Petition — Vidal v. New York
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Supreme Court, U. &/)]
FILED
FEB 26 1979
MIGHAGL AODAK, JR., CLERK
IN THE UNITED STATES
SUPREME COURT
OCTOBER TERM 1979
wo. €8-6276
li ee ee ee |
VINCENT VIDAL, z
Petitioner, : :
Vv. :
PEOPLE OF THE STATE OF NEW YORK, :
Respondent. 2
ee >
MOTION POR LEAVE TO
PROCEED IN PORMA
PAUPERIS
and
PETITION FOR A WRIT OF
CERTIORARI TO THE NEW
YORK STATE SUPREME
COURT, APPELLATE DIVI-
SION, SECOND DEPARTMENT
AND NEW YORK COURT OF
APPEALS
BERNARD G, EHRLICH
CHARLES SUTTON
Attorney for petitioner
299 Broadway
New york, New york 10007
212-964-8612
SUPREME COURT OF THE UNITED STATES SUPREME COURT OF THE UNITED STATES
eee er ee ee te te ee tee ee es: eee: SS ee ee ------ x
VINCENT VIDAL, 2 VINCENT VIDAL, t
petitioner, : petitioner, :
v. P ve :
PEOPLE OF THE STATE OF NEW YORK, : PEOPLE OF THE STATE OF NEW YORK, :
Respondent. : Respondent. :
eee eee ee ee ee eee - = = -X eet ee ee eee tt ee -----x
State of New york )
Motion for Leave to ) SS.:
Proceed In Forma pauperis | County of Westchester )
Please Take Notice that upon the affidavit of vin- vincent vidal, being duly sworn, deposes and says:
cent vidal, sworn to February 25, 1979 and the affidavit of
1. I am the petitioner and I make this affidavit
Charles Sutton, sworn to February 25, 1979, the undersigned
in support of my motion for leave to proceed in forma pauperis
will move this court for leave to proceed in forma pauperis
on my petition for a writ of certiorari to the Supreme Court
pursuant to Supreme court Rules, Rule 53 and 28 U.S.c. Sec-
of the State of New york, Appellate Division, Second Depart-
tion 1915 authorizing Charles Sutton, Esq. to represent the
ment and to the New york Court of Appeals.
petitioner without charge or claim against the united States
for legal fees, and granting petitioner such other and fur- 2. I was indicted by two indictments from the
ther relief as may be just and proper. Supreme Court of the State of New york, County of Kings, in-
dictments number 7824/73 and 7826/73 with alleged sale of
Dated: New york, New york
February 25, 1979 cocaine and possession of cocaine, upon which judgments of
charles Sutton
Attorney for petitioner conviction after trial by jury were rendered on January 22,
To: Clerk, Supreme court 299 Broadway
of the united States New york, New york 10007 1975, sentencing me to a mandatory jail term of fifteen years
212-964-8612
To: New york State to life. 1 have been confined to jail since November 1, 1974.
Attorney General
EA eee ane nS Sy one tn aa
prior to my confinement to jail, I was employed as a longshore-
man for over fifteen (15) years. I had never before been
arrested or convicted of any crime,
3. I own no assets of any kind. I have no bank
accounts, no stock holdings, no real estate and no property
of any kind, and no income, except what small amounts of money
I might be able to earn while working in jail. I am presently
confined at the Greenhaven Correctional Institution of the
New York State Department of Correction at Stormville, New
york.
4. I was unable to pay either for legal fees or
costs of transcripts or other expenses on my appeal to the
New york State Supreme Court, Appellate Division, Second
Department. As a result thereof, upon the application to
that court, I was allowed to appeal in forma pauperis by
order of that court dated and filed June 23, 1975, a copy of
which is attached hereto.
5. I am unable to pay the costs to proceed in the
prosecution of my petition for a writ of certiorari to the
New york State Supreme court, Appellate Division and New york
Court of Appeals.
6. My attorney Charles Sutton, Esq. has agreed to
represent me in this court without a present payment of a
legal fee upon the understanding that I would pay him when
I am able, which I agree to do, and without any expense to
the united States. He has represented me on the trial of
these indictments, upon my appeal to the Supreme court of the
State of New york, Appellate Division, Second Department, upon
my application for leave to reargue the appeal to that court,
and upon my application to Hon. Jacob D. Fuchsberg, Associate
Judge of the New york Court of Appeals for leave to appeal to
that court from the order of the said Appellate Division
affirming the judgment of conviction.
Te No previous application has been made to this
Court for this relief.
8. As shown by my attached petition for a writ of
Certiorari, my appeal is meritorious and presents important
constitutional questions which the State court has decided in
conflict with applicable decisions of this court, (petition,
Points I, II ) and in addition, presents an important
question of federal law which has not been determined by this
Court (petition, points III-Ix ).
cree Vetole O.
Vincent vidal —
Sworn to before me this
25th day of Pebruary, 1979
State of New yor
CIS B. McLJONNELD
Public, Scarce of New Yor}
Qualified in Durchess County
Com ey Mas 9 BY // =e
SUPREME COURT OF THE UNITED STATES
VINCENT VIDAL, 2
petitioner, 2
v. 2
PEOPLE OF THE STATE OF NEW YORK, 2
Respondent. :
eee ea aeaaeas hee oe ae o ae @X%
State of New york )
; ») SS.:
county of New york )
Charles Sutton, being duly sworn, deposes and says:
1. I am the attorney for the petitioner and I am
familiar with the facts herein.
2. I agree to represent the petitioner in proceed-
ings in this court and to prosecute the proceedings of the
petitioner in this court without present payment of any legal
fee by the petitioner and I agree to be paid by the petitioner
when he is able to pay me. I agree not to apply to or seek
payment from the united States on account of any legal fee in
any proceedings in this court on behalf of this petitioner.
3. I am familiar with the Rules of this court. I
have not yet applied for admission to become a member of the
Bar of this court, although I am able and qualified to do so,
and shall do so as promptly as feasible.
4. The petitioner has been confined to jail since
on or about November 1, 1974.
“charles Sutton
Sworn to before me this
25th day of February, 1979
Y’
ar.
7 Fs lee
* LZ £4,’ "2 = Lo.
Notary Public, State of New york
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No 41-013?" : 1 ttt
Term | toe ti
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MCT,
IN THE UNITED STATES
SUPREME COURT
OCTOBER TERM 1979
VINCENT VIDAL,
petitioner,
v.
PEOPLE OF THE STATE OF NEW YORK,
Respondent.
-x
-X
PETITION FOR A WRIT OF
CERTIORARI TO THE NEW
YORK STATE SUPREME
COURT, APPELLATE DIVI-
SION, SECOND DEPARTMENT
AND NEW YORK COURT OP
APPEALS
BERNARD G, EHRLICH
CHARLES SUTTO
iN
attorney for petitioner
299 Broadway
mew york, New York 10007
212-964-8612
INDEX TO APPENDIX TO PETITION
Order of New York Supreme Court
App. Div. Second Department
entered February 21, 1978
Memorandum Opinion thereto
Order of said court
entered June 26, 1978
Order of Hon. Jacob D. Fuchsberg,
Associate Judge of New york
Court of Appeals entered
November 27, 1978
united States Constitution
Pourth, Pifth, and
Sixth Amendments
New York Criminal procedure Law
Section 450.10
Section 460.70 (1)
Section 470.05
Section 470.15
Section 470.20
Section 470.50 (1)
Order of Appellate Division
entered June 23, 1975
granting in forma pauperis
relief
Index to petitioner's
brief to Appellate
Division, points and
questions
4a
10a
11a-19A
Table of Contents
Statement Pursuant to U.S.
Supreme Court Rule 23, 28 U.S.C.A. «. « -
Statement of the Case and Facts. . ..««-«.
POINT I - The indigent petitioner was
denied his fundamental right to have
his conviction reviewed on arpeal by
the Appellate Division “eref 8 @ © @ @
POINT II - The defendant was denied his
Constitutional rights to due process
of law and to a fair trial by the
knowing use by the prosecution of
false and perjured testimony . .. «+ « «+
POINT III - The entry by police on December
27, 1973 into the building at 679 - 48th
Street and into defendant's apartment to
make a warrantless arrest of Rosario Bar-
barino was illegal, violated defendant's
Constitutional rights and rendered de-
fendant's arrest and the subsequent
search and seizure of defendant's person
and apartment illegal. ....+.«+-+«#+e+e#e-s
POINT Iv - The warrantless entry into the
building at 679 - 48th Street was for-
cible, was without announcement of pur-
pose or authority, was illegal and all
fruits therefrom must be suppressed. .. .
POINT V - The warrantless forcible entry by
the police into defendant's apartment with-
out announcement of purpose violated de-
fendant's Constitutional rights and the
arrest of defendant, the search of the
defendant's person and of his apartment
and the alleged seizures therefrom are
illegal and must be suppressed .....+ -:
POINT VI - There were no exigent circum-
stances to justify the warrantless,
forcible entry into the building and
into the apartment ...+«+e+eee8 82 @
ie
14
17
25
30
31
32
Table of contents
(continued)
POINT VII - The warrantless arrest of the
defendant was made on pretext and vio-
lated defendant's Constitutional rights. .
POINT VIII - All evidence allegedly seized
by the police following the illegal police
entry into the building and into defend-
ant’s apartment and the illegal arrest
and search of the defendant's person and
apartment must be suppressed, the counts
of the consolidated indictment based
thereon must be dismissed, and the judg-
ment of conviction must be reversed. ..
POINT IX - The search warrant was issued
upon allegations derived from the unlaw-
ful entry, unlawful arrest of defendant,
and unlawful search and seizure and was
invalid, . . . * . . . . * . . . . . . .
POINT X - The trial court denied defendant
a fair trial and due process of law by
aiding and counselling the prosecutor in
the prosecution of the consolidated in-
@ietment ~.cceceveeeeeeeee @
POINT XI - The trial court expressed
opinions on the facts, directed find-
ings of fact by the jury, unfairly
marshaled the evidence, and denied
the defendant a trial by jury and a
fair trial . . _ . * . . . . . * 7. . * a
POINT XII - The prosecutor on summation
violated defendant's right to a fair
trial by his improper comments concern-
ing defendant's failure to testify and
by his improper comments concerning the
defendant's failure to produce a witness
to refute prosecution testimony. ... -
- ii -
33
34
38
40
56
63
Table of contents
(continued)
POINT XIII - The trial transcript is
incomplete in that a portion of the
trial was not recorded by the court
reporter and the trial court denied
defendant's demand to direct the
court reporter to record by steno-
graphic
notes that portion of the
trial heard by the jury of two tape
recordings between Barbarino and the
police undercover. .++++**e*** ee 8% *
POINT XIV
- The trial court denied the
defendant his Sixth Amendment right
to a public trial by sealing the
courtroom and excluding the public
during
police
cause a
the extensive testimony of
officer Florio without just
nd without any hearing. «+ +++-e*s* ee
CONCLUSION - The petition should be
granted . 7 . . ° . . . . . . . . . ° . . * 7 . 7 .
- iii-
67
70
72
IN THE UNITED STATES
SUPREME COURT
OCTOBER TERM, 1979
NO.
eeeanoaeeeeaeecieae eeeaee @ eae of
VINCENT VIDAL, : e
petitioner, :
v. 2
PEOPLE OF THE STATE OF NEW YORK, :
Respondent. :
PETITION FOR A WRIT OF
CERTIORARI TO THE NEW
YORK STATE SUPREME
COURT, APPELLATE DIVI-
SION, SECOND DEPARTMENT
AND THE NEW YORK COURT
OP _APPEALS
TO: The Honorable chief Justice, and the
Honorable associate Justices of the
Supreme court of the United States:
The petitioner, vincent vidal, by Charles Sutton,
his attorney, respectfully petitions for a writ of certiorari
to the New york State Supreme Court, Appellate Division,
Second Department and the New York Court of Appeals upon the
grounds set forth below,
Statement pursuant to
u.S. Supreme court
Rule 23, 28 U,S.C,A.
1(a) The decision, opinion and order of the New
york Supreme court Appellate Division, Second Department,
dated rebruary 21, 1978, was reported at 61 A.D. 2d 825
A copy of the order and opinion of that court dated and en-
tered pebruary 21, 1978 is appended at pages la and 2a. A
copy of the order dated and entered June 26, 1978 of that
court, which denied the petitioner's motion to restore the
appeal to the appeal calendar for argument on the ground that
the court did not afford the petitioner his fundamental right
to appeal to that court since that Court did not have before
it 1,500 pages, or almost one-half of the trial transcript,
which were omitted from the record on appeal delivered to the
Appellate Division by the Supreme Court, Kings County Appeals
Bureau, and upon which incomplete record that Court rendered
its review on appeal and its decision on appeal was not s
reported, and a copy thereof is appended at page 3a. The
decision, opinion, and order of Honorable Jacob D. Fuchsberg,
Associate Judge of the New york Court of Appeals, dated and
entered November 27, 1978 which denied the petitioner leave
to appeal to that court from the said Appellate Division
orders ig reported unofficially at N.Y.S. 2d
and officially at N.Y. 2d » and is appended at
page 4a.
1(b) (i) The orders sought to be reviewed are the
orders of the said Appellate Division entered February 21,
1978 and June 26, 1978.
(ii) The order respecting a rehearing
(which was not opposed by the District Attorney) was the said
order dated and entered June 26, 1978. The time within which
to file this petition is calculated from the date of entry of
November 27, 1978 of the said order of New York Court of
Appeals Associate Judge Jacob D. Fuchsberg.
(iii) The statutory authority believed to
confer on this court jurisdiction to review the orders in
question by writ of certiorari is 28 U.S.C. Section 1257(3),
to wit:
*"pinal judgments or decrees rendered by the highest
court of a State in which a decision could be had,
may be reviewed by the Supreme Court as follows:
(3) By writ of certiorari, where the validity
of a treaty or statute of the united States is drawn
in question or where the validity of a State sta-
tute is drawn in question on the ground of its being
repugnant to the Constitution, treaties or laws of
the united States, or where any title, right, privi-
lege or immnity is specially set up or claimed under
the Constitution, treaties or statutes of, or com
mission held or authority exercised under the
united States,"
l(c) The questions presented for review are as
follows:
(1) Given New York's statutory guarantee
to every criminal defendant in all criminal prosecutions of
“an absolute and fundamental right to appeal a conviction",
and given New york's requirements that a full and complete
transcript of the trial be filed with it as constituting the
record on appeal on an appeal in forma pauperis, and given
New york's requirement that the Appellate Division has the
power to review both the facts and the law and to render its
review and decision on both grounds, is the petitioner denied
his Constitutional rights to due process of law and equal pro-
tection of the law upon his appeal to that court in forma
pauperis when that Appellate Division renders its decision on
the petitioner‘’s criminal appeal without having before it and
without reviewing almost 1,500 pages out of a trial transcript
of 3,000 pages, being one-half of the trial transcript, on a
trial which commenced November 4, 1974 and ended December 4,
1974 and in which the missing trial transcript pages included
the testimony by a majority of the witnesses produced at trial
and included the majority of the admissions of the evidence
presented at trial which was vigorously contested and in which
at least thirty appellate points of error were presented in
petitioner's brief to that court?
(a) Was the petitioner's constitu-
tional right to appeal violated by the refusal of the trial
court to make a record of the tape recording between the
undercover police officer and alleged accomplice P..cario Bar-
barino which were played to the jury and as to which no min-
utes or reconstruction thereof was made for inclusion in the
trial record or in the record on appeal?
