Petition — Palmieri v. LeFevre Correctional Superintendent

In THE

Supreme Court of the Hnited States

October Term, 1978

No, Ff em OQ

FRANK PALMIERI,

Petitioner,

-against-

EUGENE LeFEVRE, Superintendent Clinton Correc-

» tional Facility,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

J. JEFFREY WEISENFELD

Attorney for Petitioner

401 Broadway

New York, N.Y. 10013

(212) 925-8640

—————_———

DICK BAILEY PRINTERS, 290 RICHMOND AVE., S.I., N.Y. 10302

TEL.: (212) 447-5358

TABLE OF CONTENTS

Page

I ENE on 6 dni cass sk bnawdenea eeu eee 1

Ee Ce ee em See pe rs

CD NINN. 5a. o snccuccekneebadde ween’ 2

Constitutional Provisions Involved ............... 2

PS i ciknickiacuse ns acct eamae nae el 2

Reasons for Granting the Writ ................00. 5

The Writ Should Be Granted To Resolve Whether An

Indigent Accused’s Right To Minutes Of All Prior

Proceedings In His Case Extends To Minutes Of The

Trial Of A Co-Defendant Where The Evidence

Against Both Was Virtually The Same............. 5

ND cacccauhesienawnn Gakiagimintea pabaaw en 11

Appendix A—Amendments V, VI and XIV.......... la

Appendix B—USCA Order ..............cccceeeee 3a

Appendix C—Memorandum and Order............. Sa

Appendix D—Judgment of the District Court........ 9a

Appendix E—Orders of the State Court............ 10a

ii

CASES CITED

Britt vy. North Carolina, 404 U.S. 226 (1971).......-

Chambers v. Florida, 309 U.S. 227, 241 (1940) ......

Gideon v. Wainwright, 373 U.S. 335 (1963) ......-.

Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585 (1956) ..

In Re Oliver, 333 U.S. 257, 275 (1945) ..... eee eee

People v. Peacock, 31 N.Y. 2d 907, 908 (1972)......

People v. Sanders, 31 N.Y. 2d 463, 466 (1973) ...... 7

People v. West, 29 N.Y. 2d 728, 729 tg) ere

People v. Zabrocky, 26 N.Y. 2d 530, 536 (1970).....

Roberts v. LaVallee, 389 U.S. 40, 42, 194, 196 (1967)

Ross v. Moffitt, 417 U.S. 600, 612 (1974) ......++..

United States v. Bamberger, 482 F.2d 166 (9th Cir.) ..

United States v. Jonas, 540 F. 2d 566 (7th Cir. 1976) .

United States v. MacCollom, 426 U.S. 317, 96S. a» #

PI TIOIG) 6 occ cccnccssvdccccnvcsssvesnntacess

United States ex. rel. Wilson v. McMann, 408 F. 2d

896, 897 (2d Cir. 1969)... .. cece eee erence eeeees

6

or

ee

IN THE

SUPREME COURT OF THE UNITED STATES

FRANK PALMIERI,

Appellant,

-against-

EUGENE LeFEVRE, Superintendent

Clinton Correctional Facility,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

Frank Palmieri, the petitioner herein, prays that a

writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Second Circuit

entered in the above-entitled case on September 20, 1978.

OPINION BELOW

The United States Court of Appeals for the Second

Circuit affirmed, without a written opinion, the denial of

petitioners application for a writ of habeas corpus by

Hon. Eugene H. Nickerson on April 4, 1978 (See, Appen-

dix, infra, for the order of the Court of Appeals and the

opinion of Judge Nickerson).

JURISDICTIONAL STATEMENT

The judgment of the Court of Appeals for the Second

Circuit was entered on September 20, 1978. The jurisdic-

2

tion of the Court is invoked under 28 U.S.C. Sec. 1254

Sub. 1. The petition for a writ of certiorari was filed

within 90 days of the date of the order of the Second Cir-

cuit.

