People v. Kuss

Per Curiam. The defendants, Kuss and Conlon, have been convicted of taking unlawful fees, in violation of section 1826 of the former Penal Law, which prohibited the taking of fees by a public officer for doing an official act. Kuss was a Councilman of the Town of Islip when he allegedly violated the statute. Conlon, an attorney but not a public officer, allegedly aided and abetted Kuss. The act involved was Kuss’ introduction of and vote for a resolution by the Town Board which removed certain covenants and restrictions on a 3.3 (approximate) acre parcel of realty in Sayville, Town of Islip. And the charge was that Kuss had been promised $10,000 and was actually paid for this official act by him. Briefly the facts are these: In 1957 the subject parcel was in a Residence B zone. It was then owned by a group headed by one Zavatt. 'Wishing to develop a shopping center on the parcel, the Zavatt group obtained from the Town Board a change of zone to Business 1, subject to a number of restrictions, including requirements that the parcel be developed with a shopping center, that the northerly 75 feet remain residential, that a 15-foot strip become a park and that the construction of the shopping center be com [308] pleted within a specified period. The Zavatt group thereafter abandoned its plan and decided to sell the parcel. In February, 1962 one Fallon, a local attorney, became interested in buying the parcel for a client who wanted to build garden apartment houses on it. Such houses ordinarily were permitted in a Business 1 zone, but could not be built on this parcel because of the restrictions imposed on it in 1957 when the change of zone was granted. Fallon spoke to Kuss about the possibility of having the restrictions removed and was told that the Town Board would not agree. Fallon therefore dropped the matter. Kuss then brought this deal to Conlon, who in turn brought it to his law partner Gilbert Roseman and the latter’s brother Howard Roseman. He told Conlon (and Conlon repeated to the Rosemans) that the parcel could be bought for $43,000, plus a $10,000 payment to Kuss; that they would be able to build apartment houses on the parcel; that pending legislation before the Town Board would soon prohibit such houses in a Business 1 zone and would, moreover, substantially reduce the permitted number of apartments per acre where such hquses were authorized ; and that the subject parcel would be unique and therefore more valuable because it would not be subject to the forthcoming restrictions. When the Rosemans questioned the size of the $10,000 payment to Kuss, Conlon replied that Kuss (who was also a real estate broker) was doing more than a broker normally could do, as it was Kuss’ deal and he had worked out excellent terms with the sellers. Shortly thereafter, Howard Roseman learned of the restrictions on the property. When he asked Conlon about them, Conlon told him that they would have to be changed, but that this was a routine matter. By contract dated March 10, 1962 the Rosemans and Conlon contracted to purchase the parcel for $43,000, “as is ”, in the name of D. W. H. Corporation, a corporation owned by the three of them. The purchase contract obligated the sellers to consent to annulment of the restrictions on the property, but it did not condition the purchase on the removal of the restrictions. The contract further stated that no broker had brought about the sale and made no mention of any finder’s fee. The oral agreement between the parties (Kuss, Conlon and the Rose-mans) did not specifically make Kuss’ fee contingent on the removal of the restrictions, but it did provide that the fee was not payable until Conlon and the Rosemans had recouped their investment and that recoupment could not in fact occur until after the restrictions had been removed. [309] At some time between March. 10, 1962 (when the purchase contract was executed) and March 20, 1962 Conlon drafted a proposed Town Board resolution, on application of the Zavatt group, for elimination of the existing restrictions on the parcel. On March 20, 1962 Kuss introduced such resolution before the Town Board; his resolution followed the form and property description of the draft previously prepared by Conlon. This resolution was unanimously adopted and the Town Board thereby annulled the existing restrictions and replaced them with new ones permitting the erection of apartment houses on the parcel. On that same day (March 20,1962) the Town Board adopted another resolution, effective 42 days later, which prohibited apartment houses in the Business 1 zone. In October, 1962 the Town Board adopted a resolution reducing the number of apartments per acre that could be built in an apartment house zone; this resolution did not control the subject parcel, so that 100 apartments were permitted on it (and were later actually built) instead of only the 64 that would have been permitted were the October, 1962 resolution