Petition — New York v. MacKenzie

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i MAR 6 (981

ee Court of the Unite Staies v srevas,

CLERK }

October Term, 1980 . | —

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

against

JOHN MacKENZIE,

Respondent-Defendant.

SS EE EE

PETITION FOR WRIT OF CERTIORARI TO

THE APPELLATE DIVISION OF THE

STATE OF NEW YORK, SUPREME COURT

Denis DiLton

District Attorney, Nassau County

Attorney for Petitioner

262 Old Country Road

Mineola, New York 11501

(516) 535-4800

Wruiam C. Donnino

Martin I. Saparstern

Assistant District Attorneys ©

Of Counsel

Question Presented

May a state under its own Constitution prohibit a citizen

from exercising his guaranteed federal constitutional right

to proceed pro se during custodial questioning?

II!

TABLE OF CONTENTS

Question Presented .................. ididins vasodendouaieeantt etait I

MM TREOUONINGINE oon. cccsceccsccsscccsssocesssenssvesenscensense 1

I 5s isles naasisshun earns teas sseapbiersachemborbonle 2

ood casas sgansnh insiassubissvwea4vancddeseevansidedadaniie 2

Constitutional Provisions Involved ...........0......0.00...... 3

Statement of the Case 0.000000... cccccceceseesseeeeeseeseees 4

The Investigation and Apprehension of Mac-

MMO GE TIT ons saccessecsssccseresssesscesescesntscosesins

The Search for MacKenzie .........0....000ccccccceecceeeee

Defendant’s Case oiiiiccccccccccccccccccsetscececcesveteseeeeeen 12

The Decisions of the State Courts 00.00.00, 13

Reasons for Granting the Writ 0.000000... 15

The Supremacy Clause of the United States Con-

stitution Requires that New York’s People v.

Cummingham Rule Be Declared Invalid and

I seide Attics sdeancnavcoiesen ss fitrennuncheemesenuceencs ousting 17

The People Have Standing 0.00000. 18

Constitutional Right to Self-Representation ....... 18

OU) re 25

Appendices

Appendix A—Nisi Prius Opinion ......0..00.0000000..... la

Appendix B—Appellate Division Opinion ............ 19a

Appendix C—Certificate Denying Leave ........... 24a

| PRECEDING PAGE WAS BLANK

TABLE OF AUTHORITIES

PAGE

Cases:

Adams v. United States ex rel. McCann, 317 U.S. 269

SR ste ais eel CCE ae Rae Ae A AR LARS ean AN, 17, 22

Alexander v. Smith, 582 F.2d 272 (2d Cir. 1978) ........ 1€

Brewer v. Williams, 430 U.S. 387 (1977) 000.0000... 21

Carter v. Illinois, 329 U.S. 173 (1946) 00000. on. 17,19

Chapman v. Crane, 123 U.S. 540 (1887) 0000. 18

Cobbs v. Robinson, 528 F.2d 1331 (2d Cir. 1975), cert

ig MO Bee NE AE rai vivre ciectdecsccindgacnexiictnusevrs 19

Cooper v. Aaron, 358 U.S. 1 (1958) 0... 18

Dunaway v. New York, 442 U.S. 200 (1979) 000.000.0000... 23

Be Os Oe re I oss ceececsciecsseereh 18

Faretta v. California, 422 U.S. 806 (1975) ....17, 18, 20, 21, 24

Henry v. Rockhill, 376 U.S. 776 (1964) 00. 18

Johnson v. New Jersey, 384 U.S. 719 (1966) 000... =16

Johnson v. Zerbst, 304 U.S. 458 (19388) oo. 21

Kennedy v. Fairman, 618 F.2d 1248 (7th Cir.1980)... 19

Michigan v. Mosley, 423 U.S. 96 (1975) 200, 20, 21

Miranda v. Arizona, 384 U.S. 436 (1966) ................. 15, 16, 24

Nash v. Estelle, 597 F'.2d 513 (5th Cir. 1979) ............. ae

North Carolina v. Butler, 441 U.S. 369 (1979) ........... 18, 23

Oregon v. Haas, 420 U.S. 714 (1975)... 18

People v. Alexander, 45 A.D.2d 1023 (2d Dept. 1974) 16

People v. Bodie, 16 N.Y.2d 275 (1965) 20000... 16

PAGE

People v. Cunningham, 41 N.Y.2d 203 (1980) ....14, 15, 16,

17, 18, 20, 21, 22, 23, 24, 25

People v. Davis, 49 M.Y.2d 114 (1979) 0.0.0.0... 20

People v. Gary, 31 N.Y.2d 68 (1972) .....00..n. 16

People v. Huntley, 15 N.Y.2d 72 (1965) .......0.e. 24

People v. MacKenzie, 432 N.Y.S.2d 901 (2d Dept.

TE SAREE EIR RE ES Pa TREE ae ie ec 14, 15

People v. Prince, 50 N.Y.2d 883 (1980) .........000000.. 16

United States v. Grant, 549 F.2d 942 (4th Cir. 1977),

cert den., 482 U.S. 908 (1977) uuu... 19

United States v. Hauck, 586 F.2d 1296 (8th Cir. 1978),

cert den., 441 U.S. 947 (1979) ...... cesses, 19

United States v. Henry, 100 S. Ct. 2183 (1980) ............ 21

United States v. Mohabir, 624 F.2d 1140 (2d Cir.1980) 19

United States v. Rodriguez-Gastellum, 569 F.2d 482

(9th Cir. 1978) (en banc), cert den., 436 U.S.

NM ge lc evicgiietaseiweisisctodarsesee 19

White v. Kinkbeiner, 611 F.2d 186 (7th Cir. 1979) ...... 19

Statutes and Constitutional Provisions:

First Amendment to the Constitution of the United

I ees ike oa rh et tc a nT het ho 3, 19, 22, 25

Fifth Amendment to the Constitution of the United

a seach ac be ag bees 3, 14, 16, 19, 24

Sixth Amendment to the Constitution of the United

cre. a 3, 13, 14, 15, 16, 17, 18, 19, 20, 21, 24, 25

Fourteenth Amendment to the Constitution of the

NS ETE FA 08 eS DI og ET 3, 17,19

Oe a ee na 2

Article I, Section 6 of the New York State Consti-

Nats, cisganianied tasticnsobietadenatabesntaictokal 3, 17, 22

Supreme Court of the United States

October Term, 1980

THe PropLeE or THE StaTE or New York,

Petitioner,

against

Joun MacKenziz,

Respondent-Defendant.

PETITION FOR WRIT OF CERTIORARI TO

THE APPELLATE DIVISION OF THE

STATE OF NEW YORK, SUPREME COURT

Preliminary Statement

Pursuant to a judgment of the County Court, Nassau

County, rendered September 16, 1976, John MacKenzie was

convicted after a jury trial of murder in the second degree

(felony murder), manslaughter in the first degree, burglary

in the second degree, grand larceny in the second degree,

possession of a weapon in the third degree, possession of

burglar’s tools and unlawful possession of noxious material

and sentenced to concurrent sentences as follows: an in-

determinate term of 25 years to life on the murder count,

up to 25 years on the manslaughter, up to 15 years on the

burglary, up to 7 years on the larceny and weapons counts,

a definite term of 1 year on the charge of possession of

burglar’s tools and 90 days on the noxious materials charge.

The Opinions Below

At the conclusion of a suppression hearing conducted

pursuant to a motion by defendant, the County Court of

Nassau Courty, in a written opinion, denied the motion to

suppress in all respects. The opinion is not reported (Ap-

pendix A). The opinion of the Appellate Division, which

reversed the judgment of conviction and ordered a new

trial is reported at A.D.2d ——, 432 N.Y.2d 901 (2d

Dept. 1980) (Appendix B). The order of the New York

Court of Appeals denying leave to appeal has not yet been

reported (Appendix C).

Jurisdiction

Petitioner seeks certiorari to review an order of the

Appellate Division of the Supreme Court of the State of

New York dated November 17, 1980. The jurisdiction of

this Court is invoked pursuant to 28 U.S.C. sec. 1257 (3).

The order of the New York Court of Appeals denying leave

is dated January 7, 1981.

Constitutional Provisions Involved

1. The First Amendment to the United States Consti-

tution, which provides in pertinent part:

‘‘Congress shall make no law . . . abridging the

freedom of speech... .’’

2. The Fifth Amendment to the United States Consti-

tution which provides in pertinent part:

‘*No person ... shall be compelled in any criminal

case to be a witness against himself, nor be deprived

of life, liberty, or property, without due process of

law....’’

3. The Sixth Amendment to the United States Consti-

tution which provides in pertinent part:

‘‘In all criminal prosecutions, the accused shall

enjoy the right ... to have the Assistance of Counsel

. for his defense. ’’

4. The Fourteenth Amendment to the United States

Constitution which provides in pertinent part:

‘‘No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

pevson of life, liberty or property without due process

5. New York State Constitution, Article 1, Section 6,

which provides in pertinent part:

‘‘In any trial in any court whatever the party ac-

cused shall be allowed to appear and defend in person

and with counsel, , . .’’

Statement of the Case

On October 7, 1975, at approximately 2:30 a.m., Police

Officer Hoffnecht, on radio motor patrol, observed a sus-

picious car, a Cadillac, parked behind Thelma J.’s Boutique,

Hempstead Avenue, Nassau County, a ladies’ clothing store.

Officer Hoffnecht drove up to the car and noticed the car’s

trunk bounce (H 1752).* The Cadillac was parked with its

trunk facing the rear window of Thelma J.’s and the win-

dow was open. Police Officer Hoffnecht radioed for assist-

ance (Police Officer Hoffnecht: H35-37, 1752; Det. Gulla:

51, 430).

