I agree that it was within the police power of the Legislature to enact the statute in question and that there exists no constitutional barrier; but I go further and hold that upon the record in the case of the appellants Sam Pieri, Joe Pieri, John Tronolone and Anthony Perna a question of fact was presented for the trial court and that the facts as shown in that record are amply sufficient to sustain the conviction.
Obviously the problem which the Legislature had to meet was the continued commission of crime for profit by experienced criminals who rely on some so-called pull or connection for profit or reciprocal favor, somewhere along the line, to escape through the meshes of the law. The problem is not new but of late has been more acute. *Page 328 Must the law-enforcing agencies sit idly by while the known criminals hatch the plan? May the plan be nipped in the bud and the decent citizenry of the State be spared its consummation?
For the solution of this problem the Legislature has enacted section 722, subdivision 11, of the Penal Law. No question of constitutionality remaining, it is submitted that the facts in the case at bar sustain the finding of the trial court and hence this court may not interfere. If the facts in this record are not sufficient, how may this statute be intelligently administered? That the appellants were consorting together must be conceded. That they were persons of evil reputation is testified to by more than one witness who knows the fact of his own knowledge. Moreover, these witnesses are policemen, disinterested save as they are sworn to uphold the law. In addition we have the records of each defendant, an example being that of Sam Pieri, which follows:
Name Sam Pieri. 292 Jersey St. Alias Samuel Johns, Sam Pieri, Salvatore Pieri. Number of Picture in Gallery 20699 Criminal Record (as far as known) Arrested in Buffalo, N YWhile the State at all times has the burden of proving the guilt beyond a reasonable doubt of these defendants under this statute, yet where the State, as here, has shown that the defendants bore evil reputations and were found consorting with persons of like evil reputations, thieves or criminals, the statute provides that this shall constitute prima facie evidence that such consorting was for an unlawful purpose whereby a breach of the peace may be occasioned. This is in accordance with the well-known principle often employed in the law that one fact proven may be prima facie evidence of another where there is a rational connection between the fact proved and the fact presumed. (Mobile, J. K.C.R.R. Co. v. Turnipseed,219 U.S. 35; Board of Commissioners of Excise v. Merchant, 103 N.Y. 143; People v. Cannon, 139 N.Y. 32.) *Page 330 It then becomes necessary for the defendants, and they have the opportunity, to go forward and show that the purpose of their consorting is not unlawful. This the defendants attempted to do, but the learned trial court, as it had a right to do, disbelieved their testimony. The credibility and weight to be given testimony lies within the sole province of the trial court and the County Court. Moreover, it is submitted that even if it were otherwise, a reading of this record shows ample justification for the finding of the trial court and warrants the conviction of these defendants.8/ 7/21 Charge Malicious Mischief Dis. 8/24/26 " 887-1 C.C.P. Sent. Suspended 11/23/26 " Gr. Larc. Juv. Del. Dis. 6/22/27 " 374-282-2 M.V.L. Fined $15.00 10/27/27 " Truancy turned over to School Auth. 6/ 5/28 " Burg. 3rd. and Gr. Larc. 2nd. (Auto) Arr. with Edwin Graver Cur #20700 Arr. by Lieut. Rogers, Reed, Kelly, Bowers, Bisby, #5 Chge. to Gr. Larc. 2nd Probation Indef. 10/ 4/30 " Pet Larceny (Shoplifting) A.M. A. Store arr. by C. McGee, R. Gustaferro, J. Naples, H. Toomey, HD. Discharged. 1/ 6/31 Charge Robbery 1st Degree stickup in Rochester, N Y (Gambling House) Arr. by E. Kenney and H. Toomey HD. turned over to Rochester, N.Y. police No. Disp. on this case. 9/ 2/31 " 593-B tariff law arr. with John Fusco our #14265 and Anthony Cirincione our #15758 *Page 329 arr. by Reardon and Monro U.S. Immigration Service No Disp.
9/22/31 Charge 60-20-6 C.O. Traffic B. Murphy, MCD. Sent. Suspended. 10/13/31 " 887-1 C.C.P. arr. by J. Crotty HD. Discharged. 4/23/33 " Robbery 1st Degree arr. with Pasquale Grasante our #26553 Jos. Graziano Our #24803 and Jos. Pilato Our #12840 Arr. by Zimmerman, Maul, Griffis, McNamara, Matthews, and Wunderlich Hd. Turned over to State Police at Wanakah, N Y 5/ 1/33 " Gr. Larc. 2nd Degree (Auto) Arr. with Joseph Graziano our #24803 Pasquale Grisante Our #26553 and Joseph Pilato Our #12840 Arr. by Matthews, McNamara, Maul, Wunderlich, and A. Zimmerman, HD. Indictment. Dism. 5/28/33 " Robbery 1st Degree Arr. by E. Kenney, H. Toomey, W. Holtz, F. O'Neil Hd. Dis. 9/ 4/33 " 60-14-2 C.O. (Traffic) Speeding Parker MCD. Sentence Suspended. 5/24/35 " 722-11 P.L. arr. by Asst. Chief of Dets. Lieut. V. Connors, Felicetta, Mahoney, W. Sullivan, G. Beyers, and R. Conroy HD. Case Pending.
There is no assumption in this opinion that a person, arrested by a policeman but discharged as not guilty, can be a criminal. Reference has been made to the exhibits in the cause since what they show fairly bears on the issues and was before the trial court.
I, therefore, vote to affirm.
LEHMAN, O'BRIEN, HUBBS and LOUGHRAN, JJ., concur with CRANE, Ch. J.; FINCH, J., concurs except as to defendants Pieri et al., as to whom he dissents in opinion; CROUCH, J., not sitting.
Judgments reversed, etc.