applicable. As a result of these resolutions, the value of the subject parcel was substantially enhanced, since the parcel became the only vacant land in a Business 1 zone that could be developed with garden apartments and it could be developed with many more units per acre than parcels located in apartment house zones. Thereafter, Conlon and the Bosemans decided not to develop the parcel themselves and on July 16, 1962 they sold it to a developer for $107,500—more than twice what it had cost them. They received about $19,000 at the closing and the next day (July 17, 1962) they gave Kuss a check for $2,700, which was about what they had left after Howard Boseman took out $6,000 and Conlon and Gilbert Boseman each took out $5,400. Two years later (May 25, 1964) they gave Kuss another check for $6,500, thus making the total payments to him $9,200. These payments were characterized by the Bosemans as a “finder’s fee ” — a term apparently suggested by their accountant when he was told what Kuss had done to earn this payment. On these facts the jury convicted Kuss and Conlon of the crime of taking an unlawful fee for performing an official act — Kuss as the public officer, Conlon as his aider and abettor. We believe these judgments should be affirmed. The defendants contend that the trial court erred when it submitted to the jury, as a fact issue, the question whether the Bosemans were accomplices. They say that this was error [310] because on this record the Rosemans were in the same position as Conlon; that the three of them (Conlon and the two Rose-mans) were either all innocent or all guilty; that if they were all innocent the question of accomplices should not have been brought into the case; and that if they were all guilty the court should have charged that the Rosemans were accomplices as a matter of law. We find no merit in this contention. It is well settled that where a fact question arises as to whether a witness was an accomplice, and different inferences can be drawn, it is the jury, not the court, that must determine that issue (People v. Clougher, 246 N. Y. 106, 111; People v. Swersky, 216 N. Y. 471, 476-477; People v. Katz, 209 N Y. 311, 332). Here there was such a fact issue, since the Bosemans testified that they had engaged in a lawful business venture, with no knowledge of any illegality; and if that testimony were believed the jury could have found them free of criminal intent and consequently not accomplices of the defendants. In any event, we see no material prejudice to the. defendants even if it were assumed, arguendo, that the trial court should have charged that the Bosemans were accomplices as a matter of law. If they were so considered, corroboration of their testimony would have been required. And in this record there is ample proof to satisfy that requirement. Conlon further contends that the proof did not establish that he was an agent of Kuss and that he consequently could not be held as his aider or abettor. We disagree. One who acts as an agent or intermediary for a public officer in taking an unlawful fee may be convicted, with the public officer, of a violation of section 1826 of former Penal Law (People v. Brody, 298 N. Y. 352, 358). Here, there is adequate proof to support a finding that Conlon, as Kuss’ agent or intermediary, arranged for the Rosemans to join the scheme for purchase of the land, removal of the restrictions, sale of the land at a profit, and ultimate payment of $9,200 to Kuss from the proceeds as his share. And such finding is, in our view, sufficient to support the conviction of Conlon as aider and abettor of Kuss (cf. People v. Morhouse, 21 N Y 2d 66; People v. Renner, 16 N Y 2d 645). In this same connection, Conlon complains about alleged inadequacy of the charge to the jury as to agency. Apart from the fact that we consider the charge adequate in this regard, Conlon did not object to these instructions or request further instructions on this point, so he cannot now complain. [311] Both defendants argue that they were deprived of a fair trial by the prosecutor’s inflammatory summation and his cross-examination of Conlon’s character witnesses as to rumors and reports of Conlon’s involvement in other improper transactions. With respect to the summation, suffice it to say that we do not find it so improper, when read as a whole, as to warrant reversal, even though some isolated, overemotional remarks in it might have been better left unsaid. With respect to the cross-examination of Conlon’s character witnesses, we do not find it outside the permissible bounds delineated by People v. Alamo (23 N Y 2d 630) and Michelson v. United States (335 U. S. 469). And if it were, we nevertheless would not deem it such prejudicial error as to warrant reversal, in light of this long, complicated trial and the strong proof of guilt. We have examined the defendants’ other contentions of error and find no merit in them. The judgments should, therefore, be affirmed.