Meanwhile, 16-year old Michael Burns, walking on

Hempstead Avenue, across from Thelma J.’s, heard bang-

ing noises emanating from Thelma J.’s. The street was

well lit with street lights, and Thelma J.’s had an outside

light and the adjoining butcher store also had a light.

Burns, standing 50 to 60 feet away, directed his attention

toward Thelma J.’s, and observed a man peering out from

behind Thelma J.’s door. The man was attempting to

break out and Burns observed his full face from 20 to 30

seconds. Upon making eye contact with Burns however,

the man ducked behind the door and disappeared. Burns

noticed Police Officer Hoffnecht in the rear and informed

him of what he had just observed. Officer Hoffnecht di-

rected Burns to resume his observation across the street

and yell if someone exited the store (Officer Hoffnecht and

Michael Burns: H37-38, 45, 999-1004).

*“H” refers to minutes of Suppression Hearing. Where the

text is taken from the testimony of more than one witness, the names

of the witnesses whose testimony is relied upon are also included.

Where in the narrative a witness’s name first appears, the name will

appear in bold type.

Next Officer Hayes arrived.* While the two officers

were in the rear, co-defendant Colleen Irby suddenly

emerged from the shadows by the Cadillac. When asked

what she was doing there, Irby claimed that she was look-

ing for her calico cat. Now Police Officer Matthew Giglio

arrived driving a police ambulance. Officer Hoffnecht di-

rected Police Officer Giglio to cover the front. Police

Officer Giglio left and Officer Hayes and Hoffnecht con-

tinued questioning Irby.

Returning to the front, Michael Burns, who was watch-

ing Thelma J.’s, was joined by another civilian [Louis

Ewanitsko]. Police Officer Giglio was by the front of the

store. At that time the man inside the store ‘‘staggered’’

out and away from Officer Giglio. Officer Giglio was trying

to stop him by having the man place his hands up against

the building wall. Suddenly the man’s right hand came

down to waist level and Burns heard a shot and observed

the Police Officer fall. The man fied. Burns stated in court

that MacKenzie looked like the man in question but at this

point he could not be 100% sure (Officer Hoffnecht and

Michael Burns: H38-41, 76-77, 1004-06, 1008-09).

Officer Hoffnecht heard a shot and a groan and someone

yell, ‘‘He shot the cop. He’s hurt pretty bad.’’ With that,

Hoffnecht and Hayes rushed to the front of the store, en-

abling Irby to escape. There Police Officer Giglio was

lying on the street, foaming at the mouth, mortally

wounded, his gun still in his holster. Officers Hays and

* Officer Hayes, called as a defense witness, stated that upon ar-

rival, he observed a piece of clothing bearing a Thelma J.’s label,

underneath the store’s rear window (H1743-46).

Hoffnecht rushed Officer Giglio to the hospital where he

went into cardiac arrest (Officers Hoffnecht and Hays, and

Michael Burns: H41-44, 46, 1009, 1746-47).

The Investigation and Apprehension

of MacKenzie and Irby

After the shooting, numerous police officers arrived.

Detective Tom Gulla arrived at about 2:30 to 2:40 a.m.

Detective Gulla recovered near the crime scene a bent

screwdriver and a can of mace. Detective Gulla also ex-

amined Thelma J.’s and noticed that the front door had

been pried open. Detective Conrad Robinson arrived at

about 3:00 a.m. Detective Robinson observed the Cadillac

in the driveway. At that time the passenger door was

open, but the interior lights of the car were off. Detective

Robinson leaned into the car and noticed a 9 millimeter

Browning gun and holster in the opened glove compart-

ment. MacKenzie’s Florida operator’s license was on the

front seat and car keys were on the floor on thes driver’ 8

side (Dets. Gulla and Robinson: H429-30, 816-18, 837):

Detective Gulla interviewed Michael Burns. Burns

provided Detective Gulla with a description of the male

perpetrator, to wit: white, 511” or 6, 145 to 150 lbs.,

medium build, brown or dirty blond hair worn bowl-shaped,

maroon sweater end light pants. Burns was not sure

whether the perpetrator was clean shaven or wore a mus-

tache (H1101, 1107). At about 3:30 or 4:00 a.m., Detective

Sgt. Faust gave Burns, Mackenzie’s Florida license which

contained MacKenzie’s photo.* Burns viewed the photo

* Detective Sgt. Faust (called as a defense witness) stated that

he received the license from Detective Ragone (H1671). Detective

Ragone (defense witness) stated that he received the license from

CHI? Ped officers who retrieved same from MacKenzie’s car

for about a minute (H1086) and informed the Nassau

Police that that was the man who ran out of the store (Det.

Gulla and Michael Burns: H431-34, 498, 508, 511, 515, 1007,

1009-10, 1086-88). |

MacKenzie’s photo was also exhibited to Lorraine Mait,

proprietress of Thelma J.’s, who arrived at about 3:00

a.m., finding her store ransacked and numerous articles

missing. Mrs. Mait informed the police that on that previ-

ous Saturday, at about 2:30 p.m., the man depicted in the

photo, MacKenzie, accompanied by a girl (Irby), were in

her store. Mrs. Mait related that the female (Irby),

wanted to buy some clothing. MacKenzie walked around

the store and then entered the bathroom and remained

there for some time. Finally MacKenzie left the bathroom

and purchased a blouse for Irby. Upon preparing the

sales receipt, MacKenzie gave the name ‘‘Galgano.’’ The

blouse was placed in a yellow Thelma J.’s bag and both

defendants left (Lorraine Mait: H879-85).

MacKenzie’s photo was enlarged and copies were dis-

tributed to various police teams. A mobile police command

bus arrived and it became the center of operations. Irby

was apprehended at about 4:30 a.m. and brought to the

command bus where she was questioned by Chief of Detec-

tives Curran and Detective Gulla at about 5:00 am. De-

tective Gulla gave Irby her pre-interrogation warnings

which Irby understood. Irby agreed to talk, whereupon

Irby confessed to the crime, fully implicating MacKenzie.

Irby confirmed Mrs. Mait’s statement that she and Mac-

Kenzie had been to the store on October 4th. Irby related

that during the early morning hours of October 7th, she

and MacKenzie returned to the store in MacKenzie’s Cadil-

‘»

lac. Irby claimed that MacKenzie forced her to participate

in the crime. MacKenzie gained entry through the rear

window, while she remained outside as a lookout. Mac-

Kenzie would bring the merchandise through the bathroom

window and she would place same in the car. However,

when she saw car headlights (officer Hoffnecht) she hid

in the bushes. Upon observing Officer Hoffnecht, Irby

met him and gave him the story about looking for a calico

cat. Other police arrived. Irby who was facing the rear

window, observed MacKenzie at that time, while she was

being questioned.

Suddenly Irby heard a shot and MacKenzie yelled that

she should run. The police officers left her and she escaped.

Irby also informed the police that she and MacKenzie

were staying in a motel in the area (Chief Curran and Det.

Gulla and Officer Politano: H136, 273-77, 289, 434-39).

The Search for MacKenzie

At the time that Irby was«making her revelations, the

police ascertained that ‘e@ motel in question was the Turn-

pike Motor Inn on Hempstead Turnpike. Detective Robin-

son and Sergeant Wagner, among others, were, dispatched

to the Turnpike Motor Inn at about 5:00 a.m., “to.look for

MacKenzie. Upon arrival, the police ascertained that Mac-

Kenzie was staying in room 7 and they obtained the room

key from the clerk. From the outside window, Sergeant

Wagner observed that both a light and a T.V. were on.

The police thought that MacKenzie might be there. The

police entered the room, but found it unoccupied. They

remained for no more than a minute or two. The room

contained various articles including a car tire and jack.

The police left, but a stakeout unit remained ouside in

case MacKenzie returned (Det. Robinson and Det. Sgt.

Wagner: H821-25, 864, 866, 1439-41).

Between 9:00 and 10:00 a.m., a police team consisting of

Police Officers Politano, Chotkowski, Crawford and Miller,

were directed to search the immediate area in the hope of

locating MacKenzie. The police proceeded to 472 Hemp-

stead Avenue, a private residence, about one block from

Thelma J.’s. On the grounds was an old garage. The

police entered the garage and Police Officers Politano end

Chotkowski traversed a ladder up to the loft area. In one

corner of the loft was a white canvas tarpaulin. Police

Officer Politano removed the tarp and found MacKenzie

squatting behind it. MacKenzie volunteered: ‘‘I’m sorry,

I’m not the one you want. It’s Galgano’’ (H139, 1640).

Police Officer Politanc helped MacKenzie up and asked

that he identify himself. MacKenzie gave Police Officer

Politano hi. name and Officer Politano informed Mac-

Kenzie that he was under arrest and that he had the right

to remain silent. An immediate search of MacKenzie’s

person incident to the arrest uncovered $3,617.27 and a

General Motors trunk key. MacKenzie was handcuffed

and escorted back to the command bus by the four arrest-

ing officers. According to Police Officers Politano and

Crawford (a defense witness), when MacKenzie was with-

in 30 to 40 feet of the police bus he said words to the effect,

‘‘You are not going to pin this on me. I want a lawyer’’,

or ‘‘my lawyer’’ (H1654, 1428).* (Police Officers Politano,

* Police Officer Bruce Miller, one of the arresting officers

(called as a defense witness), stated that upon exiting the loft,

defendant asked for a lawyer and when they were neat the

(footnote continued on next page)

Crawford and Chotkowski: H134-42, 190, 192, 208-16, 221,

230, 260, 1654).

