The People of the State of New York, Respondent, v. Alexander Tassell, Appellant

The People of the State of New York, Respondent, v. Alexander Tassell, Appellant. First Department, November 14, 1947. Aaron Frank of counsel (Daniel Eberstein with him on the brief, attorney), for appellant. Edward T. Perry, Deputy Assistant District Attorney of counsel (Whitman Knapp, Assistant District Attorney, with him on the brief; Frank 8. Hogan, District Attorney), for respondent. [MAJORITY — Callahan, J.] Callahan, J. The defendant, who has been employed as a barber in the same shop for twenty-three years and never previously convicted of crime, has been found guilty of book-making (Penal Law, § 986). No written memorandum of any wager was found and there is no claim that any was made. On the trial the arresting officer testified to seeing the defendant over a period of one-half hour converse with six unknown men in front of the shop where he was employed. The officer stated that he observed the defendant hand “scratch sheets” to each of these men and that the latter handed money in bill form to the defendant after consulting the “scratch sheets”. He further related that after each transaction the defendant made a telephone call. According to the officer’s testimony he followed the defendant to the telephone booth after the sixth transaction and heard him say over the telephone: “ Give me a statement at the end of every day”, and “I promised my players twelve to one”. The police officer, who was conceded to be an expert in matters pertaining to book-making, was then asked and permitted to give “ expert testimony ” despite the defendant’s objection, as follows: “Q. Officer, in your opinion, what does the statement, ‘Give me my statement at the end of each day; I promised my players twelve to one,’refer? A. ‘Give me my statement at the end of each day,’ is a statement given by this defendant to the bookmaker whom he is calling. On that statement there would be the names of horses, the amounts wagered, and as a rule, on the top, would be his name. “ Q. Now, in your opinion, would a player ask for such a statement? A. No, he would not. “ Q. What does the rest of the statement mean? A. ‘ Twelve to one ’ in my opinion is ‘ twelve to one, place.’ Some bookmakers will pay ‘ eight to one ’ for place. Some will pay ten and some will pay twelve. * * * “ Q. What does the whole statement mean ‘ I promised my players twelve-to-one.’ A. Apparently his players found out they could get twelve-to-one from some other bookmakers.” Later the trial court put this question to the officer and received the following answer: “ The Court: I just would like to ask one question (to the witness). Can you, in view of your knowledge of bookmaking activities, give this Court a simple explanation which links up,— speaking in terms of this specific defendant,— which links up the twelve-to-one limitations with the fact that he asked for a statement? “ Witness: The fact that he asked for a statement, in my opinion, makes him a bookmaker’s runner. The twelve-to-one — “ Mr. Mogel: I object to that. “ The Court: Objection overruled. “ Mr. Mogel: Exception. Your Honor, you are giving the officer the power to determine the guilt or innocence of this defendant.” We deem that the receipt of the foregoing testimony, other than so much as relates to the meaning of the expressions used by the defendant, constitutes reversible error. The use of opinion evidence as to an accepted secondary meaning of words having a particular significance in any trade or calling is permissible. But such was not the nature of the testimony given by the police officer in this instance. This witness was permitted to state his own conclusion concerning the occupation of some undisclosed person presumably at the other end of the telephone. Even as an expert the arresting officer should not have been allowed to give speculative hearsay testimony as to what players and book-makers might do or say in their dealings with each other. Nor should he have been permitted to draw his own conclusion that the defendant was a book-maker’s runner based on the meaning he attributed to the defendant’s speech. His testimony in this last regard constituted an opinion by the officer with respect to the main issue on which the ultimate question of the defendant’s guilt or innocence rested in this case. This issue was to be decided by the court on the evidence, and not on the opinion of the witness concerning the defendant’s activities and what they signified to him. The judgment should be reversed, the fine remitted and a new trial ordered. [DISSENT — Peck, P. J.] Peck, P. J. (dissenting). I am unable to agree that prejudicial error was committed in the receipt of the officer’s testimony. There is no question that the defendant had a telephone conversation, which ivas overheard by the officer, and that the party at the other end of the telephone was a bookmaker. Defendant admitted as much. The only question relating to the conversation is whether the defendant asked for a daily statement and stated that he had promised his players twelve to one, as testified to by the officer, or whether, as defendant testified, he asked only for a weekly statement and asked for twelve to one for himself. The issue of credibility as to just what was said was for the trier of the facts, and the magistrate was justified in believing the officer’s version, and in finding the defendant guilty in the light of the overheard conversation against the background of the officer’s other testimony, also apparently believed by the court, that the defendant had during the half hour prior to the telephone conversation taken money from six different individuals, after handing them scratch sheets for consultation, and made a telephone call after each such transaction. It was proper for the officer to explain the meaning of twelve to one ”, and the opinion of the court does not appear to question the propriety of that testimony. While the answer by the officer that “ The fact that he asked for the statement, in my opinion, makes him a bookmaker’s runner ” was objectionable, it was a nonresponsive, volunteered answer to a question as to whether the officer saw any link between the “ twelve to one ” and the fact that the defendant asked for a statement. The responsive answer, when it came, was that the officer saw no connection. It does not appear that the unresponsive answer of the officer was given any weight by the magistrate or could have been taken as a substitute for the court’s opinion on the ultimate question of guilt or innocence. On the contrary, and although the magistrate thought defendant’s counsel had opened the door for the question, when the officer was asked on redirect examination whether in view of the overheard conversation it was probable that defendant was a player, the magistrate sustained the defendant’s objection. Furthermore, the gratuitous bit of testimony which has become the ground for a reversal must be considered in the light of all the testimony in the case, from which it appears that the only issue in regard to defendant’s request for a statement from the book-maker was "whether the request was for a daily statement or a weekly statement. The police officer admitted on cross-examination that if it were a weekly statement it would indicate that defendant was a player rather than a book-maker; and the defense, in its insistence that only a weekly statement was requested, virtually recognized that a daily statement would signify book-making activities. The issue in the case thus resolved itself into one of credibility. On all the testimony taken in context, I find no prejudicial error in the admission of evidence, and, finding the conviction warranted on the evidence, dissent from the opinion of reversal and vote to affirm. Cohn and Van Voorhis, JJ., concur with Callahan, J.; Peck, P. J., dissents in opinion in which Shientag, J., concurs. Judgment reversed, the fine remitted and a new trial ordered.