QUESTION PRESENTED

Whether petitioner, an indigent, was deprived of

equal protection and due process under the Fourteenth

Amendment to the United States Constitution by the

failure of the State to provide him with a free transcript of

the separate trial of his co-defendant?

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the due process clause under the

Fifth and Fourteenth Amendments, the right to counsel

under the Sixth and Fourteenth Amendments, and the

equal protection clause of the Fourteenth Amendment

The pertinent text of each is set forth in the Appendix, in-

Sra.

STATEMENT OF FACTS

. Petitioner and Michael Blake were indicted for the

crime of murder; the indictment alleged that on or about

January 30, 1968, in Queens County, they caused the

death of May Lang while robbing her. On March 18, 1969

following a Huntley hearing before the Honorable Albert

H. Bosch, Palmieri’s application to have his trial severed

from that of Blake was granted (Vol. II, 594a).* Blake’s

trial followed the Huntley hearing. Petitioner’s attorney

immediately prior to Blake’s trial, requested that the court

e

Volumes and numbers refer to the pages of the transcript of

Palmieri’s trial.

3

provide petitioner, who was indigent, a transcript of

Blake’s trial. Counsel maintained that he needed the

transcript in order to prepare the defense (Vol. II, 595a).

The court denied the application but invited counsel to

reapply, on written papers, before another judge (Vol. II,

§95a-597a). On March 24, 1969, during Blake’s trial,

counsel made such a motion before the Honorable J. Ir-

win Shapiro, sitting in the motion part of Queens County

Supreme Court. That motion was granted only to the ex-

tent that the People were ordered to provide petitioner

with Blake’s transcript only if they ordered a copy for

themselves (See, Appendix infra). Petitioner was never

provided with that transcript.* Blake was found guilty of

murder.**

Petitioner, on May 19, 1969, proceeded to trial before

the Honorable Paul Balsam. Although petitioner was

represented by different counsel than Blake had been, the

same assistant district attorney prosecuted both cases

(Vol. VIII, 1291). Petitioner was found guilty of murder

and was sentenced to a period of life imprisonment with a

minimum of twenty-five years.

In the Appellate Division, Second Department, peti-

tioner urged reversal of his conviction. The appellate Divi-

sion affirmed without opinion*** and leave was denied by

the Court of Appeals.****

Petitioner, in a pro se petition for a writ of habeas

* This is evidenced by the fact that petitioner, after his trial,

again moved for the State to provide him with Blake’s

transcript; that application, too, was denied. (See appendix in-

fra).

** On August 20, 1969, Blake was sentenced to life imprison-

ment with a minimum of fifteen years. His conviction was

subsequently reversed. 44 A.D. 2d 606 (2d Dept. 1974).

*** 44 A.D. 2d 654 (2d Dept. 1974).

**** April 5, 1974, Stevens, J.

EEE

4

corpus in the United States District Court for the Eastern

District of New York, raised the same issues presented in

the state courts. In response to petitioner’s claim that he

was unconstitutionally deprived of a transcript of Blake’

trial, Judge Nickerson held: ‘ ee

Petitioner’s third argument is that he, as an indigent

was entitled to a free transcript of the separate trial of his

codefendant, as an aid to the preparation of his own case

While the Supreme Court has held that an indigent defen-

dant is entitled to free transcripts of preliminary hearings

for trial purposes, Roberts v. LaVallee, 389 U.S. 40, 42; 88

Ss. Ct. 194, 196 (1967), and to free transcripts of trial pro-

ceedings for appeal purposes, Griffin v. Illinois, 351 U.S.