MacKenzie was turned over to Chief Curran, Detective

Gulla and Sergeant Wagner at about 10:00 a.m. Lorraine

Mait was still present and upon seeing MacKenzie, she

recognized him as the individual in her store on October

4th. The arresting officers did not inform their superiors

of MacKenzie’s request for counsel (H293, 1656). Mac-

Kenzie was brought into the bus. MacKenzie was com-

plaining that the police took his money and that the hand-

cuffs were bothering him. Chief Curran informed Mac-

Kenzie that if he were willing to act like a gentleman, the

handcuffs would be removed. MacKenzie agreed and the

handcuffs were taken off. Chief Curran directed Detective

Gulla to give MacKenzie the pre-interrogation warnings.

Detective Gulla proceeded to give MacKenzie his fourfold

Miranda warnings slowly and audibly (H1514). Detective

Gulla also informed MacKenzie that an attorney would be

brought to the bus if he so desired. When asked if he

understood, MacKenie replied that he did and he knew his

rights and that he had heard the rights before. Thereupon

MacKenzie agreed to talk without an attorney present

(Police Officer Politano, Chief Curran, Det. Gulla, Sgt.

Wagner and Lorraine Mait: H192, 277-81, 309, 439-43,

1443-46).

McKenzie claimed that he and another male, George

Galgano, participated in the Thelma J.’s burglary and he

police bus, defendant remarked that they were not going to pin

this rap on him (H1782). Defendant’s latter remark was con-

firmed by Assistant District Attorney Birnbaum (a defense wit-

ness), who stated that he was standing by the police bus when

defendant approached and heard defendant say only that they

were not going to pin this rap on him (H1922).

¢%

was in the store when the shot rang out. MacKenzie sur-

mised that Galgano shot the cop. When asked to describe

Galgano, MacKenzie gave the police a description that

matched Detective Gulla. Detective Gulla replied that

MacKenzie was describing him.

Chief Curran told MacKenzie that he was lying and that

he had evidence to show otherwise. Detective Curran in-

formed MacKenzie that he had eye-witnesses, they had his

wife [Irby] who was saying otherwise, that they could show

that he was casing the store that Saturday, that they had

his car and his gun. Thereupon MacKeazie asked to see

his wife, Irby. His request was g.anted. Irby was brought

into the police bus and the two defendants had an emotional

reunion. The police overheard Irby say to MacKenzie that

she told the police the truth, and that he should do the same.

As soon as Irby was removed and not in response to

any questioning, MacKenzie blurted out: ‘‘I shot the cop.

There was no Galgano. I did not know he was a cop”’

(H1535, 283, 445).*

MacKenzie wanted to know the charges and Chief Cur-

ran answered that he was to be charged with burglary and

assault, but that the final charges were up to the District

Attorney. Upon hearing this, MacKenzie agreed to make

a statement (Chief Curran, Sgt. Wagner and Det. Gulla:

H282-83, 319, 346, 365, 444-46, 1446-48, 1517, 1523, 1535).

* Chief Curran recalled that before MacKenzie saw Irby, he asked

about the charges and that he remarked that he was not going for a

cop killing (H283). Detective Gulla and Sergeant Wagner recalled

that the foregoing occurred after MacKenzie saw Irby and after his

volunteered statement (H446, 1535).

Thereupon MacKenzie made an oral statement which

was completed at about 11:00 a.m. MacKenzie then agreed

to reduce his statement to writing. The written statement

was prefaced by the pre-interrogation warnings. The

written statement was completed at 12:12 p.m. at which

time MacKenzie read and signed the statement. Mac-

Kenzie next agreed to give a statement to an assistant dis-

trict attorney. That Q & A statement, in which MacKenzie

was again given his Miranda warnings, commenced at

12:55 p.m. and was completed at 1:40 p.m. During this

time, no force, threats, coercion or promises were made to

induce Mac ‘enzie to make statements (Chief Curran: 684;

Sgt. Wagner, Det. Gulla and Donald White: H283-85, 443-

08, 587-89, 684, 1447-54).

MacKenzie and Irby were then taken to Police Head-

quarters for processing. Sergeant Wagner took MacKen-

zie’s pedigree. During processing, Sergeant Wagner asked

MacKenzie why he was wearing such a small sweater. Mac-

Kenzie replied that the sweater was his wife’s. Sergeant

Wagner then asked MacKenzie what went wrong. Mac-

Kenzie answered that when he initially observed the two

police in the rear of the store, he considered shooting both

of them, but concluded that it was too risky and decided

to escape through the front door (Det. Lenore Behrens

and Det. Sgt. Wagner: H1225-28, 1455-56).

Defendant’s Case

MacKenzie called several police witnesses in an attempt

to establish that he requested counsel upon arrest and that

the police had searched his vehicle including the trunk,

before the search warrant was obtained. The relevant

testimony has been noted in the foregoing summary of the

People’s case.*

MacKenzie also called Suffolk County District Court

Judge Henry Richard Brown, who had represented Mac-

Kenzie on prior unrelated criminal matters to show that

MacKenzie had an attorney on prior occasions. Paren-

thetically, the witness was a sitting judge on the date of

the crime.**

Finally, MacKenzie called Dr. John McKnight, a psychi-

atrist. McKnight claimed that it was his opinion that when

MacKenzie was questioned, he lacked sufficient mental

capacity to waive his rights in an intelligent manner. Mc-

Knight characterized MacKenzie’s waiver in response to

questions as a reflex action. However, during the course

of pointed cross-examination, McKnight admitted that

MacKenzie understood the constitutional rights he was

waiving (H1009-10).+

The Decisions of the State Courts

At the conclusion of the Suppression hearing, defendant

sought to suppress all statements which were the product

of custodial interrogation on the ground that they were

obtained in violation of his right to counsel, specifically

that upon arrest he requested counsel and when he later

confessed, such confession was obtained in the absence of

counsel. The County Court denied the motion to suppress

* 11654, 1726, 1728, 1766, 1773, 1782, 1804, 1807.

** 171831-37.

+ H1898-1910.

the statements, concluding that defendant effectively

waived his constitutional rights when he spoke to the police.

The Court ruled that the right to counsel includes the right

to waive counsel and concluded that upon receiving the

pre-interrogation warnings, defendant made a valid waiver

of constitutional rights, including the right to counsel

(Appendix A, pp. la-18a).

Upon appeal, the Appellate Division of the Supreme

Court of the State of New York, Second Judicial Depart-

ment reversed the judgment of conviction of the County

Court and ordered a new trial. The Appellate Division,

based upon a prior decision of the New York Court of

Appeals, People v. Cunningham, 49 N.Y.2d 203 (1980),

ruled that defendant’s statements were inadmissible be-

cause they followed a voluntary waiver of constitutional

rights that would not be given effect because, the court

held, the defendant having requested counsel upon arrest,

he would not be permitted to change his mind and submit

to questioning in the physical absence of counse!. People

v. MacKenzie, —— A.D.2d ——, 432 N.Y.S.2d 901 (2d

Dept. 1980) (Appendix B, pp. i9a-23a).

In the Appellate Division, respondent argued that the

Cunningham rule abridged an accused’s federal constitu-

tional right to proceed pro se. We argued that since a state

cannot abridge fundamental rights and privileges, Cunning-

ham had to be overruled pursuant to the supremacy clause

of the federal constitution.

The Appellate Division disagreed. Said the court at

432 N.Y. Supp. 2d 903:

‘*We are not swayed by the People’s contention

that the rule posited in People v. Cunningham, (supra)

interferes with the accused’s constitutional right to

self-representation (Citation omitted). Under the

New York rule, there is no bar to an accused proceed-

ing pro se provided there is a knowing and intelligent

waiver of the right to be represented by counsel (Cita-

tion omitted). However, once an accused has given an

indication that he does not wish to proceed without the

assistance of counsel that request must be honored

before any further custodial interrogation occurs

(Citation omitted).’’

Petitioner then sough: leave to appeal to the New York

Court of Appeals. That leave was denied on January 7,

1981 (Appendix C, p. 24a).

Reasons for Granting the Writ

As the suppression hearing record reflects, as defendant

was flushed from his hiding place he volunteered: ‘‘I’m

sorry, I’m not the one you want. It’s Galgano’’ (H139,

1640). He was then arrested, handcuffed and led back to

a command bus. Near the bus defendant volunteered that

‘*You are not going to pin this on me. I want a lawyer’’

(H1654, 1428). Minutes later he was given the warnings

as mandated in Miranda v. Arizona, 384 U.S. 436 (1966).

Defendant indicated that he understood his rights and

was willing to speak to the police in the absence of an

attorney. Defendant’s desire to speak to the police with-

out counsel was manifest, since what followed was a

partially exculpatory statement laying both the onus of

the burglary and the shooting of Police Officer Giglio on

a third person, George Galgano. After speaking with his

girlfriend, defendant changed his story, admitting that

he was the only male involved in the burglary and that

he shot Officer Giglio, although he had no idea that the

person he fired at was a police officer.

Nisi prius ruled that notwithstanding defendant’s ini-

tial request for counsel, defendant issued a valid waiver

of his constitutional rights when he spoke with the police

and all his statements were admissible (Appendix A, pages

13a-15a). See also People v. Bodie, 16 N.Y.2d 275 (1965) ;

People v. Alexander, 45 A.D.2d 1023 (2d Dept. 1974), lv to

appeal den. (October 24, 1975); see also Alexander v.

Smith, 582 F.2d 272 (2d Cir. 1978). Cf. People v. Gary, 31

N.Y.2d 68 (1972).

