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PEOPLE STATE NEW YORK v. GEORGE HARRIS AND THEODORE HACKNEY (01/15/69)

NEW YORK SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT 1969.NY.40144 <http://www.versuslaw.com>; 315 N.Y.S.2d 66; 64 Misc. 2d 510 January 15, 1969 THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.GEORGE HARRIS AND THEODORE HACKNEY, APPELLANTS Appeal from judgments of the Criminal Court of the City of New York, County of New York (James M. Yeargin, J.), convicting defendants of the crime of fraudulent accosting. Philip Middler for appellants. Frank S. Hogan, District Attorney (Lawrence Dubin of counsel), for respondent. Samuel H. Hofstadter, J. Markowitz and Streit, JJ., concur. Author: Hofstadter


Appeal from judgments of the Criminal Court of the City of New York, County of New York (James M. Yeargin, J.), convicting defendants of the crime of fraudulent accosting.

Samuel H. Hofstadter, J. Markowitz and Streit, JJ., concur.

Author: Hofstadter

 In these two appeals, consolidated for the purpose of disposition, defendants attack their convictions of fraudulently accosting (Revised Penal Law, § 165.30), rendered after trial. Section 165.30 provides that: "A person is guilty of fraudulent accosting when he accosts a person in a public place and, either at that time and place or subsequently in any place, he makes statements to such person of a sort commonly made or used in the perpetration of a known type of confidence game."

The crime is alleged to have occurred on March 29, 1968, at 11:45 a.m. at West 138th Street and 7th Avenue, New York. The information charged that the arresting officer was informed by Robert Moore, the person accosted, "that the defendants did attempt to take, obtain and withhold from the informant's possession a sum of money U. S. currency without authority."

Defendants were first observed by members of the police pick-pocket and confidence squad at 11 a.m. that morning at Lenox Avenue and 128th Street. Defendants were walking together until they reached 138th Street and 7th Avenue, where they separated.

Defendant Harris thereupon walked up to Mr. Moore, showed him a piece of paper and asked for directions to a hotel, where, Harris stated, a woman had promised to "set him up". Harris flashed a roll of money and told Mr. Moore that if he would show Harris where the hotel was located and accompany him there, Harris would make it "worth his while".

After Mr. Moore replied that he did not know the hotel, co-defendant Hackney approached and was asked the same question by Harris, who again flashed the roll of money. Defendant Hackney stated he knew where the hotel was and Harris and Hackney both walked away, looking back at Moore, who did not follow them.

The arresting officer detained defendants, interviewed Mr. Moore, and, upon learning of the statements made to him and the paper shown him by defendants, arrested appellants.

Search of their persons disclosed two "Michigan rolls" of money (consisting of a roll of imitation money with a genuine dollar bill on the outside), one on Hackney's person and one on Harris' person.

On the trial, the arresting officer, who qualified as an expert, testified that appellants were engaged in the "handkerchief switch" confidence game, which commences in the manner described above and terminates with the placing of the victim's money in a handkerchief, which is then switched with a handerchief in which a "Michigan roll" belonging to one of the perpetrators is placed. The perpetrators then make off with the victim's money.

Defendants argue that the statute is unconstitutionally vague; that it seeks to proscribe the utterance of words not otherwise criminal without requiring any other manifestation of overt or criminal conduct. Respondent argues that the statute should be construed to prohibit the conduct specified only when it is accompanied by an intent to deprive another of his property and that section 155.05 of the Penal Law, which requires such intent generally in the definition of larceny, must be read together with section 165.30.

Section 165.30 is derived in part from subdivision 6 of section 722 of the former Penal Law, which defined, as the crime of disorderly conduct, accosting a person "for the purpose of obtaining money or other property from said person by * * * confidence game" "with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned". According to the commentary on the statute contained in McKinney's Consolidated Laws of New York, Book 39: "The former provision is merely in terms of following or accosting a person for swindling purposes (§ 722[6]), thus leaving a large question mark concerning the kind of conduct and proof required to establish the offense. The revised section, requiring statements 'of a sort commonly made or used in the perpetration of a known type of confidence game,' is obviously more specific and, in effect, calls for expert police testimony concerning confidence game techniques. A noteworthy feature of this statute is that which renders proof of such a statement sufficient regardless of whether it was made at the time and place of the original 'accosting' 'or subsequently in any place.' The latter language recognizes and embraces numerous swindles in which the initial approach, ostensibly innocent from a conversational standpoint, lays the groundwork for execution and consummation of a confidence game at another time and place." (Emphasis added.) Nonetheless, a reading of section 165.30 discloses an absence on its face of any requirement that the action proscribed be committed with a fraudulent purpose or fraudulent intent. Moreover, as it is not contained in the larceny article, but rather in the article defining miscellaneous other offenses relating to theft, no basis for reading the requirements of section 155.05 into it is apparent. As recognized in the commentary above quoted, and in view of the prior judicial recognition that the forms of swindles and confidence games are "as various as the mind of man is suggestive," (People v. Yonko, 115 N. Y. S. 2d 560), it would seem that the breadth of the new statute is as wide as the experience of the arresting officer.

Simply asking one where a certain hotel is located is clearly not criminal or antisocial in any manner. Possessing a "Michigan roll" of money is also non-criminal per se. Putting the two acts together does not make either one criminal under section 165.30, but, under that section, if an arresting officer with experience in the field happens to discover that these two acts were performed by the same person, conviction under the section can follow.

It would seem under these circumstances that the language of the Supreme Court in United States v. Cohen Grocery Co. (255 U.S. 81, 89) is appropriate. There while holding a statute unconstitutional the court stated, "that the section forbids no specific or definite act. It confines the subject-matter of the investigation which it authorizes to no element essentially inhering in the transaction as to which it provides. It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against." The language of the court in Connally v. General Constr. Co. (269 U.S. 385, 391) is also appropriate, for the Supreme Court there held a statute unconstitutionally vague because it lacked definite standards and prohibited "the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application". Applying section 165.30 to the general public would seem almost impossible in view of the lack of knowledge, on the part of the general public, of the definition of confidence games. To allow the statute to stand would leave the imposition of the standards to be applied to the police officer and, indeed, would appear ...


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