(2) Were the petitioner's Constitutional
rights under the Fourteenth, Pourth and Fifth Amendments vio-
lated by the police when they broke into the petitioner's
private apartment without a warrant, without announcing their
purpose, without exigent circumstances allegedly to arrest a
person named Rosario Barbarino who did not reside at petition-
er‘'s apartment, whose residence address the police knew to be
elsewhere than the petitioner's apartment, without probable
cause to believe that the said Rosario Barbarino was then
inside the petitioner's apartment, in the face of police evi-
dence that the police at that time knew that Rosario Barbarino
was not inside the petitioner's apartment, and the police tes-
timony that after they entered they did not find Rosario Bar-
barino to be in the petitioner's apartment, which forcible
entry into petitioner's apartment occurred following the use by
police of their drawn guns and police badges to force a tenant
of the building who was in the outer lobby to use his key to
open the locked inner lobby door for the police and from
there, the police proceeded up the stairs to petitioner's
apartment, where the police after such entry seized and hand-
cuffed petitioner at the vestibule of the apartment, and there-
upon entered the petitioner's apartment and searched the same,
and allegedly seized items upon which the petitioner was in-
dicted and convicted of possession of narcotic drugs and
paraphernalia, which evidence was also used to prejudice
petitioner in his trial?
(3) Were the petitioner's Constitutional
rights to due process of law and to a fair trial violated by
the knowing elicitation and use by the prosecution from Ros-
ario Barbarino, the alleged accomplice of petitioner, that in
return for his testimony the District attorney had promised
him a jail sentence of eight years to life, when in fact the
promise was for life probation, which the District Attorney
recommended shortly after the end of this trial, and Rosario
Barbarino was sentenced to lifetime probation?
(4) Was the petitioner's constitutional
rights under the Fifth Amendment violated by the statement by
the prosecutor, over objection that "rf for a minute there
was any doubt whether this stuff is cocaine --- He could have
produced his own chemist"?
(5) Was the petitioner's constitutional
right to due process of law and a fair trial violated by the
trial court's prejudicial conduct including siding with and
counselling the prosecution?
(6) Was the petitioner's Constitutional
rights under the Fifth and Sixth Amendments violated when the
trial court charged the petitioner with the crime(s) of con-
spiracy and acting in concert which were not charged or
alleged in the indictment(s) and allowed the prosecution to
introduce inadmissible hearsay thereunder?
1 (a) The constitutional provisions, statutes and
Rules of Court are set forth at length and appended at pp.
5a-9a, to wit: U.S. Constitution: Fourth, Pifth and Sixth
Amendments (pp. 5a); New York Criminal Procedure Law Sections
450.10; 460.70(1); 470.05; 470.15; 470.20; 470,.50(1)
(pp. 5a-9a).
Statement of t)l.e Case and Facts
The defendant vincent vidal was charged by two
separate indictments, 7824/73 and 7826/73, Kings County Sup-
reme Court, which were consolidated for trial over objections.
Indictment Number 7824/73 contained six Counts. The
First count charged defendant with the sale of a controlled
substance in the first degree (alleged cocaine) on November 20,
1973, by the Pourth Count with sale of a controlled substance
in the third degree (alleged cocaine) on November 8, 1973,
The Second and Third counts charged defendant, respectively,
with possession with intent to sell, and possession of the
alleged cocaine charged in the Pirst count, The Pifth and
Sixth Counts charged defendant with possession with intent to
sell and possession of the alleged cocaine charged in the
Pourth Count,
Indictment Number 7826/73 charged defendant by the
First Count with sale of cocaine in the First pegree committed
on December 27, 1973. The Second and Third counts charged
possession with intent to sell and possession, based on the
sale count. Counts 4, 5, 6, 7, 8, 9, 10 and 13, charged pos-
session of almost every controlled substance allegedly seized
in defendant's apartment, to wit, 4 - cocaine (by aggregating
small amounts of white powder found in the apartment); 5 -
opium; 6 - amphetamine; 7 - methaqualone; 8 - barbiturates;
9 - marijuana (also by aggregation); 10 - “materials suitable
for packaging ... narcotics ... or stimlants"; 13 - posses-
sion (.22 cal.) revolver; 14 - possession (.38 cal.) revolver;
15 - possession stolen (.38 cal.) revolver. Count 15 was dis-
missed on motion,
The defendant was convicted after trial by jury on
all counts except the one dismissed count, as above. The de-
fendant was sentenced on January 22, 1975 on each of two sale
counts and two possession counts to a term of 15 years to
life in jail, to run concurrently. The schedule of his sen-
tences on the consolidated indictments is set forth as follows
(all sentences were to run concurrently):
consol-
idated 7824/73
Indict- Indict-
ment ment
Counts counts charge Sentence
1 4 Sale cocaine, third de- l yr. to life.
gree, November 8, 1973.
2 5 possessing cocaine with l yr. to life,
intent to sell.
3 6 possession cocaine, Dismissed,
4 1 Sale cocaine first de- 15 yrs. to life
gree, November 20, 1973.
5 2 Possession cocaine with Dismissed,
intent to sell.
6 3 possession cocaine, Dismissed,
7826/73
Indict-
ment
Counts
7 1 Sale cocaine, first de- 15 yrs. to life
gree, December 27, 1973.
8 2 Possession cocaine, with Dismissed,
intent to sell, December
27, 1973.
9 3 . Possession cocaine, 15 yrs. to life
December 27, 1973.
10 4 possession cocaine, 15 yrs. to life
December 27, 1973.
11 5 possession opium, 1 year.
December 27, 1973.
d
Consol-
idated 7826/73
Indict- Indict-
ment ment
counts counts
12 6
13 7
14 8
15 9
16 10
17 13
18 14
19 15
Charge
Possession, amphetamine,
December 27, 1973.
Possession, Methaqua-
lone, December 27, 1973,
Possession barbiturates,
December 27, 1973.
Possession maijuana,
December 27, 1973.
Possession materials,
December 27, 1973.
Possession (.,22 cal.)
Revolver, December 27,
1973.
Possession (.38 cal.)
revolver.
Possession (.38 cal.)
stolen revolver,
December 27, 1973.
Sentence
l year.
l year,
l year,
Max. 3 years,
l year,
l year,
1 year,
Dismissed,
The defendant has been confined to jail since Novem-
ber 4, 1974 upon the commencement of the jury trial. The
jury verdict was rendered on December 4, 1974,
The defendant timely filed his notice of appeal from
the judgment of conviction to the Supreme court of the State
of New York, Appellate Division, First Department.
Thereafter the defendant applied by motion to the
Rpellate Division for leave to appeal in forma pauperis. That
motion was granted by order entered June 23, 1975, a copy of
which is appended at page a-___, which directed that “pursu-
ant to statute (CPL 460.70) within the twenty day period pres-
cribed therein, the stenographer of the trial court is required
to make, certify and file two typewritten transcripts of the
stenographic minutes of the proceedings of the hearing, trial,
and sentence and the clerk of the trial court shall furnish
one such certified transcript to appellant, without charge."
On November 2, 1977 the defendant's brief was filed with the
Appellate Division without a notice of argument and without a
note of issue. Thereafter a calendar was published in the
New york Law Journal showing that the case was scheduled for
argument for Pebruary 6, 1978. The defendant's counsel was
actually on trial in a criminal case from January 3, 1978 to
March 8, 1978. As a result the appeal was marked submitted
without oral argument, The Appellate Division rendered its
decision and order entered on February 21, 1978 affirming the
judgment of conviction.
Pollowing that order by the Appellate Division en-
tered February 21, 1978, defendant's counsel discovered that
the Appellate Division had not had a complete transcript of
the trial upon which its appellate review was rendered. pur-
suant to New York Criminal procedure Law Section 460.70, and
the aforesaid order of the Appellate Division entered June 23,
1975, the Kings County Supreme Court Appeals Bureau was required
- ll -
to furnish the Appellate Division with a complete trial trans-
cript which would be part of the record on appeal. The total
number of pages of the trial transcript was approximately
3,000 pages. people v. Curro, 25 N.Y. 2d 44 (1969). The trial
transcript for pages “1,200 (1,500) to 3,213/1" however was
not presented or delivered to the Appellate Division. The
trial transcript beginning from page 1 to the end was appar-
ently presented in one volume and gave the appearance of com-
pleteness. However, the pages “1,200 (1,500) to 3,213/1" in
fact were omitted. An investigation by the Appeals Bureau
clerk confirmed the fact that almost one-half of the trial
transcript had not been before the Appellate Division on the
appeal, within the time allowed by statute, a motion for
reargument dated march 23, 1978 was duly filed which presented
these facts to the Appellate Division, asserting that the de-
fendant “be accorded his statutory and constitutional right
to have a review on appeal from the judgment herein upon a
complete record” as set forth in the affirmation of charles
Sutton dated April 27, 1978. The District Attorney did not
oppose the motion. Notwithstanding that the District aAttor-
ney did not oppose the motion the Appellate Division denied
the motion by its order entered June 26, 1978 appended at page
The trial transcript which was filed by the said
Appeals Bureau with the Appellate Division was deficient to
- 12 «
the extent of almost 1,500 pages out of a total of 3,000 pages,
The trial period missing transcript was from November 18, 1974
to November 29, 1974. The trial commenced November 4, 1974
and continued until December 4, 1974 when the jury rendered
its verdict. Those pages which were missing from the Appellate
Division record on appeal included the testimony of undercover
police officer Florio, police Sergeant Toal, police officer
Kennedy and all three of the police chemists, Acevedo, Agatow
and Ferrar, whose testimony concerned each of the three counts
of sale of alleged cocaine. The competence and the test pro-
cedures allegedly employed by each police chemist to “identify”
“white powder" as “cocaine” waschallenged and impeached. The
trial transcript of their testimony showed that the evidence
was insufficient as to each sale count to authorize a guilty
verdict. Numerous objections to the introduction of evidence
was included in the missing pages. There was no way an appel-
late court could review the trial without those 1,500 missing
pages. As shown by the copy of the Index to petitioner's
brief to the Appellate Division, appended at pp. a... the
issues presented were substantial and critical issues of fact
and of law which could not be resolved without a review of the
trial transcript.
POINT I
The indigent petitioner was
denied his fundamental right
to have his conviction re-
viewed on appeal by the
Appellate Division.
New york Criminal procedure Law Section 450.10
grants every defendant “following a judgment sentence and
order of a criminal court" a right to appeal.
“In New york State, every defendant has an abso-
lute and ‘fundamental right’ to appeal a conviction
(People v. Montgomery, 24 N.Y. 2d 130, 132, 299
N.Y.S. 2d 156, 159, 247 N.E. 2d 130, 132, supra;
¢ see, also, CPL 450,10). The denial of that right
constitutes as much a failure of due process as
would the denial of the right to a trial itself,
and, where its denial or serious obstruction comes
about because of poverty, it constitutes a denial
of equal protection as well (Griffin v. Illinois,
351 U.S. 12, 18, 76S. Ct. 585, 100 L.Ed. 891;
People v. Montgomery, supra, p. 134, 299 N.Y.S.
2d, p. 161, 247 N.E. 2d p. 133)."
People v. Rivera, 39 N.Y. 2d 519, 522 (1976); people v. Mel-
ton, 35 N.Y. 2d 327, 329 (1974). In order to give substance
to that “absolute and fundamental right to appeal a conviction"
o Me
People v. Rivera, supra, a stenographic transcript of the
trial, absent circumstances not applicable here, is essential
in order * for a reviewing court to provide the review of a
conviction that a defendant is entitled to receive,* People
v. Rivera, supra, "The right to appeal requires a review of
the merits upon an appeal” and that requires the reviewing
court to review the trial transcript on the merits. People v.
Borum, 8 N.Y. 2d 177 (1960). “There can be no doubt that a
criminal appellant is entitled to a ‘record of sufficient com
pleteness' (cPL 460.70, subd. 3; code crim. proc. Section
485; Mayer v. City of Chicago, 404 U.S, 189, 193-195, 92 Ss.
ct. 410, 30 L, Ed. 24 372; people v. pride, 3 N.Y. 2d 545,
549, 170 N.Y.S. 2d 321, 323, 147 N.E, 2d 719, 720." People v.
Hall, 32 N.Y, 2d 546, 551 (1973); Draper v. washington, 372
U.S. 487, 497, 499 (1963). Without a complete transcript of
the trial testimony, there can be no valid review by the appel-
late court. people v, pride, 3 N.Y, 2d 545, 549-550 (1958);
people v. Giles, 152 N.y. 136, 139 (1897); People v. Hartley,
34 A.D. 2d 733 (4th Dept. 1970); People v. Schwack, 16 A.D.
2d 879 (4th Dept. 1962); People v. Hines, 57 App. Div. 419
(lst Dept. 1901); people v. williams, 13 A.D. 24 814 (24 Dept.
1961); People v. De Mayo, 2 A.D. 2d 985 (2d Dept. 1956);
People v. Eldridge, 34 A.D. 2d 693 (3rd Dept. 1970); People v,
cittrola, 210 N.y.S. 21 (App. Div. lst Dept. 1925); People v.
Adams, 22 A.D. 2d 892 (2d Dept. 1964).
- 15 «-
In view of the fact that the indigent petitioner's
forma pauperis appeal to the Appellate Division required a
complete trial transcript for appellate review, an appellate
review based only on approximately one-half of the trial trans-
cript denied the petitioner his Constitutional rights to due
process of law and equal protection of the law to have a full
review of his appeal on the merits as available to all defend-
ants. Mayer v. City of Chicago, 404 U.S. 189, 193-195 (1971);
Draper v. Washington, 372 U.S. 487, 488-489, 493-500 (1963).
POINT I
The defendant was denied his
Constitutional rights to due
process of law and to a fair
trial by the knowing use by
the prosecution of false and
perjured testimony.
The prosecution elicited false and perjured testimony
by Rosario Barbarino that the promise made to him for his testi-
mony by the District Attorney was a jail sentence of a minimum of
eight (8) years to life (1743, 1942-43) (12-2-74; 195-199) when,
in fact, the promise made was for lifetime probation
The false testimony denied the defendant his con-
stitutional rights to due process of law and to a fair trial and
require that the judgment of conviction must be reversed. Napue v}
Illinois, 360 u.S. 264 (1959); Giglio v. united States, 405 U.S.
150 (1972); People v. Savvides, 1 N.y. 2d 554, 557 (1957); people
v. Mangi, 10 N.Y. 2d 86 (1961); People v. Zimmerman, 10 N.Y. 2d
430 (1962); People v. york, A.D. 2d » 396 N.Y.S. 2d 956
(4th Dept. 1977).
Each alleged sale and possession counts against the de-
fendant for the dates November 18, 1975, November 20, 1973 and
December 27, 1973 depended essentially upon the testimony of Ros-
ario Barbarino. His credibility was an important issue in this
case,
On the direct, the prosecution asked Barbarino to state
the promises which were made to him if he cooperated and eectheiel
in this matter (1743). Barbarino testified that he had been pronm-
ised a jail sentence of “eight years to life" (1743).
“Q. And in return for your testimony in this case have any
promises been made to you?
--17-
“e
A. Yes.
Q.- What promise was made to you?
A. I was promised that if I cooperate and testify in this
matter my sentence would be eight to life.
Q. Eight years to life?
A. Yes .
Qe Do you know what minimum sentence you face without
such a recommendation?
Ae Minimum of fifteen to life." (1743)
On cross-examination, the defense questioned Rosario
Barbarino as to this promise made to him by the prosecution (1942
1943):
“Q. Mr. Barbarino, are you aware, Mr. Barbarino, that the
sale of gny quantity of some controlled drugs can result in
a life sentence?
Mr. Farkas: Objection, your Honor. It is irrelevant.
The court: Overruled.
A. Yes.
Q- Are you charged by indictment with crimes alleging
sales of controlled substances under which you can get a
life sentence?
A. Yes .
Q. As a matter of fact, you are charged with a number of
them, are you not?
A. Yes.
Q. And does it weigh on your mind that you could be sen-
tenced to any life sentence at all?
Ae Yes.
Q- And it bothers you greatly?
A. Yes.
Qe You are afraid of going to jail for a lifetime, are
you not?
T
Mr. Farkas: Objection, your Honor. It is an improper
question ‘going to jail for a lifetime’.
The Court: Sustained in that form.
Q. Are you afraid to be sentenced to life imprisonment?
Mr. Farkas: Objection, your Honor. He is already sen-
tenced. He is getting sentenced to life imprisonment.
The court: I'll permit it. Overruled.
A. Yes, I'm scared,
Q. And you made a deal by reason of that fear with mr.
Parkas, did you not?
Ae Yes
Q.- Do you know the full extent of the deal that your
attorney made with mr. Farkas?