12, 76 S. Ct. 585 (1956), petitioner cites no case extending

this equal protection rationale to the point of entitling an

indigent to a free transcript of a co-defendant’s trial mere-

ly on the theory this may be of some aid to him or his

counsel. I do not believe that the state is constitutionally

required to provide at its own expense every imaginable aid

to the preparation of an indigent defendant’s case. Cf.

prey States v. MacCollom, 426 U.S. 317, 96 S. Ct. 2086

) )

J udge Nickerson denied Palmieri’s petition without a

hearing.

a

5

REASONS FOR GRANTING THE WRIT

THE WRIT SHOULD BE GRANTED TO

RESOLVE WHETHER AN INDIGENT ACCUS-

ED’S RIGHT TO MINUTES OF ALL PRIOR PRO-

CEEDINGS IN HIS CASE EXTENDS TO

MINUTES OF THE TRIAL OF A CO-

DEFENDANT WHERE THE EVIDENCE

AGAINST BOTH WAS VIRTUALLY THE SAME.

Petitioner and Blake stood accused of acting in con-

cert in committing the robbery and murder of May Lang.

Blake’s case was severed and his trial proceeded first. Peti-

tioner, indigent and unable to purchase a transcript of

Blake’s trial, applied on more than one occasion for the

State to provide him with that transcript; his applications

were denied. Where the only obstacle petitioner faced in

obtaining minutes that were necessary in defending

himself against a murder charge was his indigency, the

denial of his requests for Blake’s transcripts was in viola-

tion of his Fourteenth Amendment rights to equal protec-

tion and due process and mandates a new trial.*

* The only reported case found in which this equal protection

issue was raised is United States v. Bamberger, 482 F. 2d 166

(9th Cir.) cert. denied 414 U.S. 1041 (1973). There the co-

defendant was tried twice; the first trial resulting in a hung jury.

The defendant already had a copy of the transcript of the co-

defendant’s first trial and the court never reached the issue of

whether he was entitled to a transcript of the second trial,

holding that ‘‘any error in its denial was harmless beyond a

reasonable doubt.’’ 482 F. 2d at 168. Such clearly is not the case

here: Further, petitioner contends, in agreement with the 7th

Circuit’s ruling in United States v. Jonas, 540 F. 2d 566 (7th Cir.

1976), reversing a conviction due to the denial of a free

transcript of a prior mistrial, that harmless error analysis is in-

6

It has long been the law that rich and poor alike must

be judged equally when ‘‘stand(ing) . . . before the bar of

justice ...’’ Chambers v. Florida, 309 U.S. 227, 241

(1940); Griffin v. Illinois, 351 U.S. 12, 17 (1956). ‘‘There

can be no equal justice where the kind of tria! a4 man gets

depends on the amount of money he has.’”’ Griffin, supra.

at 17.

In recognition of this, courts in the past two decades

have afforded the poor the necessary tools for preparation

of a defense at no cost to them.* As Mr. Justice Black

noted in Griffin, holding that equal protection and due

process required that all defendants have similar access to

appellate revie regardless of wealth,

There is no meaningful distinction between a rule which

would deny the poor the right to defend themselves in a

trial court and one which effectively denies the poor an

adequate appellate review accorded to all who have money

enough to pay the costs in advance.

351 U.S. at 18. See also, Roberts v. LaValee, 389 U.S. 40,

42 (1967).

In accord with this principle the Supreme Court held,

in Britt, v. North Carolina, 404 U.S. 226 (1971), that an

indigent defendant was entitled to a transcript of his prior

trial, for the same crime, which had resulted in a hung

jury.**

appropriate in this case as the error is of constitutional

magnitude and, even if inconsistencies in testimony appear

minor, the harm to appellant might be substantial. See, 540

F.2d at 572-573.

* E.g., Britt v. North Carolina, 404 U.S. 226 (1971) and

other cases cited notes 1-3, at 231 (Douglas J., dissenting). See

generally, Discrimination Against the Poor and the Fourteenth

Amendment, 81 Harv. L. Rev. 435, 435-436 (1967).

** Despite this holding the Court found that Britt, under that

narrow circumstances of that case, had an adequate alternative

available to his transcript. This is not the case here.