While defendant’s state court appeal was pending, the

New York Court of Appeals in People v. Cunningham, 49

N.Y.2d 203 (1980) ruled that once the right to counsel is

invoked, a subsequent ‘‘. . . uncounseled waiver of a con-

stitutional right will not be deemed voluntary.’’ Cunning-

ham, supra at 205. Cunningham was applied retroactively

to all cases pending direct state appellate review after

Cunningham was decided. People v. Prince, 50 N.Y.2d

883 (1980). Contra Johnson v. New Jersey, 384 U.S. 719

(1966).

Thus the intermediate appellate court, despite other

strong independent evidence of defendant’s guilt, appeared

constrained to reverse the judgment of conviction on the

basis of Cunningham, since no lawyer was provided when

defendant waived his Miranda rights and spoke to law

enforcement officials. Leave to appeal to the New York

Court of Appeals was denied on January 7, 1981 (Appen-

dix C). Thus all avenues of state court relief have been

exhausted. In the state intermediate appeals court, peti-

tioner invited that court to invoke the federal constitution’s

Supremacy clause and overrule People v. Cunningham,

supra, on the federal ground that Cunningham undermined

the fundamental federal constitutional right of permitting

a person in custody to answer police questions in the ab-

sence of counsel if that be his reconsidered voluntary choice.

That argument was rejected. Cunningham was construed

to hold merely that once an accused invokes his right to

counsel, that request must be honored before any further

custodial interrogation occurs, irrespective of the recon-

sidered wishes of the person in custody. That determina-

tion of state law interferes with the federal constitution’s

guarantee to pro se representation. ‘

The Supremacy Clause of the United States Constitution

Requires that New York’s People v. Cunningham Rule

Be Declared Invalid and Void

The Sixth Amendment of the Federal Constitution

guarantees an individual the right to proceed pro se at all

critical stages of the prosecution. Faretta v. Califorma,

422 U.S. 806 (1975) ; Carter v. Illinois, 329 U.S. 173 (1946) ;

Adams v. United States ex rel. McCann, 317 U.S. 269

(1942). This federal right has been made binding on the

states through the Fourteenth Amendment, and thus no

state may force a lawyer upon an unwilling defendant.

Faretta, supra. People v. Cunningham, supra, 49 N.Y.2d

203 (1980) in interpreting Article I §6 of the New York

State Constitution, New York’s right to counsel provision,

does just that with respect to custodial interrogation, a

critical stage of the proceedings; in essence, once counsel is

requested, the individual becomes imprisoned in his consti-

tutional privileges. As a result, the rule of Cumnirgham

conflicts with and undermines a federally protected con-

stitutional right. Since the federal constitution is supreme,

Cunningham must be overruled pursuant to the Supremacy

clause of the federal constitution. Cooper v. Aaron, 358

U.S. 1 (1958) ; Henry v. Rock Hill, 376 U.S. 776 (1964).

The People Have Standing

While the right to self-representation is personal, the

People here are not asserting MacKenzie’s constitutional

rights. Rather, we are asserting our standing to attack

the federal constitutional validity of the New York’s per

se rule because pursuant to this rule, the “eople are an

adversely affected party litigant. It is well settled that

the constitutionality of a state ruling may be asserted only

by a litigant who is adversely affected by the state ruling.

In this case, the right of the state, a party litigant, to in-

troduce otherwise competent, reliable evidence of guilt has

been denied as a result of New York’s per se rule. Thus

the People have standing to raise the question of the fed-

eral constitutionality of this state’s per se rule. Oregon v.

Haas, 420 U.S. 714 (1975) ; Chapman v. Crane, 123 U.S. 540

(1887) ; Cf. Fare v. C., 442 U.S. 707 (1979) ; North Carolina

v. Butler, 441 U.S. 369 (1979). |

Constitutional Right to Self-Representation

This Court in Faretta held that an accused enjoys the

constitutional right to self-representation with respect to

his own case. Stated this Court at 834: ‘Personal lib-

erties are not rooted in the law of averages. The right to

defend is personal. The defendant and not his lawyer or

the State, will bear the personal consequences of a con-

viction. It is the defendant, therefore, who must be free

personally to decide whether in his case .. . counsel is to

his advantage. And although he may conduct his own

defense ultimately to his own detriment, his choice must

be honored out of ‘that respect for the individual which is

the lifeblood of the law.’ (citation omitted).’’

In this respect, other courts have recognized and applied

logically the constitutional right to self-representation at

custodial interrogation, respecting the inestimable worth

of free choice as guaranteed by the Bill of Rights. Thus

courts have eschewed New York’s per se no questioning

rule once an in custody accused requests counsel, recog-

nizing that the accused has a constitutional right to change

his mind and proceed without counsel with respect to sta-

tionhouse questioning. White v. Finkbeiner, 611 F.2d 186

(7th Cir. 1979) ; United States v. Rodriguez-Gastellum, 569

F.2d 482 (9th Cir. 1978) (en bane), cert den. 436 U.S. 919

(1978) ; United States v. Mohabir, 624 F.2d 1140 (2nd Cir.

1980) ; Nash v. Estelle, 597 F.2d 513 (Sth Cir. 1979) ; United

States v. Grant, 549 F.2d 942 (4th Cir. 1977), cert den. 432

U.S. 908 (1977) ; Cobbs v. Robinson, 528 F.2d 1331 (2d Cir.

1975), cert den. 424 U.S. 947 (1976) ; Kennedy v. Fairman,

618 F.2d 1248 (7th Cir. 1980) ; United States v. Hauck, 586

F.2d 1296 (8th Cir. 1978), cert den. 441 U.S. 947 (1979).

As stated in Carter v. Illinois, 329 U.S. 173, 174-75

(1946): ‘‘Neither the historic conception of due process

nor the validity it derives from progressive standards of

justice denys a person the right .. . to confess guilt... .

The [federal] constitution does not require that under all

circumstances, counsel be forced upon a defendant.’? In

this regard, Faretta emphasizes that the constitutional

ight to self-representation is paramount, while the right

to the assistance of counsel is supplemental, with regard

to a criminal proceeding. Indeed, New York in People v.

Davis, 49 N.Y.2d 114 (1979) recognized the paramount right

of self-representation with respect to trial, citing Faretta.

To this end, respectfully, we cannot conceive of a more

critical stage of the proceeding than the trial itself. Why

counsel in New York, although previously requested, can

be subsequently waived in court in the absence of counsel,

but no such waiver could be had at the stationhouse, once

counsel is requested, defies reason and logic.

The faulty premise underlying Cunningham, which

makes that case constitutionally offensive, is its holding

that once a suspect requests counsel, he has by this request

deemed himself conclusively incompetent to decide whether

to waive his rights and only an attorney can now make that

decision for him. He has irrevocably lost that which our

constitution decries cannot be lost: freedom to choose.

The incompetency view was derived from a footnote in

Mr. Justice White’s concurring opinion in Michigan vy.

Mosley, 423 U.S. 96, 110, footnote 2 (1975). However, un-

like New York, Mr. Justice White did not hold as a matter

of federal law that a subsequent uncounseled waiver of

Miranda rights was per se involuntary. Rather, he stated

in that footnote that the waiver may be properly viewed

with skepticism. Indeed, Mr. Justice White went on to

hold that ‘‘. . . unless an individual is incompetent, we have

in the past rejected any paternalistic rule protecting a

defendant from his intelligent and voluntary decision about

his own criminal case.... I’m very reluctant to conclude

that Miranda stands for ... [the contrary] proposition.’’

Mosley, supra at 108-09 (White J. concurring). And, this

Court in Brewer v. Williams, 430 U.S. 387 (1977) explicitly

recognized that a request for counsel did not as a matter

of federal law preclude a subsequent waiver of that right,

provided that the waiver comported with the standards

enunciated in Johnson v. Zerbst, 304 U.S. 458 (1938). Fi-

nally in United States v. Henry, 100 S. Ct. 2183 (1980), this

Court recognized that as long as the right to counsel is not:

interfered with, that right may be validly waived, ‘even in

a post-indictment setting. Thus this case comes squarely

within existing Supreme Court holdings and related Cir-

cuit Court holdings permitting, indeed guaranteeing, the

right of the accused to dispense with counsel, although pre-

viously requested, for purposes of custodial interrogation.

New York, however, by viewing the suspect as a total

incompetent, unable to thereafter voluntarily waive in

counsel’s absence, has imprisoned the individual in his

federal constitutional privileges. Constitutional rights

though are personal. The federal constitution recognizes

that the individual, not the attorney, is the master. Faretta,

supra. Cunningham reverses this relationship and in so

doing, deprives the individual of his inherent right of free

choice as contained in Faretta, by precluding him from

exercising his change of mind regarding counsel and elect-

ing to speak to the authorities without one. The federal

constitution guarantees that right to a suspect.

By creating the legal fiction that a suspect is forever

incompetent and thus incapable of choosing once he re-

quests counsel upon arrest, New York has forced a lawyer

indelibly upon a suspect. He cannot thereafter elect to

dispense with one and speak with the police on his own.

By denying, ‘‘. . . an accused a choice of procedure in cir-

cumstances in which he, though a layman is as capable

of making an intelligent choice is to impair the worth of

great [federal] constitutional safeguards by treating them

as empty verbalisms.’’ Adams, supra at 279.

The anticipated retort is that Cunningham does not ir-

revocably muzzle the accused once he requests. counsel.

