Petition — New York v. Testa

Supreme Court, U.S.

FILED

MAR 16 977 :

ICHAEL RODAK, JR., CLERK

IN THE K._-—. Rn

Supreme Court of the United States

OCTOBER TERM, 1976

No. é # i 285

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

—aguinst—

JAMES TESTA and EUGENE RIGGIO,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

EvuGENE Gop

District Attorney, Kings County

Attorney for Petitioner

Municipal Building

210 Joralemon Street

Brooklyn, New York 11201

(212) 643-5100

Peter A. NorLinG

Assistant District Attorney

of Counsel

INDEX

ee Oe PT SD pc c ch cdcdcnccccdsceseces

EE ci ded pase beeearen ee enwekeunes

a ee eae

OD, cc eundidaveneseacinsdeies

Constitutional Provisions at Issue ...............

ee at

I SD oe nce cgnnesnabananesecs

Point I—The Reports Prepared by the Federal Bu-

reau of Investigation Contained No Exculpatory

Material Not Otherwise Available to the Defense.

As Such, Diselosure Was Not Compelled by the

Mandate of the Due Process Clause of the Four-

I ood cud nicaunecsvecsnnaseeuee

Point II—The Determination by the Court of Ap-

peals That the Due Process Clause Requires Dis-

closure of Statements Made to Law Enforcement

Agents by a Person Subsequently Called as a De-

fense Witness Has So Significantly Misconstrued

the Fourteenth Amendment as to Make This Case

Worthy of Review by the Supreme Court .......

Conc_usion—For all of the foregoing reasons, the

petition for a Writ of Certiorari to the Court of

Appeals of the State of New York should be

EE SS SdK0b 60s cad ede sdensedacecccesseecss

10

ii

Appendix A—Order of Reversal of the Appellate

Division of the Supreme Court of the State of

New York, Second Judicial Department (James

SEE NacdGinn tutes dacusees btbnanenescene’

Opinion of Appellate Division of the Supreme Court

of the State of New York, Second Judicial Depart-

ey ES SD 6 occu ccuncccdetssesebsuas

Appendix B—Order of Reversal of the Appellate

Division of the Supreme Court of the State of

New York, Second Judicial Department (Eugene

DE. SikenS wks bckuKeeesbisds eeed¥lseiesents

Opinion of Appellate Division of the Supreme Court

of the State of New York, Second Judicial Depart-

ment (Eugene Riggio) ..................cce0c-

Appendix C—Order Affirming Order of Appellate

Pid nck suer thes Cab bhekeadenee kane esas

Statutes

Unrtep States Cope

Ws ED NUD vow cccccccecccccccecce

ee

Unitep States CoNnstITUTION

Fourteenth Amendment .......................

PAGE

la

7a

iii.

TABLE OF AUTHORITIES

Cases

Brady v. Maryland, 373 U.S. 83 (1963) ............

Maglaya v. Buchkoe, 515 F. 2d 265 (6th Cir.), cert.

Ge Gs GE CUED ov eccvccecccecceceesees

Oregon v. Hass, 420 U.S. 714 (1975) ..........--..

Rosenberg v. United States, 360 U.S. 367 (1959) ....

United States v. Agurs, —— U.S. ——, 96 S. Ct. 2392

SD. s¢decdseenvnens reeett anni ews cinewes

United States v. Cawley, 481 F. 2d 702 (5th Cir. 1973)

United States vy. Cox, 342 F. 2d 167 (5th Cir.), cert.

ee Ws OD ED we cee esinscececececcces

United States v. McMillan, 508 F. 2d 101 (8th Cir.

1974), cert. den. 421 U.S. 916 (1975) ............

United States v. Stewart, 513 F. 2d 957 (2nd Cir.

EE. SUSids cde CRUUTASOSET0S.0s 6 cbeneceesneness

PAGE

1e )

10

IN THE

«Supreme Court of the United States

October Term, 1976

No.

e

Tue Prope or THE State or NEw York,

Petitioner,

—against—

James Testa and Evcene Riaaio,

Respondents.

¢

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

The History of the Case

By Kings County Indictment No. 3567/1969, filed on

August 12, 1969, respondents James Testa and Eugene

Riggio, together with one Michael McCarthy, were accused

of the crimes of Robbery in the First Degree, Grand

Larceny in the Second Degree, and two counts of Assault

in the First Degree. All defendants were convicted of all

counts of the indictment after a trial by jury, and were

sentenced to imprisonment (McGrover, J.).