7

Griffin v. Illinois, and its progeny established the principle

that the State must, as a matter of equal protection, pro-

vide indigent prisoners with the basic tools of an adequate

defense or appeal, when those tools are available for a

price to other prisoners. While the outer limits of that prin-

ciple are not clear, there can be no doubt that the State

must provide an indigent defendant with a transcript of

prior proceedings when that transcript is needed for an ef-

fective defense or appeal.

404 U.S. at 227.

The Court set forth two guidelines in determining the

right of an indigent defendant to a free transcript. The

first is the value of the transcript and the second the

availability of alternatives to the transcript. It is clear that

in the instant case no alternative to the transcript was

available to Palmieri.

As to the first criterion, suffice it to say that a

transcript of an alleged accomplice’s prior trial is as

valuable to a defendant as the transcript of his own prior

trial.* The majority in Britt, referring to the dissent by

Justice Douglas, indicated two ways ii which a transcript

of a previous trial would be helpful. One, as a discovery

device in preparation for trial,** the second as a tool at trial

for the impeachment of prosecution witnesses.*** Justice

Douglas, at great length, described ways in which a prior

trial would be useful to the defense. 404 U.S. 233-41. He

* Possibly even more valuable, since a defendant and

counsel would be present at the defendant’s own prior trial.

**Both the Assistant Attorney General in his affidavit in op-

position to Palmieri’s pro se habeas corpus application and the

Assistant District Attorney in his brief to the Appellate Divi-

sion, urged rejection of petitioner’s claim to Blake’s transcript

for this very reason; that it was tantamount to a discovery mo-

tion that if made would have been denied.

*** 404 U.S. at 228.

8

particularly focused on the importance of such a transcript

given the limited discovery rules in State criminal prosecu-

tions.

Here, had Palmieri the funds, he could have simply

purchased the transcript of Blake’s trial and used thai as a

discovery and impeachment device. As long as petitioner

could have purchased this obviously helpful information,

his poverty cannot constitutionally be a bar to his obtain-

ing such a valuable aid in trial preparation.

A mistrial transcript contains not only prosecution

witnesses’ names and addresses but their stories under oath

and it contains the entire theory of the government’s case.

Such a document is a complete dossier of the opposing case

for which even the most liberalized rules of civil discovery

have no equivalent... the State may not condition its

availability upon financial consideration which effectively

deprive the poor of this valuable tool.

404 U.S. at 246 (Douglas, J., dissenting). Cf, United

States ex. rel. Wilson v. McMann, 408 F. 2d 896, 897 (2d

Cir. 1969) (indigent defendant has right to transcript of

previous trial resulting in hung jury).

It is unnecessary to examine specifically how counsel

may have utilized the earlier transcript for trial purposes.

‘‘Our cases have consistently recognized the value to a

defendant of a transcript of prior proceedings, without re-

quiring a showing of need tailored to the facts of the par-

ticular case.’’ Britt v. United States, supra. at 228.* In

most cases, there is no difference between the value of a

*New York courts have consistently held that given a timely re-

quest for minutes of a prior proceeding, the use to which they

may be put is irrelevant. People v. Zabrocky, 26 N.Y. 2d 530,

536 (1970). Accord, People v. Sanders, 31 N.Y. 2d 463, 466

(1973); People v. Peacock, 31 N.Y. 2d 907, 908 (1972); People

v. West, 29 N.Y. 2d 728, 729 (1971).

9

transcript of a defendant’s own mistrial and that of a

previously tried accomplice.

