The People of the State of New York, Respondent, v. Lucio J. Pepe and Pietro D'Alba, Appellants, 21 A.D.2d 417

Per Curiam. Defendants were convicted after trial on five counts of unlawful acts in respect to examinations (Education Law, § 225, subds. 4, 5 and 6) and one count of conspiracy to commit such crimes. The trial established the following facts: The Secretary of the Board of Medical Examiners obtained a copy of the examination questions for the June, 196-1, examination to be given by the board. Dr. Ezell gave a copy of these questions to defendant Pepe, a licensed physician. Pepe arranged with Dr. Baviello, another practicing physician, to sell the questions to candidates who would take the examination.

For this Pepe was to receive $20,000 which he would share with Dr. Ezell. Dr. Baviell-o contacted defendant D ’Alba, who was a physician licensed in Italy and who was a candidate to take the examination. As a result of this contact, D ’Alba agreed to raise the money from such of his follow candidates as would pay to have the questions. He raised a fund of something less than $10,000. He made up the balance himself. Dr. Baviello accepted this sum and delivered the questions to D’Alba who in turn distributed them to his subscribers.

Before the examination was held the leakage of the examination questions was discovered and new questions were substituted. All of the persons mentioned learned of this, the money was returned and the copies of the questions were destroyed. Both defendants gave statements to the State Department of Education. These statements consisted of questions and answers given under oath in the department’s investigation, which, when transcribed, were signed by the respective defendants. The statements, properly designated as confessions, were received in evidence at the trial.

It was claimed on the trial that the confessions were not given voluntarily. It is further argued on this appeal that the jury was not adequately instructed in regard to whether they could consider the confessions, specifically on the degree of proof required. We are in accord that this presents the only substantial question on this appeal. We conclude that there was no error in this respect. It may be conceded that a more careful treatment would have avoided the appearance of error, and that requests to charge phrased in the language of People v. Vargas (7 N Y 2d 555) could well have been given.

It is well to distinguish between error and a faultless performance. It is the instructions given and not the technique of the Judge that is the criterion. The court did charge that unless the confessions were voluntary they could not be considered. He defined what is meant by voluntary. He also charged that every element of the prosecution’s case must be established beyond a reasonable doubt. The alleged error is that these were not correlated, in that it was not specifically charged that the confessions must be shown to be voluntary beyond a reasonable doubt.

However, after the conclusion of the main charge, and one of the final instructions given, was a compliance with a request by defendant Pepe. The court charged: “ [I]f the jury have any reasonable doubts as to whether the statements under oath, dated July 19th, 1961, and July 25th, 1961, were obtained by the use of fear induced by threat, then and in that event they must find the defendant Pepe not guilty.” As far as this defendant is concerned, he had the benefit of his own statement of what the law is on the subject and he can hardly be heard to complain.

As far as D’Alba is concerned, it is inconceivable that the jury would apply any other test to his confession than they were instructed to give to his codefendant’s. And it may well be that the court in refusing D ’Alba’s request of a similar nature so deemed. (D’Alba’s request having been submitted in writing, the jury could not have known that it was refused or draw any distinction between the defendants from the refusal.) • Furthermore, there is very grave doubt as to whether any issue existed as to D’Alba’s confession being voluntary.

On the advice of counsel he waived immunity and testified before the Grand Jury. His testimony, received in evidence, parallels, almost exactly, the questions and answers he gave to the Department of Education. While he testified on the voir dire that he had perjured himself before the Grand Jury and stated in general terms that none of the testimony given there was true, when he came to testify in his own defense, as to most of the matters his evidence exactly followed the two prior statements.

So that according to his own version, his testimony before the Grand Jury and Ms statements in his confession fairly represent his acts. While the fact that a confession is true does not ipso facto make it voluntary, when that confession is exactly like a statement that is concededly voluntary, it must go a long way toward establishing that the confession was freely given. The judgments of conviction should be affirmed.