# People v. Harris

> Appellate Division of the Supreme Court of the State of New York · March 7, 1945 · 268 A.D. 731

URL: https://www.frixlaw.com/law-library/cases/5378890

## Case

- **Full name:** The People of the State of New York v. Frank S. Harris, James J. McGuiness and Frank J. Cassidy
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** March 7, 1945
- **Citations:** 268 A.D. 731; 54 N.Y.S.2d 161; 1945 N.Y. App. Div. LEXIS 5297
- **Precedential status:** Published
- **Opinion:** Dissent by Foster
- **Judges:** Brewster, Foster, Heffernan
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed by People v. Harris, 294 N.Y. 424 (1945).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5378890

## Opinion text

Foster, J.
(dissenting). If the rationale of the majority opinion is correct, then by the same process of reasoning a criminal conspiracy might be found if the defendants Harris and McGuiness had advised Cassidy to resign and he had followed their advice. In that event the majority conception of justice and due administration of law would have been equally thwarted, because Cassidy’s removal in such a case would not have been in conformity with either method of removal prescribed by the Constitution. I cannot assent to this proposition, and unless the proof clearly shows that the end attained was unlawful, then I fail to see how it can be found that a criminal conspiracy existed.
Cassidy held the office of Commissioner of the Department of Water and Water Supply in the City of Albany. He was called upon to sign a waiver of immunity and testify concerning the conduct of this office. He refused to do so, and his office thereby became subject to forfeiture by action on the part of the Mayor, or by suit at the instance of the Attorney-General, but only so long as he attempted to hold it. There was nothing from a legal viewpoint to prevent his resignation or divestiture by other means. Nor was he under any disability to assume another and different office. The constitutional penalty ran only to the office concerning which he refused to testify, and this penalty cannot be enlarged by implication or judicial construction.
The new office which he assumed was not the same office he vacated. It was different in name and different in character. From the viewpoint of political morals the transaction and the manner in which it was carried out might well be criticized. But we are not concerned with an issue of political morals. The question here is whether the proof might convince a trial jury, beyond a reasonable doubt, that the crime charged was committed. The answer to this question is not to be legally met by the assertion that the jury might draw this or that inference. This is not a civil case where the People might be *739 entitled to the most favorable inferences to be drawn from the testimony. The test here is whether the only reasonable inference to be drawn from the testimony is that the defendants conspired to place Cassidy in the same office, only under a different name. The proof submitted does not, in my opinion, meet such a test.
The order dismissing the indictment should be affirmed.
Heffernan, J.
(dissenting). I concur in the opinion of Mr. Justice Foster. In addition to the reasons given by him, I vote to affirm the order on the ground that the Grand Jury, which returned the indictment, was illegally constituted for the reasons set forth in my opinion in People v. Prior ( 268 App. Div. 717, 724 ) decided herewith.
Hill, P. J., and Lawrence, J., concur with Brewster, J.; Foster, J., dissents in an opinion; Heffernan, J., dissents in memorandum.
Order reversed on the law and indictment reinstated.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5378890. Public record. Not legal advice.