(dissenting). Our initial concern in this case is whether, on the record before us, we can say as a matter of law that the defendants are not guilty of extortion.
Stripped of unessentials, it substantially appears that Mr. Kerin had for years operated his stationery business through two corporations as nonunion enterprises, apparently without *437labor union problems. Suddenly, two unions* took steps to organize the two companies. This action was followed by the appearance of a picket on January 16, 1956 from a third union —Local 138 of the Teamsters’ Union; and shortly after, by an organizer, from still another local, who was distributing literature to the corporate employees.** This activity seriously hampered deliveries and outgoing shipments, and because of the nature of the business, if continued, meant financial ruin.
It may be fairly inferred from the testimony that at this point Mr. Kerin was prepared either to buy his way out of his trouble or to buy his way into a union of his choice. In all probability, he was prepared to bribe — which undoubtedly accounts for his being a most reticent and diffident witness for the prosecution. If it was his intent to resort to bribery to buy his peace, he was entrapped in his own machinations and became the victim of a substantial, periodic extortion from the very one he would have seduced by the cheap ‘ ‘ gift ’ ’.
In any event, in his search for a solution, he eventually found his way to the defendant McNamara. Meanwhile, his distress and anxiety were mounting. He succumbed to McNamara’s terms and made an initial payment of $3,500, and agreed to pay $200 monthly thereafter to the Equitable Be search Associates Incorporated — a so-called labor statistics organization and a creature of McNamara’s codefendant — for services as labor consultant. He further agreed to recognize McNamara’s union, Teamsters’ Local 295, as the bargaining unit for his corporations. This understanding was reached at a meeting on January 20,1956. On the next business day, January 23, the pickets were gone and Mr. Kerin’s labor difficulties were over.
The significance of what occurred between Mr. Kerin and McNamara was left to the jury as a question of fact. Thus they were to determine whether what happened at the meeting amounted to a bona fide business agreement — as McNamara’s attorney contended — or whether it constituted a violation of section 380 of the Penal Law (bribery on the part of Mr. Kerin of a labor representative [McNamara]) —as urged by the code*438fendant —or whether it spelled out the crime of extortion on the part of the defendants — as the People insisted.
Little time need be spent on the contention that the agreement was a legitimate one for, patently, it was not. It is not without significance that Mr. Kerin’s attorney, after two meetings with McNamara, withdrew from the matter because he was concerned with the propriety of it. This followed the meeting of his attorney with McNamara at the Park Lane Hotel where, according to the testimony, McNamara told the attorney that “ something might be done, but that it would be expensive ’ ’, specifically, that it would cost from $5,000 to $10,000 to work out his client’s problems.
As to whether what took place constituted a violation of section 380 of the Penal Law or the crime of extortion, a close question was presented. The learned Trial Judge in a comprehensive charge defined the provisions of section 380 of the Penal Law and then instructed the jury that if they believed that the payment made was for the purpose of bribing a labor representative or if they entertained any reasonable doubt in that matter, they should acquit the defendants because such payment then could not be the predicate of a charge of extortion. The court then went on and charged the elements of the crime of extortion.
The jury found the defendants guilty of extortion and there was ample evidence to warrant that finding.
The essence of the crime of extortion as defined by statute, is the wrongful obtaining of money or property from another by means of threats to inflict harm upon the victim unless there is compliance with the threat (Penal Law, §§ 850, 851).
The three salient elements of the crime in this case are the threat of harm, the fear of harm and the harm itself. No one will deny that when Mr. Kerin met with McNamara, Mr. Kerin’s business was being harmed as a result of the picket activity and he was then and there fearful of the consequences to his business if it continued. So that when they met, Mr. Kerin very definitely was in fear of the continuance of a harm. Such a fear is the operative fact in the crime of extortion. That the defendants did not originate either the fear or the harm is of no moment so long as there is proof that they exploited it. Long ago it was held that it is immaterial whether the harm was first initiated by the defendant or by others, whether connected with the defendants or not (People v. Thompson, 97 N. Y. 313, 318).
