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People v. Fiore

12 N.Y.2d 188 Court N.Y. Decision date 1962-12-31 English

Delivered by Burke, J.

Contents

Majority

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The People of the State of New York, Respondent, v. Vincent D. Fiore (Also Known as “ Cricky ” Fiore), Dennis P. O’Dowd, Robert Bogan, Frank S. Macner, Leonard Custodero and Pasquale Fragetta, Appellants.
Argued October 30, 1962;
decided December 31, 1962.
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Edward. R. Levine and Vernon G. Rossner for Vincent D. Fiore, appellant.
I. The evidence was insufficient as a matter of law to support appellant’s conviction under the conspiracy count (first count). The use of the conspiracy device and the evidence introduced under it by the prosecution deprived this appellant of a fair trial. (United States v. Falcone, 109 F. 2d 579 , 311 U. S. 205 ; Kotteakos v. United States, 328 U. S. 750 ; Krulewitch v. United States, 336 U. S. 440 ; Grunewald v. United States, 353 U. S. 391 ; People v. Abelson, 309 N. Y. 643 ; United States v. Bufalino, 285 F. 2d 408 ; Delli Paoli v. United States, 352 U. S. 232 ; People v. Winter, 288 N. Y. 418 ; Linde v. United States, 13 F. 2d 59 ; People v. Friedlander, 280 N. Y. 437 ; People v. Corbisiero, 290 N. Y. 191 ; People v. Nitzberg, 289 N. Y. 523 .) II. The evidence was insufficient as a matter of law to support
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appellant’s conviction under the second count of the indictment. The court’s charge on this count was erroneous, confusing and prejudicial. (People v. Ruberto, 10 N Y 2d 428 ; People v. Deitsch, 237 N. Y. 300 ; People v. Croes, 285 N. Y. 279 ; Matter of Case, 214 N. Y. 199 ; People v. Galbo, 218 N. Y. 283 ; People v. Ledwon, 153 N. Y. 10 .) III. The trial court committed reversible error in refusing to turn over to Fiore’s counsel pretrial testimony given by Irene Burke on at least nine occasions, particularly where the decision in People v. Rosario ( 9 N Y 2d 286 ) was known to the court and where the testimony of Irene Burke was the foundation stone of the prosecution. (People v. Rosario, 9 N Y 2d 286 ; People v. Walsh, 262 N. Y. 140 ; Jencks v. United States, 353 U. S. 657 ; People v. Hernandez, 10 N Y 2d 774 ; People v. Fasano, 14 A D 2d 581 ; People v. McCallum, 13 A D 2d 31 ; People v. Hurst, 13 A D 2d 821 .) IV. The evidence is insufficient as a matter of law to sustain appellant’s conviction for perjury in the second degree under the fourth count. (People v. Doody, 172 N. Y. 165 .) V. The evidence was insufficient as a matter of law to support appellant’s conviction for perjury under the fifth count of the indictment. The court committed error in refusing to charge that perjury is not committed by failing to make a statement of fact. (People v. Gleason, 285 App. Div. 278 ; People v. Dodge, 12 A D 2d 353 .) VI. Appellant was denied a fair consideration of the conflicting evidence relative to the sixth count of the indictment. VII. Appellant was further prejudiced and deprived of a fair trial as the result of other unfair tactics of the prosecutor and other errors. (People v. Sorge, 301 N. Y. 198 ; People v. Reger, 13 A D 2d 63 ; Berger v. United States, 295 U. S. 78 ; People v. Levan, 295 N. Y. 26 ; People v. Carborano, 301 N. Y. 39 ; People v. Savvides, 1 N Y 2d 554 ; People v. Robinson, 273 N. Y. 438 .) VTII. The “ switching” of Grand Juries by the prosecutor should be condemned and should require a reversal as a matter of policy. (People ex rel. Flinn v. Barr, 259 N. Y. 104 ; People ex rel. Besser v. Ruthazer, 3 A D 2d 137 ; People v. Pack, 179 Misc. 316 ; People ex rel. Raimondi v. Jackson, 277 App. Div. 924 , 277 App. Div. 954 ; Matter of Osborne, 68 Misc. 597 .)
Paul R. Shanahan for Dennis P. O’Dowd, appellant.
I. The prosecution failed to establish the essential elements of the crime of bribery, a felony, and the trial court committed reversible