Respondents perfected independent appeals to the Ap-

pellate Division for the Second Judicial Department of

New York. By an order dated May 19, 1975, upon a memo-

randum opinion, that court unanimously reversed respond-

ent Testa’s judgment of conviction (see Appendix A, infra).

By an order dated October 20, 1975, Eugene Riggio’s judg-

ment of conviction was reversed by the Appellate Division

(see Appendix B, infra).

Thereafter, by permission of Hon. Sol Wachtler, Asso-

ciate Judge of the Court of Appeals of New York, peti-

tioner appealed from both orders of the Appellate Division.

The appeals were consolidated for argument. On December

20, 1976, an order was entered by which the Court of Ap-

peals, upon a memorandum opinion, unanimously affirmed

the orders of the Appellate Division (see Appendix C,

infra).

Petitioner now applies for a Writ of Certiorari to the

Court of Appeals of the State of New York to review the

aforementioned order of that court.

Opinions Below

The opinion of the Appellate Division, Second Depart-

ment in People v. Testa is reported at 48 App. Div. 2d 691

369 N.Y.S. 2d 296. The opinion of the Appellate Division

in People v. Riggio is reported at 49 App. Div. 2d 928, 375

N.Y.S. 2d 837. The opinion of the Court of Appeals in the

consolidated action is reported at 40 N.Y. 2d 1018, —— N.E.

2d , N.Y.S. 2d ——.

Jurisdiction

The jurisdiction of this Court to issue the Writ of

Certiorari sought herein is conferred by 28 U.S.C. 1257 (3).

See Oregon v. Hass, 420 U.S. 714, 719 (1975).

Questions Presented

1. Whether the Due Process Clause requires the prose-

eutor in a State criminal proceeding to disclose to the

defense statements made to federal law enforcement agents

by a person subsequently called as a defense witness, where

the federal agency dismissed charges prior to the State

prosecution.

2. Whether the determination by the Court of Appeals

that the Due Process Clause requires disclosure of state-

ments made to law enforcement agents by a person subse-

quently called as a defense witness has so significantly

misconstrued the Fourteenth Amendment as to make this

case worthy of review by the Supreme Court.

Constitutional Provisions at Issue

The Fourteenth Amendment to the Constitution of the

United States provides in pertinent part:

. .. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive

any person of life, liberty, or property, without due

process of law;...

Statement of Facts

On May 5, 1969, an aborted hijack-robbery took place

in Brooklyn, New York. Respondents James Testa and

Eugene Riggio, Michael McCarthy, and another were ar-

rested on May 7th of that year by the Federal Bureau of

Investigation in connection with the incident. Following

an investigation by the F.B.1., these charges were dis-

missed. Respondents and McCarthy were thereupon ar-

rested on State charges based upon the attempted robbery.

An indictment charging respondents and McCarthy with

robbery, larceny, and two counts of assault was filed on

August 12, 1969. In the course of pre-trial proceedings,

counsel for the defendants requested certain reports pre-

pared by the F.B.1. in the course of its investigation. In

particular, the defense sought disclosure of reports incor-

porating statements made by potential alibi witnesses for

the defense. The trial court denied the defendants’ motion

with respect to those statements, while ordering the prose-

cution to disclose all exculpatory material.

The defense renewed its motion at trial, with no further

success. Copies of the defendants’ statements to federal

authorities, as well as other reports containing exculpatory

information, were provided to the defense. However, other

reports were withheld, including one pertaining to the inter-

view, three days after the incident, of a person claimed by

respondent Testa as verifying his alibi statement to federal

authorities. This person, Peter Athenerides, provided in-

formation lending some support for Testa’s statement.

Following the presentation of the People’s case, each

defendant presented an alibi defense. Respondent Testa,

while not taking the stand himself, offered testimony that

he had been selling fruit and vegetables in Queens at the

time during which the offense took place. To support his

alibi, he called as a witness Peter Athenerides.

Athenerides did testify that he had seen Testa selling

fruits and vegetables in Queens, but was unable to specify

the precise date that this occurred. The statement made

three and one-half years earlier by Athenerides to the

F.B.I., which was withheld by the prosecution, revealed

that he then could state positively that on the date in ques-

tion he did see a fruit peddler in Queens, but he could

not identify Testa from a photograph as the peddler.

Respondents and McCarthy were found guilty by jury

verdict.’ By a post-judgment motion, the reports at issue

were disclosed and the trial court determined that no ex-

culpatory material was contained therein. Respondents

were subsequently sentenced and thereafter perfected their

respective appeals. Defendant McCarthy did not prosecute

an appeal.

