
    The People of the State of New York, Respondent, v. Dominic Clemente, Appellant. The People of the State of New York, Respondent-Appellant, v. Gerard J. Brinkman, Appellant-Respondent.
    Argued February 25, 1960;
    decided April 28, 1960.
    
      
      Mordecai Konowitz for Gerard J. Brinkman and Michael Ruggiero for Dominic Clemente, appellants.
    I. The evidence is insufficient to establish defendant Brinkman’s guilt beyond a reasonable doubt. (People v. Trimarchi, 231 N. Y. 263; Poole v. People, 80 N. Y. 645; People v. Lewis, 275 N. Y. 33; People v. Razezicz, 206 N. Y. 249; People v. Flack, 125 N. Y. 324; People ex rel. Hegeman v. Corrigan, 195 N. Y. 1; United States v. Shurtleff, 43 F. 2d 944; People v. Watson, 154 Misc. 667, 245 App. Div. 838; People v. Knapp, 206 N. Y. 373.) II. The Trial Judge erred in permitting evidence of a change in the system of reporting the work and preparing the payment vouchers a year before the alleged conspiracy, as proof from which criminal intent may be inferred. III. The prolixity of the charge and the rapidity with which it was read rendered it improbable or impossible that the jury could comprehend, absorb and retain the instructions, and constituted a denial of the constitutional and statutory rights of defendants. The error was aggravated by the giving of erroneous instructions. (People v. Wallens, 297 N. Y. 57; People v. Murch, 263 N. Y. 285; People ex rel. Battista v. Christian, 249 N. Y. 314.) IV. It was error to refuse proper requests to charge. The error was not cured by adding “ except as already charged.” The refusal of a request to charge concerning reasonable doubt and burden of proof was especially prejudicial because the Trial Judge had erred in his main charge. (Nicola v. United States, 72 F. 2d 780; People v. Hill, 65 Hun 420; People v. Bonifacio, 190 N. Y. 150.) V. Bullis ’ prior testimony before the Grand Jury and the Commissioner of Investigation having been utilized by the District Attorney, it was substantial and prejudicial error to refuse a request by his codefendants for an inspection thereof. (People v. Miller, 257 N. Y. 54; People v. Kelley, 253 App. Div. 430; People v. Dales, 309 N. Y. 97; People v. Boniello, 303 N. Y. 619; People v. Walsh, 262 N. Y. 140.) VI. It was substantial and prejudicial error to deny a request to examine the Grand Jury testimony of Nelson which contained inconsistencies with and contradictions of his testimony at the trial. (People v. Dales, 309 N. Y. 97; People v. Boniello, 303 N. Y. 619; People v. Schainuck, 286 N. Y. 161; People v. Walsh, 262 N. Y. 140.) VII. Substantial and prejudicial error was committed in receiving in evidence prior statements of Brinkman which were not admissions and which were offered by the District Attorney as such but used for an improper and illegal purpose. (People v. Bretagna, 298 N. Y. 323; Reed v. McCord, 160 N. Y. 330; Ferris v. Sterling, 214 N. Y. 249; Collins v. Kelly, 226 N. Y. 180; Coleman v. People, 55 N. Y. 81; People v. Zackowitz, 254 N. Y. 192.) VIII. The use by the District Attorney of prior incompetent testimony of codefendants for the purpose of incriminating Brinkman, and the denial of a motion for a mistrial after the harm had been done, were prejudicial and substantial error. (People v. Bretagna, 298 N. Y. 323; People ex rel. Perkins v. Moss, 187 N. Y. 410; People v. Mleczko, 298 N. Y. 153 ; People v. Zackowitz, 254 N. Y. 192; Coleman v. People, 55 N. Y. 81; People v. Marshall, 306 N. Y. 223.) IX. The prejudicial manner in which the Assistant District Attorney read the prior testimony of defendants to the jury, the denial by the Trial Judge of the request that it be read by a disinterested person, and his insistence that it be read by the Assistant District Attorney deprived defendants of a fair trial. (Barry v. Mutual Life Ins. Co. of N. Y., 53 N. Y. 536; People v. Fielding, 158 N. Y. 542; Berger v. United States, 295 U. S. 78; People v. Carborano, 301 N. Y. 39; People v. Tassiello, 300 N. Y. 425.) X. The length of the trial, the complexity and prolixity of the indictment, the conduct of the Trial Judge and prosecutor, the frequent delays, the unbearable conditions of the courtroom, the illness of jurors, and other prejudicial conditions and circumstances, deprived defendants of a fair trial. The denial of a motion for a mistrial was reversible error. (People v. Buchanan, 145 N. Y. 1; Shushan v. United States, 117 F. 2d 110, 313 U. S. 574; People v. Jelke, 308 N. Y. 56; People v. Prosser, 309 N. Y. 353; People v. Chirieleison, 3 N Y 2d 170.) XI. Defendants were erroneously precluded from proving that the deviations from the contract and the procedures with respect to the vouchers were customary and common practice. (People v. Molineux, 168 N. Y. 264; Altman v. Ozdoba, 237 N. Y. 218; Boyd v. Boyd, 164 N. Y. 234; People v. Duffy, 212 N. Y. 57; Wood v. United States, 16 Pet. [41 U. S.] 342.)
    
