APPEAL (1) from a judgment of the Court of General Sessions of the County of New York (MULLEN, J.), rendered May 14, 1953, upon a verdict convicting defendant of the crime of perjury on four counts, (2) from an order of the same court (MULLEN, J.), indorsed on the indictment, denying a motion by defendant to set aside the verdict and for a new trial, and (3) from an order of said court (CAPOZZOLI, J.), entered May 8, 1953, denying a motion by defendant for an inspection of the Grand Jury minutes or in the alternative for a dismissal of the indictment.
James F. Ryan of counsel (Harold Shapero with him on the brief), for appellant.
Richard G. Denzer of counsel (Charles W. Manning with him on the brief; Frank S. Hogan, District Attorney), for respondent.
Defendant John E. Gleason was convicted, after trial in the Court of General Sessions, on each of the four counts in an indictment charging him with the crime of perjury in the first degree. He was accused of giving false testimony before a Grand Jury that was investigating a conspiracy to extort money from contractors in the business of installing oil burner systems in buildings located in the city of New York.
On the trial the District Attorney staked out distinct chronological boundaries in the presentation of his proof. The first part relates to the formation of the illegal scheme in 1947 and its operation until November 10, 1950, all this time under the protection and leadership of First Deputy Fire Commissioner Moran. This period of the racket's operation shall be called the 'Moran conspiracy'. It is conceded that defendant had no part whatsoever in the Moran conspiracy.
In the People's pattern of proof, November 10, 1950, marks the date of defendant's unequivocal entrance into the conspiracy, and the assumption of the role relinquished by Moran by defendant and another more powerful political figure. Defendant had occupied a post of some importance in the campaign of a newly elected Mayor. Moran, who was in a different political camp, withdrew from the conspiracy with the philosophical observation that 'to the victor belongs the spoils'. The second phase of the racket, and its operation under the alleged leadership of a political leader shall be called the 'second' conspiracy. The second conspiracy was aborted in a few months due to the Grand Jury investigation.
The People claim defendant committed perjury when he testified before the Grand Jury investigating the conspiracy; more specifically, when he denied certain conversations and acts in furtherance of the second conspiracy attributed to him by the People's witnesses. The first three counts are based on defendant's denials that he met with two or more of his alleged co-conspirators on three separate occasions and had conversations relating to the continuing operation of the extorsive scheme. The fourth count relates to defendant's denial that one of the conspirators delivered pay-off money to him.
The People introduced a good deal of testimony concerning the original Moran conspiracy. Four employees of the fire department, Smith, Keohane, Power and Crew, testified in some detail about the institution in 1947 of a scheme to 'bury' applications for permits for installation of fuel oil storage tanks unless and until the contractors made specified payments. They testified that Moran provided a schedule for payments, fixed in
accordance with the size of the tank to be installed. There was also testimony about the necessary transfers of firemen in the department so that they would occupy strategic positions in the conspiracy, the broadening of the scope of operations, the provisions for handling complaints, the amounts collected each week, the amounts retained by the firemen and then transmitted to Moran, and the instructions given by Moran for the conduct of the racket. Defendant took no part in the Moran conspiracy, and for aught that appears in the record, until its closing days had no knowledge of its very existence; nor, it follows, of the acts and conversations which took place in his absence.
It may be that this testimony, in and of itself, was not so unnecessarily prejudical to defendant as to warrant reversal. The court received it to establish the background of the extorsive scheme which functioned under Moran until November 10, 1950; and which allegedly continued under the protection of defendant and another person after defendant joined the conspiracy. Some evidence of the nature of the structure and operation of the scheme was necessary to make the subject matter of defendant's alleged perjury intelligible to the jury. Without it, the jury would have to consider defendant's alleged acts and conversations truncated from essential underlying proof. At various times, when objection was made, the Judge was painstaking to instruct the jury that such evidence was not binding on the defendant and was received only to show the background of the crime with which defendant was charged. This instruction was repeated when the case was submitted to the jury.
Without some background evidence the jury could not knowledgeably consider the sharply disputed perjury issues drawn from defendant's alleged participation in the second conspiracy. For that limited purpose minimal evidence could properly be received (People
v. Duffy, 212 N.Y. 57, 65-66; Heike v. United States,227 U.S. 131,
145; Terry v. United States, 51 F.2d 49, 52; Egan v. United States,
137 F.2d 369, 381-382).It goes without saying that the introduction of such evidence must be carefully monitored by the trial judge, as it is an accommodation that the general rules of evidence must at times make to the exigencies of the particular instance. It is difficult to enunciate rules in anything but the most general of terms. Too much depends on the cast of the particular case and the techniques employed by the ...