Law, a felony, and of feloniously maintaining a place for playing policy, after a nonjury trial, and imposing sentence. Judgment affirmed. Defendant was indicted under four counts: (1) receiving written records of more than 100 policy bets, a violation of section 974-a of the former Penal Law; (2) keeping and using premises for the purpose of receiving written records of more than 100 policy bets; (3) possession of records of policy bets, a violation of section 975 of the former Penal Law; and (4) possession of four reels of obscene moving picture film. After trial before the court without a jury, he was convicted of the first and second counts and acquitted of the third and fourth counts, the trial court finding that the prosecution had failed to prove defendant's guilt beyond a reasonable doubt. Defendant has argued several grounds for reversal, but only one of them requires discussion. We think the evidence in the record was sufficient to establish his guilt beyond a reasonable doubt, as found by the trial court ( People v. Wachowicz, 22 N.Y.2d 369, 372). Defendant seeks reversal, however, on what he terms the repugnancy between the finding of guilt of the first and second counts and the finding of innocence of the third count. The precise language in the trial court's opinion is stated in the dissenting memorandum and need not be repeated here. Defendant apparently chooses the word "repugnant" in describing these findings rather than the word "inconsistent" because he is aware of the settled rule that each count in an indictment is considered separately and that inconsistency in the verdicts on the counts in an indictment does not invalidate the verdicts ( People v. Torres, 5 A.D.2d 134, affd. 5 N.Y.2d 804, cert. den. 359 U.S. 993; People ex rel. Troiani v. Fay, 13 A.D.2d 999, cert. den. 368 U.S. 1003). "Adopting the view that each count in the indictment is to be regarded as if it was a separate indictment, consistency in the verdict is not necessary under Dunn v. United States ( 284 U.S. 390, 393, per Holmes, J.)." ( People v. Sciascia, 268 App. Div. 14, 15, affd. 294 N.Y. 927.) The settled rule applies as well to determination made by a Judge sitting without a jury ( People v. Broome, 21 A.D.2d 899, revd. on other grounds 15 N.Y.2d 985; Matter of De Mott v. Notey, 4 Misc.2d 996, revd. on other grounds 3 N.Y.2d 116; see cases collected in ann., 18 ALR 3d 259, 286-287). Repugnancy in verdicts has considerably less application ( People v. Bullis, 30 A.D.2d 470). It posits that an indictment charges two crimes, each of which has identical elements; and if the jury's verdicts are guilty as to one crime and not guilty as to the second, they cannot mutually stand. This was the holding in Bullis where the jury found the defendant not guilty of sodomy in the first degree, but guilty of sexual abuse of an infant eight years of age, although by the provisions of the Penal Law each crime under the circumstances of the case contained identical elements. But in the present appeal the counts in the indictment did not contain identical elements. The first two counts charged different aspects of section 974-a of the former Penal Law making the operation of a policy business a crime, the first in that defendant had received policy bets and the second in that he had occupied and used premises for the purpose of receiving policy bets. The third count, on the other hand, charged him with possession of policy bets under section 975 of the former Penal Law. The ingredients of the crimes charged are not identical ( People v. Miller, 34 Misc.2d 611). Hence, the doctrine of repugnancy is not applicable. Beyond this side of the case, we must note that even in the jurisdiction where it is said that consistency in findings made by a Judge in criminal trials must be observed (cf. United States v. Maybury, 274 F.2d 899), later expressions of the rule limit it to situations where no rational theory can support the difference in the findings ( United States v. Wilson, 342 F.2d 43; United States v. Krol, 374 F.2d 776). Mere difficulty in making a satisfying explanation for the difference does not require the findings of guilty to be set aside (cf. People v. Matarese, 283 App. Div. 826, affd. 307 N.Y. 752). We think there was a rational basis for the difference in findings in the present case. The violations of section 974-a of the former Penal Law pertain to the operation of a policy business. The Trial Judge found that the police had seen 53 persons entering and leaving defendant's record shop within an hour and a half, none of them carrying a package from the shop, and had seen someone on the same day flinging slips showing over 4,000 policy plays out a rear window of the shop. The Trial Judge also found that on a second day, when the arrest was made, the police, answering defendant's telephone, received policy bets from the caller in defendant's presence. The Trial Judge further found that defendant made a statement to the police which indicated knowledge of the policy slips having been thrown from the window on the first occasion. The evidence was sufficient to establish defendant's guilt on the first two counts. As to the third count, the Trial Judge put his finding of not guilty in the form that the prosecution had not demonstrated defendant's guilt of possession beyond a reasonable doubt. The Trial Judge may well have concluded that defendant was not connected physically with the tossing of the policy slips out the window, having in mind the rule that possession must be proved conclusively ( People v. Wolosky, 296 N.Y. 236, 238-239; cf. People v. Wolosky, 12 N.Y.2d 848). His finding as to possession under the first two counts does not satisfy the requirements of the third count that it be actual or physical; and for the purposes of the first two counts a finding of constructive possession would suffice. Last, we think that defendant might well have been held under the third count ( People v. Ulisano, 18 A.D.2d 432, 436), and that he should not be allowed to use his acquittal thereof to obtain a further advantage. We consequently affirm the conviction. Hopkins, Acting P.J., Munder, Brennan and Benjamin, JJ., concur; Christ, J., dissents and votes to reverse the judgment and grant a new trial, with the following memorandum: Defendant was tried by the court without a jury on a four-count indictment charging him with willfully receiving policy slips, maintaining a place for the playing of policy, possession of policy slips and possession of obscene film. The trial court found defendant guilty on the receiving and maintaining charges. In its written decision reciting the findings leading to the conviction of these two charges, the court said, "We find and determine that the credible evidence establishes beyond a reasonable doubt that on February 14, 1967 the defendant was in possession of and had custody and control of, and threw out the window of the rear room of his store numerous `runners' day slips' recording some 4,279 policy plays". Despite this unequivocal finding of actual physical possession of policy slips by defendant, the court acquitted him on the third count charging possession, stating, "We find and determine that the People have failed to prove beyond a reasonable doubt the charges under the third count of the indictment, and therefore find defendant not guilty under said count." There can be no dispute that the finding of actual possession of policy slips in connection with the first and second counts is utterly inconsistent with the acquittal on the third count. While possession of policy slips is not an essential element to prove the charges of receiving and maintaining, I think it clear from the evidence in this case and from the trial court's written decision that the finding of actual possession was the keystone of the convictions on the first and second counts. In that context, the acquittal on the possession count is not only inconsistent with the convictions on the receiving and maintaining counts; it is repugnant to them and they cannot stand (cf. People v. Bullis, 30 A.D.2d 470). If the evidence of possession is eliminated, I think the remaining evidence is insufficient to sustain the convictions. While inconsistency has been tolerated in jury verdicts because of special considerations relating to the nature and function of juries, we do not "enhance respect for law or the courts by recognizing for a judge the same right to indulge in `vagaries' in the disposition of criminal charges that, for historic reasons, has been granted the jury" ( United States v. Maybury, 274 F.2d 899, 903).