Ae NO.
Q. But as far as you are concerned, you are getting
alleviated from the penalties that you would have had by
reason of the indictment facing you, isn't that true?
Ae Yes." (1942-43) (Underscoring added).
The prosecutor, on summation, falsely declared to the
jury (12-2-74; 195-6; 198-199) that Rosario Barbarino
“is going to pay for it dearly. He is up against the wall
and everybody Knows that. I am not an ostrich. I am not going
to hide my head and say he is wonderful. I wanted you to see
who he is. (196-7)... Now com(ing) here may be the first de-
cent thing he ever did in his life. And even that he did
with a sword hanging over his head. He had a motive to lie...
you heard the promise that was made to him. He got about
seven years off his Brooklyn sentence and he is going to do
time, hard time. He spoke to you about a life sentence.
That doesn't mean he is going to spend the rest of his life
in jail. He is going to do some time and then he will be on
parole...” (198-199, 12/2/74) (underscoring added).
The facts known to the prosecution at the time of the
trial and at the time of the testimony of Rosario Barbarino were
that the actual promises made to Rosario Barbarino by the prosecu-
tion, by the authorized Assistant npistrict attorneys, were that
- 19 -
Rosario Barbarino would not be sentenced to any jail term whatevel
5
and that he would be sentenced to lifetime probation :
These facts were known to the prosecution since Januafy,
1974, ten (10) months prior to the commencement of this trial,
almost eleven (11) months prior to the time when Rosario Barbar in
testified on November 19, 1974 in this trial (1741), as shown by
the deposition of Henry M. Gargano, Esq., taken on August 4, 1977
and sworn to August 18, 1977.
¢ and the affirmation of
Assistant pistrict Attorney arnold Taub, sworn to January 27, 197
Assistant District Attorney Arnold Taub confirmed in hii
affirmation dated January 27, 1975 Mets » that
Barbarino “surrendered” on December 28, 1973 and that
“zymmediately upon his surrender defendant (Barbarino)
agreed to cooperate with the police Department by giving
information regarding trafficking in drugs. He has contin-
ued to do so to date and will continue subsequent to the
plea...”
A.D.A. Taub also confirmed the life probation plea bar-
gain in his said affirmation:
“pursuant to Section 65.00(1) (b) and 65.00(3) (a) (ii) of
the Penal Law, the People recommend that the above named
Gefendant (Barbarino) be sentenced to life probation upon
his plea of guilty to criminal possession of a controlled
substance in the Third degree, a Class A-III Pelony..."
The false testimony seriously prejudiced the defendant
in the defense of these serious charges. This witness Barbarino
testified that he has lied in his life (1943) and that it did not
bother him to lie (1943, 1944). He testified that he was “scared”
of being sentenced to life imprisonment (1943), and that he would
‘= 20 -
wF
do whatever he could to get himself out from under (1943). on the!
other hand, a prison sentence of eight (8) years to life, while
it is a lesser sentence in terms of a minimum sentence, is none-
theless a substantial and heavy prison sentence. The normal reac
tion of a juror would be that Barbarino does not have a aia al
reason to fabricate his testimony or to tailor his testimony to
suit the benefit of the prosecution and curry its favor.
The issue of the promise made by the District attorney
to Barbarino in exchange for his testimony was presented to the
jury as a very important matter at the time that the jury was
being selected (439, 464, 465, 580-584). The prosecutor went to
great lengths to condition the jurors into accepting Barbarino's
testimony at face value notwithstanding the fact that he was tes~
tifying as a result of promises made by the District attorney's
office because “he's got a lot to lose" (439). He argued to the
jury that Barbarino was testifying not to aid himself, but simply
to tell the “facts". (439-442, 464-465, 610, 485-486, 492-493,
532, 534, 537, 566, 573, 580-584, 594-595, 597-598, 619-620, 625-
627, 636-638). The prosecutor made it an important part of the
jury selection process to personally assure the jury that Rosari
Barbarino would tell them the truth as to what promise was made
to Barbarino for his testimony. He conditioned the jurors to
accept Barbarino‘s testimony as truthful because Barbarino would
be truthful about the promise made to him by the District Attor
and about the plea bargain under which he would give his test
The prosecutor assured the jury "I'm not hiding anything from o
(439), to wits
‘- 21 «-
“Mr. Parkas: And now t*d like to ask you about the other
side - the co-defendant Rosario Barbarino coming to testify
and I*m not hiding anything from you and I'm telling you
and every other member or the jury that he was made promises
and the judge will tell you after very carefully analyzing
the testimony because he's got reasons to lie if that’s what
he's going to do; he's qot a lot to lose too. r'm not an
ostrich; I'm not going to hide my head, but are you still
willing to listen to him despite all of that?" (439) (under-
scoring added).
The prosecutor assured the prospective jurors that Bar-
barino would tell them the truth as to what the promise was:
“Mr. Farkas: Now you are going to hear from Rosario Bar-
barino. Rosario Barbarino was made certain promises in order
to have him turn State's evidence, He will tell you what
that promise is. I can't tell you... (464) ...
In Return for Rosario Barbarino giving evidence on behalf
of the State, he was made certain promises. what frose prom
ises were, he'll tell you and he's already been made that
promise... I'm also not going into what the promise was but
that fact alone, will that be enough for you to dismiss the
testimony of Rosario Barbarino at this point?
Mr. Sutton: Objection.
Tae Court: Sustained.
Mr. Farkas: would you be willing to listen to Rosario
Barbarino and weigh his testimony together with all the
other evidence in this case, “r. Shaw?
Mr. Shaw: Yes. (465) .«..
Mr. Parkas: My question to you, sir, that because of
the fact that he was made certain promises, would that be
enough to reject his testimony?
Mr. Zar: I'd have to hear more evidence to corroborate
it." (610).
The importance of the false testimony in the minds of
the jurors, and the weight which they would give to Barbarino's
testimony is exemplified by one juror's statement that
*"r'd like to hear the facts. r°d like to know what he was
promised." (479).
This statement may fairly be stated as being the attitude of the
other prospective jorors.
- 22 «
The prosecutor misrepresented to the trial court and
defense counsel that Barbarino first became an informant “the
day of the supprecsion hearing" (734), when in fact parbarino had
first become an informant on December 28, 1973 and in January,
1974, almost eleven (11) months before the first day of the sup-
pression hearing as the affidavit of Henry M. Gargano, sworn to
August 18, 1977 and the affirmation of Arnold Taub dated January
27, 1975 show The prosecutor indicated
that same misrepresentation to the jury that his deal was made
just “prior to coming here to testify” (1952);
"Q. Prior to coming here to testify, and the so-called deal
was offered to you, were you told what effect the deal would
have if you lied on the stand?
Mr. Sutton: Objection. May we have a sidebar, your Honor?
The Court: Sustained. No." (1952)
The prosecutor misrepresented to the trial court and
defense counsel the true status of Barbarino upon the a oe
motion to consolidate the two indictments numbers 7824/73 and
7826/73:
“mr. Parkas: Judge, I asked that you decide that for the
following reason, I have to know which defendant I am going
to trial with. I intend to go with vidal, Russo and Barbar-
ino. The second indictment (36)..."
The prosecutor stated that he will consent to defendant
Russo being severed,
"... in which event, we will be on trial with defendant
Barbarino and defendant vidal ... on all two irdictments,
three sales (80)."
The prosecutor misrepresented again to the court and
defense counsel that he was putting Barbarino on trial for the
charg#s under indictments 7824/73, 7825/73 and 7826/73 (T. 5-6,
- 23 -
11/4/74) and again at T. 7, 11/4/74, and again at T. 15, 11/4/74,
and again at T. 68, 11/4/74, when he knew all along that Barbarino
would not be tried and that Barbarino had been promised a lifetime
probation, had made his plea bargain, and that Barbarino was to bd
a prosecution witness,
Later after the suppression hearing upon the commencement
of the trial, the defense moved
"to require the People to give me discovery with respect to
the prior connection or history or relationship between the
defendant Rosario Barbarino and the police.
The Court: I don't know what you're talking about.
Mr. Sutton: I'm talking very specifically. I respect-
fully suggest that Rosario Barbarino was, in one way or
another, a police agent.” (722-723).
The issue was clearly presented for the prosecutor to
state the truth regarding the plea bargain of and promise made to
Rosario Barbarino (723). However, the prosecutor chose not to dig-
close the true facts, but to conceal the truth, to wit (723):
“mr. Farkas: I'm going to state on the record (once),
and for all to clear this up. Rosario Barbarino was not
in any form of a police agent on November 8, November 20,
or December 27, inclusive, He was arrested as a defendant.
Now that Rosario Barbarino is agreeing to testify against
Vincent vidal, all of this happened subsequent to December
27. He has agreed to testify against vincent vidal, I
would say, prior to the motion controverted last week.
prior to that, Ir had no conversations with Rosario Bar-
barino nor has any police officer, to my knowledge, had
any conversations with Rosario Barbarino concerning his
testimony at this trial.
The court: The application is denied” (723) (Underscor-
ing added).
The United States Supreme Court, in Miller v. pate, 386
U.S. 1, 7 (1967) held:
“more than 30 years ago this Court held that the Four-
teenth Amendment cannot tolerate a state criminal convic-
tion obtained by the knowing use of false evidence. Mooney
- 24 «-
ve Holohan, 294 U.S. 103, 79 L. Ed. 791, 55 S. ct. 340, 98
A.L.R. 406. There has been no deviation from that estab-
lished principle. Napue v. Illinois, 360 U.S. 264, 3 L.Ed.
2a 1217, 79 S. ct. 1173; pyle v. Kansas, 317 U.S. 213, 87
Le. Ed. 214, 63 S. Ct. 177; cf. Alcorta v. Texas, 355 U.S.
28, 2 L.Ed. 2d 9, 78 S. Ct. 103. There can be no retreat
from that principle.”
The priraciple of law is well established that a convic-
tion obtained by the prosecution through the knowing use of false
and perjured testimony cannot be permitted to stand even though
the false evidence is not solicited by the prosecution, where no
effert was made to correct it after discovery. United States v,
Wilkins, 326 F, 2d 135 (2d cir. 1964); United States v. Morrell,
524 FP. 24 550, 554 (24 cir. 1975).
Our Court of Appeals, in People v. Savvides, 1 N.Y. 2d
554, S57 (1957):
“rt is of no consequence that the falsehood bore upon the
witness' credibility rather than directly upon defendant's
guilt. A lie is a lie, no matter that its subject, and
if it is in any way relevant to the case, the district
attorney has the responsibility and duty to correct what
he knows to be false and elicit the truth... That the dist-
rict attorney's silence was not the result of quile or a
desire to prejudice matters little, for its impact was the
same, preventing as it did, a trial that in any real sense
could be termed fair.”
The judgment should be reversed and the indictment dis-
missed,
POINT TIJ
The entry by police on December 27, 1973
into the building at 679-48th Street and
into defendant's apartment to make a war-
rantless arrest of Rosario Barbarino was
illegal,violated defendant's constitutional
rights and rendered defendant's arrest and
the subsequent search and seizure of defend-
ant's person and apartment illegal.
At the suppression hearing held on November 4, 1974,
_= 25 -
police officer George murphy testified that the police entered
the building at 679 - 48th Street to go to Apartment 3£ to arrest
Barbarino was made on December 27, 1973 at approximately 3:25 p.m}
(91, 93: November 4, 1974). It is not disputed that the police
had no arrest warrant for anyone. Murphy testified that at that
time the police had no search warrant for any premises (145).
Police officer Murphy testified that the purpose of the
police in entering the building and in entering defendant's apart+
ment was to
“..e-arrest Rosario Barbarino and any other occupant" (267).
The Court of Appeals in People v, Gallmon, 19 N.Y, 2d
390, 393 (1967) held that
“.eethe intent and purpose of the policeman prior to en-
try... controls ... the validity of the entry."
“Aan officer without an arrest warrant certainly has no
more license than an officer with a warrant in seeking
entry to effect an arrest. The constitutional safeguard
that assures citizens privacy and security of their home
unless a judicial officer determines that it must be over-
ridden, is applicable not only in case of entry to search
for property, but also in cases of entry to arrest a sus-
pect. Dorman v. United States, 140 U.S. App. D.c. 313,
435 P.2d 385, 390 (1970)." united States v. phillips, 497
F. 24 1131, 1135 (9th cir. 1974); Whiteley v. Warden,
U.S. » 91S. ct. 1031 (1971).
CPL Section 140.15(4) authorizes a police officer to
enter any premises to effect an arrest only when “he reasonably
believes such person to be present". In United States v. phillips,
497 P. 24 1131, 1135 (7th cir. 1974), the federal court of Appeals
stated, citing, United States v. Brown, 467 F. 2d 419, 423 (1972)
which cited united States v. watson, 307 FP. Supp. 173 (D.C. 1969)}
“..eAn officer seeking entry in order to effect an anest
cannot accomplish his task if the person he is looking for
is not inside. consequentl;s, absent consent, the officer
cannot enter by any means, breaking or otherwise, unless
he has responsible cause to believe the defendant is
within.” 307 F. Supp. at 175. ... An agent must have
probable cause to believe that the person he is attempt-
ing to arrest, with or without a warrant, is in a parti-
cular building at the time in question before that agent
can legitimately enter the building by ruse or any other
means. To hold otherwise is to grant the agent a license
to go from house to house employing ruse entries in vio-
lation of the right of privacy of the respective occu-
pants, In this case, the agents did not have probable
cause to believe that phillips was in the office build-
Ing at the time of the raid and therefore the entry and
subsequent arrest were invalid and the conviction must
be reversed.“ (Underscoring added).
Murphy testified that the police had no knowledge that
Barbarino was in or at 679 - 48th Street, Brooklyn, or at Apart-
ment 3E, when they entered the building (169, 184, 214, 229, 27
Police Officer Murphy testified that no police officers had the
apartment 3£, or the building under observation either before or
after police officer Florio had allegedly first entered and had
allegedly last exited therefrom (168-170). None of the police
officers had any knowledge as to who was in that apartment (169,
184, 214, 229, 277). The police on the other hand knew that
Rosario Barbarino did not reside in that building (268). murphy
testified that the police had “checked” and that apartment 3£ was
“listed in the records of Brooklyn Union Gas Company anc
oo Edison as belonging to vincent vidal" (288-
Further, the police knew that Rosario parbarino resided at 2122-
73rd Street (Plorio: 1115-16, 1511-12; Toal: 2177-78, 2186, 228)-
82, 2431-32; Kennedy; 2463).
fad
Murphy testified that when the police entered apartmer
3g, that Barbarino was not there and that none of the police saw
him in the apartment (96-97, 22°).
The suppression court made the finding that
-- 27 -
“police officer murphy ... spoke to undercover police offi-
cer Angelo Florio who told him that he had just purchased
cocaine in that apartment ... and that they, at that time,
decided to go to the apartment and arrest the perpetrators
of the crime..." (285). (Underscoring added).
There was no evidence that the police entered to arr-
rest “the perpetrators", The testimony of police officer mur-
phy was that the police went in to
“arrest Rosario Barbarino and any other Occupant of the
apartment” (2 e (Underscoring added).
The suppression court's own findings show that the
police had no reasonable cause to believe that Barbarino would be
found in the apartment, to wit (288);
“1 find that the officer had probable cause to enter
the apartment to arrest the defendant vidal (sic) and
the defendant Barbarino who he had ample reason to be-
lieve might still be in the apartment in view of the
short time that had elapsed from the time that the un
dercover agent saw Mr. Barbarino in the apartment" (288).
(Underscoring added).
The court's finding is clearly speculative and conjec-
tural. It is not based on the evidence. It is contrary to the
evidence. ‘To rely on conjecture is not due process of law by
any definition’. Haley v. Ohio, 332 U.S. 596, 615 (1948).
The suppression court's finding that
"the police had probable cause to arrest the defendant
Vidal...” (288) (Underscoring added)
is irrelevant.
The Nagra tape recording made by police officer Florida
allegedly before, during, and following the alleged “sale of
cocaine" between Florio and Rosario Barbarino, allegedly in de-
fendant’s apartment showed that Florio told his fellow officers
prior to their entry into the building that he did not see the
defendant (1571; see also 277).
