Petition for Writ of Certiorari — New York v. Smith

Supreme Court brief1985

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td CLERK

in THE

Supreme Court of the United States

OCTOBER TERM 1984

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

against

LEMUEL SMITH,

Respondent.

PETITION AND APPENDIX FOR A WRIT OF

CERTIORARI TO THE COURT OF APPEALS

OF THE STATE OF NEW YOK

B. AntHony Morosco

Counsel to Wituiam E. Stanton

Special District Attorney

Dutchess County

Office and P.O. Address

99 Court Street

White Plains, New York 10601

(914) 997-9606

RicHARD ScCHISLER

JANET CUNARD

Of Counsel

A —

Question Presented

Does the New York statutory scheme providing for the

mandatory imposition of the death penalty upon conviction

of murder in the first degree for the intentional killing

of another by a person then serving a minimum term of

at least fifteen years to life upon a prior conviction offend

the Constitution of the United States?

The Parties

The parties to the proceeding in the Court of Appeals

of the State of New York were the People of the State of

New York against Lemuel Smith. The State of New York

appeared by the Attorney General on the issue of the

constitutionality of the New York statute.

TABLE OF CONTENTS

Guection Freee oi.n66ceccccdstieccancaaceaness

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Citation to the Opinions Below ............... ines

Be a re rrr rr Pn nee ON

The Hoeme Meee ..6ccskdcdxbudencsshiateeens

ArcuMENT—The New York Death Penalty Statute is

2ah YO w >

Constitutional and Constitutional as

applied to Defendant .................

The Bigtete |... css écivianesa cere evecesiins

Mandatory or Discretionary? ..............

Consideration of the Statute as Mandatory

Consideration of the Statute as Discretionary

Other Possible Sanctions ..................

The Rights of other Prisoners ............

Constitutional as applied to Lemuel Smith

1. The Murder of Donna Payant ..........

2. The Defendant’s prior “riminal History

a. Dorothy Waterstreet ...............

b. Edna Johnson (Robbery with a deadly

weapon, Assault to murder) .........