This leaves for consideration the first element —the gravamen of the crime — a threat that a harm will be initiated, continued *439or renewed unless there be a compliance with the demand. The earmark of extortion is a threat which exploits an existing harm or a present fear of harm. When the victim in his present fear yields to the threat, the crime is completed. To make out the crime the threat must emanate from the accused. There is no requirement that the fear or harm emanate from the accused, although they usually do. The threat need take no particular form and need not even be in precise words; and its existence can become a question of fact for the jury. It suffices if there be ‘ ‘ the exercise of dishonest ingenuity in creating the impression of influence ”. (Commonwealth v. Neubauer, 142 Pa. Superior Ct. 528, 533.)*
Of vital importance in the instant case is the fact that at the time of Mr. Kerin’s conversation with McNamara, Mr. Kerin was already in fear of continued and even of additional harm. If McNamara, with the intent of exploiting this fear, gave the impression by word or deed at these meetings that he controlled the picketing and that it would continue unless he, McNamara, obtained from Mr. Kerin, and his corporations, the money or advantages he was seeking, there has been established the threat necessary to make out the crime of extortion. Whether McNamara did in fact control the picket line, is unimportant. One who points a toy pistol at another is not capable of using deadly force. But that action may support, depending upon the facts, a charge of robbery or even of extortion. It is enough that there was an intent to create an impression on the victim that one was in a position to inflict harm, and that the victim believed that person could inflict it. Because a picket line is a continuing destructive force, a wrongdoer is in a situation falsely to pretend that he can control its continuance, and, on that basis, obtain money or property on the threat that unless the payment is made the picket line will continue. So, here, if there is testimony from which the jury could be satisfied beyond a reasonable doubt that McNamara pretended to control the picket line — if indeed he did not actually control it — and that he expressly or impliedly represented that the picketing would continue unless his suggestions were followed and the payments were made under these conditions, then there would be as effective a threat as we would have if McNamara’s suggestion had been in the form of an out *440and out demand coupled with an ‘ ‘ or else ’ ’ ultimatum. Extortion can be as effectively accomplished with a mouthful of words as it can with the point of a gun.
If McNamara had come to Kerin with the proposition ultimately accepted, we would have a factual situation very similar to that in United States v. Varlack (225 F. 2d 665). There the prosecution and conviction was for a violation of the Hobbs Act, the Federal anti-racketeering statute, with provisions very similar to those in our extortion statute. In that case a sugar company was about to introduce mechanical devices for the loading and unloading of sugar from ships. The dock union opposed the plan because of a resulting reduction in employment. The defendants, who were local labor delegates aware of this opposition, informed the shipper that there would be trouble unless the latter co-operated — co-operation meaning payment to the defendants personally. It is noteworthy that the defendants there did not initiate the fear that moved the company to pay them. The court, per Medina, J., stated the proposition, as follows (p. 668): “ There was accordingly substantial evidence from which the jury might have inferred that defendants seized upon the opportunity presented by the longshoremen’s hostility to the company’s introduction of technological improvements on its pier, to line their own pockets by implanting in the minds of the company officials the idea that unless and until the tribute demanded was paid to the defendants, the company’s ships would not be unloaded. Whether these defendants did, in fact, have complete control over the members of the local is of little moment so long as there was evidence to support the jury’s findings that the defendants’ actions and words were intended to and did put the company officials, from whom the tribute was exacted, in fear that the failure to comply with the defendants ’ demands would result in work stoppages and in the indefinite prolongation of any work stoppages which had already occurred or might occur. ”
Hence, it is clear that whether McNamara initiated the picket line, or had the power to continue it, is not decisive of the case; just as it is quite immaterial when Mr. Kerin was first put in fear. It suffices if he was in fear when McNamara made the oblique threats and that the two were correlated by McNamara. What is important is that when Mr. Kerin met with McNamara, he [Kerin] was still in fear of continued or renewed harm flowing from the maintenance of the picket line.