The rule of Britt is not based upon some property

right, but rather is based upon the obvious need for these

minutes. The need of an accused for the minutes of a co-

defendant’s trial may not always be as great as the need

for the minutes of his own prior proceedings, but where,

as here, the evidence against the two is almost identical,

then the distinction between the two situations is without

meaning. Palmieri’s need for and potential use of the

minutes of Blake’s trial was identical to Britt’s need and

potential use of the minutes of his prior trial. To

distinguish Palmieri’s situation from Britt’s is to disregard

the reasoning behind Britt. Here, many of the same

witnesses who testified in Blake’s trial, also testified at

Palmieri’s trial and for both discovery and impeachment

purposes, counsel to a wealthy defendant would have been

remiss in not purchasing Blake’s transcript.* The impor-

tance of the transcript of Blake’s trial to Palinieri is made

obvious by the fact that Blake’s attorney did not represent

Palmieri while the same assistant district attorney pro-

secuted both cases. Mr. Justice Shapiro’s unusual decision

granting Palmieri’s application for the transcript of

Blake’s trial only if the State ordered its own transcript,

gave the State the opportunity to deprive petitioner of the

transcript without causing the prosecutor any great in-

convenience, he being privy to the evidence against

Palmieri and having prosecuted Blake, thus presumably

having trial notes and knowledge of what the witnesses

said. Such a result is patently unfair and is solely the result

of petitioner’s indigency. Thus, the transcript of Blake’s

* A comparison of the Appellate Division’s brief in Blake’s

case and the transcript here, indicates that among the most im-

portant common witnesses were many of the police officers, in-

cluding the officers at the scene and the investigating detectives.

10 11

trial is necessary to vindicate Palmieri’s legal rights. See, CONCLUSION

United States ex. rel. Wilson v. McMann, supra.

In addition to being violative of petitioner’s FOR THE FOREGOING REASONS, THIS PETI-

guarantees of due process of law and equal protection TION FOR A WRIT OF CERTIORARI SHOULD

under the law (U.S. Const. Amends. V and XIV), the | BE GRANTED.

court’s denial of the transcript of Blake’s trial deprived

Palmieri of his right to counsel. U.S. Const. Amend. VI. | Respectfully submitted,

Gideon v. Wainwright,* and its progeny guarantee to in-

digent defendants not only ‘‘paper’’ counsel but the effec- J. JEFFREY WEISENFELD

tive assistance of counsel. See, Jn Re Oliver, 333 U.S. 257, Attorney for Petitioner

275 (1945). Aids, to counsel, such as minutes of prior pro- 401 Broadway

ceedings, are part and parcel of the delivery of effective New York, New York 10013

assistance of counsel. Right to Aid in Addition to Counsel (212) 925-8640

Sor Indigent Criminal Defendants, 47 Minn. L. Rev. 1054

(1963). Here, the State, by denying appointed counsel the

tools for Palmieri’s defense, deprived him of his right to

effective representation.

Although the Fourteenth Amendment was not meant

to end all distinctions between rich and poor, it does re-

quire that ‘‘indigents have an adequate opportunity to pre-

sent their claims fairly within the adversary system.’’ Ross

v. Moffitt, 417 U.S. 600, 612 (1974). Palmieri was not

given that opportunity. Accordingly, this Court should

order the State of New York to provide Palmier: a

transcript of Blake’s trial and to afford Palmieri a new

trial.

* 373 U.S. 335 (1963).

| :

la

APPENDIX ‘‘A”’

AMENDMENTS V, VI AND XIV

AMENDMENT YV

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of « Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual ser-

vice in time of War or public danger; nor shall any person

be subject for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use, without just com-

pensation.

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have been

committed, which district shall have been previously ascer-

tained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of

Counsel for his defence.

2a

AMENDMENT XIV

/ Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. 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; nor

deny to any person within its jurisdiction the equal protec-

tion of the laws.

3a

APPENDIX ‘‘B”’

USCA ORDER

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of Ap-

peals for the Second Circuit, held at the United States

Courthouse in the City of New York, on the twentieth

day of September one thousand nine hundred and

seventy eight.

Present:

HON. LEONARD P. MOORE

HON. WILLIAM H. TIMBERS

HON. ELLSWORTH A. VAN GRAAFEILAND

Circuit Judges,

FRANK PALMIERI,

Petitioner-Appellant,

V.