But the import of the Cunningham rule is to preclude the

police from speaking to the accused, even if he later begged

them to take his statement, for Cunningham admonishes

law enforcement to leave the accused alone once he re-

quests counsel. Indeed Cunningham himself, much like

defendant, after conferring with his wife, decided to give

the police a statement. The Court of Appeals ruled that,

consistent with state law, the police could not take Cun-

ningham’s statement. The actual and intended effect

therefore of the Cunningham ruling, is to deter the police

from speaking with the accused once counsel is requested,

by imposition of the exclusionary rule with guillotine cer-

tainty, thus denying the accused his federally guaranteed

constitutional right of insisting upon speaking with the

police without the assistance of counsel, at the station-

house. This case is an apt illustration of the potential

consequences of the denial of that federal constitutional

right.

The record reflects that while MacKenzie initially re-

quested counsel, albeit upon arrest and not in the context

of interrogation, he was quite desirous of speaking with the

police in the hope of extricating himself from a police

homicide charge, then a capital offense. That is, MacKen-

zie, a criminal-law wise defendant, upon receiving the pre-

interrogation warnings, made an informed waiver of his

rights and told the police that a third person, George Gal-

gano, was the real shooter. While MacKenzie’s claim was

subsequently checked out and found to be false, what if it

were true and the real killer was still at large, still getting

away? Further, what if MacKenzie were able to lead the

police to the actual murderer, since the crime was still

fresh? Cunningham, literally applied, would have pre-

vented this discussion and together with the inability to

immediately secure counsel, could have ensured the suc-

cessful getaway of the real murderer. Even more harrow-

ing would have been putting MacKenzie on trial and con-

victing him for a capital offense he did not commit.*

While the state may afford the accused more federal

constitutional protection than the Supreme Court devises,

it cannot dilute federal protections and provide less. Dun-

away v. New York, 442 U.S. 200 (1979). Moreover, while

the state can impose greater restrictions on the police, they

cannot do so at the expense of guaranteed federal consti-

tutional liberties. ‘‘By creating an inflexible rule that no

... Waiver can ever suffice, [New York] has gone beyond the

requirements of federal organic law. It follows that its

judgment cannot stand, since a state court can neither add

to nor subtract from the mandates of the United States

Constitution.’ North Carolina v. Butler, supra at p. 376.

* Similarly, there are situations where highly evanescent alibi

witnesses may exist, whom the police could locate, but Cunningham

would insure their permanent loss, if the accused initially requested

counsel, since at that point further verbal intercourse with the accused

is vigorously proscribed.

As we have demonstrated, the New York courts have

encroached and trampled upon the recognized federal con-

stitutional right of self-representation and free choice with

respect to stationhouse questioning, which is personal to

the accused, by subordinating that precious fundamental

right to the supplemental right to counsel, where the ac-

cused has made an informed choice to dispense with coun-

sel who is not present or in the case and speak with the

police on his own. New York has accomplished this by pre-

ordaining the imposition of the exclusionary rule, thus de-

terring law enforcement from speaking with the accused

once he has requested counsel.

Finally, overruling Cunningham will not denigrate the

right to counsel. For, left intact, is the burden of the state

to prove beyond a reasonable doubt that the waiver of

Fifth and Sixth Amendment rights with regard to a state-

ment was knowing, intelligent and voluntary. People v.

Huntley, 15 N.Y.2d 72 (1965). And like Faretta, those en-

trusted with making that determination are the courts, not

the police or the prosecution. In this case, nisi prius found

that the People sustained their reasonable doubt burden

with respect to MacKenzie’s statements. That finding is

amply supported by the record. MacKenzie initially vol-

unteered that a third person was responsible. Then Mac-

Kenzie was given his Miranda rights. MacKenzie acknowl-

edged his understanding of those rights, indeed he heard

them before. MacKenzie then agreed to talk without an

attorney. The decision to talk when he was told he may

remain silent and that he could have an attorney was an

informed choice, which MacKenzie had the constitutional

right to make personally. That followed by an intended

exculpatory statement reiterating his previously volun-

teered statement that while he was involved, Galgano shot

the officer, established that MacKenzie’s waiver of consti-

tional rights was knowing, intelligent and voluntary. Crit-

ically, that short interrogation which produced a reitera-

tion of his concededly admissible volunteered statement

then ceased, and a significant intervening event occurred,

i.e. at MacKenzie’s request he met and talked with his girl-

friend. Upon speaking with his girlfriend, MacKenzie

blurted out his guilt. No questioning produced that state-

ment. Thereupon, MacKenzie again validly waived his

rights and confessed, never once requesting counsel.

Under these circumstances, the application of Cunning-

ham’s exclusionary rule to an accused’s voluntary and

intelligent choice to speak with police in the absence of

counsel impermissibly abridges the accused’s federal con-

stitutional right to proceed pro se.

Conclusion

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Denis Dion

District Attorney

Nassau County

Wri C. Donntno

Martin I. SAPERSTEIN

Assistant District Attorneys

Of Counsel

APPENDICES

APPENDIX A

Nisi Prius Opinion

COUNTY COURT—NASSAU COUNTY

Present:

Hon. AupHonso M. La Pera

County Judge

Indictment #43878

tl ee

PEOPLE OF THE STATE oF NEw YorxK

agaist

JoHN MacKenzie

Defendant

Hon. Dennis Ditton

District Attorney

Nassau County

Mineola, New York

MicHaEL Jay, Esa.

Attorney for Defendant

123-60—83rd Avenue

Kew Gardens, N.Y. 11415

The defendant, Jonn MacKewnzir, is under Indictment

for the crimes of Murder, Burglary, Grand Larceny, Pos-

session of Burglar’s Tools, Possession of a Weapon and

Unlawful Possession of Noxious Materials.

- rene em te

a ee lt Ne ~ a

ON SS a TE TE TT TT

oe a nme

A combined Hearing was held immediately prior to trial

upon defendant’s motion under Article 710 of the Criminal

Procedure Law to (a) inquire into the propriety of the

identification procedures employed by the police and to

suppress the in-court identification by two witnesses; (b)

inquire into the voluntariness and admissibility of oral

and written statements made by the defendant and to sup-

4 press the same; (c) to suppress certain evidence seized by

: the police prior to the issuance of Search Warrants and to

suppress all evidence seized pursuant to the execution of

the Warrants and to controvert the Warrants.

Following are the Court’s Findings of Fact and Con-

clusions of Law:

On October 7, 1975, at or about 2:30 a.m., Nassau County

Police Officer Richard Hofknecht was on Motor Patrol duty

in the area of Locust Street and Hempstead Avenue in

West Hempstead. The officer, observing a suspicious car

in the rear of Thelma J’s Boutique, proceeded into the

driveway, shined his spotlight and saw no one in the car.

However, he did see an open window in the rear of the

store. The patrolman backed his car out of the driveway,

called for assistance and stepped out of his car. Michael

Burns approached the officer and informed him that some-

one was banging at the front door of Thelma J’s. The

officer then looked into the driveway and observed a white

female standing near the car in the driveway. Burns was

asked to stand at the corner and yell if he saw anybody

coming out of the building. Hofknecht then walked to the

rear to question the female whom he later identified as

Colleen Irby. Officer Hays arrived in a patrol car and

Officer Giglio in a blue and orange ambulance which had

Nassau County Police Department written on it. Hof-

knecht yelled to Giglio to cover the front and waved to

Hayes to come to the rear. While questioning Irby, a shot

and groan were heard from the front of the building. Both

officers ran to the front and heard someone yell ‘‘The cop

has been shot’’ and observed Giglio lying on the sidewalk

with a hole in his shirt. Again someone yelled: ‘‘He just

went around the end of the building.’’ Both officers drove

Giglio to Mercy Hospital. Hofknecht then called Head-

quarters and gave a description of the female.

While Michael Burns was walking along Hempstead

Avenue at or about 2:30 a.m., he heard a noise coming from

Thelma J’s Boutique. When directly across the street, a

distance of approximately 50 to 60 feet, he observed the

defendant inside the store for a period of about 30 seconds.

The defendant was staring directly at him and was push-

ing and pulling the front door. There was a light directly

over the door inside the store at the time Burns made his

observations.

Burns saw a police car in the gas station and told the

officer that he thought he saw somebody in the clothing

store. The officer told him to wait at the corner and yell

if anyone came out of the store. An ambulance and a police

car arrived; the ambulance was parked two stores away

from the boutique; the policeman operating it got out and

walked towards Thelma J’s.

Burns observed the defendant coming out of the store,

staggering and walking away from the store with his back

towards him. The street was well lit, there were lights

shining from the meat market adjoining the boutique and

there was nothing obstructing Burns’ view. Burns saw

the police officer follow the defendant and then he observed

the defendant up against the window with his hands over

’*%

his head against the window. Defendant looked back sev-

eral times. His right hand came down, he turned and fired

a shot. The officer fell and the defendant ran.

Burns gave Detective Thomas Gulla a description of

the defendant and what he was wearing. While Detective

Gulla was interviewing Mr. Burns, Detective Sgt. Faust

showed Burns People’s Exhibit 17, a Florida driver’s li-

cense with defendant’s photograph on it. He was asked if

he recognized the person in the photograph. Burns replied

that that was the person who came out of Thelma J’s

Boutique. Later that morning Burns went to Police Head-

quarters and assisted an artist in making a composite

drawing of the defendant, People’s Exhibit 51.

At the Hearing, the witness was asked if he saw anyone

in the Courtroom that looked like the person who exited

from Thelma J’s. Burns was not 100% sure but he in-

dicated the defendant looked like the man.