Nor is it determinative in this case, on the question of the threat, that it was Mr. Kerin who sought out McNamara, rather *441than conversely. While relevant and important, that fact is not decisive. It is material only on the question of whether a threat was made; not, however, on the question of fear — which clearly it does not negative. If anything, Mr. Kerin’s approach to McNamara confirms a fear of harm, for he would not have gone to McNamara unless he feared the continuance of the destructive picket line. Moreover, it is a familiar gambit for one to pretend to be pursued, and then, to permit himself to be chased until he catches the pursuer. Therefore, the entire pattern of events, antecedent to, concurrent with, and even subsequent to the negotiations and conversations among the parties must be examined to determine whether there was an adequate factual basis for the jury to find that McNamara was in truth the pursuer while ostensibly seeming to be pursued.
The record permits not only that inference but the further ones that McNamara and his codefendant “ cashed in ” on the fear the picketing had created in Mr. Kerin’s mind and wrongfully used it to “line their own pockets ” (United States v. Varlack, supra).
The testimony indicates that Mr. Kerin met Mr. McNamara for the first time when the so-called deal was made. However, McNamara had met with Mr. Kerin’s attorney previously and the substance of what transpired was communicated to Mr. Kerin.
It appears from the record that an intermediary submitted McNamara’s name to Mr. Kerin’s attorney as a high-ranking-teamster official who might advise him. The purport of the testimony of the intermediary and the attorney is that McNamara was not too responsive when they initially discussed the problem with him, and indicated that the client should go ahead and negotiate — which was the last thing Mr. Kerin wanted. McNamara indicated, however, that the union was an old-line union and would be difficult, and that he did not encourage calling-in either the State or National Labor Boards. His suggestion to the attorney that $5,000 to $10,000 would solve the problem was not made in the presence of the intermediary.
There is testimony that at this same meeting McNamara introduced a Mr. Milton Holt, secretary-treasurer of Teamsters, Local 805, as an attorney or possibly the lawyer for Equitable, and in the course of outlining their problems to him, McNamara opined that ‘1 this may be a situation where Equitable can help out ” and that Mr. Holt appeared to agree.
Following that meeting, Mr. Kerin’s attorney related to him what had transpired. Mr, Kerin, on cross-examination, testified *442that his attorney told him that he [the attorney] had a rough evening with McNamara and that he was a tough-talking man who ‘ ‘ knew what was going on, on this situation that we had found ourselves in; and that this man had told him the whole thing could be-settled, and settled very quickly, for a payment of $10,000.”
There is further testimony from Mr. Kerin’s son, on cross-examination, that when the attorney was asked what would happen if the $10,000 weren’t paid, that he replied: “ this man could have orders issued down — to all the Locals of the Teamsters, through the Joint Council, to make the picket line 100% effective ”. It was following this talk that the Kerins’ attorney announced that he was withdrawing from the matter and that if the Kerins wished, they could speak to McNamara themselves.
With this information added to his fears, Mr. Kerin shortly thereafter met with McNamara who, according to the testimony, had called the intermediary, inquiring as to what Mr. Kerin intended to do. This meeting took place on January 20, 1956 at a midtown club and there were present the Kerins, Senior and Junior, another representative of their corporation, McNamara and Milton Holt. At that session, McNamara again introduced Holt as an attorney. There is testimony that Holt was neither an attorney nor connected with Equitable.
According to the record, after some conversation, Holt suggested that McNamara and Mr. Kerin discuss the matter alone. In the course of this private talk, Mr. Kerin testified that McNamara told him that he [McNamara] liked his attitude, and he knew the officers of Local 138 and would like to have him [Kerin] identified with his Local 295. It was then that McNamara told Mr. Kerin, “ Mr. Kerin, your troubles can be ended, and will be ended, if you do these three things ”. The first was that the Kerin corporations sign contracts with his union. The second was that $3,500 be paid to the Equitable Research Associates Corporation to defray the expenses incurred by the various unions seeking to organize the corporation, plus $200 a month to that same corporation for services, to take care of any labor problems that they had and to guarantee labor peace for the term of their contract.
