
    The People of the State of New York, Plaintiff, v. Walter Salomon, Defendant.
    Supreme Court, Special Term, Nassau County,
    July 8, 1959.
    
      Edward Lafreniere for defendant.
    
      Louis J. Lefkowitz, Attorney-General (Edwyn Silberling of counsel), for plaintiff.
   Frank A. Gulotta, J.

This is an application by the defendant, Walter Salomon, for a certificate of reasonable doubt and for an order releasing him in bail pending the determination of his appeal by the Appellate Division. Together with a codefendant he was, on May 27, 1959, by the verdict of a jury, found guilty of a violation of section 580 of the Penal Law of the State of New York, a misdemeanor. On the same day, after waiving the provisions of section 472 of the Code of Criminal Procedure, he was sentenced to pay a fine of $500 and, in addition thereto, to serve a jail term of six months in the Suffolk County jail where the defendant is presently incarcerated.

A notice of appeal has been duly served and filed, and the appeal is being diligently prosecuted. However, because of the intervening summer recess, this defendant may well serve his entire sentence before his appeal can be heard and determined should this certificate be denied. He is a man 73 years of age with no prior record, strong in the belief that he has done nothing wrong. If his conviction should be reversed, at his stage in life, there can be no recompense for each precious day he was required to spend in a cell. He has already served almost one and one-half months of the six-month sentence. Should his conviction be affirmed he can always be recalled to serve out the balance of his term but he will, at least, have had the opportunity to have had an appellate court pass upon the facts of his case.

A conspiracy by two or more persons to do an act which may be unlawful, followed by the doing of such act, does not constitute the crime of conspiracy unless the parties were actuated by a criminal intent. The evidence in this ease presents an arguable question as to such criminal intent which should be reviewed by an appellate court.

Certificate of reasonable doubt granted. Bail is fixed in the sum of $1,000 surety company bond.  