Murphy gave no testimony that the police entered to ar-
rest the defendant. The finding that the “police had probable
cause to arrest the defendant vidal” is irrelevant to the issue
whether the police were authorized to enter the building and to
enter Apartment 3£ to “arrest Barbarino and any other occupant*
(267).
The Supreme Court in whiteley v. Warden, U.S. }
91S. ct. 1031 (1971) held that a warrantless arrest must comply
with the same standards as that required to obtain a warrant of
arrest. Murphy's testimony that the purpose of the police in en-
tering the building and the apartment was to
“arrest Rosario Barbarino and any other occupant" (267),
(unéerscoring added)
was tailored to meet apparent constitutional and statutory obstac!
to that entry and was tailored to the facts that the police knew
that Barbarino was not in the building (169, 184, 214, 229, 277)
and to cover up the fact that that statement of purpose was a pre?
text to break into the defendant's apartment and to arrest the de;
fendant, not Barbarinos people v. Gallmon, 19 N.Y, 2d 389, 394-39
(1967); and should not be credited. people v. parmiter, A.D
2a » 390 N.Y.S. 2d 651 (2d Dept. 1977).
In People v. Nieves, 36 N.Y. 2d 396, 398 (1975) a search
warrant which included the authority to search
“(a mamed person) and any other persons occupying said prem-
ises...”
was challenged as invalid. The court of Appeals held that the
said description in the warrant did not satisfy Fourth Amendment
Standards and was “too general". people v. Nieves, 36 N.Y, 2d 3
400 (1975). Since that description would not satisfy pourth Ame
- 29-
ment standards when it was included in a search warrant, it also
does not satisfy Fourth Amendment standards to authorize the ag
or search of “any other persons occupying said premises" without
search warrant. Whiteley v. Warden, U.S. eo 92 Ss. Che 103)
(1971).
POINT Iv
The warrantless entry into the building
at 679 ~ 48th Street was forcible, was
without announcement of purpose or auth-
ority, was illegal and all fruits there-
from must be suppressed.
The trial transcript shows that the lobby door entrance
to the apartments in the building was locked, that the police, whd
were all in civilian clothes (141), gained entrance to the build-
ing at 679 - 48th Street, Brooklyn, by force of arms, in that,
with gun(s) drawn (154) and badges displayed, police officer Plo-
rio compelled someone who was in the hallway of that building to
take out his key and use it to open up the locked lobby door en-
trance of the building so that the police would be enabled to, a
did, proceed into the building and up to Apartment 3£ (1571-1574)
Such forcible entry was illegal. united States v. phillips, 497
497 F. 24 1131 (9th cir. 1974); People v. Salazar, M,2d
(N.Y. Co. 1976); People v. Gallmon, 19 N.y, 2d 389, 392 (1967).
“An officer without an arrest warrant certainly has no
more license than an officer with a warrant in seeking
entry to effect an arrest. The constitutional safeguard
that assures citizens privacy and security of their home
unless a judicial officer determines that it must he over-
ridden, is applicable not only in case of entry to search
for property, but also in cases of entry to arrest a sus-
pect. Dorman v. United States, 140 U.S. App. D.C. 313, 435
F. 2d 385, 390 (1970).” united States v. phillips, 497 F.
2d 1131, 1135 (9th cir. 1974); Whiteley v. Warden, U.S.
» 91S. ct. 1031 (1971).
- 30 -
ve Miller, 357 U.S. 301, 306-314 (1957); People v. Gallmon, 19 N,
The police entry into the building was made without
announcement of purpose and authority and was illegal and the
arrest of the defendant, the search of his person and apartment,
and the seizures made by police violated defendant's constitution
rights and require the voiding of the arrest and the suppression
f
all evidence allegedly seized. cpL Section 120.80(4); united Staties
2d 389, 390 (1967); Sabbath v. United States, 391 U.S. 585 (1968);
People v. Floyd, 26 N.Y. 2d 558 (1970); people v. Frank, 35 N.Y,
2d 874 (1974); United States v. phillips, 497 F. 2d 1131, 1135 (9
Cir. 1974); Dorman v. United States, 435 F. 2d 385, 390 (D.c. Cir.
1970); People v. Griffin, 22 A.D. 2d 957 (2d Dept. 1964).
POINT VY
The warrantless forcible entry by the police
into defendant's apartment without announce-
ment of purpose violated defendant's consti-
tutional rights and the arrest of defendant,
the search of the defendant's person and of
his apartment and the alleged seizures there-
from are illegal and must be suppressed,
After the police forcibly entered the building, without
notice of purpose or authority to the occupants of the building,
as aforesaid, they came up to Apartment 3E (150). police officer
Murphy testified that police officer Florio persistently pounded
on the door of Apartment 3£ at 679 - 48th Street, Brooklyn (150)
and yelled out only:
“police, Police... (149) ... Open the door ... (150)"
The suppression court found that the police knocked
“strongly” (285) and
oc
aad
“announced ‘police, police, open the door’ ... and that
shortly thereafter the defendant vincent vidal opened the
door to the apartment and that he was then told that he
Was under arrest; that the police officers placed hand-
cuffs on the defendant..." (285).
The suppression court did not find that any of the offi+
cers had announced their purpose (284-291), and it could nc have
made such a finding in this record.
The evidence is undisputed that the police gave no not-
ice of purpose to the defendant at Apartment 3E (150), and made
no effort to satisfy the statutory requirement of giving notice
of their purpose (cpL Section 120.80 (4)). The arrest of the de-
fendant was unlawful and the evidence obtained as a result thereof
must be suppressed, and defendant's conviction must be reversed
and the indictment dismissed. people v. Floyd, 26 N.y. 2d 558
(1970); People v. Mills, 31 A.D. 2d 433, aff'd. 26 N.y. 2d 862
(1970); Miller v. United States, 357 U.S. 301 (1957); People v.
Gallmon, 19 N.Y. 2d 389, 390, 395 (1967); People v. Frank, 35 N.Y}
2d 874 (1974); people v. Griffin, 22 A.D. 2d 957 (2d Dept. 1964).
POINT yI
There were no exigent circumstances to
justify the warrantless, forcible entry
into the building and into the apartment.
The burden of justifying a warrantless forcible entry
into a private home is upon the government. United States v.
Rosselli, 506 F. 2d 627 (7th cir. 1974).
The prosecution did not meet its burden to justify the
warrantless forcible entry into the building and into defendant'd
apartment. No evidence was presented by the prosecution of any
exigent circumstances. The prosecution made no claim of any exi-
- 32 -
gent circumstances, The prosecution presented no argument of exi
gent circumstances. The court made no finding of any exigent cir
cumstances (284-291).
“The Circuit court for the District of Columbia (in Dor-
man v. United States, 140 U.S. App. D.C. 313, 435 F. 2d
385, 390 (1970)) listed six elements that have to be con-
sidered in justifying a warrantless entry to make an arr-
est: (1) That a grave offense is involved, particularly
one that is a crime of violence; (2) That the suspect is
reasonably believed to be armed; (3) A clear showing of
probable cause to believe that the suspect committed the
crime involved; (4) Strong reason to believe that the sus-
pect is in the premises being entered; (5) A likelihood
that the suspect will escape if not swiftly apprehended;
and (6) The circumstance that the entry, though not con-
sented, is made peaceably,“ United States v., phillips,
497 F. 2d 1131, 1135 (7th cir. 1974).
Under the facts of this case, set forth above, none of
the six (6) criteria set down by the federal court to show exi-
gent circumstances existed in this case.
INT VII
The warrantless arrest of the defendant
was made on pretext and violated defend-
ant's constitutional rights.
Under the facts of this case, as set forth above, the
true police purpose in forcibly breaking into the building and
in forcibly breaking into the defendant's apartment was to arrest
the defendant and to conduct a warrantless search of his person
and his apartment. as shown above, there were no exigent circum
stances. The matter was one plainly requiring only “normal in-
vestigative procedures", since defendant was known to the police,
who knew where he resided (288-289).
The testimony of police officer Murphy shows that after
Police officer Florio had knocked forcefully on the apartment do
.- 33. -
7
pr
-
and announced “police, police, open the door” (148-150), that the
defendant vidal opened the door (96) and the police immediately
seized the defendant (96), “very, very fast" (155), at the doorway!
entrance to the apartment (96-97, 154), handcuffed his hands behing
his back (97, 154) and forcibly put to the ground there (154). He
was then forcibly taken from the entrance doorway, down the hall,
around a right turn, and into the kitchen (189, 190) where the pol
7
ice forced the defendant down upon the kitchen floor there (99).
Other officers went immediately from the entrance doorway, down
through the foyer, down the hallway, past the kitchen, across the
living room and into the bedroom (190-191), and searched the apart
ment (155-160).
There was no testimony whatever that the police asked
defendant “Where is Barbarino?", nog that the police alled out for
Barbarino. The entry by police was not to arrest Barbarino but to
unlawfully search defendant, and his apartment, and to arrest him,
See, People v. Jefferson, 43 A.D. 2d 112 (lst Dept. 1973).
POINT VIII
All evidence allegedly seized by the
police following the illegal police
entry into the building and into de-
fendant's apartment and the illegal
arrest and search of the defendant's
person and apartment must be suppressed,
the counts of the consolidated indict-
ment based thereon must be dismissed,
and the judgment of conviction must be
reversed.
counts 4-10 and Counts 13-15 under indictment number
7826/73, which was “consolidated* with indictment number 7824/73,
were renumbered by the court (309) to become counts 10-19 (308,
- 34 -
684-699) under the consolidated indictment. Those counts charged
possession of contraband allegedly seized by the police both from
the person of defendant and from his apartment following their il-
legal entry and illegal search at the apartment (684-699). Addi-
tional evidence, which the police admitted was seized without any
warrant, included money alleged to have been found by police in wa
kitchen and in the bedroom (179-180, 188-191, 227-229, 679-681),
the .38 calibre Smith & Wesson revolver (99, 202, 694, 698) and the
small bottle containing white powder (100, 202, 694-696). The .38
calibre revolver was the subject of counts 18 and 19 of the “con-
solidated" indictment (679-681), and the “small bottle containing
white powder" was the subject of count 10 (696).
All of those items must be suppressed, the Counts based
thereon must be dismissed, the judgment reversed upon the principles
set forth in points II, III, IV, V, and VI.
In addition to the foregoing, all of those items must be
suppressed, all of the counts based thereon must be dismissed, and
the judgment of conviction of the defendant must be reversed upon
the principles of unlawful search and seizure.
"rt is the rule that ‘a search or seizure carried out on
a suspect's premises without a warrant is per_se unreasonable
unless the police can show that it falls within one ofa
carefully defined set of exceptions based on the presence of
exigent circumstances' (Coolidge v. New Hampshire, 403 U.S.
443, 474-475...) It is readily apparent that there were no
exigent circumstances in this case." people v. Stadtmore,
52 A.D. 2d 853, 382 N.Y.S. 2d 807, 809 (2d Dept. 1976).
(underscoring added).
The testimony of police officer murphy shows that after
police officer Florio had knocked forcefully on the apartment door
and announced “police, Police, open the door" (148-150), that the
defendant vidal opened the door (96) and the police immediately
ee 38 «
seized the defendant (96) “very, very fast* (155), at the doorway
entrance to the apartment (96-97, 154), handcuffed his hands behind
his back (97, 154) and forcibly put to the ground there (154). He
was then forcibly taken from the entrance doorway, down the hall,
around a right turn, and into the kitchen (189, 190) where the
police forced the defendant down upon the kitchen floor there (99)
Other officers went immediately from the entrance doorway, down
through the foyer, down the hallway, past the kitchen, across the
living room and into the bedroom (190-191).
Police “seized” without a warrant (201-2) a “revolver
(194-195), “a small container with a spoon attached and a black
top containing a white ... powder" (200-202), and U.S. currency
(201-202, 179-180, 188-191).
Murphy testified that the police conducted a search of
the apartment prior to obtaining the search warrant (155-160).
Murphy testified that immediately after entering the
apartment he started ldoking around the kitchen (157) and he and
other officers started looking around the apartment and observing
things. (155, 158-161, 207-209, 227-229, 240, 245, 247, 250-258,
259, 261-266). Police opened closet near bathroom (245), top
drawer of table in bedroom (240), looked into kitchen cabinet
(250-253), among other things. Murphy admitted that he had “ob-
served" items which were in his inventory of the search warrant
return before the search warrant was obtained, to wit: item 1, p
of item 2, and items 16, 19, 20, and 21 (208). The items he “ob-
served" before the search warrant was obtained, also included
“three tin foils containing alleged cocaine, two white tablets,
large bag containing another large bag which contains nineteen
- 36 -
small plastic bags containing alleged marijuana, one tin foil of
alleged marijuana, one marijuana cigarette; also included in this
is a small paper bag containing two tin foils of vegetable matter
and one manila envelope containing marijuana seeds ... a plastic
bag containing a small plastic bag containing alleged cocaine, and
a tin foil containing alleged cocaine; cup containing two plastic
bags and two tin foils containing a white powder alleged to be
cocaine, and one small vial containing a white powder, a plastic
bottle containing a white powder. That's what I found on the bottom
shelf* (263-264); and in addition, other items allegedly in the
kitchen cabinet (265-267), also (112-113).
Murphy testified that the police simply went around the
apartment making “observations" (155-160). people v. parmiter,
__A.D.24_, 390 N.Y.S, 24 651 (24 Dept. 1977). Even if the
police had only conducted an “observation” search, it would nonethe-
less be a warrantless and illegal search. people v. Howard, 395
N.Y.S. 24 385 (N.Y. Co. 1977); Congold v. united States, 367 F.2d
l; Hernandez v. United States, 353 F. 2d 624; United States v. Bay~
ker, 514 Pp. 24 208 (D.C. Cir. 1975).
The record shows that the police had no information at
all that there were any drugs, or other contraband at the apart-
ment prior to entering illegally and prior to making an actual ru
maging search which they did, that the police had no probable cau
to conduct any search, and that the search and seizure was unlawf
People v. Williams, 37 N.Y. 2@ 206 (1975); People v. Clements, 37
N.Y. 2¢ 675, 678-679, 683 (1975); Chimel v. California, 395 U.S.
752 (1969). even if there had been probable cause to search, it
would never,of itself,justify a warrantless search or seizure.
2 <
§
ul.
United States v. Lewis, 504 F. 2d 92, 100 (6th cir. 1974); united
States v. Beck, 511 F. 2d 997, 1001 (6th cir. 1975).
The record also shows that there were no exigent circum
stances, Supra, Point v; People v. Clements, 37 N.Y. 2d 675, 678-
679 (1975); People v. Abruzzi, 52 A.D. 2d 499, 501-504 (24a Dept.
1976), aff'd. 42 N.y. 2d 813 (1977).
The search conducted here was a warrantless, illegal,
rummaging search far from the actual point of the illegel “arrest”
of the defendant, which occurred at the entrance doorway of the
apartment (96, 97, 154). People v. williams, 37 N.y, 2d 206 (1975);
People v. Clements, 37 N.Y. 2d 675, 682-683 (1975); Chimel v. cali
fornia, 395 U.S. 752 (1969); Coolidge v., New Hampshire, 403 U.S.
443; vale v. Louisiana, 339 U.S. 30; United States v. Jeffers,
342 U.S. 48; Agqnello v. United States, 269 U.S. 20.
POINT IX _.
The search warrant was issued upon
allegations derived from the unlaw-
ful entry, unlawful arrest of defend-
ant, and unlawful search and seizure
and was invalid,
The affidavit of police officer Murphy does not allege
any facts to show the existence of any controlled substances in the
defendant's apartment, except to the extent disclosed after the um
lawful entry and unlawful search and seizure,
The statements in the affidavit of Murphy in support of
the application for a search warrant of alleged prior sales of co,
caine on November 8, 1973 and November 20, 1973, do not satisfy the
Constitutional and Statutory requirements to show that there was
in fact any drugs or other contraband present at the apartment.
People v. Floyd, 26 N.Y. 2d 558, 562 (1970).