Mr. Kerin testified that he was induced to believe that if he made these payments, his troubles would be at an end and he would have peace and contentment so far as the labor situation went. As to the picketing, Mr. Kerin swore: “ He [McNamara] told me that the picketing would stop immediately if we made this agreement ”. With reference to the $3,500, McNamara told *443Mr. Kerin ‘1 That we had to pay ’ and that it represented the amount of money “ that all these unions that have sought to organize you over the last several years have expended ’ ’. The $3,500 was paid. Contracts were entered into between the Equitable and Kerin corporations, were predated January 20, 1956 (the day of the conference at the midtown club), and were signed by the codefendant.
At the time the $3,500 was paid to Equitable, its bank balance was $375. Within nine days from the receipt of the $3,500, checks totalling $3,705.09 were cashed, leaving a ' balance of $171.99. Twelve of these checks, totalling $2,950.90, were payable to, signed and indorsed by the codefendant and entered on the corporate books as salary paid to him. The remainder were drawn to the order of different people for various amounts and in no wise indicate payments of any union organizational expenses.
There is testimony in the record of 11 officers of Teamsters Local 138 that they were the only ones who had the authority or power to call an official strike or to set up a picket line on behalf of their Local; that they never, at any time, authorized the placing of a picket at the Tower-Crossman Stationery Corporation, one of Kerin’s corporations, or authorized the use of signs either there or at the place of business of the other corporation, the Atlas Stationery Corporation.
The evidence in the ease establishes beyond a reasonable doubt that the defendants, acting in concert, wrongfully exploited Mr. Kerin’s fear for their own advantage. Indeed, the record leaves one with the impression that the defendants staged the entire operation. It is evidence from which a jury could reasonably conclude that Mr. Kerin was terrorized into believing that the defendants had it in their power to continue the picketing, and that he was thereby induced to pay tribute in an attempt to avoid the consequent harm. All of the testimony outlined bears on the elements of threat of harm, fear of harm and harm itself and presented questions of fact for the jury. Those questions were resolved by the jury under a charge that quite adequately outlined the factors they should consider in determining whether the negotiations between McNamara and Mr. Kerin, were what the defense purported them to be, merely the seeking by Mr. Kerin of McNamara’s assistance, or were an artful and disingenuous facade for the communication of an extortionist threat by McNamara to Mr. Kerin. The resolution of that factual question by the jury is sustained by the record. Hence, I must dissent from the decision of this court which would disturb that verdict.
*444McNally and Stevens JJ., concur with M. M. Frank, J.; Botein P. J., concurs in opinon; Valente, J., dissents and votes to affirm in opinion.
Judgment [as to defendant Dioguardi] reversed upon the law and upon the facts, the indictment dismissed and the defendant discharged from custody.
Judgment [as to defendant McNamara] reversed upon the law and upon the facts, the indictment dismissed and the bail exonerated.'
In November, 1955, he received a letter from Retail, Wholesale & Department Store Union, Local 585 of C. I. O. indicating they were attempting to organize the stationery industry. In December, 1955, he was visited by two organizers from Teamsters’ Local 210 who detailed their plan of organizing.
This was Local 1601, R. C. I. A. (Retail Clerks International Associates of the A. F. L.) whom Kerin had approached — after the inquiry of Local 585 of C. I. O. and Teamsters’ Local 210 — stating he would like to have them represent his employees.
In this ease the defendant was convicted on testimony that he demanded money from a party convicted of operating a lottery as consideration for the accused giving information to the Trial Judge, pointing to that party’s innocence. While the section under which the indictment was drawn includes blackmail and extortion, and makes the offender guilty of a misdemeanor, the essential element of the crime is that the victim pay the money through fear.