EUGENE LE FEVRE, Warden Clinton

Correctional Facility,

Respondent-Appellee.

Appeal from the United States District Court for the

Eastern District of New York

This cause came on to be heard on the transcript of

4a

record from the United States District Court for the

Eastern District of New York, and was argued by counsel.

On Consideration whereof, it is now hereby ordered,

adjudged, and decreed that the judgment of said District

Court be and it hereby is affirmed in accordance with the

Court’s oral opinion in open court with costs to be taxed

against the appellants.

A. DANIEL FUSARO

Clerk

By: s/Arthur Heller

ARTHUR HELLER

Deputy Clerk

see

ws a

5a

APPENDIX C—MEMORANDUM AND ORDER

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

FRANK PALMIERI,

Plaintiff,

-against-

EUGENE LeFEVRE, Supt., Clinton Correctional Facili-

ty,

Respondent.

77 C 1698

MEMORANDUM AND ORDER

NICKERSON, District Judge

On May 26, 1969, Frank Palmieri was convicted on

two counts of murder after a jury trial in Queens County

Supreme Court. He now petitions for a writ of habeas cor-

pus, raising precisely the grounds raised on an unsuc-

cessful direct appeal from the judgment of conviction.

Petitioner’s first argument is that he was entitled to a

new trial because of evidence discovered after the conclu-

sion of the jury trial. This evidence was presented to Mr.

Justice Balsam the trial judge, who held two hearings

beginning respectively on November 13, 1969, and March

9, 1971, to determine whether the new evidence justified a

new trial. By orders dated June 25, 1970 and June 28,

1971, Mr. Justice Balsam reviewed the testimony taken at

the hearings and the affidavits submitted by the parties,

6a

and held that a new trial was not warranted. [Record on

Appeal, Vol. I., pp. 66a-69a; 9la-95a.] The basis for

defendant’s motions was the purported recantation of

several crucial prosecution witnesses who had testified at

trial that Palmieri had admitted committing the crime.

However, one of the witnesses who was supposedly ready

to recant testified at the second hearing that while in

prison on an unrelated charge he had been forced by peti-

tioner’s friends to sign a statement saying that he had lied

during petitioner’s trial. This witness, Harvey Wohl,

testified at the hearing that he had testified truthfully at

the jury trial and that he would not have signed the pur-

ported recantation but fo the coercion. Mr. J ustice Balsam

found the evidence submitted by the defendant at the hear-

ings not worthy of belief and denied the motions for a new

trial.

The mere fact of recantation does not entitle a con-

victed defendant to a new trial: indeed, recantations are

viewed ‘with the utmost suspicion.’’ Rice v. Vincent, 491

F.2d 1326, 1332 (2d Cir.), cert. denied 419 U.S. 880

(1974). And the determination on the question of credibili-

ty made by Mr. Justice Balsam, who had the opportunity

to observe the witnesses at both the trial and the post-trial

hearings, should not be disturbed by me on this habeas

corpus proceeding.

Petitioner’s second argument is that the Assistant

District Attorney failed to disclose that his chief witness,

Harvey Wohl, was testifying at petitioner’s trial as part of

a deal worked out between Wohl, Assistant District At-

torneys Lombardino and/or Maiolo, and Mr. Justice

Thompson with respect to a robbery charge brought

against Wohl. Petitioner seems to be arguing that Wohl

received an ‘‘extremely light’? sentence from Mr. Justice

Thompson on the burglary charge, and that part of the

deal that led to this sentence was a promise by Wohl to

7a

identify petitioner as one of the perpetrators of the

murder. However, Mr. Justice Thompson, Assistant

District Attorneys Lombardino and Maiolo and Wohl all

testified that no agreement had been reached or even

discussed regarding Wohl’s testimony in petitioner’s case

ead Vol. VI, p. 375; Vol. VIII, Pp. 1336; Vol. V, p.

i ; and Vol. It, p. 980a.] Apparently in the course of

iscussing Wohl’s own robbery case with Mr. Justice

Thompson and the Assistant District Attorney, Wohl

volunteered the information regarding petitioner but

unless all four witnesses are to be disbelieved, this did not

form a part of the agreement. As there was no agreement

concerning Wohl’s testimony at petitioner’s trial there

was pogo for the prosecution to disclose.