There was no probable cause to issue the search warrant
except upon the basis of the prior unlawful entry, search, and
seizure. See also, 72-85, 11/4/74; 277-284, 11/4/74, as aforesaid.
The search warrant was issued upon allegations derived
from the unlawful entry of the police into the building and into
the apartment, the illegal arrest of defendant, and the warrantless
unlawful search of defendant's apartment by the police. The search
warrant was illegal. Silverthorne J,umber Co. v. United States, 251
U.S. 385, 392 (1919); ited States v 1973 Lincoln Continent
etc., 391 PF. Supp. 1197, 1199-1200 (D.C. Cal. 1975); t tat
v. Solis, 393 F. Supp. 325 (D.C. Cal. 1975); people v, O*meil, 11
N.Y. 24 148, 153 (1962); People v, Grossman, 20 N.Y. 2d 346 (1967)
McDonald v. United States, 335 U.S. 451: people v. Williams, 37 N.
24 266 (1975).
- 39 -
Point X
The trial court denied defendant
a fair trial and due process of
law by aiding and counselling the
prosecutor in the prosecution of
the consolidated indictment,
The trial court denied the defendant his fundamental
right to a fair trial before a fair, dispassionate, and impar-
tial judge and to due process of law by his repeated conduct
in aiding and counselling the prosecutor in the prosecution
of the consolidated indictment,
The trial court at a side bar instructed the prose-
cution witness, the police undercover, as to the testimony
that the prosecutor wanted him to give. (800-801). The tes-
timony was illegal hearsay "explanation" by the police under-
cover for the fact that defendant Vidal was not present at the
time and place of the alleged "sale" on December 27, 1973
between former co-defendant Rosario Barbarino to the police
undercover of "18 ounces of cocaine” for $18,500.00. The
police undercover testified that he did not observe defendant
vidal at the time and place of the alleged “sale". The*ex-
planation" by the police undercover was elicited to this jury
through testimony of the illegal hearsay “cconversation* be-
tween Rosario Barbarino and the police undercover.
This illegal hearsay “conversation* between Rosario
- 40 -
Barbarino and the police undercover was an essential element
in the proof against the defendant Vidal to connect him with
the “sale* between Barbarino and the police undercover to
"explain" his absence, The prosecutor's game plan, which he
told the trial court at a side bar conference (791-792) was
to have the police undercover testify that he had a *conver-
Sation* with Barbarino in which he told Barbarino he did not
want to deal with defendant Vidal and therefore that vidal
must have been hiding at the place and time of the sale be-
tween Barbarino and the police undercover. This illegal
hearsay *conversation* between Barbarino and the police under-
cover was the "corroboration" for the testimony of Barbarino,
a former co-defendant, and an accompliace as a matter of law
under CPL 60.22, that defendant Vidal was *hiding* in another
room when Barbarino made the “sale" to the police undercover
on December 27, 1973. The prosecutor however was having
trouble getting the police undercover to testify in accord
ance with his game play (797-800).
At that point, the trial court called a side bar
conference and directed the police undercover, in the pres-
ence of the jury, to be present (800):
"The Court: The objection is sustained. Mem
bers of the jury, we're going to have another
side bar conference. The witness, Officer Florio
is directed to attend.
‘= 41-
Side Bar:
The Court: Officer, the District Attorney
indicated that there was a conversation between
you and Barbarino relating to something that
occurred with reference to the sale of November
20 and the fact that no further dealing, that
you didn't want to deal further. He also indi-
cated that ---
Mr. Farkas: With Vidal, your honor. Let's
get the record straight.
Mr. Sutton: If your Honor please, this is
an area where we can no longer coach witnesses.
The Court: I don't think so. I'm telling
it to him so that there will be no possibility
of error in front of the jury.
Mr. Sutton: That's just the possibility of
coaching a witness and I must respectfully ob-
ject.
The Court: All right, your objection is on
the record. It's overruled. ...." (800-801).
Thereafter, the side bar ended and the officer re-
sumed the stand. The trial court overruled the repeated
objections to the introduction of the illegal hearsay testi-
mony by the police undercover (801-810). It is notable that
when the police undercover testified that he could not recall
the date of the conversation (802), the trial court, in the
face of that testimony, ordered the police undercover to give
a date for that “conversation",.
*"Q. Officer, after November 20, did you
have conversations with Rosario Barbarino?
A. Yes, sir.
- 42 «
Q. And how many conversations have you had?
A. Several, sir.
Q. And in one of those conversations, did
you ever discuss Vincent Vidal?
Mr. Sutton: Objection,
The Court: Overruled.
The Witness: Yes, sir.
Q. And what did you say to Mr. Barbarino
and what did he say to you?
Mr. Sutton: Objection, Your Honor.
The Court: Fix a --- sustained, Pix an
approximate date and time,
Q. The time that you were having --- the
conversation that you were referring to, what
date was that, if you know?
Q. I don't recall, sir. There were many
conversations in between that time.
The Court: Can you fix a time, period, dcur-
ing which the conversation took place?
Mr. Sutton: Been asked and answered, Your
Honor,
The Court: What!
Mr. Sutton: It's been asked and answered,
He has already testified he can't recall.
The Court: Overruled. Answer the question,
The Witness: In the early part of December,
sir.
Q. Can you fix any other time?
A. In the first, I'd say the second week
in December, sometime in that --- the first and
second week. ....." (801-802).
4
The trial court, over objections by the defense,
then allowed the police undercover to testify to the illegal
hearsay “conversation” between Barbarino and himself about
which the trial court had previously instructed the prosecu-
tion witness (800-801):
#"Q. What did you say to Mr. Barbarino and
what did he say to you?
Mr. Sutton: Objection,
The Court: Overruled,
The Witness: I told him that I expected much
better quality on the two ounces that I had made
and he said that he was surprised that the stuff
wasn't as good as it was supposed to be and I told
him that I didn't want to do business. I said I
had nothing against Mr. Vidal or Mr. Russo, but I
just didn't care to do business with them if they
were going to give me one thing and tell me that
it was of a higher quality and he said there was
no problem, that he had known of many different
people who could give me, you know, the same
amount of stuff and maybe for a lesser price or
more. He'd have people who had stuff that was
very high and people high -- high in price and
people who had stuff that was low in price, but
it would be much lower in quality.” (802-803).
The "conversation" was not merely illegal hearsay, but it
allowed the prosecution to place before the jury the illegal,
grossly unfair and prejudicial hearsay as a “fact” that the
police undercover had "dealt" with the defendant Vidal which
was a charge under counts l, 2, 3, 4, 5 and 6 of the consol-
idated indictment, on November 8, and November 20, which the
prosecution was required to prove by legal evidence beyond a
reasonable doubt,
The trial court aided and counselled the prosecutor
in the admission of People's Exhibit 6 (842-843), under
Counts 7, 8 and 9, the alleged “cocaine sold” by Barbarino
to the police undercover on December 27, 1973, as to which
the police undercover testified that he did not observe the
defendant Vidal to be present. The defense, on voir dire,
elecited testimony from the undercover that he did not put
the red identification markings on People's Exhibit 6 (842)
and that he could not state that "this is the same plastic
bag" upon which he had placed the identifying removable tape
and that he couldn't identify the brown paper bag on PX 6 id
as the brown paper bag he allegedly put a removable identi-
fying tape (842). The trial court sustained defense objec-
tions to the admission of Px6 id (842). At that point, the
trial court called counsel to the bench:
"The Court: May I see counsel at the bench,
Mr. Sutton: May we have a side bar on the
record, Your Honor?
The Court: Yes. Please excuse us.
Side Bar:
The Court: The reason I asked you to
approach the bench is to tell you that you
can ask him from today to tomorrow concerning
the brown bag and the white plastic bag. I'm
still not going to admit it into evidence.
You have not connected it in any way to this
defendant at this time. The others you have;
they haven't been offered in evidence, This
one you haven't and it's being offered in
- 45 -
evidence, I must sustain the objection, Up
until now, there is bsolutely no connection
with anyone but Rosario Barbarino. Do you
understand?
Mr. Sutton: May I respectfully object,
Your Honor, to counselling of the prosecution,
Mr. Farkas: Your Honor, I object to that
statement about ‘counselling the prosecution’,
The Court: All right, let's proceed."
The trial court also aided and counselled the prose-
cutor in front of the jury in getting People's Exhibit 1 for
identification (Counts l, 2 and 3 of the consolidated indict-
ment) - alleged "cocaine" = (849-850) admitted into evidence
after objection by the defense to its admission had been sus-
tained by the trial court (849):
_ “Mr. Sutton: Your Honor, as of the moment,
in the condition in which this is now, I res-
pectfully object.
The Court: Sustained,
Mr. Farkas: I move to have it introduced
subject to connection by testimony from the
chemist, Your Honor.
_ The Court: May I remind you that all you
did was show something to the witness who
said he recognized it at this moment. If I
understand correctly, that is.
Mr. Farkas: We (sic) did that yesterday.
The Court: No, we (sic) did not do it
yesterday.
Mr. Parkas: I'll go over it." (849-850).
os
Thereafter, the prosecutor stated that he was offer-
ing the exhibit “subject to connection by testimony ‘om the
chemist..." (855). The trial court interrupted the . vsecutor
to instruct him that he didn't "need any cornection; it's
already been connected to the defendant. The only thing you
have to do now is to establish what it is because if it's
talcum powder, you don't have a case." (855):
“Mr, Farkas: Further, Your Honor, I, since
we are having a sige bar, in order to save time
later on this morning, I am offering that piece
into evidence under the following: I am offer-
ing it subject to connection by testimony from
the chemist and ---
The Court: You don't need any connection;
it's already been connected to the defendant.
The only thing you have to do now is establish
what it is because if it's talcum powder, you
don't have a case." (855).
On a voire dire by the defense as to the prosecu-
tor's offer of PxX-l id into evidence, the undercover police
officer testified that he could not identify the white powder
as that involved in the alleged November 8, 1973 transaction
charged in the indictment (876). The prosecutor objected that
the witness had “already stated that he cannot identify the
owder itself" (876). The prosecutor then stated "And I will
stipulate that you cannot identify that white powder" (876).
The trial court counselled the prosecution:
"The Court: It's not necessary to volunteer
any stipulations” (876). (Underscoring addea).
- 47 -
The police undercover testified also that he could
not identify the tinfoil of Px-1 id as the tinfoil he alleg-
edly received on November 8, 1973 (877-878). The trial court
sustained the defense objection to the admission of Px-1l id
into evidence by the prosecution (878).
The prosecutor asked for a side bar (879). At the
side bar the trial court aided and counselled the prosecutor
as to what the police undercover is to testify to so that
the critical exhibit, PxX-l id, as to Counts l, 2 and 3 of the
consolidated indictment, could be admitted into evidence for
the prosecution:
"The Court: I just think that, as a technical
matter, at this time, there's insufficient proof
to warrant its introduction (882)..... Wait a
minute! He hasn't identified it. The only thing
he's identified is that piece of tape. He hasn't
goine further than that (882)... I think that you
have failed to establish at this point, sufficient
grounds to warrant its introduction in evidence
(883).... If you're concerned about the exhibit
because it is not now in evidence, I think I can
make the statement that I am satisfied that it
will ultimately be received in evidence...(883)...
(Underscoring added).
Mr. Parkas: Would you like me to continue
on this line?
The Court: If you think that it will be
fruitful, yes. To my knowledge, the officer
hasn't even stated, for example, that the amount
of cocaine (sic!) visible 1s the approximate
amount that he received and that's a white pow
der the same as what he received and that the
tinfoil appears to be the same tinroil that the
white powder was wrapped in when he placed it in
the envelope, (Underscoring addeu),.
- 48 -
Mr. Farkas: I‘ll start again.
Mr. Sutton: May I speak, Your Honor?
The Court: Yes,
Mr. Sutton: I most respectfully object
to Your Honor's instructions and counselling
of the assistant district attorney in setting
out the course of questions and the questions
themselves to be asked, particularly since,
in connection with the tin foil, this particu-
lar witness has already testified he could not
recognize this particular tin foil as being
the tin foil that he claims to have been in-
volved in the transaction of November 8 and
he's already testified as to the white powder
and he's already testified specifically. He
cannot say that that alleged white powder is
the one that was involved in the November 8
transaction. your Honor ---
The Court: He can say ---
Mr. Sutton: I haven't finished, Your Honor,
The Court: I'm sorry.
Mr. Sutton: Your Honor's instructions to
the assistant district attorney and the open-
ing of doors to the assistant district attor-
ney to put additional questions which have al-
ready been precluded by prior testimony of this
witness, I consider the most prejudicial, I
consider as a grave error, Your Honor, and I
would urge Your Honor not to permit this kind
of thing to continue.
The Court: To my knowledge, the witness
was never asked whether these items are, in
his opinion, what he received on November 8
during the course of the alleged transaction
and I will permit questions along that line,
Mr. Sutton: May I speak again, Your Honor?
The Court: Yes, but try not to be repeti-
tious.
Mr. Sutton: Well, I must repeat the point
that I've made before---
The Court: Why must you repeat points that
you've made before?
Mr. Sutton: So that the record is clear,
Your Honor and that is that this witness has
already testified---
Mr, Parkas: I object to the statement as
having been stated on the record already, Your
Honor,
Mr. Sutton: Counsel, I'm not a witness,
Your Honor, and I think I have a right to speak
to this point and you've given me the permission,
The Court: Speak:
Mr. Sutton: Thank you, This specific wit-
ness has already testified that he, looking at
this tin foil, cannot say that it was the tin
foil that was involved in the November 8 trans-
action,
The Court: I'm aware of that.
Mr. Sutton: And he has also said that look-
ing at that white powder, he can't say that that
white powder---
The Court: I'm aware of that also. He can
say he believes it's the tin foil and the white
powder which he received on that date,
Mr. Sutton: Well, my objection is very clear
now, I think,
The Court: Yes.
The prosecutor, by improper, and illegal, leading
questions over repeated objections by the defense, pursued
the tactics and course which the trial court advised him to
follow with the obvious assurance by the trial court that
when he did so, the trial court would receive Px-1 id into
evidence (887-889). The trial court then did in fact receive
PX-l id into evidence upon the testimony of the undercover
police officer that “in his opinion” the white powder in Px-l
id is the white powder he received on November 8, 1973.
In the face of his prior testimony that he could
not identify it or recognize it (876):
"Q. «+» And in your opinion, officer, is the
Substance that is described, that is shown on
the outside of the envelope sealed by the outer
plastic the same substance that you received on
November 8, 1973 in the Buick Riviera driven by
Vancent Vidal handed to you by Vincent Vidal?
Mr. Sutton: Objection.
The Court: Overruled.
The Witness: Yes, sir." (889).
The trial court, on another occasion, on its own,
directed counsel to have a side bar on the admission of evi-
dence against the defendant (940).
At the side bar the trial court counselled the
prosecutor on a critical item of evidence and how to prose-
- -/51 -
cute the case against the defendant and how to develop and
establish evidence against the defendant (940-943). Defense
counsel sensed that the reason for the side bar call by the
trial court was to counsel the prosecutor (940). At the very
outset of the side bar, defense counsel asked for permission
to speak (940), and then directly urged the trial court "not
to instruct the counsel for the prosecution on what to do and
how to do it (941). The prosecutor had moved to admit into
evidence, a ladies'robe, PX-5 id (938), to which the defense
objected and to which the trial court had twice previously
sustained objection (831-832, 939). The ladies'robe was
alleged by the prosecution to have been worn by defendant
vidal. The police undercover had testified that he did not
see defendant vidal but that he merely saw a “figure” wearing
a robe. The trial court, on the prosecutor's second attempt
to introduce the ladies‘ robe, PxX-5 id into evidence, after
sustaining the defense objection asked the prosecutor:
“The Court: Sustained. What has changed
since it was marked for identification?” (939).
The prosecutor then pursued more questions of the police
undercover, which were insufficient to justify admitting the
ladies' robe into evidence (939-940). The police undercover
Gid not testify that the ladies’ robe was found in the defend-
ant‘'s apartment (939-940). The police undercover testified:
"Q. And when you were in there, aid you
enter the bedroom of the apartment?
