People v. Bernstein , 36 Mich. App. 687 ( 1971 )

36 Mich. App. 687 (1971) 194 N.W.2d 11

PEOPLE
v.
BERNSTEIN

Docket No. 10752.

Michigan Court of Appeals.

Decided October 27, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Raymond L. Scodeller, Prosecuting Attorney, and James R. Ramsey, Assistant Prosecuting Attorney, for the people.

Farhat & Burns, for defendant.

Before: McGREGOR, P.J., and HOLBROOK and VAN VALKENBURG,^[*] JJ.

Leave to appeal denied, 386 Mich 774.

PER CURIAM.

Defendant and Herbert R. Fisher were charged with a two-count violation of MCLA § 750.303 (Stat Ann 1954 Rev § 28.535) in that they knowingly kept and maintained and suffered a gambling establishment. At the close of the people's proofs in a nonjury trial, a motion to dismiss was granted and an acquittal entered as to Herbert Fisher. Defendant was then convicted and sentenced to 2 years probation, $500 in fines, $250 in costs, and 60 days in the county jail. Defendant appeals from this conviction.

The evidence at the trial showed that the defendant owned the premises in question, that the defendant was present when the gaming activities took place, and that a cut was taken from the pot during each hand "for the house". The trial court found this was prima facie evidence that the crimes charged had been committed. The defendant's own testimony also tended to confirm that the crimes were committed.

The evidence presented by the people was sufficient, if believed, to prove each and every element required to justify the conviction of defendant of violating MCLA § 750.303 (Stat Ann 1954 Rev § 28.535). People v. Johns (1953), 336 Mich 617. The trial court properly denied defendant's motion to dismiss.

The use and confidentiality of presentence reports is clearly established under both Michigan law and the United States Constitution. People v. Camak (1967), 5 Mich App 655; People v. Beard (1969), 17 Mich App 409; People v. Giacalone (1970), 23 Mich App 163; People v. Moton (1970), 25 Mich App 383; People v. Stardevant (1971), 33 Mich App 252; and Williams v. New York (1949), 337 US 241 (69 S Ct 1079, 93 L Ed 1337).

The instant case is similar to the case of People v. Camak, supra, wherein we stated at pp 661, 662 as follows:

"The record discloses no request by defendant or his counsel of the court to examine the presentence report, and as pointed out by defendant the record fails to disclose an offer by the court to defendant to examine it at the time of sentence."

Therein we ruled that there was no error in failing to furnish defendant the presentence report at the time of sentencing or prior thereto.

Furthermore, under the latest decision of our Supreme Court, People v. Malkowski (1971), 385 Mich 244, the granting or denial of a request by the defendant to see the presentence report is discretionary with the court. Defendant has failed to show any abuse of discretion by the trial court in the instant case.

Affirmed.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.