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error in charging with reference thereto. Required evidence was lacking to establish the essential element that there was, in fact, an understanding or agreement. (People v. Kathan, 136 App. Div. 303 .) II. Even if the alleged agreement of April, 1958 could be properly considered under the indictment, the proof of such a claimed agreement was insufficient. III. The evidence of the claimed payment of $1,000 by O’Dowd to Irene Burke depends entirely on the uncorroborated testimony of accomplices and was completely insufficient. (People v. Mullens, 292 N. Y. 408 ; People v. Pauley, 281 App. Div. 223 .) IV. At the time of the alleged bribery, Irene Burke was not a witness within the meaning of section 2440 of the Penal Law. (People v. Berkowits, 121 Misc. 40 .) V. There were errors in the court’is charge relating to corroboration with reference to the charge of bribery. (People v. Goldstein, 285 N. Y. 376 ; People v. Kress, 284 N. Y. 452 ; People v. Pauley, 281 App. Div. 223 ; People v. Capuano, 15 A D 2d 400 ; People v. Jackson, 7 N Y 2d 142 .) VI. The seventh count of the indictment was not sustained by the evidence and the court committed error in charging with reference thereto. (People v. Malizia, 4 N Y 2d 22 ; People v. Rossi, 11 N Y 2d 379 ; People v. Batt, 165 Misc. 540 , 253 App. Div. 718 ; People v. Nicosia, 166 Misc. 597 ; People v. Gondelman, 253 App. Div. 924 ; People v. Siegel, 282 App. Div. 747 .) VII. The evidence failed to establish the connection of O’Dowd with the crime of conspiracy (count one), if such a conspiracy, in fact, existed. (People v. Nitzberg, 287 N. Y. 183 .) VIII. The court erred in its charge to the jury and in the refusal of requests to charge and such errors were substantial and require a reversal. (People v. Reddy, 261 N. Y. 479 ; People v. Dixon, 231 N. Y. 111 ; People v. Tunstall, 5 A D 2d 338 ; People v. Kenda, 3 A D 2d 80 ; People v. Birch, 283 App. Div. 844 .) IX. The court committed reversible error in refusing to make available for cross-examination the Grand Jury minutes of Irene Burke and previous testimony given under oath to the Special Prosecutor. (People v. Rosario, 9 N Y 2d 286 ; People v. Loria, 10 N Y 2d 368 ; People v. Yarmosh, 11 N Y 2d 397 ; People v. Nitzberg, 289 N. Y. 523 .) X. The trial court committed error in receiving in evidence against all defendants on all counts the intercepted telephone conversations and other evidence originally received only against defendants Bogan and Macner.
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Henry E. Taylor for appellants.
As to appellants Bogan and Maener:
I. The People’s evidence and proof as to the charges contained in the indictment failed as a matter of law. (People v. Taddio, 292 N. Y. 488 .) II. The court erred in the admission of certain evidence and the submission of that evidence to the jury. (People v. Ryan, 263 N. Y. 298 ; People ex rel. Hockey v. Kearney, 265 App. Div. 861 .) III. The trial court misdirected the jury as to the law and facts. (People v. Nitzberg, 287 N. Y. 183 ; People v. Kress, 284 N. Y. 452 .) IV. The crime of perjury was not established against either defendant as a matter of law. (People v. Dodge, 12 A D 2d 353 .)
As to appellant Custodero:
I. Irene Burke, Lee Clarke and Susan Martin (Geraldine Smith) are accomplices as a matter of law. (People v. Cohen, 223 N. Y. 406 ; People v. Crossman, 241 N. Y. 138 ; People v. Jelke, 1 N Y 2d 321 .) II. Corroboration of the accomplice witnesses Burke, Clarke and Martin failed as a matter of law. (People v. Nitzberg, 287 N. Y. 183 .) III. Perjury was not committed as charged in count 11 of the indictment as a matter of law. IV. Perjury was not committed as charged in count 12 of the indictment as a matter of law. V. Defendant Custodero was deprived of a fair trial by undue restriction of cross-examination. VI. Erroneous and prejudicial rulings of the trial court deprived defendant Custodero of a fair trial. VIL The People’s proof failed to establish a prima facie case of conspiracy or of either count of perjury as a matter of law. VIII. The court erred in its charge to the jury.
As to appellant Fragetta:
I. The People failed to establish a prima facie case of perjury in any degree as a matter of law. II. Defendant Fragetta’s motion for a dismissal of the indictment and for a directed verdict of acquittal should have been granted. (People v. Mullens, 292 N. Y. 408 .) III. The trial court erred in the admission of evidence and the instructions as to the submission of such evidence and further erred in its rulings upon timely motion for severance and mistrial. IV. The Grand Jury testimony of the witness Burke should have been available to defendant Fragetta as a matter of law. (People v. Rosario, 9 N Y 2d 286 .) V. The court erred in its charge to the jury. (People v. Dodge, 12 A D 2d 353 .)
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Louis J. Lefkowits, Attorney-General (Robert E. Fischer and Maxwell B. Spoont of counsel), for respondent.