Detective Gulla, who arrived at-the scene at about 2:40

a.m., observed that the front door of Thelma J’s was ajar

and some pry marks were on the door jam. Walking in

the area, he found a bent screwdriver and a cannister of

mace and saw the Cadillac parked in the alleyway.

At or about 5 a.m., Colleen Irby was apprehended and

brought to the Command Bus which was set up in front

of Thelma J’s. Detective Gulla advised her of her con-

stitutional rights as mandated by Miranda and asked her

if she understood, to which she replied ‘‘Yes’’, and when

asked if she wanted to speak without an attorney present,

she gave an affirmative reply and thereafter recounted the

events of that morning.

Approximately at 9 a.m., on October 7th, Officers Barry

Crawford, Richard Politano, Bruce Miller and John Chot-

kowski of the Crime Prevention Unit, arrived at the scene

of the crime. They were informed that there was a bur-

glary and that a police officer was shot. The officers were

given a photograph of John MacKenzie and were told to

search the area of the west side of Hempstead Avenue,

northbound. At 472 Hempstead Avenue they approached

a garage and Politano heard a noise. Upon hearing the

noise the second time, he called Officer Chotkowski and in-

formed him he heard some rustling in the loft of the garage. -

They entered the garage, went up a wooden ladder to the

loft and saw something under a canvas. With guns drawn,

they pulled the canvas and observed the defendant who

stated: ‘‘I am sorry, I am not the one you want, it’s Gal-

gano.’’ Politano pulled the defendant up and asked him

what his name was and what he was doing there. The de-

fendant stated his name was MacKenzie; thereupon Poli-

tano advised him that he had a right to remain silent, he

was under arrest and was handcuffed. Officers Chotkowski

and Crawford searched the defendant and found approx-

imately $3,677.27 in the defendant’s pockets. After the

search the defendant was escorted down the ladder and

they all proceeded towards the Command Bus. No con-

versation ensued thereafter until about 30 to 40 feet from

the Command Bus when the defendant shouted: ‘‘I am not

the one you want. You are not going to pin this rap on me.

I want a lawyer. I want my lawyer.’’ When they arrived

at the Command Bus the defendant was turned over to

Chief Curran. None of the officers informed the Chief or

anyone else of defendant’s request for a lawyer. Defend-

ant was taken into the interview room and in the presence

of Detectives Gulla and Wagner, Chief Curran asked the

defendant whether he wished to talk to him and if he

‘%

wanted to act like a gentleman the handcuffs would come

off. Gulla then took off the handcuffs and recited the

Miranda warnings to the defendant by reading from the

top half of a card (People’s Exhibit 15). Gulla recited:

‘‘Before asking you any questions, you should understand

you have a right to remain silent and that any statement

you may make may be used against you in Court. Also,

you have a right to talk to a lawyer before answering any

questions or to have a lawyer present at any time. If you

cannot afford to hire a lawyer, one will be furnished for

you. If you wish, you have the right to keep silent until

you have a chance to talk to a lawyer. Do you under-

stand?’’ To which the defendant replied ‘‘Yes’’. Curran

then went on and said: ‘‘Now that you understand, are you

willing to answer questions before talking with a lawyer or

having one present?’’ and the defendant stated ‘‘Yes, I

know my rights’’. After the rights were read, Detective

Gulla dated the card and he, Detective Wagner and the de-

fendant all signed the card. The defendant then gave the

officers a statement. Chief Curran told him the story did

not match up with the facts as they knew them. MacKenzie

asked what the police had on him. He was informed there

were witnesses, they had his car, the gun, that Colleen Irby

told the story differently and that they knew he cased

Thelma J’s on Saturday. MacKenzie asked if he could

talk to Colleen Irby and Chief Curran arranged for her to

be brought into the bus. When they saw each other they

sat down, hugged and kissed and spoke together for about

10 to 15 minutes, during which time she informed the de-

fendant that she had told the truth. After Irby left, the

defendant orally gave details implicating himself in the

burglary and shooting. After making the oral statement,

Gulla asked the defendant if he was willing to give that

statement again while Detective Gulla took it down in writ-

ing. Gulla again produced the card (People’s Exhibit 15A),

he informed MacKenzie that he was going to take a state-

ment from him, at which time he would include the advise-

ments of his rights as far as a written statement was con-

cerned. Gulla read from the card, stating: ‘‘I have the

right to remain silent and anything I say may be used

against me in Court. I have been told that I have the right

to talk to a lawyer before answering any questions or have

an attorney present any time. Further, if I cannot afford

“an attorney, one will be furnished for me and I have the

right to remain silent until I have had the chance to speak

to an attorney. I understand my rights and make the fol-

lowing statement freely and voluntarily and willing to give

the statement without speaking to an attorney or having

one present.’’

After reading the defendant the rights, in the first per-

son, Gulla dated the card and the defendant, Gulla and

Wagner signed it. The Detective then asked questions and

put down the defendant’s response in narrative form. This

was completed at or about 12:12 p.m. The six-page state-

ment (People’s Exhibit 46) was read by the defendant and

he made a correction on page 3 before signing. Gulla and

Wagner also signed the statement. Defendant was giver.

a package of Winston cigarettes and coffee. Shortly there-

after Gulla asked the defendant if he would be willing to

speak to an Assistant District Attorney with reference to

the case; the defendant agreed.

Assistant District Attorney Barry Grennan and Donald

White, a confidential reporter, entered the interview room

and the Assistant introduced himself, asked the defendant

his name and informed him that the reporter was going to

take down the conversation that would ensue. The de-

fendant nodded his head in an affirmative fashion and when

he asked the defendant if he was willing to talk to him, the

defendant replied ‘‘Yeah’’. He then asked the defendant:

‘*Did the detectives advise you that you had a right to

remain silent?’’ and received a reply ‘‘ Yes, Sir’’. He asked

the defendant ‘‘Did they advise you that any statements

that you make could be and will be used against you in

Court?’’ He replied: ‘‘Yes, Sir’’. He asked defendant

‘*Did they tell you that you have the righi to have an at-

torney present?’’ His reply was ‘‘Yes, Sir’’. ‘‘Now or

at any time at all?’’ The defendant replied ‘‘They told

me if I could not afford one I could have one appointed.’’

When asked whether he understood all those things that

the offiers told him, he replied ‘‘Yeah’’. He said he under-

stood all those things and was willing to talk. He informed

the Assistant that he had signed People’s Exhibits 15 and

15A as well as the written statement.

Before questioning the defendant, Grennan gave the

defendant his constitutional rights. The defendant stated

he understood the rights and was willing to talk to Mr.

Grennan. Grennan questioned the defendant from about

12:45 p.m. until 1:40 p.m. while Mr. White recorded the

same on his stenotype machine. Mr. White subsequently

transcribed his stenographic minutes into typewritten form

(People’s Exhibit 36).

Grennan asked if the police could search the Cadillac

and the defendant consented.

During the interrogation defendant was scared but alert,

articulate and his responses were directed to the questions.

No promises were made to induce the defendant to talk to

the Assistant District Attorney. After the interrogation

was completed, Detectives Gulla and Wagner took the

defendant to Police Headquarters. While defendant was

being processed, Detective Wagner asked MacKenzie what

happened and the defendant made some inculpating state-

ments.

Lorraine Mait, co-owner of Thelma J’s, identified the

defendant in the courtroom as the man she saw in her store

on October 4th with Colleen Irby. On that date they re-

mained in the store for approximately 15 to 30 minutes, the

defendant walked around and used the bathroom during

that time. A blouse (People’s Exhibit 49A) was purchased

and the defendant asked to change some small bills for

big ones.

At or about 3:15 a.m. of the morning of the shooting,

Mrs. Mait arrived at the scene and while in the Command

Bus Detective Wagner showed the Florida license and

asked if she knew the person in the photograph. She in-

formed the detective that the man had been in her store on

the preceding Saturday. Upon leaving the bus, Mrs. Mait

saw Colleen Irby being brought into the bus and informed

the detective that she was the woman in the store with the

defendant. While in the butcher shop adjoining Thelma

J’s that morning, she observed the defendant handcuffed

being brought into the Bus. :

Detective Conrad Robinson arrived at the scene around

3 a.m. on October 7th, was told of the shooting and bur-

glary. He observed Officers Cunningham and Iger putting

a spot light on a dark brown Cadillac in the rear of Thelma

J’s. The interior lights were out and the passenger door

was open. Looking into the car with the use of a flashlight

he saw a 9 mm automatic gun in a basket weave-type hol-

ster (People’s Exhibit 39) in the glove compartrnt, and a

10a

driver’s license (People’s Exhibit 17) on the front seat

sticking out from underneath a seat belt buckle. He took

the name and address off the license and wrote it on a pad

and informed Officers Cunningham and Iger to watch the

car and not to let anyone touch it. He then called the

Nassau County Identification Section and the New York

City Identification Section and the 112th Precinct in New

York City to find out if anyone with the name MacKenzie

had been arrested, whether there may have been a record

with a photograph.

At about 5 a.m., Detectives Robinson, VanNostrand,

Wagner and Captain Meddis, and a detail of officers, went

to the Hempstead Turnpike Motor Inn for the purpose of

arresting John MacKenzie. Wagner checked the register

with the night clerk and saw that Room 7 was rented to the

defendant. The key for the room was obtained from the

clerk. The officers observed, the lights on in Room 7 and

a TV set playing. They entered the room which was un-

occupied. The officers observed an auto jack, a tire, tripod,

license plates and clothing. Nothing was touched. The

officers left while two detectives remained in a parked car

opposite the room watching for MacKenzie.

