People v. Gittelson

25 A.D.2d 265, 268 N.Y.S.2d 779, 1966 N.Y. App. Div. LEXIS 4499

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 14, 1966
• Status: Published

Opinions

Eager, .J.

Tbis is an appeal from a judgment of conviction grounded upon defendant’s plea of guilty to 10 of tbe 27 counts of an indictment charging bim witb perjury in tbe first degree (felonies) in many instances of false .testimony before a Grand Jury. Tbe testimony was given in connection with an investigation of an alleged conspiracy to bribe a high-ranking New York City official tó use bis influence in the matter of awarding, without bidding, a contract for tbe purchase of parking meters by tbe city.

The defendant was sentenced to the Penitentiary of the City of New York for a term of one year and to pay a fine of $5,000 on each of the 10 felony convictions, with a direction that the prison terms of one year on the several counts should run concurrently. An alternate term of six months in the Penitentiary was imposed in lieu of the payment of the $5,000 fine on each of the 10 convictions, the 10 terms of six months to be served consecutively with each other and with the separately imposed one-year Penitentiary term.

This appeal is maintained by the defendant solely for the purpose of attacking the sentences which he alleges are unduly harsh and excessive. The sentences imposed were, however, well within the statutory limits — -a “ temí not exceeding five years, or by a fine of not more than five thousand dollars, or by both” — -applicable to each of the 10 convictions. (See Penal Law, § 1633.) Furthermore, it appears that the one year imprisonment in the Penitentiary on each count, to run concurrently, and the fine of $5,000 on each count, do represent a very carefully considered and well-grounded exercise of the sentencing court’s discretion on the basis of the record and the presentence investigation data.

The defendant was the president, treasurer and part owner of a company engaged in public relations work. He or his company was retained by individuals representing a parking meter company interested in selling parking meters to the City of New York. On his representations that money would be needed for the alleged purpose of bribing city officials to purchase the particular meters, he induced the parking meter company or certain individuals associated therewith to pay over to him $50,000 to use for this purpose. As stated by the court at time of sentencing, “ this was his scheme and he tempted the others into it. He persuaded one person after another to go along, to accept his own version. He slandered a high public official. Pie stole $50,000. He hatched stories and conspiracies to cover his transaction.”

While appearing before a Grand Jury investigating the matter, after having received full immunity, the defendant deliberately chose to commit perjury in an attempt to thwart the investigation. At the time of his plea of guilty, he admitted that he had knowingly and willfully testified falsely in many instances with respect to the sources and purposes of the $50,000 and with respect to his conversations with a certain individual representing the parking meter company. Then, as stated by the court, ‘ ‘ he collapsed only when he was faced by the inevitable

At the time of his plea, on the admission that he had received the sum of $50,000 from the parking meter company, he was admonished as follows:

“You understand, Mr. Gittelson, that before you are to be sentenced in this case, before I will impose sentence, you will be called back before the Grand Jury before which you committed these various acts of perjury, and you will then again be called upon to testify in connection with these various matters, and you will then be called upon to tell the absolute truth with respect to all of these matters, fully, completely and fairly; do you understand that?

“ The Defendant: Yes, sir.

“ The Court: And do you understand that, in great measure, what happens to you on the sentence will depend upon the degree to which you do precisely that before the Grand Jury?

“ The Defendant: Yes.

“ The Court: You understand that?

“ The Defendant: Yes.”

Pursuant to this understanding, the defendant again appeared before the Grand Jury and testified at length in response to questions intended to elicit from him information concerning his disposal of the $50,000. The court, after reading some 500 pages of the Grand Jury testimony and on consideration of the exhibits, remarked:

‘ ‘ Here was a man who was in the habit of paying by check; who used accountants regularly, but who, all of a sudden spent a lot of cash, he said — cash, he said, which was all gone by May of 1962. And he kept switching from one story to another before the grand jury.

“ One of the things he said is that he had spent this missing money out of pocket in some four-month period of time. This takes a lot of doing over and above one’s regular income, over and above the regular salary that he was receiving and over and above the other cash that he had and he gave another explanation.

“ He said that the reason that a lot of this money was claimed by him to have been spent a long time after his last visit to the box was that he took out ten thousand dollars in cash and had that lying around the house all of this time. Then he said that he used it on a number of trips to Europe, but it developed that he had only made one trip to Europe before May of 1962 from the time he got the second payment from Mr. D-in Chicago.

“ Then he said he bought art in Europe and the reason there was no customs declaration to back him up was that all of this was stuff that didn’t have to be declared and as the district attorney indicated, this came to a maximum of $200 a picture. And how this could have been brought back from Europe without records of some kind, I don’t know.