Summary of Argument

Petitioner contends that the principles set forth in Brady

v. Maryland, 373 U.S. 83 (1963) were incorrectly applied

in the court below. In reversing a judgment of conviction

on the grounds of non-disclosure of prior statements of a

defendant’s witness, the court significantly deviated from

the principles set forth in Brady. Furthermore, in holding

that dismissal of federal charges indicated the existence

of exculpatory material in the federal investigatory re-

ports, the court below appeared to overlook the funda-

mental premise that prosecutorial discretion allows for a

decision to decline prosecution totally independent of the

discovery vel non of exculpatory information.

These misconstruals of the Due Process Clause of the

Fourteenth Amendment, it is submitted, merit correction

by the Supreme Court.

POINT I

The Reports Prepared by the Federal Bureau of

Investigation Contained No Exculpatory Material Not

Otherwise Available to the Defense. As Such, Dis-

closure Was Not Compelled by the Mandate of the

Due Process Ciause of the Fourteenth Amendment.

In Brady v. Maryland, 373 U.S. 83 (1963), this Court

enunciated the requirement of disclosure of exculpatory

information under the Due Process Clause of the Four-

teenth Amendment of the United States Constitution.

There, it was held that due process requires disclosure by

the prosecution to the defense of any evidence favorable to

the accused where material to the issues of guilt or punish-

ment. Brady v. Maryland, supra, at 87.

Consonant with the principles underlying Brady is the

proposition that where favorable evidence is available to

the defense, due process does not require further disclosure

of such evidence. For example, in Maglaya v. Buchkoe, 515

F. 2d 265 (6th Cir.), cert. den. 423 U.S. 931 (1975), the trial

court denied discovery by the defense of certain psychiatric

records tending to demonstrate the mental instability of

the major witness for the prosecution. In an appeal from

the denial of a postconviction writ of habeas corpus, the

Sixth Cireuit failed to find a denial of the petitioner’s

rights to disclosure under Brady, stating that “. . . the

rights protected under Brady v. Maryland, supra, are not

violated when a defendant in a criminal trial has full knowl-

edge of the existence of the evidence prior to trial and

makes no effort to obtain its production. In addition, we

note that the facts concerning Logan’s prior mental history

were exhaustively covered at the trial.” Maglaya v.

Buchkoe, supra, at 268-9.

Again, in United States v. Stewart, 513 F. 2d 957 (2d Cir.

1975), the court was faced with circumstances similar to

those in the instant case. There, the prosecution failed

to disclose a statement made to the F.B.I. by a co-con-

spirator, Ruddock, which was arguably exculpatory. How-

ever, Judge Lumbard held that

“Ruddock’s identity and alleged participation in the

robbery were known to Stewart at least six weeks

prior to his first trial. Stewart could have inter-

viewed Ruddock prior to that trial or called him as

a witness at that trial. The government is not re-

quired to make a witness’ statement known to a

defendant who is on notice of the essential facts

which would enable him to call the witness and thus

take advantage of any exculpatory testimony that

he might furnish [citations omitted].” Jd., at 960.

See, also, United States v. McMillan, 508 F. 2d 101 (8th

Cir. 1974), cert. den. 421 U.S. 916 (1975).

In the case at bar, the defense was clearly apprised of

any information contained in the report in question, inas-

much as the report simply incorporated a statement of a

witness for the defense. Furthermore, the statement itself

merely reiterated in essence the testimony given by the

witness at trial. Concededly, the statement did positively

set forth the date upon which the alibi witness observed

respondent Testa. However, the mere possibility that this

statement might thus have been used to refresh the witness’

recollection can hardly raise it to the level of ‘material’ for

which Brady compels disclosure. Simply because the use

of a document may be helpful to the defense cannot compel

constitutionally mandated disclosure in an adversary

system.

In faet, disclosure of information otherwise known to

the defense would not appear to fall within the ambit of

Brady at all. Brady prohibits “suppression” of evidence

favorable to the accused. Even if the term “evidence” is

broadly construed so as to signify non-admissible material

which is favorable to the defense, availability of that in-

formation to the defense would appear to preclude a find-

ing of “suppression” by the prosecution. This is particu-

larly so where, as here, the non-disclosed information is,

in effect, the potential testimony of a defense witness.

