People v. Burke

243 A.D. 83, 276 N.Y.S. 402, 1934 N.Y. App. Div. LEXIS 5492

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 24, 1934
• Status: Published

Opinions

Per Curiam.

An information was filed in New York county accusing the defendants, in four counts, of the violation of section 1140 of the Penal Law (indecent exposure), section 43 (openly outraging public decency), section 1530, subdivision 2 (maintaining public nuisance), and section 1533 (permitting building to be used for public nuisance).

Defendants Burke and Topel, on June 11, 1934, were found guilty by a Court of Special Sessions, one judge dissenting. Defendant Manisealco, on June 18, 1934, stipulated with the district attorney that the record of the previous trial should be used as an agreed statement of facts, and would be deemed the entire testimony in his case. He also was found guilty on the record, one judge dissenting. Manisealco and Topel received suspended sentences. Burke was fined the sum of fifty dollars with the alternative of spending ten days in prison. The three defendants have joined in this appeal. In dissenting, Mr. Justice Kernochan said: “ I don’t feel that the law at present, enacted a number of years ago, is sufficiently broad enough to render a conviction on this evidence. It is possible, should the Legislature see fit to stop this practice,— I think it should be dealt with at the next opportunity to pass laws in that regard.”

On the final analysis, the crimes charged in the different counts are based primarily on an alleged violation of section 1140 of the Penal Law. In the light of the testimony adduced in this particular case, we believe that the conclusion reached by the dissenting justice of the Court of Special Sessions was based upon a solid foundation and the judgment entered should be reversed, the information dismissed, and the fine remitted.

Present — Finch, P. J., Merrell, Townley, Glennon and Untermyer, JJ.; Merrell, J., dissents and votes for affirmance.