I. No error was committed in having the Additional Grand Jury consider the matters contained within indictment 13. (People v. Laino, 12 A D 2d 880 , 10 N Y 2d 161 ; People v. Rodriguez, 11 N Y 2d 279 .) II. No error was committed in receipt of evidence. (People v. Nitzberg, 287 N. Y. 183 .) III. The 1957 telephone conversations at 211 Pearl Street were properly qualified and received in evidence. Defense knew the intercepted communications would be offered against all defendants. IV. No error was committed with regard to the testimony of Susan Martin (Geraldine Smith). Susan Martin was not an accomplice as a matter of law as urged by defendant Cus todero. (People v. Rossi, 11 N Y 2d 379 ; People v. Pasquarello, 282 App. Div. 405 , 306 N. Y. 759 ; People v. Cohen, 5 N Y 2d 282 ; People v. Cole, 43 N. Y. 508 ; Matter of Mezger, 154 Misc. 633 ; People v. Malkin, 250 N. Y. 185 ; La Beau v. People, 34 N. Y. 223 .) V. No error was committed with regard to the pretrial testimony of Irene Burke. In substance, the sole request made by defendant Fiore’s counsel was to request that the trial court review the testimony to determine if there was substantial variance or inconsistency with the testimony of the witness on trial, and the trial court responded in kind. No other ruling was requested of the trial court during the People’s case, and no other ruling was made. (People v. Rosario, 9 N Y 2d 286 ; People v. Hughes, 137 N. Y. 29 ; People v. Fasano, 14 A D 2d 581 , 11 N Y 2d 436 ; People v. Sorge, 301 N. Y. 198 .) VI. The charge of the trial court was free from certain error as alleged by defendants. (People v. Radcliffe, 232 N. Y. 249 .) VII. There was no error in the court’s charge regarding the various counts of perjury. (People v. Clemente, 285 App. Div. 258 , 309 N. Y. 890 ; People v. Elliott, 10 A D 2d 735 ; People v. Dodge, 12 A D 2d 353 ; People v. Doody, 172 N. Y. 165 ; People v. Shapiro, 6 A D 2d 271 .) VIII. There was no error in the submission of the conspiracy count to the jury. (People v. Cohen, 5 N Y 2d 282 ; People v. Duffy, 212 N. Y. 57 ; People v. Luciano, 277 N. Y. 348 ; People v. Jack, 10 A D 2d 336 , 8 N Y 2d 857 ; People v. Sweeney, 161 App. Div. 221 , 213 N. Y. 37 ; Grunewald v. United States, 353 U. S. 391 ; Ingram v. United States, 360 U. S. 672 .) IX. There was no error with regard to the court’s instruction on conspiracy. (People v. Miles, 123 App. Div. 862 , 192 N. Y. 541 ; People v. Con
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nolly, 253 N. Y. 330 ; People v. Winter, 288 N. Y. 418 ; Lefco v. United States, 74 F. 2d 66 ; People v. Burke, 9 A D 2d 1020 .) X. Count 2 of the indictment was properly submitted to the jury and the court’s charge is not erroneous. (People v. Ruberto, 10 N Y 2d 428 .) XI. The evidence was sufficient to sustain Fiore’s convictions for perjury and procuring another to commit perjury on the fourth, fifth and sixth counts. XII. No error was committed by the court in its charge as to the seventh count. (People v. Weiss, 252 App. Div. 463 , 276 N. Y. 384 ; People v. Duffy, 212 N. Y. 57 ; People v. Malizia, 4 N Y 2d 22 .) XIII. Essential elements of count 8 (bribing a witness) were proved on trial and no error was committed by the trial court in its charge. (People v. Kathan, 136 App. Div. 303 ; People v. Dixon, 231 N. Y. 111 ; People v. Pauley, 281 App. Div. 223 ; People v. Henderson, 298 N. Y. 462 ; People v. Reddy, 261 N. Y. 479 ; People v. Radcliffe, 232 N. Y. 249 ; People v. Fanning, 131 N. Y. 659 ; People v. Tunstall, 5 A D 2d 338 ; People v. Kenda, 3 A D 2d 80 ; People v. Birch, 283 App. Div. 844 ; People v. Johnson, 185 N. Y. 219 ; People v. Goldstein, 285 N. Y. 376 ; People v. Leyra, 1 N Y 2d 199 ; People v. Deitsch, 237 N. Y. 300 ; People v. Ruberto, 10 N Y 2d 428 ; People v. Futterman, 308 N. Y. 734 .) XIV. Irene Burke was “ a person about to be called as a witness ” within the meaning of section 2440 of the Penal Law and count 8 of the indictment. (People ex rel. Hunt v. Lane, 132 App. Div. 406 , 196 N. Y. 520 ; People v. Fine, 173 Misc. 1010 ; People ex rel. Gross v. Sheriff of City of N. Y., 277 App. Div. 546 , 302 N. Y. 173 ; United States v. Reina, 273 F. 2d 234 , 364 U. S. 507 ; People v. Berkowitz, 121 Misc. 40 ; People v. Maynard, 151 App. Div. 790 .) XV. The evidence to sustain counts 7 and 8 was sufficient. (People v. Mullens, 292 N. Y. 408 ; People v. Duffy, 212 N. Y. 57 ; People v. Rutman, 260 App. Div. 784 .) XVI. The evidence was sufficient to support the perjury convictions of Bogan (count 9) and Macner (count 10). XVII. The evidence was sufficient to support the perjury convictions of Custodero (counts 11 and 12). XVIII. The evidence was sufficient to support the perjury conviction of Fragetta (count 13). XIX. Defendants had a fair trial.