A. Yes.
Mr. Sutton; Objection,
The Court: Overruled,
Q. And did you observe anything in the
bedroom of that apartment?
A. Yes.
Q. What did you observe?
A. A bed, a dresser.
Q. I see, Anything else?
A. No, sir." (940).
The prosecutor renewed his offer, the defense objected and
the trial court called a side bar (940-941):
"Mr. Farkas: Your Honor, at this time I
renew my Offer.
Mr. Sutton: Objection, Your Honor,
The Court: I think we'd better have
Side bar. Please excuse us. —
Side Bar:
_ Mr. Sutton; May I urge the court not to
instruct the counsel for the prosecution on
what to do and how to do it.
; The Court: All right, now, maybe I am
mistaken but I have heard nothing with refer-
ence to this robe since it was marked for iden-
tification and since it was referred to as
~~ 53 -
being seen attached to an arm handing things
Out of a bedroom ..... When was it established
that it’s Vidal‘s apartment? I con't recall
that. ..... ‘there's been no testimony with
reference to this robe being founu in the
apartment that I recall, has tnere?
Mr. Farkas: I thought there had been,
The Court: You thought there had been?
Well, I don't think so,
Mr. Farkas: All right, we'll continue
along the lines, sir. (Side bar concluded),*
(940-943). (Underscoring added),
The prosecutor followed the counselling of the
trial court and the trial court admitted the robe into evi-
dence,
The prosecutor sought to introduce against the de-
fendant Vidal, a tape recording of an alleged telephone con-
versation between the police undercover and Barbarino, People's
Exhibit 7 for identification (945). Defense counsel objected
(946) and the trial court sustained the objection (946).
Later the prosecutor again offered that tape recording in
evidence (982). Defense counsel objected (982). The trial
court counselled the prosecutor as follows:
"The Court: I do not recall hearing a ques-
tion put to this witness concerning other than
that he recognizes it as a tape used on Decem
ber 26 to phone Rosario and that it contains
his voice and the voice of Rosario Barbarino
and a female, I have heard no questions asked
with respect to its accuracy as of yet.
- 54 -
Mr. Farkas: I'm about to,
The Court: All right, proceed,
Mr. Sutton: May we have a side bar,
please.
The Court: No.* (982-983). (Underscor-
ing added).
The trial court blocked the defense from the oppor-
tunity to set forth his objection to the counselling.
The trial court counselled the prosecutor on
another occasion so as to elicit testimony from Rosario Bar-
barino (and at the same time instructed Barbarino) as to the
necessity to have Barbarino testify that he saw “whoever it
was that knocked on che Goore (1815). The witness however
testified that he did not see who knocked on the door,
*Q. Now this person that knocked on the door
the first time, cid you later learn his name?
A. Yes.
Mr, Sutton: Objection.
The Court: I don't remember whether the
testimony established whether the witness ever
Saw whoever it was that knockeu on the coor,
Mr. Farkas: I will ask this question. Did
you see the person that knocked at the door
the first time?
A. No.* (1815). (Underscoring added).
Point XI
The trial court expressed
Opinions on the facts, dir-
ected findings of fact by
the jury, unfairly marshaled
the evidence, and denied the
defendant a trial by jury
and a fair trial.
During the course of the trial and in his charge
to the jury the trial court expressed his pinion of the
facts, directly and indirectly and made declarations of
facts concerning disputed issues of material facts giving
lip service to the defendant's fundamental rights of pre-
sumption of innocence and reasonable doubt. People v. Walker,
198 N.Y. 329 (1910); People v. Van Bramer, 235 A.D. 287,
257 N.Y.S. 99, aff'd. 261 N.Y. 505 (1932); People v, Ohanian,
245 N.Y. 2 (1927); People v. Kohn, 251 N.Y. 375, 379 (1929);
McKenna v. People, 81 N.Y. 360 (1880); People v. McRae, 54
A.D. 2d 664, 388 N.Y.S. 2d 664 (lst Dept. 1976); People v,
Davis, 353 A.D. 2d 870, 385 N.Y¥.S. 2d 345 (2d Dept. 1976);
People v. Budd, 38 N.Y. 2d 988, 384 N.Y.S, 2d 435, 436 (1976).
After both sides had declared that they had no fur-
ther questions of police chemist Acevedo who testified as to
People's Exhibit 1, which was alleged cocaine on Counts l, 2
and 3, and after the defense, on cross-examination had im
peached that witness’ testimony, and after that witness had
testified on cross-examination that he had no recollection of
conducting any tests on that white powder in People's Exhibit
1, to wit:
"Q. Do you have an independent recollection
with respect to People's Exhibit 1 as to con-
ducting any tests whatever on that white powder?
A. No, sir; no recollection of this parti-
cular case, sir” (2832),
and other impeaching testimony, the trial court, by its un-
fair leading question, rehabilitated the witness, and expressed
his own opinion that the white powder was "cocaine", and
undermined and destroyed all the cross-examination that had
occurred as if it had not happened:
"By the Court:
Q. Let me understand your testimony sir,
so that there will be no mistake about it,
Are you saying that the tests that you per-
formed in the sequence that you performed them
with respect to Exhibit l, this is an absolute
and complete and full indication that there is
cocaine present in that white powcer?
A. That is correct.
Q. Is there any question about it?
A. No question about it, Your Honor,*
(2897).
Defense counsel objected (2597). However, the trial
court did not strike out the questions and answers, and did
not give any curative instructions to the jury (2897). The
trial court's opinion that the white powder in Px-l was
—- 57 -
cocaine was clearly conveyed to the jury and left no room for
jury deliberation on that vital issue.
In his charge to the jury, the trial court directed
the jury concerning the evidence that prosecution witness,
former co-defendant, and alleged accomplice Rosario Barbarino
had been previously convicted of crime that
"This evidence was solely to assist you in
considering the creaibility of the person giv-
ing the testimony and to determine the weight
to be given to that testimony. You must not
consider this evidence of the witness’ prior
conviction for any other purpose, or to permit
it to otherwise influence you with respect to
your verdict or auctermination. ..... it is your
duty to determine whether this witness like any
other witness is to be believed wholly, or par-
tially or not at all. His prior conviction
will not decide this for you....” (217-218).
(Underscoring added),
The trial court after explaining the definition of
possession charged the jury that
“Now the People must also prove that the
thing that the defendant so possessed was a
controlled substance" (236).
The trial court thereupon declared to the jury that
the item in evidence which the prosecution had offered as
being from defendant's possession, was in fact from defend
ant's possession, and that the item was in fact cocaine, as
follows:
"you heard the officer's testimony that the
item of property recovered from the defendant's
alleged possession was submitted by him to the
police laboratory and that it was analyzed there
for the presence of cocaine. You also heard
Eferan Acevedo testify that he was an employee
of the police laboratory, that he examined the
contents of the police property clerk's envelope
with respect to this count and that he found
that it contained cocaine. ...." (236).
The trial court thus charged and directed the jury
to find those "facts", The trial court did not refer to the
testimony on cross-examination which impeached each alleged
“fact*, The trial court did not marshal the evidence; he
simply recited the "facts" which supported the prosecution's
case, without referring to the counter-evidence disclosed by
the cross-examination and by the glaring conflicts in testi-
money between the prosecution witnesses and within each wit-
ness' own testimony.
The trial court declared to the jury that the testi-
mony of each of the police chemists - he named them: "Acevedo,
with respect to the alleged transaction of November 8th,
Jeanne L. Farrar, with respect to the alleged transaction of
November 20th, Igor Agatow, with respect to the alleged trans-
action of December 27th; and Thomas Castallano, with respect
to the possession counts relating to the items allegedly found
in the defendant's apartment on that same day, .... and his
analysis of the substance offered in evidence (thus vouching
the police chemists in fact had conducted analysis on each
- 59 .
a substance offered in evidence, which was a matter highly in
| dispute) is that is known as expert testimony” (236). (Matter
in parenthesis and underscoring added), and that each such
4 ahs
“ae
>
Sipe
“ete.
¥- d.
te
ee
police chemist was found by the trial as a matter of law “was
an expert in his field of chemistry and drug analysis* (238).
The trial court thereupon instructed the jury that
*The opinion stared hog these heer ane be from the
witnees stand wz icula:
These statements directed the jury to make those
findings notwithstanding that the trial evidence was con
trary thereto, viz: Acevedo, on cross-examination as to
Counts 1, 2 and 3, testified:
Do you have an independent recollec-
ton "with respect to People's Exhibit 1 as
g any tests whatever on this white
ph st
A. No.* (2832).
+ Agatow testified that he had made no notes (2648)
ana ‘that he had no recollection of conducting any tests on
m6, as to nae 7, 8 and 9 (2712); Catalano testified
| . pation as to Px-20, Counts 10-15, that he had
omens recollection of having conducted any tests on
y | alleged under Counts 10-15 (2990). Ferrar
testified on cross-examination that he made no notes whatever
of any alleged analysis of PxX-2, as to Counts 4, 5 and 6
(3165, 3154-3155). He also testified that his was a *re-
analysis", and that he did not know what was originally in
the evidence envelope (3145).
The trial court, having so declared his opinion,
instructed the jury by an example not in the case, that they
could reject the "expert's opinion.... for example if you
learn that a chemist was bribed to make a false report* (238).
The trial court effectively directed the jurors to accept his
declaration of the *testimony* and "expertise" of the police
Chemists even though he stated that “his testimony is en-
titled to such as you find the expert's qualifications in his
field warrant (238-239) since the trial court had previously
ruled as a matter of law that “In this case the Court found
as a matter of law that each of the chemists was an expert in
his field of chemistry and drug analysis* (238).
The trial court directed the jury to find as a fact
that the defendant - on each of the possession counts - pos-
sessed the drug unlawfully by his declaration as follows: “In
this case you will note that there was no evidence that this
defendant was entitled to possess any of the controlled sub-
stances involved in this case as a physician, patient, or
otherwise" (240).
- 6] «
The trial court, as to Counts 4, 5 and 6, and as to
Counts 7, 8 and 9, directed the jury to find as a fact that
the substance was cocaine and that it weighed in excess of
one ounce, to wit:
“Now, you may recall the chemist Ferrar
testified with respect to the November 20th
transaction that he weighed the item which he
found to be cocaine and that it weighed one
and three quarter ounces and two grains. And
you may further recall that Igor Agatow in
testifying with respect to the substance which
he examined also weighed it and that he found
that it weighed one pound and one and three
Quarter ounces, plus four grains. Therefore,
before the defendant could be convicted of
either the sale relating to the -- the alleged
sale relating to November 20th or the alleged
sale relating to December 27th, in addition to
the elements previously described, the People
must have established that the cocaine was
part of a mixture which weighed at least one
Ounce or more and that some part of it was
cocaine..... It is sufficient that the aggre
gate weight of the substance was at least one
ounce or more and contained some quantity of
cocaine" (245-246). (Underscoring added).
The trial court also directed the jury to find as
a fact that the items composing the possession counts under
Counts 10 through 18 were all found in defendant's apartment
(247):
"Now, that therefore brings us to the remain-
ing counts in the indictment, counts ten through
eighteen. Each of those counts relates to what
occurred on Decemper 27th in the apaxtment atter
the police came in and atter cetenaant Viaal was
Originally -- was arrested.” (247). (Underscor-
ing added).
- 62 «~
The trial court directed the jury to find as a
fact that the item at issue in Count 15 was marijuana, and
that it was found in defendant's apartment (251) and that
the item at issue in Count 10 was cocaine and it too was
found in defendant's apartment (251), and that the cocaine
so found weighed one and five eighth ounces plus nineteen
grains (251):
"And as you may recall that Thomas Catalano
testified with respect to the marijuana alleg-
edly found in the apartment, that he weighed
it, and that it totalled ten and one-eighth
Ounces and eighteen grains.
And while we are on that score, Catalano,
you may recall, testified that he weighed the
alleged cocaine found in the apartment and
that the total weight was one and five-eighths
ovnces plus nineteen grains" (251).
The defense counsel duly excepted to the foregoing
charges (261, 264-274). The trial court refused to charge
further (261-274).
Point XII
The prosecutor on summation vio-
lated defendant's right to a fair
t£xial by his improper comments
concerning defendant's failure to
testify and by his improper com
ments concerning the defendant's
failure to produc? a witness to
refute prosecution testimony.
One of the most vigorously contested issues was
ie Ms
whether the white powcer offereu into evidence py the prose-
cution was cocaine. ‘There were ten (10) counts in the con-
solidated indictments which charged sale or possession of
"cocaine", There were four (4) different alleged police chem
ists who gave testimony on that issue: Aceviao, as to Counts
1, 2 and 3; Ferrar, as to Counts 4, 5 and 6; Agatow, as to
Counts 7, 8 and 9; and Catalano, as to Count 10,
The defense conducted a cross-ecxainination which
impeached each one of the chemists on that issue.
On summation the prosecutor improperly commented
concerning the failure of the defendant to produce a chemist
witness as follows:,
“Mr. Farkas: oo. YOu also learned a lot
about chemistry and when you leave here you
will probably be able to tell your neighbors
how to analyze crugs. sut that isn't what
this case is about either. secause if for
a minute Mr. Sutton or Mr. Vidal---
Mr. Sutton: Objection. One minute.
The Court: Overruled,
Mr. Sutton: Your Honor---
The Court: Overruled, I don't want any
speeches. Sit down.
Mr. Parkas: If for a minute there was any
doubt whether this stuff is cocaine---
Mr. Sutton: Objection,
The Court: Overruled.
Mr. Parkas: He could have produced his own
chemist.
Mr. Sutton: Objection.
The Court: With respect to that a defend
ant doesn't have to call any witnesses. Of
course he can, In this case some witnesses
were called py the defense, put members of the
jury, the defense is under no obligation to pro
duce orqll any witnesses, if that's what he
chooses to do. Anu the People must nevertheless
establish the guilt of the defendant beyond a
reasonable dounpt. Proceed.”
Mr. Sutton: Your Honor, I respectfully
request a further anstruction to the jury.
The Court: Reguest is denied,
Mr. Sutton: May I speak further?
The Court: No." (190-191).
The trial court's instruction to the jury was made
belatedly and only after repeated objections by the defense
and was inadequate to cure the wrong committed by the prose-
cutor (190-191). The trial court increased the prejudice
to the defendant by the words he used, namely, that the de-
fendant'could produce witnesses and did produce some wit-
nesses’, but that the defense need not produce any witnesses
"if that's what it chooses to do." The trial court effect-
ively shifted to defendant the burden to disprove the prose-
cution evidence if the defendant could,
The prosecutor even after the objections and afore-
said ruling by the trial court repeated his improper com
ments on defendant's failure to testify:
"Mr. Farkas: eee I can't tell you what
happened with Vincent Vidal, but Rosario Bar-
barino I was avle to prowuce to you (196)....
There is nothing at ali that came from any
item of evidence other than mere accusations
and distortions from the defendant that in
any way disprove any of this (203) .... And
there is unchallenged evidence as to what
this stuff is (205). (Underscoring auded),
The right to appellate review as to the latter
comments is preserved, notwithstanding that defense did not
specifically object thereto since the right involved is a
fundamental constitutional right. People v, Patterson, 39
The prosecutor's comments were improper and require
a reversal of the judgment. People v, Mirenda, 23 N.Y. 2d
439, 457, 297 N.Y.S. 2d 532, 537 (1969). It cannot be said
to be harmless beyond a reasonable doubt. People v, Crimmins,
36 N.Y. 2d 230, 367 N.Y.S. 2d 213 (1976).
Point XIII_
The trial transcript is incom
plete in that a portion of the
trial was not recorded by the
court reporter and the trial
court denied defendant's demand
to direct the court reporter to
record by stenographic notes
that portion of the trial heard
by the jury of two tape record-
ings between Barbarino and the
police undercover,
The alleged tape recording of a telephone conver-
sation between Barbarino and the police undercover allegedly
on December 26, 1973 was critical, highly prejudicial, and
utterly illegal hearsay evidence against the defendant. The
defendant was not present and was not a party thereto. It
was an important basis upon which the absence of defendant
Vidal from the alleged “sale" by Barbarino to the police
undercover was “explained* and was highly prejudicial to the
defendant. The absence of any stenographic minutes and of a
transcript of the illegal hearsay testimony by the tape re-
cording, which was heard by the jury, and upon which the jury
relied to render its verdict, was not available to the Appel-
late Division for review.