TABLE OF CONTENTS lil

PAGE

ce. Carol Ferrucci (Kidnapping, robbery,

attempted rape, assault) ............ 27

d. Ann Paige (Kidnapping, rape, sodomy) 28

e. Margaret Byron and Robert Hedder-

man (Murder, Robbery) ............ 28

f. Joan Richburg (Murder, Rape) ...... 29

g. Marilee Wilson (Murder) ........... 29

h. Maryann Maggio (Kidnapping, robbery,

EE ee ee 29

3. Culpability of Defendant ............... 30

4, Age of the Defendant .................. 30

5. Mental Condition of the Defendant ...... 30

6. Alcohol and Drug Involvement ......... 30

cred Lia.) Cees kee be ceseteade 31

ccs Nee esehscbhaxancn cee 31

eR eee hs che kctecadt ses das cnseess 32

OE ree ee eee ee la

iv TABLE oF CasEs

PAGE

Gregg v. Georgia, 428 US 153, 49 LEd2d 859, 96 SCt

2902 (1976), reh den 429 US 875, 50 LEd2d 158,

Oe GD OE odin in ccandueheenueenena 13, 14, 17, 18, 23

Woodson v. North Carolina, 428 US 280, 304 49 LEd2d

944, 96 SCt 2978 (1976) ............. 15, 17, 18, 19, 24

Furman v. Georgia, 408 US 238, 33 LEd2d 346, 92

SCt 2726 (1972), reh den 409 US 902, 34 LEd2d

a ee SE Oe 0 cin. 00 nda bce cacao nies 16, 18, 24

Lockett v. Ohio, 438 US 586, 57 LEd2d 973, 98 SCt

2954 (1978) ... 2.0... ce eee ees ase aes 16, 17, 18, 19

Eddings v. Oklahoma, 454 US 104, 71 LEd2d 1, 102

Ee Pe EE 6n4.0.0:0445skcbunncueediens bane 18, 19

S. Roberts v. Loutstana, 428 US 325, 49 LEd2d 974, 96

SCt 3001, (1976), reh den 429 US 890, 50 LHd2d

173, 97 SCt 248 ..... ee nieiiiias — %

H. Roberts v. Loutstana, 431 US 633, 52 LE2d 637

2 § 3, eee er errr 16, 17, 19, 20

Proffitt v. Fiorida, 428 US 242, 449 LEd2d 913, 96

SCt 2980, (1976) reh den 429 US 875, 50 LEd2d

Set ee SE doc ah ncdicsatecedeaadenedeeees 17

People v. Davis, 43 NY 2d 17, 400 NYS2d 735, 971

NE2d 456, (1977), cert den 435 US 998, 438 US

DOG sdkde Wkwa taba deins swesesusaueenuens 14, 19, 23, 26

Green v. Oklahoma, 428 US 907, 49 LEd2d 1214, 96

Se OED skates 0.beko ue ose anankeleedbas 19

Enmund v. Florida, 458 US 782, 73 LEd2d 1140, 102

ET EE 4. On vc cccavaaeviessks Seen ks 22

Marshall v. Lonberger, —— US ——, 74 LEd2d 2646

ee ED 6 nc dbenccncreesccesadsaanhs 17

People v. Smith, 59 NY 2d 156, 464 NYS2d 399, 451

WEE ON DBT CREE) on... ccccocecnaccvncscnnces 28

CASES CITED Vv

PAGE

People v. Smith, 77 AD2d 712, 4830 NYS2d 713 (1980)

hk! BO rrr ery Tr Terr ree 28

People v. Smith, 81 AD2d 1046 (1981) ............ 29.

Beck v. Alabama, 447 US 625, 65 LE2d 392, 100 SCt

ee SEED kc cNecdacaawewackuceaaseeeuenaes 30

People v. Casassa, 49 NY2d 668, 427 NYS2d 769, 404

NE 2d 1310 (1980) cert den 449 US 842 ........ 20

Songer v. State, 322 So 2d 481 (SC Fla 1975) vac oth

Br 450 US 952 .... ccc csc ewes secccsceces 19

Moore v. State, 233 Ga 861, 213 SE2d 829 (Ga 1975) 19

Shuman v. State, 578 P2d 1183 (Nev 1978) cov vac

on he Shuman v: Wolff, 571 FS -_ (DG Nev 1983

OU GONE oon nnscccnccensecdtdbGte sanunetiels 1§

Thigpen v. State, 355 So 2d 392, aff’d 855 So 2d 400

CAE SUED 4cciws condcdendauaceukeeneecseuues 18

Harris v. State, 355 So2d 479 (Ala 1977) .......... 25

Wolfish v. Levi, 573 F2d 118, 125 (2 Cir 1978) rev

GEE Wee OD ics hasacicecccuweedsabeeecaneasess 25

Sratrute Crrep

Penal Law State of New York

BUD ci a. cvancuseuse adh uae eenes 20

REED c ccunsdneseankanstdatee ee 4

GND sus eunicondve ealeia wads ae 4

ROT ns cnvecatacesuheeestls colores: eee 2, 20, 26

FSA.

SERIO HO) ain sons scveeccdccccccwuresnecees 19

vi STATUTES CITED

PAGE

RE. oo vn cnnncesecadcdescditemienee 22

SE nnn. ccecannctanesaacchchit ee 20

Ga. Code Ann

COE oo iekénsccvdnccecenkbaccsnietenene 19

§ 27-2534.1(b) .......... x be aepasaseceeie ae 19

V.T.C.A. Penal Code

COO ii ok cadasvevdencundecaceanteneeeannen 20

SONOMA © oi vicic codecksacectcbcneet nee 20

10 Okl. St. Ann. $1112 2.0.0... ccc cece ccc cucuccuces 19

21 Okl. St. Ann. § 701.3 . 20... ccc ccc cece ccc ceucees 19, 22

WO. Cem. Wie, TAMID oi. c ck cccscccccscccnwddsess 19

BOOP noon 006600ka000400cacincecenatet 19, 22

LSA-R.S. 13:1570(5) oo... cc cc ce cece cece eucueuees 49

BED acct ve ne00n005cisis0snecennsneeeeenen 19

Ohio Rev. Code Ann.

