People v. Stolof , 274 N.Y. 231 ( 1937 )

The five defendants were indicted, charged with the violation of section 850 of the Penal Law by attempting to obtain $300 from Louis Rogoff, a painting contractor, by the wrongful use of force and threats.

The defendants were officers and members of a labor union in the city of Brooklyn, covering the painting trade. The complainant Rogoff was a painting contractor, having contracts for painting then pending. The union called a strike which held up the work on all of his contracts. In order to be permitted to go on with work, all painting contractors who were members of the union were required to get a new contract with the union. Rogoff was a union man and employed union labor. He applied for a new contract. His application was made at the rooms of the association to the five defendants. They refused from time to time to issue a new contract. He testified that he called at the rooms at least ten times before he was able to get the contract in question. They would put him off on one ground and another, refusing to give him any reason why they would not issue the contract. Finally, on one of those occasions, an employee by the name of Cohen came to him and told him that he could not have a contract unless he paid the bums upstairs $300. Prior to that time he had been told by one or more of the defendants that he would be obliged to pay $500. Goodman, one of the defendants, said to him: "Well, we need the money for ourselves, we have to divide for ourselves."

That statement was made in the presence of the other defendants. He told defendants that he had contracts pending and that if they did not give him the contract he would be ruined, and pleaded with them on different occasions to issue the contract. On one occasion. Belsky said: "Don't be a wise guy. We don't want you in the business. We don't like you. Everybody pays us. You are no exception."

Finally Rogoff and the witness Cohen went to the office of Mr. Dewey, who sent them to the District Attorney of Kings county, and it was arranged that Rogoff should take $300 in marked money and secure the contract. He went to the association rooms with Cohen and paid over the $300. Belsky put the money in his pocket. At that time detectives broke into the room, arrested the defendants Wellner, who received the money, and Belsky, who had the money in his pocket. Two detectives testified that they asked those defendants if they made any record of the $300 and Belsky said: "He did not have to make a record of it."

Another detective testified that Belsky said he kept the record in his head or words to that effect. At the same time that the money was paid over and the two defendants were arrested, Cohen, a witness for the People, was arrested and taken with the defendants to the police station. He testified that he had asked the inspector of police to arrest him; "I didn't want them to know until the last minute I am a witness because after all you take a chance with them, everybody knows that."

On the trial it was admitted that the defendants insisted on the payment of the $300 and that they received the money. The issue was whether the money was graft or whether it had been received by the defendants in accordance with the instruction of the labor council that Rogoff must pay $300 before a contract would issue, under the claim that he had underpaid union workmen to the extent of $300, and that the council was imposing the payment of that sum to it as a condition of issuing the contract so that it could make up to the workmen the difference between the union wages which they should have received and the amount which they did receive from Rogoff.

The court charged the jury that if the defendants' purpose was legitimate then they were not guilty. That question was submitted to the jury in a fair charge and it found in favor of the People.

During the negotiations between Rogoff and the defendants in his efforts to secure his contract, on one occasion he took with him to a meeting with the defendants his attorney, Mr. Louis E. Greenberg. Greenberg attempted to persuade the defendants to issue the contract and promised that he personally would see to it that Rogoff lived up to the contract. After he left the meeting, the defendant Wellner approached him and said: "We have got to have $300 for the bums upstairs." I said, "bums?" I said, "Who do you mean?" He said, "The gang."

The contract which was delivered to Rogoff states that the consideration for the contract was the sum of one dollar. It does not refer to the payment of $300.

When the People rested, a strong case had been made out. The defendants then called a large number of witnesses and they disputed the evidence offered by the People's witnesses as to minor details, as to the time of the meetings, who was present, what was said, and various collateral matters which tended to affect the credibility of the complaining witnesses Rogoff and Cohen. They testified that the $300 was received for an innocent purpose; that it was to be used to pay what was termed the kick-back charges, i.e., sums due Rogoff's workmen to make up the union wages which he had failed to pay them. Nowhere in the record is there any testimony that fixes the amount which the defendants claim Rogoff had failed to pay his workmen which they were entitled to under the union rate. One of the local unions claimed an item of something like $150. That is the only definite figure mentioned. The contract itself failed to show the payment of the $300.

Witnesses testified that in the talk with attorney Greenberg it was stated to him that Rogoff was indebted for the difference between union wages and the amount paid, and the witness Wellner, one of the defendants, testified that Greenberg said to him on the street: "Wellner, why don't you take the $300 for yourself and see that Rogoff gets the contract?"