There was also no stenographic notes made and no
transcripts were prepared of another tape recording of the
illegal hearsay alleged conversation between Barbarino and
the police undercover allegedly on December 27, 1973, which
-~ 67 -
allegedly recorded the “sale” transaction between Barbarino
and the police undercover, which was the subject matter of
Counts 7, 8 and 9 (1051-1052). This tape recording was played
to the jury and was highly prejudicial to the defendant, and
utterly illegal hearsay.
In each instance, the defense counsel duly demanded
that the tape recordings which were played to the jury, be
-
stenographically recorded and made part of the written record
of the trial (989-990, 1051-1052). The trial court refused
these demands in each instance (989-990; 1051-1052).
The trial transcript is incomplete.
This Court in People v. Giles, 152 N.¥. 136, 139
(1897) held that “the right to review upon the facts neces-
sarily contemplates the preservation of the evidence.*
This Court in People v. Pride, 3 N.Y. 2d 545, 549,
170 N.Y.S. 24 321, 323 (1958) held that:
“Our State has always regarded the right to
appellate review in criminal matters an inte-
ral part of our judicial system and treated
t as such. .... It has been the consistent
policy of our Courts to preserve and promote
that right as an effective, if imperfect,
safeguard against impropriety or error in
the trial of causes, This policy has been
particularly manifest on a number of occasions
where the failure to provide sufficiently com
prehensive reports of the proceedings at the
initial stage of litigation threatened to ren-
der nugatory the right to appeal (cases cited),
In the instances cited the lower courts had
failed to make and preserve an adequate record
of the proceedings at the trial level. vuUnequi-
vocally and with emphasis on the importance and
fundamental nature of the right to appellate
review, the courts on each occasion held that
the making of sych a record and its availabil-
ity to the defeftdant-appellant were absolute
requisites and concomitants of the right to
review....”
This Court in People v, Hall, 32 N.Y. 2d 546, 551,
347 N.Y.S. 2d 16, 20 (1973) stated that
"There can be no doubt that a criminal appel-
lant is entitlea to a ‘record of sufficient com
pleteness’ (CPL 460.70, subd. 3; Code Crim.
Pro. Section 485; Mayer v, City of Chicago,
404 U.S. 189, 193-195, 92 Ss. ct. 4l1o, 30 L. Ed.
2a 372; People v. Pride, 3 N.Y. 2d 545, 549,
170 N.Y.S. 2d 321, 323, 147 N.E. 2d 719, 720."
The defendant has been denied his constitutional
and statutory right to due process of law and to a fair and
complete appellate review of the entire proceedings. People
Vv. Adams, 22 A.D. 2d 892, 255 N.Y.S. 2d 339 (2d Dept. 1964).
The foregoing defect is in addition to the fact
that the Appellate Division did not have before it on review
the transcript of the trial which had been made. As hereto-
fore noted, in the letter to this Court dated July 26, 1978,
the record before the Appellate Division was incomplete in
that some 1,500 pages of trial transcript were not forwarded
by the appeals bureau to the Appellate Division. The defend
ant‘'s right to have the Appellate Division review the appeal
On the merits, which could only be accomplished on the full
transcript and record at trial, was denied. People v, Siall,
32 N.Y. 2d 546, 551 (1973); People v. Borum, 8 N.Y. 2d 177
(1960).
Point XIV
The trial court denied the
defendant his Sixth Anend-
ment right to a public trial
by sealing the courtroom and
excluding the public during
the extensive testimony of
police officer Florio with-
out just cause and without
any hearing.
The trial court, with no more than the bare appli-
cation by the prosecutor and a brief conclusory recital by
the prosecutor of the necessity for the relief, without any
hearing, and over the objection of the defense, sealed the
courtroom and excluded the public during the testimony of a
principal witness, Police Officer Florio who had allegedly
acted as a police undercover (732-733):
“Mr. Parkas: eeeee There is an application
that 1'm making at this time out of the pres-
ence of the jury and that is that since my first
officer will be Police Officer Florio, I ask
that the courtroom be sealed. The officer is
an undercover police officer and there is seve-
ral case law on the matter, He is active in
investigations open at this time. He would
work and does, in fact, work with confidential
informants whose identity would be uncovered if
@ 70 «
his identity is known and, therefore, I ask that
the courtroom be closed, sealed under the rule
of People versus Hinton, I don't have the cita-
tion but I can get it,
The Court: I'm familiar with t*» case. Do
you wish to be heard?
Mr. Sutton: Yes, I do, I respectfully ob-
ject, Your Honor, and 1 state to Your Honor that
the clearing of the courtroom and the absence of
the people in the courtroom would end up as a
signal to the jury that something is amiss and
that the prejudice or the absence of the people
in the courtroom would be reflected against the
defendant. Additionally, I believe and I most
respectfully urge to the Court that the defend
ant is entitled to a public trial in this parti-
cular instance ana there is no valid reason why
this police officer should not testify in open
court if he's going to testify at all.
The Court: The objection is overruled. The
application is granted, You have an exception.*
The sealing of the courtroom and the denial of a
public trial to the defendant, denied defendant his consti-
tutional rights to a public trial and to cu process of law.
People v. Hinton, 31 N.Y, 2d 71, 334 N.Y.S. 2d 885 (1972);
People v. Morales, 53 A.D. 2d 517, 383 N.Y.S. 24 620 (lst
Dept. 1976); People v, Boyd, 59 A.D. 2d 558, 397 N.Y.S. 2d
150 (2d Dept. 1977).
- 71 «
Dated:
conclusion
The petition should
be granted.
February 25, 1979
si, Sac ma
F
‘ en
———_
Sa 2
( « nard Coe
“Charles Sutton
Attorney for petitioner
299 Broadway
New York, New York 10007
212-964-8612
- 72 -
APPENDIX
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 February 21, 1978
HON. JAMES D, HOPKINS, Justice Presiding
HON, JOSEPH A, SUOZZI,
HON, SAMUEL RABIN,
HON, J, IRWIN SHAPIRO, Associate Justices
The People of the State of New York, ‘
Respondent,
~ Order on Appeal from
Judgment of Conviction
Vincent Vidal,
Appellant ig
In the above entitled action, the above named Vincent Vidal,
defendant in this action, having appealed to this court from a judgment of the Supreme
Coun, Kings County, rendered January 22, 1975, convicting him inter
alia of various narcotics offenses, upon a jury verdict, and
imposing sentence;
~
and the said appeal having been submitted by Charles Sutton,
Esq., of counsel for the appellant ,and submitted by Laurie Stein Hershey . Esq.
of counsel for the respondent , and duc deliberation having been had thereon, and upon this court's
opinion & decision slip heretofore filed and made a part hercof, it is:
ORDERED that the judgment appealed from is hereby modified, on the law, by
reversing the conviction of criminal possession of a controlled
substance in the third degree (count two of the consolidated
indictment), and the sentence imposed thereon, and the said count
is dismissed; and, as so modified, the judgment is hereby unanimously
affirmed,
IRVING N. SELKIN
Clerk of the Appeliate Division
\
B/ms
AD2d ; S - February 6, 1978
2535 K/77 The People, ete., respondent,
Ve Vincent Vidal, appellant,
Charles Sutton, New York, N.Y., for appellant.
Eupene Gold, District Attorney, brooklyn, N.Y.
(iaurie Stein Hershey of counsel), tor respondent,
Appeal by defendant from a judgment of the Supreme agg
Kings County ( KREINDLER, Jed, rendered January 9 } 9
convicting hii inter alia of various narcotics offenses, upon
a jury verdict, and imposing sentence,
.
Judgment modified, on the law, by reversing, the conviction of
criminal possession of a controlled substance in the third
deycee ( count two of the consolidated indictment ), and the
sentence imposed thereon, and the said count is dismissed,
As so modified, judgment affirmed,
The second count of the consolidated indictment is a lesser
included offense tof the tirst count thereof, The evidence
docs not support a finding of possession, as alleged in the
second count, independent of the sule, us alleged in the first
count. The other contentions raised by defendant have been
‘cousiderced and found to be without werit,
. , q-*
HOVKINS, J.P., SUOZZ1, RABIN and SHAPIRO, JJ,, concur.
February 21, 1978 PEOPLE v VIDAL, VINCENT 2535 E/77
-2a-
#2290 8
At a Term of the Appellate Division of the Supreme Court
of the State of New York. Second Judicial Department,
held i Kings County on June 26
. ‘ 7
HON JAMES D. HOPAINS, Justice Presiding
tate of New Bork
HON, JOSEPH A, SU0Z221 Court of <lppeals
HON. SAMUEL RABIN (
HON, J. IRWIN SIAPIRO
>» Associate Justices
3 mae
maz
| S ere
Pee ee DD phe x oO o men BEFORE HON, JACOB Dd FUCHSBERG, Associate Judge
ee ee ee) e2eaee af es
‘ ™ <5
The People, etc., > ee, .
Respondent, | = THE PEOPLE OF THE STATE OF NEW YORK
= org@r or ae
’ CERTIFICATE
against DENYING
neent Vidal
vs y LEAVF
Appellant. VINCENT VIDAL
ee ee 4
In the above entitled cause, the appellant having moved
Sun I, JACOB D. FUCHSBERG, Associate Judge of the Court of Appeals of the State of N
(1) for reargiment of the appeal from a judgment nf the preme York, do hereby certify that, upon application timely made by tl
icate pursuant to CPI,
cw
« above-named appellant for a certif-
160.20 and upon the record and proceedings herein,® there is no ¢ uestion of
22, 1975, which was modified ‘ , '
Court, Kings County, rendered January ’ ; law presented which oucht to be reviews d by the Court of Appeals and permission to
by denied
appeal is here.
” t
by order of this court dated February 21, 1978, and (2) to restore
the appeal to the calendar for oral argument;
Dated at Albany ,New York
Now, upon the papers filed in support of the motion and there November 271478
being no papers filed in opposition thereto; upon the papers on
which the appeal was determined; and the motion having been duly
submitted and due deliberation having been had thereon, it is
ae Dies rte UGS
ORDERED that the said motion is hereby denied,
Associate Judge
Mater: § pRYJNG N. SELKIN
Clerk of Appellate Division
Order, App. Div., 2nd Dept dated February 21, 1978
modifying judgment of Supreme Kings County rendered
1D January 22, 1975
escription of Order:
3a
ESSE
The Constitutional Provisions involved in this case are:
(a) Fifth Amendment: “No Person shall he held
' answer for a capital, or otherwise infamous
crime, unless on a Presentment or indictment of a
Grand Jury, except in cases arising in the land or
naval forces, or in the Militia. when in actual
service in time of War or public danger: . . . nor
shall he 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:
»»."" ULS.C.A. Const. Amend. 5.
(b) Sixth Amendment: “In ail criminal
Prosecutions, the accused shall enjoy the right. . .
to be informed of the mature and cause of the
accusation; to be confronted with the witnesses
against him; ... and to have the assistance of
Counsel for his defense."” U.S.C.A. Const. Amend.
6.
(c) Fourth Amendment: “The right of the people
to be secure in their Persons, houses, papers, and
effects, against unreasonable searches and
seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, Supported by
oath or affirmation, and Particularly describing
the place to be searched, and the persons or things
to be seized.”
New York Criminal Procedure Law ;
1lA McKinney's , Part 2
§ 450.10. Appeal by defendant to intermediate appellate
court; in what cases authorized as of right
An appeal to an intermediate appellate court may be taken as
of right by the defendant from the following judgment, sentence
and order of a criminal court:
1. A judgment other than one including a sentence of death ;
2. A sentence other than one of death, as prescribed in sub-
division one of section 450.30;
3. An order, entered pursuant to section 440.40, setting aside
4 sentence other than one of death, upon motion of the People.
L.1970, ©. 996, § 1; amended 1.1971, ¢. 671, §1; 1.1971, ¢. 788,
$3, all eff. Sept. 1, 1971.
Page 351
70 Appeal; how perfected
H Teas as provided in subdivision two, the mode of and time for
perfecting an appeal which has been taken to an intermediate appellate
court from a judgment, sentence or order of & criminal court are deter-
mined by rules of the appellate division of the department in which such
appellate court is located. Among the matters to he determined by such
court rules are the times when the appeal must be noticed for and
brought to argument, the content and torm of the records and hriets
to be served and filed, and the time when such records and briefs must
served and filed.
"wane an appeal is taken by a defendant pursuant to section 150.10,
two transeripts shall be prepared and settled, one of which shall be tiled
with the criminal eourt by the court reporter, except that where the de-
fendant is granted permission to proveed na & poor person ee
late court, the court reporter shall promptly make and file with ¢
New York Criminal Procedure Law
§ 470.05 Determination of appeals; general criteria
1. An appellate court must determine an appeal without re.
gard to technical errors or defects which do not affect the sub-
stantial rights of the parties.
2. For purposes of appeal, a question of law with respect to
a ruling or instruction of a criminal court during a trial or pro-
ceeding is presented when a protest thereto was registered, by
the party claiming error, at the time of such ruling or instruc.
tion or at any subsequent time when the court had an opportunity
of effectively changing the same. Such protest need not be in
the form of an “exception” but is sufficient if the party made
his position with respect to the ruling or instruction known to the
court. In addition, a party who without success has either ex-
presasly or impliedly sought or requested a particular ruling or in-
struction, is deemed to have thereby protested the court's ultimate
disposition of the matter or failure to rule or instruct according-
ly sufficiently to raise a question of law with respect to such dis-
position or failure regardless of whether any actual protest there-
to was registered,
L..1970, ¢. 996, § 1, eff. Sept. 1, 1971.
Paves 142,443
§ 470.15 Determination of appeals by intermediate appel-
late courts; scope of review
1. Upon an appeal to an intermediate appellate court from a
judgment, sentence or order of a criminal court, such intermedi-
ate appellate court may Consider and determine any question of
law or issue of fact invols ‘ng error or defect in the criminal court
Proceedings which may have adversely affected the appellant.
2. Upon such an appeal, the intermediate appellate court must
either affirm or reverse or modify the criminal! court judgment,
sentence or order. The ways in which it may modify a judgment
include, but are not limited to, the following:
(a) Upon a determination that the trial evidence adduced
in support of a verdict is not legally sufficient to establish
the defendant's guilt of an offense of which he was con-
vieted but is legally sufficient to establish his guilt of a lesser
included offense, the court may modify the judgment by
changing it to one of conviction for the lesser offense;
(b) Upon a determination that the trial evidence is not
legally sufficient to establish the defendant's guilt of all the
(c) Upon a determination that a sentence imposed upon
& valid conviction is illegal or unduly harsh or severe, the
court may modify the Judgment by reversing it with respect
to the sentence and by otherwise affirming it.
3. A reversal or & modification of a judgment, sentence or
order must be hased upon a tletermination made:
(a) Upon the law; or
(b) Upon t © facta: or
(e) As a matter of discretion in the interest of justice;
or
(d) Upen any two or all three of the bases specified in
paragraphs (a), (b) and (¢),
Supplement Page 94 ya 577
a es ll
New York Criminal Procedure Law
Section 470.15 (cntd)
4. The kinds of determinations of reversal or modification
deemed to be upon the law include, but are not limited to, the fol.
lowing:
(a) That a ruling or instruction of the court, duly pro.
tested by the defendant, as prescribed in subdivision two
of section 470.05, at a trial resulting in a judgment, deprived
the defendant of a fair trial;
(b) That evidence adduced at a trial resulting in a judg-
ment was not legally sufficient to establish the defendant's
guilt of an offense of which he was convicted;
(c) That a sentence was unauthorized, illegally imposed
or otherwise invalid as a matter of law.
5. The kinds of determinations of reversal or modification
deemed to be on the facts include, but are not limited to, a de-
termination that a verdict of conviction resulting in a judgment
was, in whole or in part, against the weight of the evidence.