This principle is manifested in the analogous area of

disclosure of a witness’ prior statements after his testimony

at trial. In Rosenberg v. United States, 360 U.S. 367 (1959),

the Supreme Court, in interpreting 18 U.S.C. $3500 (e),

held that failure to disclose a prior statement by a witness

for the prosecution as required by that section was not

reversible where the information contained in the state-

ment was revealed upon examination at trial. The Court

stated that “[s]ince the same information that would have

been afforded had the document been given to defendant

was already in the possession of the defense by way of

the witness’ admissions while testifying, it would deny

reason to entertain the belief that defendant could have

been prejudiced by not having had opportunity to inspect

the letter.” Id., at 371.

Similar reasoning applies where Brady material has been

withheld. It can hardly be deemed violative of due process

to withhold information which is set forth before the trier

of fact in another manner.

Furthermore, the court below appeared to overlook the

fundamental premise that prosecutorial discretion allows

for a decision to decline prosecution totally independent of

the discovery vel non of exculpatory information. The

opinion of the Appellate Division, adopted by the Court

of Appeals by its affirmance, reasoned that the dismissal

of the federal charges arising from the event for which

respondents were convicted in the proceedings below raises

the presumption that exculpatory material wes contained

in the F.B.I. file.

This view, however, is totally at odds with the doctrine

of prosecutorial discretion. Prosecutorial agents have

traditionally been held to possess a broad discretion in

determining whether to initiate prosecution. As set forth

in United States v. Cox, 342 F. 2d 167, 171 (5th Cir.), cert.

den. 381 U.S. 935 (1965), “[t]he discretionary power of the

attorney for the United States in determining whether a

prosecution shall be commenced or maintained may well

depend upon matters of policy wholly apart from any

question of probable cause.” See, also, United States v.

Cawley, 481 F. 2d 702 (5th Cir. 1973). Where, as here, the

offense committed violates both federal and State law, these

considerations of policy may make appropriate a dismissal

of federal charges in order to reserve prosecution for the

State.

We submit, then, that the court below fundamentally mis-

construed both the principies set forth in Brady v. Mary-

land, supra, and the doctrine of prosecutorial discretion in

its affirmance of the order of the Appellate Division. As

such, the order below should be reversed.

10

POINT Il

The Determination by the Court of Appeals That

the Due Process Clause Requires Disclosure of State-

ments Made to Law Enforcement Agents by a Person

Subsequently Called as a Defense Witness Has So

Significantly Misconstrued the Fourteenth Amendment

as to Make This Case Worthy of Review by the

Supreme Court.

As demonstrated in Point I, supra, the holding of the

Court of Appeals below was erroneous under federal con-

stitutional law. We realize that not every State case

wrongly decided under the Constitution is deserving of

review by the Supreme Court. We submit, however, that

the degree to which the opinion below has distorted the

principles of the Fourteenth Amendment makes appropri-

ate a review of this case by the Supreme Court.

The development of the principles of due process as

applied to disclosure of exculpatory matter is set forth in

United States v. Agurs,-—— U.S. ——, 96 S. Ct. 2392 (1976).

There, this Court traced the history of the principles of

disclosure culminating in the decision in Brady v. Mary-

land, supra. In discussing the various circumstances in

which problems of disclosure may arise, the Court stated:

In the first situation, typified by Mooney v. Holo-

han, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791, the

undisclosed evidence demonstrates that the prose-

cution’s case includes perjured testimony and that

the prosecution knew, or should have known, of

the perjury [footnote omitted]. In a series of sub-

sequent cases, the Court has consistently held that a

conviction obtained by the knowing use of perjured

testimony is fundamentally unfair [footnote omitted]

. . In those cases the Court has applied a strict

11

standard of materiality, not just because they involve

prosecutorial misconduct, but more importantly

because they involve a corruption of the truth-

seeking function of the trial process.” United States

v. Agurs, —— US. at , 96 S. Ct. at 2397.

This seems to indicate that the harm to be avoided in

disclosure of exculpatory information is the misrepresenta-

tion of the facts upon which a jury’s decision is based.

Clearly, a jury cannot serve its truth-seeking function

where the truth [or what is possibly the truth] is being

withheld or distorted. Again analyzing the development

of the rules of disclosure, the Court in Agurs stated that

“Ta] fair analysis of the holding in Brady indicates that

implicit in the requirement of materiality is a concern that

the suppressed evidence might have affected the outcome

of the trial.” United States v. Agurs, supra, —— U.S. at

—,, 96 S. Ct. at 2398.

