SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
January 28, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JAMES R. BOLLINO, APPELLANT
Concur -- Stevens, P. J., Eager, Tilzer and McNally, JJ.
The defendant, a manager of a restaurant, including a bar, testified that he gave the money to the police officer, who had inspected the premises and records, in the belief that he was being "shaken down". The District Attorney properly concedes that the issue of defendant's intent was in the case and that, if the jury believed that defendant was only trying to buy off unlawful harassment by giving money to the officer and was not attempting to influence the officer in performance of his official duties, then defendant would not have the mens rea required for conviction under former section 378 of the Penal Law. (See People v. Dioguardi, 8 N.Y.2d 260, 276; Hornstein v. Paramount Pictures, 292 N. Y. 468.) Therefore, it was error for the trial court to charge the jury "as a matter of law, that if you find that the defendant thought or had the feeling that he was being shaken down; that is, that he was the victim of extortion, such thought or feeling on a defendant's part is no defense to the charge of bribery." Viewing the charge as a whole, we conclude that the jury may have been misled by this statement of the court and that, under the circumstances, section 542 of the Code of Criminal Procedure may not be applied on the theory that the defendant was not prejudiced. Accordingly, a new trial is required.
Judgment convicting defendant of bribery unanimously reversed, on the law, and a new trial ordered.
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