In January, 1958 the Joint Legislative Committee on Government Operations of the New York State Legislature and the Commissioner of Investigations of the State of New York commenced inquiries into law-enforcement practices of

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the City of Utica. In June the Attorney-General superseded the District Attorney of Oneida County in certain areas of investigation and prosecution, including public offices, prostitution, bribery and official corruption. Thereafter, an Original Grand Jury was impaneled in November in connection with the Extraordinary Special and Trial Term of Supreme Court, Oneida County. In January and February of 1959 this Grand Jury returned felony indictments charging Irene Burke and Lee Clarke with operating houses of prostitution. They were convicted of the crimes charged in May, and, after exhausting appellate review, they testified before the Original and the Additional Grand Jury concerning official protection of their operations in Utica. As a result of this testimony and certain wire intercepts of telephone conversations, introduced at their trial, the Additional Grand Jury indicted appellants in July, 1960.

The indictment charged Fiore, former Senior Deputy Chief of Police of the City of Utica, with aiding and abetting Irene Burke in receiving the proceeds of prostitution by protecting her from danger of arrest from August, 1954 through December, 1956, and during November, 1957. Fiore and the appellant police officers under his command, Bogan, Macner, Custodero and Fragetta, were charged with falsely testifying under oath before Oneida County Grand Juries and the Office of the Attorney-General that they had no knowledge that houses of prostitution were operating in Utica. Fiore, and O’Dowd, a political figure and city official in Utica, were charged in separate counts with attempting to procure Irene Burke to withhold testimony from investigating bodies; and O’Dowd was also charged with bribing Irene Burke during the period from October to December, 1959 to withhold testimony from the Original Grand Jury. Finally, all of the appellants were charged with conspiring to obstruct justice from December, 1957 to July, 1960, in that they attempted to conceal from the investigating bodies inquiring into vice and official corruption in Utica the existence of a prior conspiracy, between the appellants and Irene Burke, to protect Burke’s prostitution operations.

