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PEOPLE STATE NEW YORK v. ERIC EISENBERG (05/16/68)

COURT OF APPEALS OF NEW YORK 1968.NY.41693 <http://www.versuslaw.com>; 238 N.E.2d 719; 22 N.Y.2d 99 decided: May 16, 1968. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.ERIC EISENBERG, APPELLANT Appeal, by permission of an Associate Judge of the Court of Appeals, from a judgment of the Appellate Term of the Supreme Court in the Second Judicial Department, entered June 16, 1967, affirming a judgment of the Criminal Court of the City of New York (John J. Ryan, James Randall Creel and Michael M. Skodnick, JJ., at time of trial; John F. Furey, Pauline J. Malter and Donald L. Jacoby, JJ., at time of sentence), rendered in Kings County, convicting defendant of resisting a police officer in the discharge of his duty (former Penal Law, § 1851). Counsel Paul G. Chevigny for appellant. Aaron E. Koota, District Attorney (Raymond J. Scanlan and Harry Brodbar of counsel), for respondent. Chief Judge Fuld and Judges Scileppi, Bergan and Keating concur with Judge Jasen; Judge Burke dissents and votes to dismiss the information in an opinion in which Judge Breitel concurs. Author: Jasen


Appeal, by permission of an Associate Judge of the Court of Appeals, from a judgment of the Appellate Term of the Supreme Court in the Second Judicial Department, entered June 16, 1967, affirming a judgment of the Criminal Court of the City of New York (John J. Ryan, James Randall Creel and Michael M. Skodnick, JJ., at time of trial; John F. Furey, Pauline J. Malter and Donald L. Jacoby, JJ., at time of sentence), rendered in Kings County, convicting defendant of resisting a police officer in the discharge of his duty (former Penal Law, § 1851).

Chief Judge Fuld and Judges Scileppi, Bergan and Keating concur with Judge Jasen; Judge Burke dissents and votes to dismiss the information in an opinion in which Judge Breitel concurs.

Author: Jasen

 A review of the record discloses there was sufficient evidence to warrant a finding of guilt with respect to the charge of obstructing an officer in the performance of his duty.

On appellate review, where there are conflicting inferences to be drawn from the proof, the choice of inferences is for the trier of the facts. We have limited jurisdiction to pass on the factual determination affirmed by the Appellate Term, unless unsupported, as a matter of law (People v. Leonti, 18 N.Y.2d 384).

Appellant claims, however, that this case "presents an extraordinary state of the evidence, which raises the issue to one of law, rather than fact", since "[all] the events alleged to constitute the crime in this case are recorded from moment to moment in a film shot by the American Broadcasting Company, as a television newsreel." This is not sustained by the record.

At the time of trial, it was stipulated that the films were not "in sequence" and "must have been cut and spliced." Furthermore, there was no testimony elicited upon the trial as to whether the events depicted in this television tape represented a complete pictorial record of the facts and circumstances leading to the appellant's arrest. Hence, it cannot be said, as a matter of law, that such tape establishes that there is a reasonable doubt as to the guilt of the appellant.

Since we cannot hold, as a matter of law, that the spliced and cut television tape constitutes a complete refutation of the testimony of the People's witnesses, the judgment of conviction should be affirmed.

Disposition

Judgment affirmed.

Burke, J. (dissenting). On March 4, 1966, the Attorney General of the United States announced that his office was investigating the DuBois Club to determine whether it was a Communist organization. The following day, a press conference was held at the Brooklyn chapter of the club, located at 621 Vanderbilt Avenue, to reply to the Attorney General's statement. Eric Eisenberg, then 23 and a staff member of the New York City chapter of the club, was present at the conference. By the time it concluded, shortly after three o'clock, a crowd had gathered outside consisting primarily of neighbors wishing to express their dislike for the club. At this time, police drawn from two local precincts ordered the members to leave their club as soon as possible -- well aware that this was the easiest way to disperse the crowd.

One of the first to leave was David Barkin, who, with four friends, walked to his car, which was parked around the corner on St. Mark's Avenue. After these youths were in the car, garbage cans were thrown at them by members of the crowd. The police quickly restored order, and then removed the boys from the car and searched them preparatory to their arrest. This commotion caused many of the people still on Vanderbilt Avenue to run to St. Mark's Avenue. Eisenberg was on the club steps when he first realized a disturbance was going on around the corner. By the time he reached the car on St. Mark's Avenue, the police had complete control of the crowd. Informed that the garbage throwing incident could not have been the fault of these youths since they were in the car when the outburst occurred, he approached Officer Pollino who was handcuffing Barkin, and, according to the officer's own testimony, stated: "I don't know why you are doing this. You can't arrest them. They didn't do anything." The officer further testified that, in the course of this inquiry, Eisenberg grabbed him by the arm and spun him around. In addition, he said that the defendant immediately thereafter laid his hands on him a second time, turning him in a "half spin". No attempt was made by any of the other officers then present to arrest the defendant for his conduct, nor did Officer Pollino request them to make the arrest. At least two of the cameramen covering the press conference, also being attracted by the commotion on St. Mark's Avenue, were able to film this confrontation between Officer Pollino and the defendant.

A short time later, Officer Pollino observed the defendant grappling with three policemen in front of the DuBois Club on Vanderbilt Avenue. At this point, Pollino arrested him, charging him with resisting a public officer in the discharge of his duties (former Penal Law, § 1851), because of his activities on St. Mark's Avenue and with disorderly conduct (former Penal Law, § 722, subd. 2), arising from his struggle with the police on Vanderbilt Avenue. At the trial, at which some of the film referred to above was introduced, the appellant was convicted only under the former charge -- i.e., resisting an officer in the discharge of his duties. No opinion was written. His appeal to the Appellate Term, Second Department, resulted in an order unanimously affirming his conviction, again without opinion. The appeal is here by permission.

In substance, section 1851 makes it a misdemeanor for one to willfully resist, obstruct or delay an officer in discharging or attempting to discharge a duty of his office. Officer Pollino, in the information, stated that the defendant did "wilfully and unlawfully violently push and pull" him while performing a duty of his office. At the trial, Pollino's testimony was verified by two fellow officers and a civilian who, on cross-examination, admitted that he had a dislike for the DuBois Club. While other witnesses were called, their testimony did not relate to the incident on St. Mark's Avenue.

Defendant, in his own behalf, testified that he did in fact approach Officer Pollino twice on St. Mark's Avenue and, while he was not certain, admitted that he might have touched his arm the second time. Regarding the conversations between the officer and himself, he testified that he merely inquired as to the basis for the arrest. After two futile inquiries, he left with the idea of securing counsel for the boys. This part of his testimony was not disputed. Eisenberg then denied that he either spun the officer around or otherwise violently pushed or pulled him. In this regard, his testimony was substantiated both by other witnesses and by the film segments referred to above. In addition, 43 still photographs -- enlargements of the most critical frames in the film -- were submitted to the court, vividly ...


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