People v. Pavia , 17 Misc. 2d 739 ( 1959 )

Archibald C. Wemple, J.

It appears from the reargument that the only new point raised was that the defense counsel contended that this court, on the original appeal, was not given an opportunity to examine the exhibits used on the original trial and that, therefore, this court, on the appeal, could not decide the case with inadequate information.

This court finds that the exhibits were described in sufficient detail to indicate that gambling activities were being engaged in by the defendant above-named. Naturally, it would have been more convincing to have examined the exhibits in more detail.

The other arguments, namely that the police officer, George Morris, was not proven to be an expert; that the tape recording constituted hearsay evidence; that the wire-tap evidence was in violation of the Federal law; that the sentences constituted duplicate punishment — all of these were no different from the arguments presented on the original appeal. This court does not feel inclined to change the holdings made in the decision of February 26, 1959 (People v. Pavia, 15 Misc 2d 861). However, on the reargument of the appeal, certain extenuating circumstances concerning the relationship of the defendant to his crippled invalid son have been brought out. These matters may or may not have been within the knowledge of the sentencing Judge in the court below. Letters have been received from a doctor of distinguished reputation in the community, from a principal of a local school and from a member of the clergy, all of which indicate that the defendant is needed in the home to care for his crippled son.

Under the circumstances stated and in accordance with section 764 of the Code of Criminal Procedure, this court will modify the sentence of the court below by deleting therefrom that part of the sentence of conviction of this defendant of a violation of section 974 of the Penal Law in which the said defendant is directed to serve 30 days in the Schenectady County jail. The said sentence of 30 days is hereby suspended and the defendant is placed on probation with the Probation Department of the County of Schenectady for one year, on the specific condition that he refrain from all illegal activities and will faithfully attend to the needs of his family.

Submit order accordingly.