The People contend that the appellants were parties to a conspiracy which, existed from August, 1954 to November, 1957 for the purpose of permitting Irene Burke to operate houses of prostitution in Utica without danger of- arrest. Allegedly,

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O’Dowd gave her permission to operate with the consent of Fiore. Bogan, Macner, Custodero and Fragetta aided in the conspiracy through affirmative acts in furtherance of Burke’s criminal activities and through their failure to enforce the prostitution laws or disclose knowledge of her prostitution operations. Thereafter, appellants, in order to conceal their relationships with Irene Burke from the afore-mentioned Commissioner of Investigations, the Joint Legislative Committee, and the Oneida County Grand Juries, agreed to deny knowledge of the existence and operation of houses of prostitution in Utica, to give false and evasive testimony in relation thereto and to attempt to prevent Irene Burke from disclosing to these investigating bodies her arrangement with appellants.

The proof of the crimes charged consisted of the testimony of Irene Burke and Lee Clarke, denominated as co-conspirators and accomplices, the testimony of prostitutes and other non-accomplice witnesses, the contents of certain telephone conversations intercepted and recorded by Bogan and Macner, and the sworn testimony of Fiore,. Bogan, Macner, Custodero and Fragetta before the Commissioner of Investigations, the Joint Legislative Committee and the Oneida County Grand Juries.

Aware of the importance of determining the sufficiency of the evidence as to each defendant in mass conspiracy trials, we find that there is more than enough legal evidence to support the convictions of (a) Fiore, Bogan, Macner, Custodero and Fragetta for committing perjury, (b) Fiore and 0 ’Dowd for attempting to procure Burke to commit perjury, (c) O’Dowd for bribing Burke to influence her testimony before the Grand Jury, and (d) all of the appellants, except O’Dowd, for conspiring to obstruct justice.

The evidence supports the determination that the police officers agreed to lie about their knowledge of prostitution operations in Utica, and negates the likelihood ‘ ‘ that each [officer] decided for himself that it would be wiser not to discuss all that he knew” (United States v. Bufalino, 285 F. 2d 408 , 411 415). The chain of command connecting the police officers, exhibited by Fiore’s control over the Confidential Squad (Bogan and Macner) and the Pawnshop Detail (Custodero and Fragetta), becomes forged into a conspiratorial bond through evidence of the arrangements made by the police to hospitalize a

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witness subpoenaed by the Grand Jury investigating vice in Utica, their efforts to compel the prostitutes to leave Utica, their concerted perjuries and the police officers’ admissions that they discussed and co-ordinated their testimony before the Grand Jury. However, the necessary link connecting the criminal activities of O’Dowd with the conspiratorial scheme of the police officers is missing. The testimony of Burke and the other witnesses reveals that 0’Dowd’s sole concern and efforts were in his own behalf and not that of his alleged co-conspirators. There is no testimony implicating O’Dowd with any of the other appellants or with their testimony before any investigative body or agency. The People have not adequately established his guilt of this charge independent of his participation in the antecedent conspiracy.

Fiore’s motion to dismiss the count charging him with violating the Penal Law (§§ 2, 2460, subd. 8) —aiding and abetting Irene Burke in the crime of knowingly receiving money from proceeds earned by women engaged in prostitution — should .have been granted.

The testimony of Irene Burke, an accomplice, showed quite clearly that Fiore was a puppet in the conspiracy protecting Burke’s operations, and not the puppeteer as were the defendants in People v. McKane ( 143 N. Y. 455 ); People v. Becker ( 215 N. Y. 126 ); People v. Luciano ( 277 N. Y. 348 ), and People v. Hines ( 284 N. Y. 93 ). At the outset he informed her that he did not have the power to grant her permission to operate a house of prostitution, since he was “ only a police officer ” — a clear indication that he was subject to the orders and directions of another. At later stages of the operation her activities were suspended without his knowledge and in spite of his wishes. He was, according to Burke, unable to make commitments until he had consulted with an unidentified person or persons. Although Fiore was derelict in his duty by doing nothing to interrupt or prevent Burke’s unlawful business, such dereliction does not constitute a violation of section 2 of the Penal Law with regard to subdivision 8 of section 2460 of the Penal Laav. The principal object of section 2460 is “ to get the tycoons of organized vice * * * men such as the defendant in People v. Luciano ( 277 N. Y. 348 ) * * * to punish those ‘ conscience-less vampires who make merchandise of the passions of

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men ’ (People v. Draper, 169 App. Div. 479 , 484, per Woodward, J.) ” (People v. Jelke, 1 N Y 2d 321 , 326).

