Opinion
June 20, 1967
Defendants Insogna and Leonard appeal from judgments of the County Court of Montgomery County, rendered upon verdicts, convicting the defendants of the crimes of violating sections 379 and 2440 of the Penal Law. At the end of the People's case, the indictment against the defendant Agresta was dismissed. On April 2, 1965, one Frank Nelli shot Carolyn Leonard with whom he had enjoyed a stormy love affair. He was charged with assault first degree and subsequently pleaded guilty to the indictment therefor on August 10, 1965 and received a sentence of not less than 4 nor more than 10 years in Clinton Prison. Prior thereto he had been twice convicted for assaults upon Mrs. Leonard. Shortly after the shooting incident, the defendant Insogna was retained to represent Nelli. Attorney Insogna had also represented Mrs. Leonard and was currently handling some legal matters for her at the time of the shooting. In the course of his investigation of the Nelli case, he conferred with Mrs. Leonard who told him of her fear for her life and her "desire to just leave." He advised her to appear before the Grand Jury and she later told him that Nelli had asked her to testify the shooting was an accident. Insogna advised her against this because it would be perjury. In any event, she left New York State and went to Massachusetts. Insogna was informed of her whereabouts. Attempts to subpoena her by the prosecution for the Nelli trial were futile. The prosecution produced evidence that the defendant Leonard had said that her lawyer had told her to "leave the immediate area [Montgomery County] until things calm down." During her stay in Massachusetts, she received a money order for $58.75 drawn on a bank in Springfield, Massachusetts, but unsigned. She had previously sent a telegram to Insogna requesting this amount. The prosecution claims he sent it in payment for her to remain out of the State. Of passing interest, it cannot be said that Mrs. Leonard's absence prevented the People froe obtaining a conviction against Nelli, for he pleaded guilty to the indictment against him some 10 weeks prior to the indictment against the two defendants here. The two counts of the indictment submitted to the jury charged the defendants with receiving and agreeing to receive a bribe upon an agreement that Mrs. Leonard would absent herself from the trial (Penal Law, § 379) and secondly, with giving and promising to give a bribe to Mrs. Leonard, who was about to be called as a witness in the Nelli trial, upon the understanding that said witness would withhold true testimony (Penal Law, § 2440). We initially approach the second count in the indictment charging these defendants with violating section 2440 of the Penal Law which makes it a felony to give, offer or promise to give "to any witness or person about to be called as a witness, any bribe, upon any understanding or agreement that the testimony of such witness shall be thereby influenced", or attempt to fraudulently "induce any witness to give false testimony or to withhold true testimony" and the indictment charges Insogna with giving a bribe to Mrs. Leonard upon an "agreement and understanding that said witness would withhold true testimony." This count should have been dismissed for, as we said in People v. Maynard ( 151 App. Div. 790, 791), this section (Penal Law, § 2440) "makes it a felony to offer or promise to a witness a bribe for influencing the testimony of the witness, or to induce the witness to give false testimony. That section evidently does not make it criminal to induce a person to absent himself and thus not become a witness." The prosecution's case against Insogna was almost entirely based upon alleged statements made by him to Nelli during the time he was representing him in the assault case. The record shows that none of these alleged statements were in any way corroborated as required by section 395 of the Code of Criminal Procedure. It is barren of the necessary other sufficient evidence so as to prove the crime. This is likewise true of the oral statements alleged to have been made by Mrs. Leonard. We would here further note that the jury was not instructed as to the requirements of this section regarding the necessary corroboration of any statements attributed to these defendants. There was no clear showing that Insogna sent or caused money to be sent to Mrs. Leonard. Assuming, however, that such was the fact, the convictions cannot stand for there was no showing that any money was given for any illegal purpose or upon an understanding that she was either to remain away or to testify falsely. In People v. Kathan ( 136 App. Div. 303, 307), an attorney was accused of bribing a key prosecution witness to withhold testimony against his client. There the attorney admitted payment but claimed it was paid as restitution in the pickpocketing case against his client. The court reversed the conviction and pointed out that the corpus delicti is not the payment of money, "but the agreement or understanding under which it was given; the intent * * * in making the payment" and held that the sufficiency of the evidence of corroboration is a question of law for the court. Nor can the prosecution upon the facts in this case place reliance on circumstantial evidence to supply the deficiencies of proof in this regard. The People's evidence does not lead exclusively to the inference that Mrs. Leonard was given money to go to Massachusetts for the purpose of withholding true testimony or for any other illegal act. It has long been the well-founded rule that where the record of circumstantial evidence does not exclude to a "moral certainty" the hypothesis of a defendant's innocence, a prima facie case has not been made out ( People v. Monaco, 14 N.Y.2d 43; People v. Weiss, 290 N.Y. 160). The circumstances relied upon not only do not lead one to a hypothesis of guilt, but actually lead to inferences that Mrs. Leonard departed because of her fear of Nelli; and when inferences are to be drawn from the evidence to establish guilt, they "must be of such a character as, if true, to exclude to a moral certainty every other hypothesis but that of the guilt of the accused, and that the ultimate fact may not be based on inference upon inference." ( People v. Lewis, 275 N.Y. 33, 39; People v. Foley, 307 N.Y. 490, 493.) The inferences relied upon by the prosecution do not stem from any substantial facts which rise to that level of circumstantial evidence demanded by the law. The record reveals that during the taking of testimony, the court recessed the trial to chambers at which time he conferred with the principal witness Nelli in the absence of the defendant and all counsel. This similarly occurred with the witness Trooper Chandler, although it is not clear whether counsel were present on the latter occasion. A defendant is guaranteed the right of being present at all important stages of the trial (Code Crim. Pro., § 356) and this procedure violated the rights of these defendants. ( People ex rel. Lupo v. Fay, 13 N.Y.2d 253; People v. Oliver, 4 A.D.2d 28, affd. 3 N.Y.2d 684. ) Upon the entire record there was a complete failure of proof of the guilt of these defendants beyond a reasonable doubt. Judgments reversed, on the law and the facts, and indictment dismissed. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum Per Curiam.