      Frank D. O’Connor, District Attorney (Harvey B. Ehrlich of counsel), for the People of the State of New York, respondent.
    I. The guilt of defendant was established beyond reasonable doubt. (People v. Dunbar Contr. Co., 165 App. Div. 59; People v. Connolly, 253 N. Y. 330; People v. Crossman, 241 N. Y. 138; People v. Sweeney, 213 N. Y. 37; Kelley v. People, 55 N. Y. 565; People v. Bossford, 36 Hun 639, 102 N. Y. 647; People v. McKane, 143 N. Y. 455; People v. Peckens, 153 N. Y. 576; People v. Miles, 123 App. Div. 862, 192 N. Y. 541; People v. Fedele, 366 Ill. 618.) II. Evidence of the change made in the system of reporting work done and materials supplied and in preparing the payment vouchers was properly admitted. (Baker v. United States, 276 F. 283; Beeson v. United States, 90 F. 2d 720; Hodgskin v. United States, 279 F. 85; People v. Stevens, 78 Cal. App. 395; People v. Raymond, 296 Ill. 599; Commonwealth v. Benesch, 290 Mass. 125; State v. Simon, 113 N. J. L. 521; Piquett v. United States, 81 F. 2d 75, 298 U. S. 664; People v. Connolly, 227 App. Div. 167, 253 N. Y. 330; People v. Gaffey, 98 App. Div. 461,182 N. Y. 257.) III. The charge was full, clear and explicit and in conformance with the Code of Criminal Procedure and was comprehended by the jury. The length of the charge and the manner of the delivery thereof was not the subject of objection or exception or request to modify and is not subject to review by this court. (People v. Fish, 125 N. Y. 136; People v. Kelly, 113 N. Y. 647; People v. Cignarale, 110 N. Y. 23; People v. Feld, 305 N. Y. 322; People v. Bester, 297 N. Y. 408; People v. Rosenthal, 289 N. Y. 482.) IV. The refusal of the court to charge in the language requested was not erroneous and defendants were not prejudiced thereby. (People v. 
      Dyle, 21 N. Y. 578; United States v. Fox, 97 F. 2d 913; People v. Rubin, 284 N. Y. 392; People v. Trombino, 238 App. Div. 61, 262 N. Y. 689; People v. Smith, 114 App. Div. 513,187 N. Y. 557; People ex rel. Woronoff v. Mallon, 222 N. Y. 456; People v. Lay, 167 Misc. 431, 254 App. Div. 372, 279 N. Y. 737; Kreiner v. United States, 11 F. 2d 722, 271 U. S. 688.) V. The rulings with respect to the inspection of the Grand Jury testimony given and statements made by the codefendant Bullís were correct, and, in any event, appellant was not prejudiced thereby. (People v. Miller, 257 N. Y. 54; People ex rel. Lemon v. Supreme Court, 245 N. Y. 24; People v. Martines, 15 Misc 2d 821; People v. Skoyec, 183 Misc. 764; People v. Boniello, 303 N. Y. 619; People v. Walsh, 262 N. Y. 140; People v. Schainuck, 286 N. Y. 161.) VI. The court’s rulings denying to appellant examination of all of the Grand Jury testimony of the witness Nelson and granting excerpts thereof did not constitute prejudicial error. (People v. Dales, 309 N. Y. 97; People v. Boniello, 303 N. Y. 619; People v. Walsh, 262 N. Y. 140; People v. Schainuck, 286 N. Y. 161; People v. Nicoll, 3 A D 2d 64.) VII. The testimony of Brinkman before the Grand Jury was properly received in evidence. (Gangi v. Fradus, 227 N. Y. 452; Koester v. Rochester Candy Works, 194 N. Y. 92; Reed v. McCord, 160 N. Y. 330; Ferris v. Sterling, 214 N. Y. 249.) VIII. The testimony and prior statements of defendants were properly received in evidence. Appellant was not prejudiced thereby. (People v. Feolo, 282 N. Y. 276; People v. Fisher, 249 N. Y. 419; People v. Doran, 246 N. Y. 409; People v. Wargo, 149 Misc. 461; Heike v. United States, 192 F. 83; Poliafico v. United States, 237 F. 2d 97; Metcalf v. United States, 195 F. 2d 213; United States v. Gilbert, 31 F. Supp. 195.) IX. The reading by an Assistant District Attorney of the portions of prior testimony and statements admitted into evidence was within the exercise of the trial court’s sound discretion and in conformity with customary court procedure and pertinent statutes and was not prejudicial to appellant. X. Appellant was afforded a fair trial. (People v. Dunbar Contr. Co., 82 Misc. 174; People v. Mussenden, 284 App. Div. 479, 284 App. Div. 958, 308 N. Y. 558; United States v. Cohen, 145 F. 2d 82, 323 U. S. 797; People v. Van Tassel, 156 N. Y. 561; Heughes v. Board of Educ., 37 App. Div. 180; People v. Cummins, 209 N. Y. 283; People v. Mendes, 3 N Y 2d 120; 
      People v. Ohanian, 245 N. Y. 227; People v. Knapper, 230 App. Div. 487; People v. Perrin, 224 App. Div. 546, 251 N. Y. 509.) XI. The court’s rulings limiting cross-examination of witnesses and codefendants as to other and unrelated contracts were proper and appellant was not prejudiced thereby.
    
