People v. Lawson ( 1963 )

Phipps, J.

(dissenting). I dissent and vote to acquit. After reading the briefs of counsel for the People and counsel for the defendants, and privately researching the issue involved, and thereafter reflecting on the thinking of my colleagues in this matter, I am convinced that section 2036 of the Penal Law is not applicable to the facts of this case.

In voting to dismiss, I am guided by the purpose and the background for the enactment of section 2036, and its antecedent statutes. This is not to say that I am of the opinion that the defendants are blameless of any offense, but rather that their offense is not a violation of section 2036 of the Penal Law, with which they are charged; accordingly the motion of defendants’ counsel should be granted, and each of the defendants acquitted.

0’Brien, P. J., concurs with Gassman, J.; Phipps, J., dissents in memorandum.