At Police Headquarters Colleen Irby expressed her con-

cern to Detective Lenora Behrens over her personal effects

in the motel room, especially her ring and some camera

equipment. Behrens asked her if she would give a consent

to search Room 7 and to safeguard her property; Irby

agreed. She obtained a consent-search form (People’s

Exhibit 62). Irby read it and then the Detective read it

to her and both signed the form.

It appears that sometime prior to noon, Officer Hugo

VanWalsleben of the Latent Fingerprint Section of the

lla

Police Department, seized a 9 mm Browning automatic

pistol in a holster with five rounds of ammunition (People’s

Exhibit 39) from the locked glove compartment of the

Cadillac at Police Headquarters. He dusted the car for

fingerprints and was present that evening when the trunk

of the car was opened and dusted the trunk.

Detective Behrens left Police Headquarters, went to the

District Attorney’s Office, met Detective Acquasanta and

Sergeant Schlichtig, and assisted in the preparation of two

Search Warrants. At about 6 that evening, she and Ac-

quasanta appeared before the Hon. Raymond Wilkes who

signed the Warrants.

The supporting affidavit (People’s Exhibit 58) reflects

that Behrens participated in the investigation of an at-

tempted murder of a police officer who was investigating a

possible burglary at Thelma J’s Boutique. That the affiant

was present when Colleen Irby gave a statement as to the

events leading up to and surrounding the burglary and

shooting. Irby told the affiant that the defendant had a

pair of wire cutters, screwdriver and other tools under the

front seat of his 1969 dark drown Cadillac, New York regis-

tration No. YHW 110, and she placed merchandise stolen

from Thelma J’s Boutique into the car. The affiant also

informed the Court that the Cadillac which the defendant

drove to the rear of Thelma J’s Boutique was found in

the rear alleyway behind the boutique at the time of the

shooting and then taken to Police Headquarters.

Detective Acquasanta in his supporting affidavit, indi-

cated that he interviewed one of the owners of Thelma J’s

Boutique who stated that between $100 and $150 in cash

and one check were missing from the store in addition to

blouses, pant suits, coats, handbags and an adding machine.

12a

The supporting affidavit of Behrens, annexed to the

Search Warrant (People’s Exhibit 50), authorizing the

search of Room #7 of the Turnpike Motor Inn, reflects

similar facts as set forth in her affidavit annexed to Peo-

ple’s Exhibit 58. In addition, Irby informed her that she

and the defendant registered in a motel on Hempstead

Turnpike located near Belmont Racetrack. That the affiant

determined that the motel was the Turnpike Motor Inn

located at 434 Hempstead Turnpike, West Hempstead, and

that Irby and the defendant were registered in Room #7.

The supporting affidavit indicates Irby informed the affiant

that she purchased a beige blouse with brown butterflies

from Thelma J’s.

The affiant also informed the Court that three hours

and 25 minutes lapsed from the time Giglio was shot and

the time that the stake-out was placed at the motel, which

is approximately a 15 minute walk from the site of the

shooting, giving the defendant ample opportunity to return

to the motel room and secret evidence therein.

Detective Acquasanta’s supporting affidavit set forth

the same facts as in his affidavit annexed to People’s Ex-

hibit 58. Colleen Irby’s statement was also annexed to the

Search Warrant.

Detective Acquasanta was given the Warrant pertain-

ing to the motel room and arrived at the motel at about

6:30 in the evening. He seized all the items listed in the

Return annexed to the People’s Exhibit 50.

Detective Behrens went to Police Headquarters, Build-

ing KE, with the Search Warrant, covering the Cadillac, at

which time Detective Aufrecht opened the trunk with a key

and observed women’s clothing, which were removed from

the trunk and an inventory was taken. Under the clothing

7’.

°s.

13a

he found a typewriter and an adding machine (People’s

Exhibits 67 and 68 respectively). Detective VanWalsleben

retrieved a record book, a screwdriver and a bottle of vita-

mins from the interior of the car. There was no spare tire

or jack in the trunk. The items taken from the automobile

are listed in the Return attached to People’s Exhibit 58.

On October 31, 1975, Detective Gulla appeared before

the Hon. Raymond Wilkes with a Search Warrant. The

Detective’s supporting affidavit indicated that defendant

was wearing sneakers, a maroon sweater and dungarees

at the time of the shooting and the affiant had probable

cause to believe that an analysis of the clothing would tend

to connect the defendant with the commission of the crime.

The Warrant was signed and the Detective seized the items

belonging to the defendant from the Property Clerk at the

Nassau County Correctional Facility.

It was the opinion of Dr. John McKnight that the de-

fendant lacked capacity to fully employ his intellect and

knowingly and intelligently to say anything in the Com-

mand Bus at 11 a.m. due to his mental condition.

Based upon a careful consideration of all of the evidence

in this case, the Court rejects Dr. McKnight’s testimony.

The Court finds that Michael Burns, at the time of the

incident, had ample opportunity to and did in fact observe

the defendant for sufficient time to familiarize himself with

his physical appearance.

The Court further finds that Lorraine Mait had ample

opportunity to and did in fact observe the defendant at

close range in her store on October 4th for sufficient time

to familiarize herself with his physical appearance.

The Court further finds that the People have proven,

by clear and convincing evidence, that Michael Burns’ and’

l4a

Lorraine Mait’s in-court identification made in the course

of this Hearing, was based on his visual observations of

the defendant at the time of the incident in West Hemp-

stead, and her visual observations of the defendant at

Thelma J’s Boutique, and were not tainted and influenced

by their viewing of the photograph on the Florida license.

People v. Brown, 20 NY 2d 238.

The Court further finds that the viewing of the photo-

graph under the circumstances revealed in this case was

not impermissibly suggestive as to give rise to a very sub-

stantial likelihood of irreparable misidentification. Sim-

mons v. U.S., 390 U.S. 377.

The Court finds that the defendant requested an attor-

ney at the time he was being escorted from the garage to

the Command Bus, that none was furnished him and he

was not interrogated until the full warnings were given

in the interview room of the Command Bus. At that time

the defendant waived the right to have counsel present.

The right to counsel also imports the right to refuse counsel

and the defendant effectively waived his right to counsel.

People v. Bodie, 16 NY 2d 275. In Miranda v. Arizona, 384

US 436, 479, the highest tribunal of this land stated:

‘‘After such warnings have been given and such

opportunity afforded him, the individual may know-

ingly and intelligently waive these rights and agree to

answer questions or to make a statement.’’

The Court finds, after a review of the testimony of the

various witnesses and an examination of the statements,

contrary to the psychiatric testimony, that the defendant

did have the capacity to fully employ his intellect and did

knowingly and intelligently make statements to the police

at the time he was apprehended.

15a

The statements made by the defendant were intelligent,

responsive, clear, rational and gave a coherent account of

his activities prior to, during and after the commission of

the crime. There is no evidence that defendant’s ability

to perceive, recall and relate were impaired. The inter-

rogating officers had no difficulty in communicating with

the defendant or the defendant with them. People v.

Daugherty, 32 AD 2d 573(2).

The Court finds that the record fails to substantiate the

defendant’s lack of understanding of the meaning of his

statement or the meaning of the Miranda warnings so as

to exclude the statements made herein. The defendant was

in possession of his faculties and a knowing and intelligent

waiver ensued followed closely by a statement. Cf. People

v. William, O., 59 Mise. 2d 358 and People v. Irwin R., 58

Mise. 2d 13.

The Court finds, beyond a reasonable doubt, that the

Miranda warnings were fully and clearly given by Detec-

tive Gulla and the Assistant District Attorney Grennan,

were understood by the defendant and the defendant know-

ingly, intelligently and voluntarily waived his constitu-

tional rights. The People have met the heavy burden of

waiver. Johnson v. Zerbst, 304 US 458.

The Court also finds, beyond a reasonable doubt, from

the totality of the circumstances, that the oral and written

statements made by the defendant were free of any taint

or impropriety and were not induced by force, fear, coer-

cion, promise or any improper methods and that they were

voluntary in all respects.

The Court finds that the police, at or about 5 a.m., prior

to going to the Turnpike Motor Inn, had reasonable cause

to believe that the defendant committed a crime and that

16a

the defendant would be present in Room #7 of the Turn-

pike Motor Inn.

The Court concludes since the police had probable cause

to arrest the defendant, they were justified in entering the

motor room without an arrest warrant or search warrant.

People v. Lee, 78 Mise 2d 1020 (CPL 140.15 subd. 4)

The Court finds, beyond a reasonable doubt, that Col-

leen Irby freely and intelligently consented to the search

of Room #7 at the Turnpike Motor Inn and her written

consent was not induced by force, fear, coercion, promises

or any improper methods. Amos v. U.S., 255 U.S. 313;

Judd v. U.S., 190 F 2d 649; U.S. v. Matlock, 94 S.Ct. 988;

People v. Carter, 30 NY 2d 279.

The Court, after reviewing the Search Warrant and the

affidavits in support thereof, People’s Exhibit 50, finds and

concludes that the facts set forth therein sustain the issuing

Judge’s findings of probable cause.

The Court concludes that the entry into Room #7 and

the seizure of the items therein by Detective Acquasanta

was valid pursuant to the issued Search Warrant and

consent.

Under the totality of the circumstances, it was entirely

reasonable for the officers to conclude that the 1969 Cad-

illac probably contained contraband and was an instru-

mentality of the crime that was perpetrated and contained

objects which offend against the law.