      Frank D. O’Connor, District Attorney (Harvey B. Ehrlich of counsel), for the People of the State of New York, appellant.
    The guilt of Brinkman of receiving a bribe was established beyond a reasonable doubt and the court below erred in reversing the conviction of the County Court and in dismissing count 22 of the indictment. (People v. Rainier, 127 App. Div. 47; People v. Clougher, 246 N. Y. 106; United States v. Costello, 221 F. 2d 668; People v. Gaimari, 176 N. Y. 84; People v. Sanducci, 195 N. Y. 361; People v. Lytton, 257 N. Y. 310; People v. Rodawald, 177 N. Y. 408; People v. Taylor, 138 N. Y. 398; People v. Egnor, 175 N. Y. 419; United States v. Feinberg, 140 F. 2d 592, 322 U. S. 726; People v. Bellows, 281 N. Y. 67; People v. Scheinman, 295 N. Y. 142; People v. Potskowski, 298 N. Y. 299; People v. Rudolph, 303 N. Y. 73; People v. Lee, 308 N. Y. 302.)
    
      Mordecai Konowits for Gerard J. Brinkman, respondent.
    I. The evidence is insufficient to establish respondent’s guilt beyond a reasonable doubt. It was not proved beyond a reasonable doubt that the house connection was a gift. (People v. Lewis, 275 N. Y. 33; People v. Razezics, 206 N. Y. 249; People ex rel. Perkins v. Moss, 187 N. Y. 410.) II. It was not proved beyond a reasonable doubt that there was a duty imposed on respondent to inspect the work and materials before certifying the vouchers for payment. III. It was not proved beyond a reasonable doubt that respondent had knowledge of the deviations from the contract which were of financial benefit to the contractor. (People v. Dunbar Contr. Co., 215 N. Y. 416; People v. Laman, 298 N. Y. 462.) IV. It was not alleged or proved that respondent was an executive or public officer. (People v. Salomon, 212 N. Y. 446; People v. Clougher, 246 N. Y. 106; People v. Zambounis, 251 N. Y. 94; Fisher v. City of Mechanic-ville, 225 N. Y. 210; United States v. Germaine, 99 U. S. 508.) V. The reversal of the conviction should be affirmed, apart from the insufficiency of the proof, by reason of substantial and prejudicial errors committed at the trial.)
   Fuld, J.

On these appeals taken by both the defendants Brinkman and Clemente and by the People, our study of the record and of the many points raised leads us to the same conclusion as that reached by the Appellate Division: the appealing defendants were proved guilty beyond a reasonable doubt on all counts of which they were convicted except count 22 — as to which the Appellate Division has reversed — and the trial was free of prejudicial error.

We are, however, constrained to comment briefly on the extraordinary fact that the trial lasted for 14 months. Strongly as one must deprecate a jury trial which lasted so long, it is not to be condemned, as urged by the defendants, as a denial of due process solely because of that. The test to be applied here, as in many other due process cases, is whether under all of the circumstances the defendants were accorded a fair trial.

Although the proceedings were long drawn out, and not infrequently interrupted, the record discloses that the testimony adduced by the People, though diffuse and repetitive, was overwhelming and unambiguous; the jurors could not have experienced untoward difficulty in following the evidence, intelligently assessing it and coming to a reasoned conclusion. Moreover, the defense itself must share the responsibility for the length of the trial. The prosecution’s case, it is true, was in large part cumulative, but time after time when an objection might well have stopped further introduction of such evidence, the defense remained silent and, indeed, actually added to the massiveness of the record by unduly extended cross-examination.

In short, then, there was no violation of the requirements of due process; the defendants had a fair trial and no prejudicial error was committed.

The Appellate Division judgments should in all respects be affirmed.

Chief Judge Desmond and Judges Froessel, Burke and Foster concur with Judge Fuld ; Judges Dye and Van Voorhis concur in the result.

In People v. Clemente: Judgment affirmed.

In People v. Brinkman: On appeal by defendant: Judgment affirmed. On cross appeal by People: Order affirmed.  