‘£ Then he said he used it to buy things for the house, but the people who were the suppliers for the house came in and said in certain instances — indicated that they were not paid in cash, they were paid by check and he was given credit for the cash payments that were actually made.

££ The grand jury felt that his story was incredible. I arrive at the same conclusion. This man has failed to account for the money which he got from Mr. D-. He has failed to account for at least one-third of the second twenty-five thousand dollars and probably more. It isn’t necessary to pinpoint this.”

These conclusions of the court were fully justified and, certainly, the court in fixing the sentences, properly took into consideration the defendant’s evasiveness and lack of co-operation in his testimony before the Grand Jury.

On imposing sentences, the court stated specifically that “ there was an automatic, or built in, stay of the fines, or the alternative six months jail sentences, until he [the defendant] has finished with the Penitentiary sentences [one year] ”. The court undoubtedly had in mind the possibility that the defendant might yet fully co-operate with the District Attorney; the court stating that he was ££ quite certain that the District Attorney will be glad to hear him and I will hear anything the District Attorney may have to say to me in the interval ’ ’. It is well to note that, under the Code of Criminal Procedure (§ 484), the power exists in the court to remit a fine or any portion thereof; and insofar as defendant’s lack of co-operation may have been a factor in fixing the fine, the defendant was not left without a remedy in case he demonstrated his willingness to assist the District Attorney or present satisfactory proof of his actual and truthful inability to give further material information in aid of the investigation.

Independent of and without regard, however, to the impression of the court that the defendant may have withheld information from the Grand Jury, the court undertook to and did impose proper and well-grounded sentences. The court was duly attentive to its responsibility to £ £ evaluate the possibilities of the rehabilitation of the defendant as a useful and responsible member of the community.” (See People v. Silver, 10 A D 2d 274, 276 [Valente, J.].) In this connection, the defendant’s present mental and emotional problems were fully considered as well as his alleged need for psychiatric therapy. On eonsideration. of psychiatric reports submitted prior to sentence, the court observed that the defendant‘ ‘ was a neurotic with a strong drive to get things done * * * This type of person is always full of anxieties, but withal, well adjusted because by his very anxiety, by his attention to detail, by his continually working and operating, he has been able to accomplish many things.” The court noted that one of the psychiatrists had given the opinion that incarceration would be destructive of the defendant’s chances for rehabilitation, but he also noted that another psychiatrist had in effect indicated that the psychiatrists’ opinion may not “usurp the judicial prerogative in which many other social factors come into play in arriving at a decision other than psychiatric disability.” Although conceding defendant’s need for therapy, the court further observed that it was also imperative that people know that adequate punishment would be meted out for serious criminal acts, such as those committed by the defendant.

Notwithstanding the importance of the rehabilitative aspect in imposing sentence, a court should give due consideration to the fact that a sentence should “ encompass the community’s condemnation of the defendant’s misconduct ”. (People v. Silver, supra, p. 276.) Accordingly, the court below, in the exercise of its discretionary powers, was entitled to hold the punitive and deterrent factors as most important “ particularly ’ ’, as was said, ‘ ‘ when a crime of this kind has been committed ”. In the course of “ a balancing of considerations ”, the court further said: “I ask myself the question as to whether this man is that sick that there will be complete and irreparable destruction of the man, and what is the impact of such destruction, if it does take place, upon society in general? * * * in any event, his lack of contrition and his sad performance before the grand jury hasn’t earned him the right to probation. What will there be, rehabilitation from conditions which, for him, constitute normalcy? In any event, if he has had the strength to live the way he has lived and to accomplish what he has accomplished, I think he’ll have the strength to bounce back from incarceration, and I am grateful for the fact that his children are not that small so that this will be a fatal blow to them. ’ ’

The court disagreed with the District Attorney’s recommendation of a State prison term, stating that he did not want “to extend this term unduly because if there is a risk of psychiatric injury or damage, I would rather diminish that risk by a definite term ” in the City Penitentiary; “ this has the added advantage of helping his family because if he’s incarcerated in the penitentiary of the city, it will be much easier — that much easier for his wife to visit him there and that I do encourage, for whatever support she can give him during this time.”

It was especially appropriate that, in addition to the comparatively short term of imprisonment of one year, to run concurrently for the 10 felonies, the sentence included a substantial fine. These were crimes resulting from transactions “motivated by nothing but pure greed”, the court said, significantly observing, also, that “ the fifty thousand dollars * * * is money he stole. * * * I said at the time that this plea was taken that I wanted ten counts so that poetic justice or retribution might be done so that he might give up the fifty thousand dollars ”.