Under these principles, reversal on Brady grounds is seen

as totally inappropriate where the defense is on notice of

the exculpatory facts. While the trier of fact is entitled

to consider all admissible information relevant to its fact-

finding role, no adversarial system can tolerate a rule of

due process compelling the prosecution to present evidence

of which the defense has notice or over which it exercises

control. This proposition, it is submitted, is implicit in the

_ prior opinions of the Supreme Court.

The instant case, in which the holding below deviates

from these principles of due process under the Fourteenth

Amendment, offers an opportunity for the Supreme Court

to bring the law of New York State into accord with federal

constitutional law. Furthermore, this case presents an

appropriate vehicle by which this Court may definitively

state those principles noted above which heretofore have

12

appeared only implicitly in past opinions of the Court. It

is submitted that the Supreme Court should review this

case in order to state that due process does not require

disclosure of information of which the defense is on notice

and which, in fact, is garnered from the statements of a

witness for the defense.

CONCLUSION

For all of the foregoing reasons, the petition for a

Writ of Certiorari to the Court of Appeals of the

State of New York should be granted.

Dated: Brooklyn, New York

February, 1977

Respectfully submitted,

EvuGENE GoLp

District Attorney

Kings County

Peter A. Noriine

Assistant District Attorney

of Counsel

APPENDICES

APPENDIX A

Order of Reversal of the Appellate Division of the

Supreme Court of the State of New York,

Second Judicial Department

(James Testa)

At a Term of the Appellate Division of the

Supreme Court of the State of New York,

Second Judicial Department, held in Kings

County on May 19, 1975.

Hon. Samvet Rapin,

Acting Presiding Justice.

Hon. James D. Hopxtins,

” Marcus G. Curist,

” Artuur D. Brennan,

”“ Frep J. Munper,

Associate Justices.

a.

4

THe PEop.Le or THE State or New York,

Respondent,

v.

James TEsra,

Appellant.

a.

4

OrpER ON APPEAL FROM JUDGMENT OF CONVICTION

In the above entitled action, the above named James

Testa, defendant in this action, having appealed to this

court from a judgment of the Supreme Court, Kings

County, rendered June 1, 1973, convicting him of robbery

2a

Appendix A—Order of Reversal of the Appellate Division

of the Supreme Court of the State of New York,

Second Judicial Department (James Testa)

in the first degree, grand larceny in the second degree and

assault in the second degree (two counts), upon a jury

verdict, and imposing sentence; and the said appeal having

been argued by John J. Meglio, Esq., of counsel for the

appellant, and argued by Steven Di Joseph of counsel for

the respondent, and due deliberation having been had

thereon; and upon this court’s opinion and decision slip

heretofore filed and made a part hereof, it is:

Orperep that the judgment appealed from is hereby

unanimously reversed, on the law, and new trial ordered.

No questions of fact have been raised or considered.

Enter:

Irvine N. SELKIN

Clerk of the Appellate Division

3a

Opinion of Appellate Division of the Supreme Court

of the State of New York, Second Judicial Department

(James Testa)

[Same Tite]

John J. Meglio,

New York, N. Y.,

for appellant.

Eugene Gold,

District Attorney,

Brooklyn, N. Y.

(Steven Di Joseph of counsel),

for respondent.

Appeal by defendant from a judgment of the Supreme

Court, Kings County, rendered June 7, 1973, convicting

him of robbery in the first degree, grand larceny in the

second degree and assault in the second degree (two counts),

upon a jury verdict, and imposing sentence.

Judgment reversed, on the law, and new trial ordered.

No questions of fact have been raised or considered.

Appellant was first arrested on May 7, 1969 on federal

racketeering charges—to wit, interference with commerce

by threats or violence (U. S. Code, tit. 18, 41951). Spe-

cifically, appellant was charged with having participated

in an attempt to hijack a trailer on May 5, 1969. After the

Federal Bureau of Investigation (F.B.I.) conducted a

thorough investigation, the federal charges against appel-

lant were dismissed. Immediately thereafter, he was ar-

rested and subsequently was indicted and prosecuted for

the present charges. Before the trial, appellant’s counsel

moved to examine all of the written material compiled by

the F.B.I. during its investigation and supplied by it to

the prosecution. The Trial Justice directed the prosecution

to turn over to appellant any exculpatory statements in

4a

Appendix A—Opinion of Appellate Division of the

Supreme Court of the State of New York, Second

Judicial Department (James Testa)

the F.B.I. file which could be evidence at trial, but would

not let counsel read all of the F.B.I. records himself. Early

in the trial, appellant’s counsel moved for the production

of specific F.B.I. material, i.e., statements of persons who

had been brought to the attention of the F.B.I. by appellant

and who would, allegedly, support his alibi. The frial court,

without examining the material sought, agreed with the

prosecutor that appellant’s counsel was not entitled to such

material. We disagree.