At the close of the defendants' evidence the People called Greenberg as a witness. It will be recalled that Wellner had already testified as to what occurred at the meeting with Greenberg and had given his version of the conversation that took place on the street. No objection was made that it was not proper to call Greenberg at that time in rebuttal. He testified that he was admitted to practice in September, 1915, and had conducted an office in New York city; that Rogoff was his client and that he went with him to the rooms of the association at the time in question; that he asked Stolof in the presence of the other defendants the reason why his client, who was a union man and maintained a union job, should not receive his contract. Stolof replied that there was a grievance; that Rogoff had agreed with one Sickels, a business agent, that he would employ men from Sickels' local and failed to do so. Rogoff denied that. Sickels was then brought into the room and a discussion took place upon that subject. Finally Stolof said: "I will see that your client gets the agreement." Thereafter, the witness left the room and when on the street was accosted by the defendant Wellner, who stated to him that $300 would have to be paid for the bums upstairs or the gang. He also testified that nothing was said in the conversation upstairs that Rogoff would have to make up the back pay of underpaid former employees who were union men. He testified that the only question that came up was the fact that Rogoff had failed to take men from Sickels' local union and that that was all ironed out before it was promised that Rogoff should receive his contract.

On cross-examination the witness was asked if he had told Samuel Null, a lawyer, that at the conference between Rogoff and the defendants there was a claim made that Rogoff failed to pay the union scale of wages. It will be recalled that the defendant's witnesses had already given their versions of what was said in that conference and that in rebuttal the witness Greenberg had given his version. In answer to the question, the witnes, answered "no." That was a denial that he had so stated to Null. He was then asked: "Did you tell Mr. Null at that conference that at no time at that conference or outside of the conference that any of the defendants asked for money in the shape of graft?" He answered "no."

After the People rested, Null was called as a witness by the defendants and questions were asked for the purpose of contradicting and impeaching the witness Greenberg. The court declined to permit the answers and the defendants excepted. It is now claimed that those exceptions constitute error which requires the reversal of the judgment of conviction, and it is conceded by the district attorney that the rulings were erroneous. We do not believe that on this record we should substitute our judgment in place of that of the Appellate Division and reverse this judgment because of the alleged error. These defendants were caught red-handed. They had in their possession the graft money, and we do not believe that any one can read this record and have a doubt that they intended to keep it. There is abundant evidence in the record to sustain the finding of the jury.

It took courage on the part of the witnesses Rogoff and Cohen, even when possessed of a just cause, to make the complaint which they made. They were not laboring under any delusions about the chances which they were taking. They were uneducated, poor men. Neither had a criminal record. They knew the type of men they had to deal with when they voluntarily entered the complaint with the District Attorney. It is hard to believe that they would voluntarily have taken the chances which they did without any basis in fact for so doing.

The trial judge had the advantage of seeing the witnesses and hearing their testimony, and he denied the motion to set aside the verdict of the jury. The Appellate Division has reviewed the evidence and unanimously decided that the erroneous rulings did not require a reversal. The contract delivered upon the payment of the $300 failed to disclose the payment of that sum but recited a consideration of one dollar. No book entry was made of the payment of the money and the two men who received it stated to the police officers that no entry was necessary. One of them said he could keep the record in his head and he might have added, and the money in his pocket. This court is required by the statute, "After hearing the appeal, the court must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties." (Code Crim. Proc. § 542.)

That provision also governed the action of the Appellate Division. Mindful of its provisions, the justices of that court have unanimously decided that the error should be overlooked in the interest of justice and the judgment of conviction affirmed. We have reached the same conclusion. Few cases involving the amount of testimony taken in this case (over 750 pages) are tried without some technical error creeping into the record. We, however, are directed by statute to give judgment without regard to technical errors. Any other course will result in breaking down the enforcement of the criminal law.

Whether an erroneous ruling on evidence requires a reversal is largely a question of judgment. Upon questions of judgment judges, acting in the utmost good faith and with a firm intention by their action to promote the ends of justice, may reasonably differ. Even in a murder case there may exist a serious difference of opinion upon such a question. (Cf. People v. Wells, 272 N.Y. 215.) Believing, as we do, that the defendants had a perfectly fair trial and that a just verdict was rendered by the jury, and that the error complained of did not affect the result, we feel under the facts of this case that we should not overrule the judgment of the trial judge and the Appellate Division.

As to each defendant the judgment should be affirmed.