It is said that the fine has come to be more widely used in the United States, not only for convictions for minor misdemeanors, but also for many felonies. (Law of Criminal Correction [Rubin], ch. 6, “ Fine ” by Simon Rosenzweig, p. 230.) Where greed is a motivation for a crime, the imposition of a fine is held to be peculiarly appropriate. (Note, Fines and Fining — an Evaluation, 101 U. of Pa. L. Rev. 1018 [1950].) The view has been expressed that fines “ should be the rule in punishment for crimes in which pecuniary profit is a motivating factor, and that the amount of the fine should be geared to the offender’s capacity to pay and to taking the profit out of crime.” (Law of Criminal Correction, supra, p. 238.)

Under the circumstances here, a small fine would serve no purpose. A substantial fine was 'justified to emphasize the gravity of the defendant’s criminal acts, considered cumulatively, and as notice that the courts will take ‘ ‘ the profit out of crime ”. It was proper and fitting that the defendant be stripped of his ‘ ‘ ill-gotten gains. ’ ’

Of course, the sentencing court in the imposition of a substantial fine with an alternate jail sentence on nonpayment thereof, should take into consideration the ability of the defendant to pay. (Law of Criminal Correction, ch. 7, supra, §§ 9, 10, 13, 17. See, also, Model Penal Code, § 7.02 [proposed official draft May 4, 1962].) Where a court imposes a fine which a defendant will not be able to pay and orders his imprisonment on default of payment, the court ‘ ‘ has in effect passed a sentence of imprisonment; the fine is mere window dressing.” (Law of Criminal Correction, ch. 7, supra, § 17.) But, here, the court fixed the fine with the expectation that the defendant could and would pay it. The record indicates that the court had reason to believe that the defendant would meet the fine. The court was informed that the defendant had been the recipient of an income of upwards of $25,000 for many years; that he had engaged in extensive security transactions; that he owned and maintained his family in a $100,000 home; and that he had recently sold his interest in the public relations company, in which he was part owner, for various considerations and $250,000, payable at $25,000 a year for 10 years or until June, 1974.

Further, it appears that, beginning with the time the court took the defendant’s plea of guilty, the court considered the advisability and propriety of imposing a $50,000 fine. As noted aforesaid, the court had made known to defendant that he “ wanted ten counts so that poetic justice or retribution might be done so that he might give up the fifty thousand dollars ”. The court undoubtedly believed that the defendant would pay the contemplated fine. In any event, it is very significant that, notwithstanding the court’s remarks, at time of sentence, concerning the proposed fine, defendant’s counsel at no time protested or placed on the record a statement that the defendant would not be able to pay the fine.

There is no factual support in the record or in presentence investigation data for defendant’s contention made on this appeal that the fine is beyond his ‘ ‘ capacity to pay ’ ’; and, absent such support and under the circumstances here, his alleged financial distress is not available on a review of the sentences.

It is an unavoidable consequence that criminal sentences, whether in the nature of fines or terms of imprisonment, may have a serious impact upon a defendant’s family, his dependents and his friends, as well as upon the victim of the crime. The evil of the crime may touch the lives of many innocent persons. Where the breadwinner of a family is sentenced to serve a term of imprisonment, his wife and children may face immeasurable deprivations in their usual standards of living. Likewise, a family of a defendant who, as here, must pay a substantial fine, may suffer greatly by the serious depletion of his assets or the incurring of substantial indebtedness to pay the fine. A family may never fully recover from such consequences and the disgrace resulting from a defendant’s crime. These results, with their serious social implications, are a matter of consideration for a sentencing court. Where, however, as here, the payment of fines imposed would require the defendant merely to disgorge the equivalent of what was criminally added to his funds and estate, the deprivation and suffering thereby visited upon his family are not adequate grounds for the remission of the fines.

The power conferred on the Appellate Division to reduce a sentence is the power to exercise mercy where the facts warrant it. (See People v. May, 9 A D 2d 508, 514, citing People v. Potskowski, 298 N. Y. 299.) Bnt, in exercising its power, this court must be guided by the facts disclosed in the record or demonstrated by a proper presentence investigation report or data. (See People v. Gerstenfeld, 14 A D 2d 517.) In the final analysis, the question is whether, on basis of such facts, there exists an abuse of the discretion vested in the sentencing court. Where, as here, the sentences were arrived at following a conscientious and thorough investigation and consideration of all relevant factors, this court should be loath to revise the manner and extent of the exercise of the sentencing court’s discretion. (See 24A C. J. S., Criminal Law, § 1878; People v. Caputo, 13 A D 2d 861.) Here, the nature and scope of the defendant’s criminal acts, the pertinent facts and proceedings appearing in the record, and the presentence investigation data furnish a rational and sound basis for the sentences imposed.

The judgment of conviction should in all respects be affirmed.