The corroborating evidence relied upon by the prosecution does not satisfy the requirements demanded by section 399 of the Code of Criminal Procedure. The testimony of the prostitutes did not tend to indicate that it was Fiore who aided and abetted Burke. Proof of perjurious statements and his efforts to induce Burke to commit perjury merely established the fact of an acquaintanceship with Burke; it did not indicate the nature of their relationship. Hence, there is no competent evidence in the record which supports a conviction for the commission of the crime defined in section 2 of the Penal Law as applied to subdivision 8 of section 2460 of the Penal Law.

Appellants argue that, even if the evidence is sufficient, reversible error was committed when the trial court permitted the People to utilize a “ conspiracy device ” for the purpose of introducing into evidence transactions and conversations otherwise inadmissible. This “ conspiracy device ” consisted of charging the appellants with conspiring to conceal from various investigating bodies the existence of a prior conspiracy, not charged in the indictment and prosecution for which was barred by the Statute of Limitations. It is urged that, if appellants cannot be prosecuted for committing a particular crime, the evidence proving the commission of the crime is inadmissible, and the admission of such evidence, regardless of the scheme used, is prejudicial and constitutes error.

It is, of course, axiomatic that evidence improperly admitted cannot be used to sustain a conviction. But proof of the conspiracy charged in the indictment is not designed to convict appellants for their participation in the prior conspiracy to protect the operations of the houses of prostitution. Therefore, the reasoning in Krulewitch v. United States ( 336 U. S. 440 ) and Grunewald v. United States ( 353 U. S. 391 ) is not applicable. In those cases the Q-overnment sought to avoid the bar of the Statute of Limitations on the theory that the original conspiracy continued; here the People allege a new conspiracy, not a continuation of the old one. Nor is the present case governed by the principles laid down in Kotteakos v. United States ( 328 U. S. 750 ) and People v. Abelson ( 309 N. Y. 643 ). The conspiracies here are not interdependent as in those cases, but are separate

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and distinct. The conspiracy charged was entered into in order to cope with the threat presented by the new investigative bodies. That this conspiracy had as its purpose concealment of the prior conspiracy does not lessen the determinative importance of the fact that there was an independent conspiracy to obstruct and pervert justice and that overt acts were committed in furtherance thereof. That appellants could not be prosecuted for conspiring to protect Irene Burke’s prostitution operations does not bar, in this prosecution, the use of otherwise admissible evidence proving the existence of that conspiracy or the com- , mission of an act in furtherance of that conspiracy. Proof of the existence of this prior conspiracy and the appellants’ parjticipation therein establishes the necessary elements of intent and ‘knowledge in, and the underlying motive for, all of the crimes charged in the indictment, and was, therefore, admissible even ; though it proved another crime. (People v. Cohen, 5 N Y 2d 282 ; People v. Buchalter, 289 N. Y. 181 ; People v. Peckens, 153 N. Y. 576 ; People v. McLaughlin, 150 N. Y. 365 .) Furthermore, ‘1 ‘ When a conspiracy is shown, or evidence on the subject given sufficient for the jury, then the acts and declarations of the conspirators, in furtherance of its purpose and object, are competent, and in a case like this it is not necessary, in order to make such proof competent, that the conspiracy should be charged in the indictment. ’ ” (People v. Luciano, 277 N. Y. 348 , 358, supra; People v. McKane, 143 N. Y. 455 , 470, supra.)

According to the appellants the trial court’s refusal to allow their counsel to inspect the minutes of the pretrial testimony of Irene Burke, and omissions in the charge to the jury with respect to the corroboration of accomplice testimony, justify a reversal. During the cross-examination of Irene Burke, defense counsel requested that the court examine the Grand Jury testimony of Burke, and, if material variances or inconsistencies be therein found, direct that the People make this testimony available to the defense. (People v. Walsh, 262 N. Y. 140 .) The court, upon finding no material variance in her testimony given before the Grand Jury and at the trial, denied this request. Three weeks after the termination of the cross-examination of Burke and after our decision in People v. Rosario ( 9 N Y 2d 286 ), a request was made for the pretrial testimony of Irene Burke and for the resumption of her cross-examination. This request was denied.