§ 2151.25 ooo cece ccc ccc ccc ccuccuccuceucens 19

CORE oocccccacveccdiiccesccsdcihwekt 92

Correction Law 187 .....ccccccccccccuccccuuccece 25

United States Code 18 USC 4042 ...........00.25.. 25

MISCELLANEOUS

WCBS Interview (Appendix Page 209a) .......... 23

IN THE

Supreme Court of the United States

OCTOBER TERM 1984

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

against

LEMUEL SMITH,

Respondent.

Citation to the Opinions Below

The opinion of the Court of Appeals of the State of

New York is reported at NY2d , NYS2d ,

— NE2d (Appendix la).

The sentence of the trial court is unreported (Appen-

dix 130a).

Jurisdiction

The order of the Court of Appeals of the State of New

York is dated July 2, 1984.

The jurisdiction of this Court is invoked under 28 USC

1257.

- Constitutional and Statutory Provisions

Constitution of the United States, Amendment VIII

‘*Exeessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

infiicted’’

Penal Law of the State of New York

§125.27 Murder in the first degre

A person is guilty of murder in the first degree

when:

1. With intent to cause the death of another person,

he causes the death of such person; and

(a) Either:

(i) the victim was a police officer as defined in

subdivision 34 of section 1.20 of the criminal pro-

cedure law who was killed in the course of per-

forming his official duties, and the defendant knew

or reasonably should have known that the victim

was a police officer; or

(ii) the victim was an employee of a state correc-

tional institution or was an employee of a local

correctional facility as defined in subdivision two

of section forty of the correction law, who was

killed in the course of performing his official duties,

and the defendant knew or reasonably should have

known that the victim was an employee of a state

correctional institution or a local correctional fa-

cility ; or

(iii) at the time of the commission of the crime,

the defendant was confined in a state correctional

institution, or was otherwise in custody upon a

sentence of the term of his natural life, or upon a

sentence commuted to one of natural life, or upon

a sentence for an indeterminate term the minimum

of which was at last fifteen years and the maximum

of which was natural life, or at the time of com-

mission of the crime the defendant had escaped from

such confinement or custody and had not yet been

returned to such confinement or custody; and

(b) The defendant was more than eighteen years

old at the time of the commission of the crime.

2. In any prosecution under subdivision one it is

an affirmative defense that:

(a) The defendant acted under the influence of ex-

treme emotional disturbance for which there was

a reasonable explanation or excuse, the reasonable-

ness of which is to be determined from the view-

point of a person in the defendant’s situation under

the circumstances as the defendant believed them

to be. Nothing contained in this paragraph shall

constitute a defense to a prosecution for, or pre-

clude a conviction of, manslaughter in the first de-

gree or any other crime except murder in the sec-

ond degree; or

(b) The defendant’s conduct consisted of causing or

aiding, without the use of duress or deception. an-

other person to commit suicide. Nothing contained

in this paragraph shall constitute a defense to a

prosecution for, or preclude a conviction of, man-

slaughter in the second degree or any other crime

except murder in the second degree.

Murder in the first degree is a class A-I felony.

§ 60.05. Authorized dispositions; class A, B, certain

C and D felonies and multiple felony offenders

1. Class A felony. Every person convicted of a

class A felony must be sentenced to imprisonment

in accordance with section 70.00, unless such person

is convicted of either murder in the first degree and

is sentenced to death in accordance with section 60.06

or of a class A-III felony and is sentenced to proba-

tion in accordance with section 65.00.

§ 60.06. Authorized disposition; murder in the first

degree

When a person is convicted of murder in the first

degree as defined in section 125.27, the court shall

sentence the defendant to death.

