Opinion
February 5, 1962
(1) Appeal by defendant Floyd Dinan from a judgment of the County Court, Westchester County, rendered June 20, 1960, after a jury trial convicting him of conspiracy to commit the crime of book-making (one count) and of book-making (seven counts), and on each count sentencing him to serve a term of four months in the County Penitentiary (the terms to run concurrently) and to pay a fine of $500 (the fines aggregating $4,000 on the eight counts). Judgment affirmed. The denial of the motion for a new trial based on the posttrial recantation statement of the witness Atamanchuk, was proper; and it was also a proper exercise of discretion to deny such motion without a hearing. There is no question that the identification of the voice of defendant on the tapes was accurate. The identification was corroborated by other evidence. The trial court did not give credence to the posttrial statement. Hence, there was insufficient proof of defendant's claim that the People knowingly permitted Atamanchuk to testify falsely without correcting his testimony. Nor was it error for the trial court to refuse defendant's request to examine (1) Atamanchuk's pretrial statement to the District Attorney, (2) his testimony before the Grand Jury, and (3) the report of handwriting expert Hilton, dated May 17, 1956. Our examination shows that there is nothing in the statement or in the testimony or in the report which is inconsistent with the testimony of the witnesses on the trial, or which could be helpful to the defense in the cross-examination of the witnesses. Furthermore, the necessities of appropriate law enforcement required that the statement and testimony be kept secret and confidential ( People v. Rosario, 9 N.Y.2d 286; People v. Turner, 10 N.Y.2d 839). The denial of the request, on the fifth day of trial, that defendant be represented by counsel other than counsel for defendant Day, was not error. After the commencement of a trial the right to change counsel is not absolute but qualified, and is a matter within the discretion of the trial court ( United States v. Mitchell, 138 F.2d 831, cert. denied 321 U.S. 794; United States v. Paccione, 224 F.2d 801, cert. denied 350 U.S. 896; People v. Hyde, 3 A.D.2d 854; United States ex rel. Hyde v. McMann, 263 F.2d 940, cert. denied 360 U.S. 937). A proper exercise of discretion does not deprive a defendant of his constitutional rights ( People v. Brabson, 308 N.Y. 694). A reversal may be had only upon a showing that defendant was prejudiced by the denial of his request for change of counsel. No such showing of prejudice is made here. There is no claim that defendant's defense was not adequately presented; nor is there any suggestion now made as to any additional line of defense or any other evidence. The wiretapping evidence obtained pursuant to court order under section 813-a of the Code of Criminal Procedure was properly admitted in evidence, even if it be assumed that such evidence was obtained and divulged in violation of section 605 of the Federal Communications Act (U.S. Code, tit. 47, § 605). ( Schwartz v. Texas, 344 U.S. 199; People v. Saperstein, 2 N.Y.2d 210, cert. denied 353 U.S. 946; Pugach v. Dollinger, 365 U.S. 458; People v. Dinan, 7 A.D.2d 119, affd. 6 N.Y.2d 715, cert. denied 361 U.S. 839.) Nothing in Mapp v. Ohio ( 367 U.S. 643) either overrules the authorities cited or makes the evidence inadmissible upon trial in a State court ( Williams v. Ball, 294 F.2d 94). (2) Appeal by defendant Frank Poplees from a judgment of the County Court, Westchester County, rendered June 20, 1960 after a jury trial, convicting him of conspiracy to commit the crime of book-making (one count) and sentencing him to serve a term of six months in the County Penitentiary, and to pay a fine of $500. Judgment affirmed. There was sufficient evidence of identification of the voice of defendant to make the tapes admissible in evidence ( People v. Dunbar Contr. Co., 215 N.Y. 416; People v. McDonald, 177 App. Div. 806). The remoteness of the personal conversations between the identifying witness and defendant from the time of the voice identification affected the weight rather than the competency of the evidence. As the trial progressed, the evidence of the voice identification, taken in connection with the corroborative evidence, justified the jury in finding that such identity was established beyond a reasonable doubt. (3) Appeal by defendant Albert Bricker from a judgment of the County Court, Westchester County, rendered June 20, 1960 after a jury trial, convicting him of conspiracy to commit the crime of book-making (one count) and of book-making (one count), and on each count sentencing him to serve a term of six months in the County Penitentiary (the terms to run concurrently), and to pay a fine of $500. Execution of so much of the sentence as imposed imprisonment was suspended, and defendant was placed on indefinite probation. The total fine of $1,000 was paid. Judgment affirmed. (See People v. Dinan, decided herein, 15 A.D.2d 786. ) Beldock, P.J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.