The rule set down in Brady v. Maryland (373 U. S. 83, 87)

is that

“the suppression by the prosecution of evidence

favorable to an accused upon request violates due

process where the evidence is material either to

guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution.” (See, also,

Moore v. Illinois, 408 U. 8S. 786.)

The record reveals that, at the trial, the prosecution used

the F.B.I. material which had been denied to appellant.

This was patently unfair. Justice required that this mate-

rial should have been made available to the defense (cf.

People v. Rosario, 9 NY 2d 286), especially in view of the

dismissal of the federal charges following the F.B.I. in-

vestigation and in the absence of any claim of privilege.

Moreover, where there is some basis in fact for believing

that the prosecution may be in possession of evidence

favorable and material to the defense, reliance by the

court, as here, upon the discretion of the prosecutor to

determine what is or is not to be disclosed to the defense

is unwarranted (see People v. Bottom, 76 Mise 2d 525).

Rasix, Acting P.J., Hopkins, Curist, Brennan and

Muwoper, JJ., concur.

da

APPENDIX B

Order of Reversal of the Appellate Division of the

Supreme Court of the State of New York,

Second Judicial Department

(Eugene Riggio)

At a Term of the Appellate Division of the

Supreme Court of the State of New York,

Second Judicial Department, held in Kings

County on October 20, 1975.

Hon. Henry J. Latrnam,

Acting Presiding Justice.

Hon. Joun P. Conatan, Jr.,

” Artuur D. Brennan,

” Frep J. Munper,

” J. Irwin SHapio,

Associate Justices.

}

THe Prope or THe State or New York,

Respondent,

v.

Evcene Riaaio,

Appellant.

A.

vv

ORDER OF APPEAL FROM JUDGMENT OF ConvIcTION

In the above entitled action, the above named Eugene

Riggio, defendant in this action, having appealed to this

court from a judgment of the Supreme Court, Kings

6a

Appendix B—Order of Reversal of the Appellate Division

of the Supreme Court of the State of New York,

Second Judicial Department (Eugene Riggio)

County, rendered June 7, 1973, convicting him of robbery

in the first degree, grand larceny in the second degree and

assault in the first degree (two counts), upon a jury verdict,

and imposing sentence; and the said appeal having been

argued by Bertrand J. Kahn, Esq., of counsel for the ap-

pellant, and argued by Peter A. Norling, of counsel for

the respondent, and due deliberation having been had

thereon; and upon this court’s opinion and decision slip

heretofore filed and made a part hereof, it is:

OrperED that the judgment appealed from is hereby

unanimously reversed, on the law, and new trial ordered.

No questions of fact have been raised or considered.

Enter:

Invine N. SELKIN

Clerk of the Appellate Division

Opinion of Appellate Division of the Supreme Court

of the State of New York, Second Judicial Department

(Eugene Riggio)

[Same Titte]

William E. Hellerstein and William J. Gallagher,

New York, N.Y.

(Bertrand J. Kahn of counsel),

for appellant.

Eugene Gold,

District Attorney,

Brooklyn, N.Y.

(Peter A. Norling of counsel),

for respondent.

Appeal by defendant from a judgment of the Supreme

Court, Kings County, rendered June 7, 1973, convicting him

of robbery in the first degree, grand larceny in the second

degree and assault in the first degree (two counts), upon a

jury verdict, and imposing sentence.

Judgment reversed, on the law, and new trial ordered.

No questions of fact have been raised or considered.

This court’s decision in People v. Testa (48 AD2d 691)

is controlling and requires a reversal of the conviction.

LatHam, Acting P.J., CoHatan, Brennan, Munper and

SHapiro, JJ., concur.

Sa

APPENDIX C

t

Order Affirming Order of

Appellate Division

No. 573

a

vv

Tue Peopie &c.,

Appellant,

vs.

James TESTA,

Respondent.

Tue PropLe &c.,

Appellant,

vs.

EvceneE Riccio,

Respondent.

+.

.

Orders affirmed on the memorandum at the Appellate

Division in People v. Testa (48 AD 2d 691; see also, People

v. Consolazio, 40 N Y 2d 446, 453).

All coneur.

Decision Court of Appeals

Dec. 20, 1976