Wohl was testifying because of ah

favor with the state authorities rather item pie a 6

of civic duty, this was a matter to be brought out on cross-

examination of Wohl, and petitioner’s trial counsel did in

ce Ad this interpretation of Wohl’s motives

peg gor on cross-examination. [Record, Vol. III,

Petitioner’s third argument is that he indi

was entitled to a free transcript of the posh flee of his

codefendant, as an aid to the preparation of his own case

While the Supreme Court has held that an indigent defen-

dant is entitled to free transcripts of preliminary hearings

for trial purposes, Roberts v. La Vallee, 389 U.S. 40 42:

88 S.Ct. 194, 196 (1967), and to free transcripts of trial

tyra: for appeal purposes, Griffin v. Illinois, 351

ys , 12, 76 S.Ct. 585 d 956), petitioner cites no case exten-

ding this equal protection rationale to the point of entitl-

ing an indigent to a free transcript of a co-defendant’s trial

merely on the theory this may be of some aid to him or his

counsel. I do not believe that the state is constitutionally

required to provide at its own expense every imaginable

8a

aid to the preparation of an indigent defendant’s case. Cf.

United States v. MacCollom, 426 U.S. 317, 96 S.Ct. 2086

(1976).

Finally, petitioner argues that when the witness

Avalos testified that the defendant’s nickname was

‘*Animal’’ this so prejudiced the jury against the defen-

dant that he was denied a fair trial. I note that Mr. Justice

Balsam instructed the jury not to draw any inference from

this nickname, [Record, Vol. IV, p. 1223a] and I reject

this claimed constitutional error as wholly spurious.

The petition is denied. So ordered.

Dated: Brooklyn, New York

April 4, 1978

s/ Eugene H. Nickerson

Eugene H. Nickerson, U.S.D.J.

The Clerk shall make copies of this Memorandum and

Order and serve them upon the parties.

9a

APPENDIX D—JUDGMENT OF THE

DISTRICT COURT

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

FRANK PALMIERI,

Plaintiff,

-against-

EUGENE LeFEVRE, Supt. Clinton Correctional Facility,

Respondent.

JUDGMENT 77 C 1698

A memorandum and order of Honorable Eugene H.

Nickerson, United States District Judge, having been filed

on April 5, 1978, denying the petition for a writ of habeas

corpus, it is

ORDERED and ADJUDGED that the petitioner take

nothing of the respondent, and that the petition for a writ

of habeas corpus is denied.

Dated: Brooklyn, New York

April 7, 1978

s/ Richard H. Weur

Clerk

FILED IN CLERK’S OFFICE U.S. DISTRICT COURT

E.D.N.Y. APR 7-1978

lla

Upon the foregoing papers, and for the reasons stated

on the record, this motion will be granted and the District

Attorney will provide transcript to defendant only if the

District Attorney orders copies for himself.

APPENDIX E—ORDERS OF THE STATE COURT

At a Criminal Term, Part I, of the

Supreme Court, held in and for the

County of Queens, at the Courthouse

125-01 Queens Boulevard, Kew s/ J. Irwin Shapiro

Gardens, New York, on the 24th day © J.S.C.

of March 1969. ;

a

GRANTED:

: : / te: March 24, 1969

PRESENT: Hon. J. IRWIN SHAPIRO, Justice. Date 7 eas Lionel

THE PEOPLE OF THE STATE OF NEW YORK,

-against-

FRANK PALMIERI, {

Defendant.