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Upon the record before us it cannot be said that the Trial Judge abused the discretion vested in him by refusing to allow further cross-examination of Burke. Without such an opportunity to cross-examine, the defense counsel lacked the condition precedent to obtain the pretrial testimony, and thus their request was properly denied. Our decision in People v. Rosario (supra), which gives defense counsel the right to utilize the pretrial statements of a witness upon cross-examination of that witness, does not curtail the right of the trial court to determine the scope and extent of cross-examination (People v. Rosario, 9 N Y 2d 286 , 290). Unless abused, the exercise of that discretion is final {People v. Gorge, 301 K Y. 198). Where, as here, the court examined the pretrial testimony, the People’s case has been closed and the cross-examination of its witness concluded, the application for Burke’s pretrial testimony was not timely.

Appellants’ criticisms of the court’s charge are groundless. The instructions given the jury in the exact language of People v. Dixon ( 231 N. Y. 111 , 116) were in all respects proper and followed the standards prescribed by this court. (See People v. Goldstein, 285 N. Y. 376 , 382-383.) The requests to charge which were refused were either not germane or, if pertinent, had been adequately covered in the main charge. The appellants fail to recognize the difference in the roles of the court and the jury where the corroboration of accomplice testimony is the issue.

To determine whether the evidence corroborating the testimony of an accomplice is sufficient to submit the question of the defendant’s guilt to the jury, “ The court * * * should be satisfied that there is some corroborative evidence fairly tending to connect the defendant with the commission of the crime ” (People v. Elliott, 106 N. Y. 288 , 292, citing the rule of People v. Hooghkerk, 96 N. Y. 149 ). If the testimony tends only to establish the credibility of the accomplice, it is insufficient as a matter of law, and should not be submitted to the jury (People v. Kress, 284 N. Y. 452 ; People v. Nitzberg, 287 N. Y. 183 ). If the crime charged is of such a nature, such as bribery, that the corroborating evidence must tend to show that defendant committed the crime, the existence of such evidence is a question of law for the trial court to determine before submitting the question of guilt to the jury. (People v. Mullens, 292 N. Y. 408 .) Once the trial court has determined that the evidence, if believed by the

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jury, does not tend solely to establish the credibility of the accomplice, but does tend to connect the defendant with the commission of the crime, or, where necessary, tends to show that defendant committed the crime, it is for the jury to believe or disbelieve the corroborating evidence and whether it is sufficient to satisfy them of defendant’s guilt (People v. Elliott, 106 N. Y. 288 , supra; People v. Dixon, 231 N. Y. 111 , supra; People v. Goldstein, 285 N. Y. 376 , supra; People v. Weiss, 7 N Y 2d 139 ). The jury may consider evidence to be sufficiently corroborative within the meaning of section 399 “if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth ” (People v. Dixon, 231 N. Y. 111 , 116).

The remaining assignments of error have been considered and found to be wholly without merit.

The conviction of O’Dowd on the conspiracy count and the conviction of Fiore on count 2 should be reversed, these counts as to O’Dowd and Fiore should be dismissed, and the judgments of conviction should be in all other respects affirmed.

On the appeals of defendants Bogan, Macner, Custodero and Fragetta: Judgments affirmed. Chief Judge Desmond and Judges Dye, Fuld, Froessbl, Van Voorhis and Foster concur.

On the appeal of defendant Fiore: Judgment modified by reversing so much thereof as convicts him under count 2 of the indictment, that count dismissed as to him and the judgment otherwise affirmed. Chief Judge Desmond and Judges Dye and Van Voorhis concur with Judge Burke; Judges Fuld, Froessbl and Foster dissent and vote to affirm the judgment as to defendant Fiore.

On the appeal of the defendant O’Dowd: Judgment modified by reversing so much thereof as convicts him of conspiracy, that count dismissed as to him and the judgment otherwise affirmed. Chief Judge Desmond and Judges Dye, Fuld and Van Voorhis concur with Judge Burke; Judges Froessbl and Foster dissent and vote to affirm the judgment as to defendant O’Dowd.

On the appeals of defendants Bogan, Macner, Custodero and Fragetta: Judgments affirmed.

On the appeals of defendants Fiore and O’Dowd: Judgments modified, etc.

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