# Petition — New York v. Testa

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 925

## Text

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

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a ee eae

OD, cc eundidaveneseacinsdeies

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

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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

---

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