The police had a right and duty to search the ‘‘crime

scene’’ which included the 1969 Cadillac. People v. Neu-

list, 48 AD 2d 150. The search of the automobile at the

scene and the seizure of the Florida license (People’s Ex-

hibit 17) was not only reasonable but mandatory on police

investigating crimes involving public safety and the lives

. 17a

and physical welfare of victims. People v. Singleteary, 35

NY 2d 528. In addition, the police were justified in seizing

the 9 mm Browning automatic pistol (People’s Exhibit 39)

at Police Headquarters. Chambers v. Maroney, 399 US 216.

The Court finds that the defendant freely and intel-

ligently consented to a search of the car and that his con-

sent was not induced by force, fear, coercion, promise or

any improper methods. Amos v. U.S.; supra; Judd v. U.S.;

supra; People v. Lane, 10 NY 2d 347.

The Court further finds and concludes, after reviewing

the Search Warrant and affidavits in support thereof (Peo-

ple’s Exhibit 58) that the facts set forth therein sustain

the issuing Judge’s findings of probable cause.

The Court concludes that seizure of the items from the

car was valid pursuant to the issued Search Warrant and

consent.

This Court, after reviewing the Search Warrant and

Affidavit in support thereof (People’s Exhibit 20), finds

and concludes that the facts set forth therein sustain the

issuing Judge’s findings of probable cause.

This Court concludes that the seizure of the sneakers,

maroon sweater and dungarees from the Property Clerk

of Nassau County Correctional Facility, was valid and

proper.

Based on the foregoing, it is, therefore,

OrpERED, that the application of the defendant to sup-

press the in-court identification by Michael Burns and

Lorraine Mait, is in all respects denied, and it is further

OrperED, that the oral and written statements made by

the defendant to law enforcement officials, may be ad-

missible on the trial of this Indictment, and it is further

18a

Orverep, that the application of the defendant to sup-

press the physical evidence and to controvert the Search

Warrants, are in all respects denied, and it is further

Orperep, that there will be no publication of this de-

cision or any part thereof, prior to this case and the case

of the co-defendant being submitted to the Jury or until

the Indictments are otherwise disposed of.

Enter

Hon. AtpHonso La PEra

J.C.C.

GRANTED

Dated: July 7, 1976.

Harotp W. McConneLu

Clerk

19a

APPENDIX B

Appellate Division Opinion

Leon D. Lazer, J.P.

Guy J. Maneano

Frank A. GuLoTtTa |

Joun P. Conatan, JR., JJ.

—— AD2d —— A—October 20, 1980

(Ind. No. 48878)

1940 E

ee Ge

The People, etc.,

Respondent,

John MacKenzie,

Appellant.

Harry Peltz, Jr. P.C., Jericho, N.Y., for appellant and

appellant pro se.

Denis Dillon, District Attorney, Mineola, N.Y. (Martin

I. Saperstein and William C. Donnino of counsel),

for respondent.

Appeal by defendant from a judgment of the County Court,

Nassau County (LaPera, J.), rendered September 16, 1976,

convicting him of murder in the second degree (felony

murder), manslaughter in the first degree, burglary in the

second degree, grand larceny in the second degree, criminal

20a

possession of a weapon in the third degree, possession of

burglar’s tools and unlawful possession of noxious ma-

terial, upon a jury verdict, and imposing sentence.

Judgment unanimously reversed, on the law, and new trial

ordered. The facts have not been considered.

On the morning of October 7, 1975, at approximately 2:30

A.M., the Nassau County Police observed a suspicious look-

ing car parked behind a clothing store on Hempstead

Avenue, West Hempstead. Upon investigation, it was

discovered that the rear window of the premises was open.

A bystander who had heard noises emanating from the

premises and observed, for approximately 20 to 30 seconds,

a man attempting to break out, went to the rear and in-

formed the officers of what he saw. Thereupon, one of the

officers, Matthew Giglio, was dispatched to cover the front

of the store. A man emerged from the front of the store

and, upon being confronted by Officer Giglio, turned and

fired a shot, which eventually proved fatal to Giglio.

Meanwhile, the officers had apprehended a women, Colleen

Irby, behind the store, and were questioning her when the

shot rang out. She escaped when the officers ran to the

front, but was later apprehended. It was subsequently

ascertained that she was defendant’s wife. The first by-

stander, who had been joined by another individual, saw

the shooting, and they both gave descriptions of the suspect

to the police. A search of the car parked behind the cloth-

ing store revealed, mter alia, defendant’s driver’s license.

Approximately seven hours later, a team of police, con-

ducting a search of the immediate area, found defendant

hiding under a tarpaulin in the loft of a private garage.

Upon discovery, defendant volunteered, ‘‘I’m sorry. I’m

not the one you want. It’s Gargano [sic].’’

& .

21a

After ascertaining his identity, defendant was informed

that he was under arrest and given his Miranda warnings.

While being escorted to the ‘‘command post’’ which had

been set up at the scene of the crime, defendant stated, ‘‘I

want a lawyer.’’ He was then turned over to detectives

for questioning. Prior to interrogation, he was again given

his Miranda warnings and asked if he understood them.

He replied that he did. Thereupon, he agreed to answer

questions without having an attorney present.

Defendant stated that he participated in the burglary but

that he was accompanied by another individual, Galgano.

He contended that he was in the store when he heard a

shot, and he presumed that his accomplice had shot the

officer.

One of the detectives informed defendant that they knew

he was lying. He was told that they had eyewitnesses,

his car, his gun, and that his wife had told a different story.

Defendant was then permitted a reunion with his wife who

told him, in the presence of the police, that she had told

the truth and he should do the same.

Defendant then stated, ‘‘I shot the guy. I didn’t know it

[sic] was acop. There was no Galgano there.’’ He then

agreed to make an oral statement. This was reduced to a

written statement, which was preceded by Miranda warn-

ings. He also gave a statement to an Assistant District

Attorney, again prefaced by Miranda warnings, and made

inculpatory remarks to an officer during processing.

All of these statements were ruled admissible following a

pretrial hearing.

22a

It is undisputed that defendant asked for an attorney prior

to being turned over to the detectives for interrogation.

It is clear that once an accused invokes his right to counsel

any purported waiver of that right in the absence of coun-

sel is ineffective, and any statements in response to cus-

todial interrogations uttered in the absence of counsel are

inadmissible at trial (People v Cunningham, 49 NY2d 203).

That rule has been applied retroactively to cases, such as

the one at bar, pending at the date of the decision in People

v Cummingham (People v Prince, 50 NY¥2d 883; People v

Gordon, —— AD2d —— [2d Dept., July 28, 1980]). Al-

though defendant’s statements uttered prior to his request

for counsel were spontaneous and therefore admissible (see

People v. Rogers, 48 NY2d 167; People v. Kaye, 25 NY2d

139), we find that all of his subsequent statements, both

oral and written, were the product of custodial interroga-

tion, and taken in violation of his right to counsel (see

People v Cunningham, supra; People v Buxton, 44 NY2d

33).

We are not swayed by the People’s contention that the

rule posited in People v Cunningham (supra) interferes

with an accused constitutional right to self-representation

(see Faretta v California, 422 US 806). Under the New

York rule, there is no bar to an accused proceeding pro se

provided there is a knowing and intelligent waiver of the

right to be represented by counsel (Miranda v Arizona, 384

US 436). However, once an accused has given an indica-

tion that he does not wish to proceed without the assistance

of counsel that request must be honored before any further

custodial interrogation occurs (People v Cunningham,

Supra).

23a

Neither are we convinced that the admission of defendant’s

statements at trial was harmless error. A constitutional

error, such as this, may be harmless only there is no rea-

sonable possibility that the erroneously admitted evidence

contributed to the conviction, that is if it is harmless be-

yond a reasonable doubt (Chapman v California, 386 US

18, 22-24; Fahy v Connecticut, 375 US 85, 86; People v

Jones, 47 NY2d 528; People v Almestica, 42 NY2d 222).

While the other evidence of defendant’s guilt was strong,

including the testimony of two eyewitnesses (People v

Brathwaite, 76 AD2d 931), the nature of the statements

admitted, full confessions, renders it very difficult to ex-

clude the possibility that the statements contributed to the

finding of guilt.

Accordingly, a new trial is necessary.

As the People have conceded that the suppression of de-

fendant’s confessions would deprive them of any eviden-

tiary basis for admitting the can of mace received into

evidence at the first trial at any subsequent trial, it is

unnecessary for us to pass separately upon that issue. We

would note, however, that the hearsay testimony of Detec-

tive Gulla regarding certain statements allegedly made to

him by the defendant’s wife (Colleen Irby) was improperly

admitted to establish the defendant’s ownership of certain

items which had been recovered by the police during the

course of their investigation.

We have considered defendant’s remaining contentions and

find them to be lacking in merit.

Lazar, J.P., Mancano, Gutorra and Conanan, JJ., concur.

24a

APPENDIX C

Certificate Denying Leave

Strate or New Yorx

COURT OF APPEALS

Before: Hon. Sou Wacutter, Associate Judge

Tue PEOPLE oF THE StTaTE oF NEw YorkK

Appellant

against

JoHN MacKenzie

rr < ee—

I, Sou Wacutter, Associate Judge of the Court of Ap-

peals of the State of New York, do hereby certify that,

upon application timely made by the above-named appel-

lant for a certificate pursuant to CPL 460.20 and upon the

record and proceedings herein,* there is no question of law

presented which ought to be reviewed by the Court of Ap-

peals and permission to appeal is hereby denied.

Dated, at Albany, New York

January 7, 1981

/s/ Sou Wacutier

Associate Judge

* Descriptian of Order: Judgment of County Court, Nassau,

September 16, 1976; reversed, on the law, new trial ordered by Ap-

te Division, Second Department, November 17, 1980.

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.