People v. Rubin

The court is urged upon this appeal to reverse the conviction of the defendant upon two grounds, (1) that the trial court erred in the admission of certain official records from the Riker's Island Penitentiary, and (2) that questions asked by the trial justice of some of defendant's witnesses were prejudicial to the defendant. It is submitted that these grounds are not of sufficient substance to compel a reversal in the case at bar.

The defendant was convicted by a jury after a trial lasting nine days, of having criminally received stolen property (Penal Law, § 1308) valued at upwards of $225,000 over a period of three years. The record amply sustains the unanimous finding of the jury that this defendant is guilty of the crimes for which he stands convicted and the defendant does not suggest upon this appeal that the verdict as to any one of the five counts for which he was convicted is insufficiently supported by legal proof.

In spite of the evidence of guilt in this record, the finding of the jury and the unanimous affirmance of the conviction by the Appellate Division, we are asked to set aside this conviction. Since no question of fact survives in this court, such reversal by this court must be on the ground that the defendant's rights were affected substantially by the alleged errors.

The official records from Riker's Island Penitentiary were admitted in evidence for the purpose of showing that there had been a close relationship between the defendant and the witness Haberman. The only objection to such admission was that a sufficient foundation had not been laid pursuant to the provisions of section 374-a of the Civil Practice Act. This objection was overruled by the trial court and a majority of the court has found no error in the admission of these records upon this ground.

Upon this appeal the defendant contends that an inadmissible hearsay use was made of these records since an official from Riker's Island Penitentiary was allowed to testify from them that fourteen letters were sent to Haberman from Rubin and one from Haberman to Rubin for the period during which Haberman was incarcerated in the penitentiary. (Cf. Johnson v. Lutz,253 N.Y. 124, 127, and People v. Kohlmeyer, 284 N.Y. 366.) On the other hand, the People urge that these records "contain nothing but the visual observations of employees of the penitentiary." In this view of the entries they are at most an assertion that Haberman received communications upon which the name and address of the defendant appeared in some form.

Assuming that the admission of these records was error, we do not see how such error can be substantial in this case. Thefactual accuracy of the records themselves has never been challenged, the defendant having contented himself with his own denial that he communicated with Haberman while he was in prison. On the question of whether or not any letters from defendant were received by Haberman, both Haberman and his wife testified that Haberman received such letters while he was in prison. But more important on the general question of the association between defendant and Haberman, is that defendant did not deny such association and specifically admitted that he and Haberman were "kids together;" that they used to "shoot crap in the street;" that he had "spent my life with him * * * just like any other boy;" that the defendant had sought out the company of Haberman and his wife; that he had gone out with Mrs. Haberman while her husband was in the Tombs; and that he had advanced money for Haberman's legal fees and had helped Haberman's wife arrange bail for him. In view of such overwhelming direct evidence proving the same hypothesis, it is submitted that the disputed admission of the official records from the penitentiary becomes a mere technical error which does not affect the substantial rights of the parties.

By the enactment of section 542 of the Code of Criminal Procedure, the Legislature has expressly commanded that "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." It is submitted that the case at bar is precisely the type of case which the Legislature must have had in mind when it enacted that section. Here there is present a conviction supported by the overwhelming weight of evidence, and in which it is alleged that the 952-page record contains an error upon the admission of evidence to prove a contention which was amply proved by other evidence contained in the record. In such a case we think that section 542 should in any event be applied and the conviction upheld.

The contention that the defendant was not accorded a fair trial would seem to be an afterthought raised by the defendant for purposes of appeal since only once during a trial lasting nearly two weeks did defendant's experienced trial counsel move that a juror be withdrawn and then such motion was withdrawn immediately. Nor was it suggested in defendant's motion to set aside the verdict and in arrest of judgment that the defendant's rights had been prejudiced by any improper conduct on the part of the trial justice. As was pointed out in the case of People v.Cummins (209 N.Y. 283, 292), "if the trial had been unfair, that fact would have impressed itself upon the mind of the counsel for the defendant, who participated in it from beginning to end; * * *." Thus here where the defendant's experienced trial counsel has not considered the errors committed by the trial justice sufficiently material to warrant a motion to withdraw a juror, this error of the trial justice would not appear to have substantially prejudiced defendant's rights.

Counsel for the defense urges that essentially the case presented by the District Attorney rests upon the testimony of professional thieves and that the chief witness against the defendant was one Morris Haberman who admitted to numerous crimes and who at the time of the trial was under sentence of from thirty to sixty years for the crime of robbery in the first degree. It is fundamental that such facts are relevant only as to the weight to be given to the testimony of such witnesses (3 Wigmore on Evidence [3d ed.], § 876) and that before the jury such facts merely present a question of credibility for determination by the jury. In a prosecution for receiving stolen property, as was demonstrated by the case at bar, the witnesses who are best qualified to testify are those who have delivered such property to the defendant. The Legislature has recognized this fact and expressly directed that such witnesses shall not be deemed accomplices. (Penal Law, § 1308-a.)

It follows that the conviction in the case at bar should be affirmed.

LEHMAN, Ch. J., RIPPEY and LEWIS, JJ., concur with LOUGHRAN, J.; FINCH, J., dissents in opinion in which CONWAY and DESMOND, JJ., concur.

Judgments reversed, etc.