6. The kinds of determinations of reversal or modification
deemed to be made as a matter of discretion in the interest of
justice include, but are not limited to, the following:
(a) That an error or defect occurring at a trial resulting
in a judgment, which error or defect was not duly protested
at trial as prescribed in subdivision two of section 470.05
80 as to present a question of law, deprived the defendant
of a fair trial;
(b) That a sentence, though legal, was unduly harsh or
severe,
L..1970, c. 996, § 1, eff. Sept. 1, 1971.
Page 578
Ja
New York Criminal Procedure: Law
§ 470.20 — bictermination ot appeals by lntermediate appet-
late courts; corrective action upon reversal or
malification
Upon reversing or modifying a judgment, sentence or order
of a criminal court, an intermediate appellate court must take
or direct such corrective action as is necessary and appropriate
both to rectify any injustice to the appellant resulting from the
error or defect which is the subject of the reversal or modifica-
tion and to protect the rights of the respondent, The particular
corrective action to be taken or directed is governed in part by
the following rules:
1. Upon a reversal of a judgment after trial for error or de-
fect which resulted in prejudice to the defendant or deprived him
of a fair trial, the court must, whether such reversal be on the
law or as a matter of discretion in the interest of justice, order
a new trial of the accusatory instrument and remit the case to
the criminal court for such action.
2. Upon a reversal of a judgment after trial for legal insuffi-
ciency of trial evidence, the court must dismiss the accusatory
instrumert,
3. Upon a modification of a judgment after trial for legal in-
sufficiency of trial evidence with respect to one or more but not
all of the offenses of which the defendant was convicted, the
court must dismiss the count or counts of the accusatory instru-
ment determined to be legally unsupported and must otherwise
affirm the judgment. In such case, it must either reduce the
total sentence to that imposed by the criminal court upon the
counts with respect to which the judgment is affirmed or remit
the case to the criminal court for re-sentence upon such counts;
provided that nothing contained in this paragraph precludes fur-
ther sentence reduction in the exercise of the appellate court's
discretion pursuant to subdivision six.
4. Upon a modification of a judgment after trial which re-
duces a conviction of a crime to one for a lesser included offense,
page 607
§ 470.20 — crimINAL PROCEDURE LAW Part 2
the court must remit the case to the criminal court with a di-
rection that the latter sentence the defendant accordingly.
5. Upon a reversal or modification of a judgment after trial
upon the ground that the verdict, either in its entirety or with
respect to a particular count or counts, is against the weight of
the trial evidence, the court must dismiss the accusatory instru
ment or any reversed count.
6. Upon modifying a judgment or reversing a sentence as a
matter of discretion in the interest of justice upon the ground
that the sentence is unduly harsh or severe, the court must itself
impose some legally authorized lesser sentence.
1.1970, ¢. 996, § 1, eff. Sept. 1, 1971.
Page 608
New York Criminal Procedure Law
§ 470.50 Reargument of appeal; motion and criteria for
1. After its determination of an appeal taken pursuant to
article four hundred fifty,’ an appellate court, in the interest of
justice and for good cause shown, may in its discretion, upon mo-
tion of a party adversely affected by its determination, or upon
its own motion, order a reargument or reconsideration of the
Page 649
§ 470.50 = crimINAL procepURE LAW Part 2
appeal. Upoa such an order the court may either direct further
oral argument by the parties or confine its reconsideration to
re-examination of the issues as previously argued or submitted
upon the appeal proper. Upon ordering a reargument or re-
consideration of an appeal, the court must again determine the
appeal pursuant to the provisions of this article.
Pade 650
No,
HON,
HON,
HON,
HON.
HON,
oe“ 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 Jyne 23, 1975.
FRANK A, GULOTTA, Presiding Justice
SAMUEL RABIN )
JAMES D. HOPKINS ) Associate Justices
M. HENRY MARTUSCELLO )
HENRY J. LATHAM )
The
People of the State of New York,
Decision and Order -
Motion to Dispense
with Printing -
Appeal from Judgment
Respondent,
Appellant.
er
In the above-entitled action, the above-named appellant (defendant)
having appealed to this court from a judgment of the :-*; cite
Court, KINGS County, rendered JANUARY 22, 1975
and appellant having moved to dispense with printing;
Now, upon the papers filed in support of the motion and
papers filed in opposition or relating thereto; and
the
motion having been dUly submitted and due deliberation having
been had thereon, it is
ORDEKED that the motion is hereby granted.
The appeal will be heard on the original papers (including a
typewritten certified transcript of the stenographic minuti:s) and
on appellant's and respondent's briefs, which may be in legibt<
typewritten form or in any other legible form authorized by this
court's rules and which must comply with said rules (22A NYCRR
670.1 et seq.).
The parties are directed to file eight copies of their respective
briefs and to serve one copy on each other.
Pursuant to statute (CPL 460.70), within the twenty-day period
prescribed therein, the stenographer of the trial court is required
to make, certify and file two typewritten transcripts of the steno-
graphic minutes of the proceedings of the hearing trialand sentence
and the clerk of the trial court shall furnish
one of such certified transcripts to appellant, without charge.
Appellant's time to perfect the appeal is enlarged to the
Nbtember term, which begins Movember 10, 1975 ; appeal ordered
on the calendar for said term; appellant's brief must be served
and filed on or before September 19, 1979 and respondent's brief
must be served and filed on or before october 1), 197%.
Enter:
Defendant's address:
ch cetsares tournelk
IRVING N. SELKIN
Clerk of the Appellate Division
DATE: 6/23/75 No, 2559
_
TO be Argued by:
Charles Sutton, Esq. INDEX
30 minutes
| page
SUPREME COURT : APPELLATE DIVISION |
SECOND DEPARTMENT Statement under CPLA Rule $533 ,. ceoseauuse2etbewrne 1
“-—- = = = ee ee ee eee em HK ; NaRSOe GE PNGR. bk 6 68 eS Se ee 6-4) Oe See 3
PEOPLE OF THE STATE OF NEW YORK, 3 Summary of Material Parts of Judyment,
Y Sentence, and Statement that Appellant
Respondent, s SS Gaetaned Gb. deikse 6 a 6 6 6 6 6 6 b' 6 0S eo SOK
v. ' Qeeesaenbe ‘5 2 cs 6 tt 6068 6 OO 0 6b ese 6 eee ee
VINCENT VIDAL, : . GReBGenes © 6 0 6s 8 4.6 6S 6 Oe 6 8 8 6S eee eee
Defendant-Appellant. t
wyument;
eeenaeenaeeceeaeaeaeaeeewa e@e aX
Point I:
The defendant was denied his Constitutional
rights to due process of law and to a fair
trial by the knowing use by the prosecution
of false and perjured testimony og 6 2.8 £3. 60°06 8
Point II;
- ‘ The entry by police on vecember 27, 1973
anto the building at 679 - 46th Street and
into defendant's apartment to make a warrant-
less arrest of Kosario Barbarino was illegal,
violated defendant's Constitutional rights and
rendered defendant's arrest and the subsequent
search and seizure of defendant's person and
apurtment illegal .. 1.2.2 ceececece ees eevee 16
Point III:
; The warrantless entry into the building at
Charles on llant 679 ~ 48th Street was forcible, was without
8 pet Mad ates ' announcement of purpose or authority, was
299 ane A york 10007 j illegal and all fruits therefrom must be
tre Fr — euppreseead, «ccc eceeeeeeeeeeeeeaeeee BB
~964~ ‘
Point Iv:
"
The warrantless forcible entry by the police
Hon. Eugene R. Gold into defendant's apartment without aunouncement
District Attorney, Kings County ' of purpose violated defendant's constitutional
Municipal Building rayhts and the arrest of defendant, the search
Brooklyn, New York ' of the defenuant's person and of his apartment
212-643-5100 i and the allegeu seizures therefrom are illeyal
Indictment Nos.: pansy ee anu must be suppresscd. . «4+ 2+ 26+ 2+ 2+ ee © © © wo @ @ 22
-lla- | os ie -l2a-
—_— — <_< eee
Jwiha (Continucu)
Aryument (Continued):
volnt Vv:
Vhoere were no exigent circumstances to justify
the vurrantless, forcible entry into the LbLuala
ing and into the apartment SS a ie in oe on a we, o.oo ha
Point VI:
The warrantless arrest of the defendant wus
made on pretest anc violated defeonvcant '.
Cunstitutional rights, “Je sy it So iy 08 of oe oe oe a OF te fe
Point Vil:
All evidence allegedly seized by the police
following the illegal police entry into the
building and into defendant's apartment and
the illegal arrest anu search of the defen
ant’s person and apartment must be suppressed,
the counts of the consolidated indictment based
thereon must be cismissed, and the judyment of
conviction must be reversed. . ...s«+«2«e«+se ee ee
Point VIII:
The scarch warrant was issued upon alleyutions
derived from the unlawful entry, unlawtul arrest
of defendant, and unlawful search and seizure
eS ep eS ee ee a ae Oe ee ee ee ee ee ee
Point IX:
Yhe search warrant is invalid on its face. .« 2. 2 « «
roint dv;
The Court denied defendant a fair hearing on
the suppression a a ae oe ve ee a a oe a et oe
-l3a-
2)
25
29
30
31
ee ee ee +
Argume t (Continuea):
POint AL:
i..UeA (Continucs)
The consolidation of indictments 7824 and
7626 solely as against defendant Viual vas
Selective, highly prejudicial and deprived
him of a fair trial anu reyguires reveisal of
the juugment and dismissal of the inuictments,
whe denial of defengant Vidal's motion to sever
th: counts as to cach respective sule charyed
Syulnst ham anu to sever the possession counts
from the sule count was reversibl.: error and
uenied defendant his fundamental right to a
fair trial
Point XII:
the evidence was insufficient to sustain
of the defendant under Counts
the consolidated indictment
the conviction
1, 2, and 3 of
Sub-voint XII-A:
The evidence was insufficient to establish
that PX-1l was identical to that chargeu anu
was not tampered with. . « e« eccecececeee
Sub- Point X1I-B:
The *expert* testimony of Acevedo was inad
miscible and should have been stricken . .
Sub- Point XII-C;
No evidence was presented to establish the
authentacity and scientific validity of any
or the tests claimed to have been performed
by Acevedo as specifically applicable and
valiu to identify cocaine in and the evidence
Showed that Acevedo was not qualified to con-
duct any tests for the *identification*" of
covainge,
-l4a-
32
34
35
36
39
Intex (Continucc)
A:yument (Continued) :
Point Aill:
‘the evidence was insufficient to sustain the
conviction of the defenuant under Counts 4, 5,
and » of the consolidated indictment by reason
of the failure of the prosecution to -stablish
that the real evidence was identical to that
charged and was not tampered with. . . . « 2 « «
Sub- Point XIII-A:
The “expert* testimony as to PX-2 was inad
missible and should be stricken. . . «ee e« «© «
Sub- Point XIII-8B:
vVhe alleged “laboratory report* by “YLanez” was
inuadaissible and coula not repair the aamtted
break in the chain of evidence a oe ee le
Point X1V:
The evidence was insufficient to sustain the
conviction of the defendant under Counts 7,
8, and 9 of the consolidated indictment. . ..« -
Sub- Point XAIV-A:
the prosecution failed to establish that Px-6,
the alleged real evidence, was identical to
that charged and was not tampered with . . . « «
Sub- Point AIV-B:
The opinion testimony of the prosecuticn's
“expert* Agatow as to PX-6 was inadmissible
and should be stricken . ...«e«-eeeeeeree
Sub- point AIV-C:
There was no valid basis for the opinion evi-
Gence by Agatow that PX-6 containec cocaine. . .
- iv- -l15a-
Page
48
50
51
53
53
59
60
INDEX. (Continue i)
Aryument (Contanued):
sub- vulut lv-v:
The eviuence was insufficient to connect
defenuuant to the alleged sale of cocaine
December ave 1973. ae oe eee 6 OS ee @
POlnt AV:
The evi.ience was insufficicnt to sustuin
conviction of the vcfendant under Counts
1s of the consolidated indictment. ...
Sub Point XV-A:
The evidence was insufficient to establish thet
PX%-20 was identical to that charged and was not
tampered with. . 2« «eee ec eceevoevee
Sub-1roint “VB:
Yhe *upinion® evidence of the prosecution *evx-
pert* Catalano as to ?X-20 was inaumissible and
ehewi.t be Stricken «2 ec et evsvecrvee
Sub- vvint XV-C:;
‘he so-called laboratory report of "“S.S. Patel*
was inadmissible hearsay ee ee a ee oo ae a a
Sub- Point >V-D:
Vhere was no evidence presented to establish the
authenticity and scientific validaty of any alleyed
tests cluimed by a a a ee ee ee et ee re
Point XVi:
The defendant was denied his constitutional
rights t» uue process of law and equal pro
tection of the law in that he was convicted
under the consoliaated indictment upon illegal
evidence and upon crimes not charged by inuict-
ment and not proved, ee os £ eS €' 6. o
Point XVII:
whe defendant was deniecu a fair trial by
the comdiuct of the trial court . . . « «
62
69
71
72
72
74
74
75
Iiwwtex (Continued)
Argument (Continued) :
POLGR VIII ¢
the oetendant was deprived of his
Constitutional right to a fair trial
by the conduct of the prosecutor . .
eFOint XIX:
The defendant was cueprived of his Consti-
tutional right to a fair trial by the admis-
Sion of illegal hearsay Cvidence and by the
egregious use of illegal leading yguestions
on material issues ..
Polnt XX:
The Jury charge deprived the defenuant of
a fuie trial and was prejudicially erroneous
rlint XXL:
the defendant was denied his Constitutional
riyht to a fair trial by the unfair and preju-
Oicial selection of the jury . . . 2...
Point XXII1:
The defendant was denied his Constitutional
right to a fair trial by the refusal of the
trial court to strike out the hearsay testi-
mony Of Florio and Barbarino, and to cismiss
cach count of the indictment . ,
. . * 7. . .
Conclusion:
the judyment should b. reversed and the
invictment dismissed ...
- vi-
Page
to ae ae 78
. . . . 7Y
. . .* > 7y
. . > . 79
. — 7 7. BU
ee 80
-l7a-
he was the evidence insufficient to sustain the
conviction of the defendant under each count of the indict-
oases «= a
ment respectively?
Ze was the defendant denied his constitutional
_——
rights to due process of law and equal protection of the laws by |
the knowing use of false evidence by the prosecution?
36 Was the defendant denied his constitutional rights
to a fair trial by the conduct of the trial court?
4. was the defendant denied his Constitutional rights
to a fair trial by the conduct of the prosecutor?
Se Was the defendant denied his constitutional rights
by the unlawful search and seizure of the defendant and of his
apartment on December 27, 1973?
a. Was the warrantless entry of the police by
force into the building where defendant resided illegal?
|
b. Was that warrantless entry by force into the |
defendant's (1) building and (2) apartment without announcement
of purpose and authority illegal? |
Ce was the warrantless entry into the defendant 'p
apartment illegal?
d. Was the warrantless search and seizure of the!
defendant and of his apartment illegal?
e. Wae the warrantless arrest of the defendant
illegal?
f. Was the subsequent warrant issued upon prob-
able cause?
g. was the warrant invalid?
|
|
he. Was the alleged warrant search and seizure |
illegal? |
6. Was the defendant denied his constitutional rights!
to due process of law and equal protection of the lawe being trie
for “conspiracy” and “acting in concert” allegedly with Rosario
~18a-
Barbarino in the absence of any such allegations and charges in
the indictments?
|
7. Was the defendant denied his Constitutional rights’
to due process and equal protection of the laws by the introduce |
tion of illegal, hearsay evidence of “conspiracy” and “acting in|
concert” as aforesaid?
8. was the defendant denied his constitutional rights
to due process of law and equal protection of the laws by the |
egregious allowance of illegal leading questions and hearsay to |
convict the defendant?
9. Was the defendant denied his constitutional righta
under the Pourteenth Amendment by the consolidaticn and amend-
ment of indictments 7824/73 and 7826/73?
-19a-
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.