People v. Smilen

Maetin, P. J.

(dissenting). The defendant has been convicted of the crime of perjury in the second degree. The charge against him grew out of his attempt to shield one Nick Elia in the investigation by the Grand Jury into Elia’s activities as a labor racketeer. Elia has been convicted of extortion and conspiracy. (People v. Elia, 262 App. Div. 836.)

Before the Grand Jury, the defendant testified positively and unequivocally that he never told anyone that Elia was on the payroll of defendant or that of defendant’s corporation. He reiterated that testimony on the trial herein.

In support of the charge against the defendant, the People produced George Hurwitz and Albert Sadowsky, organizers of unions, who sought in the years 1934 and 1935 to arrange a labor contract with the defendant and who in 1937 succeeded in having defendant sign a contract with their union. In 1935, according to the testimony of Hurwitz and Sadowsky, defendant relied on Nick Elia and another to relieve him of the necessity of signing with the union represented by Hurwitz and Sadowsky. They testified that in 1937 defendant signed with the union they then represented after conference with Elia. Difficulties developed out of this contract which Hurwitz attempted to adjust with defendant. Hurwitz testified that during one conversation concerning these difficulties, defendant said to him: What are you worried about? * * * I will speak to Nick and I will take care of the whole thing. Don’t worry your head about it.”

About two weeks later Hurwitz and Sadowsky had a conference with defendant. Hurwitz’s version of this is: “ Q. Will you state, please, what was said at that time? A. He said to us, Why don’t you boys lay off; why do you keep pressing me and why keep annoying the men? ’ I said, 1 I spoke to you a few weeks back and you told me you were going to straighten it out with Nick and Nick didn’t tell me nothing. ’ He said ‘ What do you think I am paying him for? I am going to be downtown tonight in Mulberry Street and I am going to straighten all that out.’ With that we left.” Sadowsky testified as to this con*276ference: “ Q. And what was the conversation? A. He said, ‘ Why don’t you fellows leave me alone; why are you picking on me for; I don’t know what’s the matter with you.’ I said, ‘ We are not picking, Nat, get that idea out of your head,’ and he said, * I don’t know what’s the matter; what’s the sense of paying Nick and Frank all that money if I am going to have that trouble with you. I am going down tonight to straighten this out one way or the other.”

Both testified that that night the group met in the cafe indicated and Elia and defendant conferred apart from the others after which Elia instructed Hurwitz and Sadowsky that they were to leave defendant alone and not annoy him.

. Jacob Horn, called by the People, testified that in 1937 he represented the Kings County Fruit and Products Merchants, Inc., and sought to persuade defendant to join that organization ; that defendant declined to join because of an incident which demonstrated to him that he would be protected by Elia and his associates with whom, defendant stated to Horn, he had done business before and that he had them on the payroll many times. Horn further testified that later in the year at the office of the union he found Elia seated behind a desk and the defendant sitting alongside of him.

Hurwitz was convicted on three occasions, once in the Court of Special Sessions of the City of New York, County of Bronx, for the crime of coercion and conspiracy; a second time in the Court of Special Sessions of the City of New York, County of Queens, for the crime of assault. The third conviction in the Court of General Sessions of the County of New York was for the crime of extortion and coercion. Sadowsky has no criminal record, but the character of his associates and questionable conduct in union activities are developed in the record herein. In the appellant’s brief Horn is described as a truculent member of the Bar and it is said: The motive which prompted Horn to falsify is not so clear, but it is very evident that his disposition towards the defendant was far from friendly.”

The credibility of these witnesses was for the trial court to pass upon. The trial of this defendant developed simply an issue of fact as to his honesty before the Grand Jury.

As was said in People v. Lytton (257 N. Y. 310, 314): “ Inconsistencies and uncertainties are not lacking altogether. They are not so vital as to condemn the verdict. A question of fact remains, involving an appraisal by a jury of the credibility of witnesses, and incapable of satisfactory solution by the study of the printed page (People v. Rodawald, 177 N. Y. 408, 419, *277420; People v. Taylor, 138 N. Y. 398; People v. Egnor, 175 N. Y. 419, 425). ‘ There can be no reversal of the judgment without breaking down the barriers that separate the functions of a jury from those of an appellate court ’ (People v. Arata, 255 N. Y. 374, 375).”

In People v. Atlas (183 App. Div. 595, 600, affd. 230 N. Y. 629) it was said: “ The rule is well settled that on the review of a conviction in a criminal case where there is any evidence of guilt, the question of reasonable doubt must be left to the jury or trial court, and the verdict or decision on the facts must ordinarily be deemed conclusive and will not be disturbed unless it is perfectly clear that it is against the weight of the evidence. (People v. Long, 150 App. Div. 500; People v. Seidenshner, 210 N. Y. 341; People v. Katz, 154 App. Div. 44; affd. 209 N. Y. 311; People v. Rodawald, 177 id. 409; People v. Becker, 215 id. 126.) ”

There being here nothing but a question of credibility of witnesses and the record of the conduct of the defendant clearly indicating that he is guilty, the judgment of conviction should be affirmed.

Townley, Untermyer and Dore, JJ., concur with Glennon, J.; Martin, P. J., dissents and votes to affirm, in opinion.

Judgment reversed, the information dismissed, and the fine remitted.