A Queens Grand Larceny Lawyer said that, after a jury trial, appellants were convicted of grand larceny in the first degree (two counts), conspiracy to commit grand larceny, forgery in the third degree, and conspiracy to commit forgery; and appellant was convicted of conspiracy to commit grand larceny, forgery in the third degree, and conspiracy to commit forgery. In addition, the jury also found the Forest Hills General Hospital guilty, but acquitted three other codefendants.
A Queens Criminal Lawyer said that, the theory of the prosecutor’s case was that appellants, three of whom were officers and stockholders of the Forest Hills General Hospital and one of whom was its accountant, conspired to defraud and did defraud the Associated Hospital Service of New York (hereinafter referred to as ‘Blue Cross’) by misrepresenting the actual operating costs of the hospital. This scheme was accomplished by disguising dividend payments to the hospital’s stockholders as salaries for services performed, through false entries in the hospital’s books and records and by means of false financial statements filed with Blue Cross.
The issue in this case is whether appellants’ guilt was proven beyond reasonable doubt.
In the court’s opinion, the evidence of appellants’ guilt was convincingly established beyond a reasonable doubt. There are, however, certain claimed errors presented by appellants which merit discussion.
From the record it appears that three of the People’s witnesses claimed their privilege against self-incrimination. Two of them, upon the prosecutor’s request, were immediately granted immunity pursuant to section 2447 of the former Penal Law and directed to testify, which they did. The third witness was excused after having been asked only two questions. No admonition was given to the jury that no inferences were to be drawn by that witness’s refusal to testify. Thereafter, one week later, the witness was recalled to the stand and, upon being granted immunity, testified against appellants.
While we believe that the jury should have been instructed that no unfavorable inferences were to be drawn from the witness’s refusal to testify, nevertheless, under the circumstances herein, it is our opinion that such failure did not constitute reversible error. Significantly, the prosecutor had only asked the witness two questions which were designed to elicit only background information from him, to wit: whether he was the business manager of the hospital and whether he had attended certain meetings, when the witness was excused. This was, therefore, not a case where the prosecutor intentionally asked numerous questions in an attempt to unduly prejudice appellants in the minds of the jury. Thus, it cannot be said that the “inferences from the witness’ refusal to answer added critical weight to the prosecution’s case and thus unfairly prejudiced the criminal defendant”. Moreover, in one case the court made clear that reversible error is not ‘invariably committed whenever a witness claims his privilege not to answer’. There is absent from this record the type of prosecutorial misconduct was found.
The two questions to which the witness claimed privilege were only incidental and collateral and, clearly, the error was not substantial enough to justify a reversal. Furthermore, any error which may have been committed was obviated by the fact that the witness did testify one week later. His subsequent testimony eliminated any unfavorable inferences which could have been drawn from his prior claim of privilege.
There are two additional claimed errors, among the many raised on this appeal, which require comment. It is contended that the trial court erred in instructing the jury with respect to the burden of proof and the failure of appellants to take the stand. At different times during the charge, the criminal court properly instructed the jury that the refusal or neglect of any defendant to testify does not create any presumption against him; that the burden of proof remains with the People and may never be shifted to a defendant; and that it is a criminal defendant’s privilege and right to stand mute and not take the witness stand. The court further charged the portion thereof quoted in the dissenting memorandum. While we agree that it was not necessary to add anything to the plain language of the statute, we cannot agree with the dissenting members of the court that the additional words used in the charge tended to deprive appellants of the full protection of the statute. When considered in proper context, we are satisfied that no reversible error was thereby committed.
Finally, appellants further urge that the court erred in charging the jury with respect to corroboration of accomplice testimony. The dissenting Justices are of the view that reversible error was committed because of the court’s failure to ‘unequivocally add’, as it had with respect to the defendants found to be accomplices as a matter of law, that the witnesses found to be accomplices as a matter of fact could not corroborate each other and that independent evidence other than the testimony of other accomplices is required for conviction. In view of the fact, however, that it clearly appears from the record that the necessary corroboration is present not only in the testimonial evidence of disinterested witnesses but also in the documentary evidence introduced at the trial, we are of the opinion that the error may be disregarded as one not affecting the substantial rights of appellants.
It is our view, however, that the interests of justice would best be served by reducing the sentences of appellants to an indefinite term in the New York City Penitentiary. Accordingly, the court held that the two judgments of the Supreme Court, Queens County, as to appellants respectively, rendered March 5, 1965, affirmed; and two judgments of said court rendered the same day, as to appellants modified on the facts and in the interests of justice, by reducing their sentences to an indefinite term in the New York City Penitentiary and, as so modified, affirmed.
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