People v. Paccione

Murphy, P. J.,

dissents in a memorandum as follows: I would reverse the judgment and dismiss the indictment. The evidence presented by the People, amounting to no more than defendant’s presence in a gambling "wire room,” is insufficient as a matter of law to establish defendant’s guilt beyond a reasonable doubt.

I agree with the positions taken by Justices Smith and Milonas in the dissenting opinion in appellant’s codefendant’s appeal (see, People v Rossi, 177 AD2d 303, 308 [Smith, J., dissenting], lv granted 79 NY2d 834).

Appellant’s arguments on appeal mirror those presented by his codefendant, James Rossi. The only difference is that the codefendant Rossi was arrested in the hallway of the building, without a warrant. Rossi was then taken in custody to the wire room, for which the police officers had a search warrant.

Appellant was then arrested. Appellant was on the telephone when the officers entered the room, but there is no evidence of what he was saying or to whom.

The officers seized a large quantity of betting slips, tally sheets and line sheets, with handwritten notations, and other gambling paraphernalia. The telephones were linked to cassette recorders, and there were piles of handwritten betting slips in front of each telephone. If any of this evidence had implicated the defendant, it would surely have been presented against him at trial. As it was, however, the only evidence adduced indicated simply that he had been present at a place where illegal gambling transpired. There was no evidence presented at trial linking a handwriting sample of appellant to handwriting on the betting slips. There was no voice identification evidence presented linking appellant to any cassettes with recorded bets.