
    The People of the State of New York, Respondent, v. Paul N. Coulcher, Alias P. Coulcher Delton, Aladar Retek, Irving Epstein, Harry A. Vogelstein, Abraham Cohen and Philip Grossel, Appellants, Impleaded with Six Others, Defendants.
   Present — O’Malley, Glennon, Untermyer, Dore and Cohn, JJ.; Untermyer, J., dissents from affirmance of the judgment as to the defendant Harry A. Vogelstein and votes to reverse said judgment and dismiss the indictment against said defendant; dissenting opinion by Untermyer, J.

Untermyer, J.

(dissenting only as to the defendant Vogelstein). Except as to the defendant Harry A. Vogelstein, I concur in affirmance of the judgment as to all the defendants, even though I have substantial doubt of the power of the trial court to direct a verdict for the People on any issue in a criminal proceeding (See 1 Chamberlayne, The Modem Law of Evidence, § 72), as was done in the present case. Although the evidence as to Vogelstein discloses some connection with the organization which was engaged in many criminal activities, it does not establish knowledge on his part of those purposes, nor does it disclose any participation by him in any unlawful act. It is entirely consistent with the evidence that he advised concerning certain of the operations of the organization without knowledge of its illegal character. The incident relating to the Miller Restaurant, referred to in the forty-third count of the indictment, did not, under any circumstances, constitute attempted extortion.

The judgment of conviction and the orders appealed from should be affirmed as to all defendants except the defendant Vogelstein, as to whom the judgment should be reversed and the indictment dismissed.  