Ind. No. 920-68

Motion (1) to furnish transcript minutes of trial of

Michael Blake; (2) daily copy

Submitted March 24, 1969

Michael Ruggiero, for the Motion

L. Gresser, A.D.A., Opposed

The following papers numbered 1 to 2 submitted in this

motion

Papers Numbered

Notice of Motion and Affidavits Annexed.......... 1-2

***

|

}

'

i

12a

At a Criminal Term, Part I, of the

Supreme Court, held in and for the

County of Queens, at the Courthouse,

125-01 Queens Boulevard, Kew

Gardens, New York, on the 9 day of

September 1969.

PRESENT: Hon. EDWARD THOMPSON, Justice.

THE PEOPLE OF THE STATE OF NEW YORK

-against-

FRANK PALMIERI,

MICHAEL BLAKE,

Defendants.

Ind. No. 920-68

Motion for transcript of minutes

Submitted August 11, 1968

Michael Ruggiero, for the motion

Thomas J. Mackell, D.A. Opposed

The following papers numbered 1 to 2 submitted in this

motion

| | Papers Numbered

Notice of Motion and Affidavits Annexed.......... 1-2

***

Upon the foregoing papers, and the opinion of the

Court herein, the motion on behalf of the defendant

FRANK PALMIERI is in all respects denied.

s/ E. Thompson

J.8.C.

GRANTED): Date: September 9, 1969

s/ Paul Livoti

13a

SUPREME COURT, QUEENS COUNTY

CRIMINAL TERM, PART I

THE PEOPLE OF THE STATE OF NEW YORK,

-against-

FRANK PALMIERI,

MICHAEL BLAKE,

Defendants.

By THOMPSON, J.

DATED September 9, 1969

Ind. No. 920-68

4

Defendant Frank Palmieri indicted with one, Michael

Blake, for the crime of murder, on his motion made

March 17, 1969 was granted severance. After trial by jury,

a verdict of guilty of manslaughter under the first count of

the indictment was found against codefendant Blake on

March 28, 1969. Defendant Palmieri on May 26, 1969,

after a jury trial, was found guilty of murder under both

counts of the indictment.

Defendant Palmieri here seeks a transcript of the en-

tire trial of his codefendant Blake, uring that he cannot

obtain them because of his indigence and that he requires

them for the protection of his constitutional rights.

Defendant relies on People v. Montgomery (18 N Y

2d 993) in which the court reversed defendant’s conviction

and remitted the case to the trial court for new trial on the

ground that an indigent defendant is entitled to the

minutes of a preliminary hearing. The court referring to

the Code of Criminal Procedure, section 206, said at page

994;

“There is no doubt that section 206 affords one who is

capable of paying for it an absolute right to a transcript of

l4a

the preliminary hearing. Thus, the State cannot, consonant

with the equal protection clause of the State and Federal

Constitutions, deny a defendant, prior to trial, access to a

transcript of a preliminary hearing because of his inability

to pay (cf. People v. Jaglom, 17 N Y 2d 162, 165). We

hold, therefore, that when a defendant requests a

transcript and when that request is accompanied by an af-

fidavit of indigency, the State must honor that request.’’

Clearly the relief sought herein can under no view of

the facts be regarded as coming within the purview of

Montgomery, supra. In Montgomery, the defendant was

denied a copy of the minutes of a preliminary hearing

which were necessary and pertinent to his defense while

the same minutes by statute would have been available to

him as a defendant if he was able to pay for them. Here,

defendant Palmieri seeks not the minues of his own trial,

which were given to him at his request, but instead the

minutes of the trial of his codefendant which, as noted

above, was held separately at the special insistence and re-

quest of the defendant.

The defendant’s contentions are not supported by any

statute nor any decision which would entitle him to

minutes of a trial in which he was not a participant. Of a

certainty this request may be placed before any appellate

tribunal for its determination.

Accordingly, the motion is denied.

Order entered herein.

The clerk of the court is directed to send a copy of the

decision and order to the attorney for the defendant

Palmieri.

s/ E. Thompson

J.S.C.