Facts

On May 15, 1981, the defendant Lemuel Smith, lured

Correction Officer Donna Payant to the Catholic Chaplain’s

complex in the Greenhaven Correctional Facility* where

he beat, strangled, bit and assaulted her causing her death.

He then placed her body in plastic bags and threw her

into a trash dumpster in the facility. At the time of the

*A diagram of the facility, included in the opinion of the

Court of Appeals is reproduced at A. 87a.

Vea PRR eta Lottie 0) YOR earn

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murder the defendant was serving five 25 years to life

sentences.’

In May of 1981 the defendant was an inmate in the

Greenhaven Correctional Facility serving the sentences in-

dicated above. He was, ironically, a clerk or ‘‘porter’’ in

the Catholic Chaplain’s office, responsible for the cleanli-

ness of the office, including disposal of the garbage.? In

May of 1981, Father Donovan was away on leave and the

defendant had been instructed to do minor painting in the

bathroom during his absence. The Chaplain’s office com-

plex consisted of a front office, a back room or library-

classroom, a hall connecting the two and a bathroom. There

was a phone in the Chaplain’s office which could call directly

to any other phone in the institution and there was an

instituional telephone directory in the office. The front

door to the complex led out to an alcove off hospital cor-

ridor.

The standing instructions from the Chaplain were that

his clerks were not to admit other people to the complex

1 At the time of the commission of the instant crime, the de-

fendant was »orving the following sentences:

a) Murder of Margaret Byron and Robert Hedderman—25

years to life, two counts concurrent and two counts con-

secutive.

b) Kidnapping and Robbery of Maryanne Maggio—25 years

to life on each as a persistent felony offender to be served

consecutive to previously imposed sentences.

ec) Robbery of Margaret Byron and Robert Hedderman—121,4

to 25 years.

d) Rape and Sodomy of Maryanne Maggio—10 to 20 years on

a plea of guilty.

Additionally, two separate murder charges had been dismissed

(Joan Richburg and Marilee Wilson) because no further punish-

ment could be imposed.

2 He was also a porter in the package room responsible for

removing garbage from that location.

when he was not there. Further, if it was a correction

officer who insisted on being present, the inmate was in-

structed to leave the office, because an inmate could not

properly tell a correction officer to leave the office and

Father Donovan did not want anyone in the office with his

clerks when he was not there.

The evidence at trial indicated that the defendant would

dump garbage at dumpsters at the ‘‘gate corridor’’, that

his garbage containers were usually not checked, that he

travelled unescorted through the institution te dump the

garbage, and that he exited gate corridor to the dumpster

area without supervision or accompaniment by a correc-

tion officer.

The defendant had a limited institutional pass which,

while technically permitting him access to only one-half

of the institution, nevertheless in practice appears to have

caused the correction officers to acquiesce in his movement

throughout the institution.

Donna Payant, a Correction Officer of the New York

Department of Correctional Services, in May of 1981 was

assigned to the Greenhaven Correctional Facility. She

had graduated from the Academy a short time before. She

was the wife of a correction officer and the mother of three

children.

Some time between March and May of 1981, Donna while

with Officer Hughes, was standing, waiting for the gate to

be opened, with a group of inmates, including the de-

fendant, Lemuel Smith. Donna commented about the re-

ligious carving that Smith was holding and the defendant

told her that he could make her one and that he worked

in the Chaplain’s office.

On May 12, the defendant was seen standing in the alcove

to the Chaplain’s office when Donna entered the hospital

corridor and walked past him. She stopped and turned

to the defendant. Later, Donna Payant and Lemuel Smith

were seen exiting the Catholic Chaplain’s office complex

together. The defendant said Donna had asked to use the

phone. Whether they in fact were discussing the purchase

of a carving or carved item, or whether Smith had some

other pretext for engaging Donna in conversation, they

were, prior to May 15, speaking acquaintances and it ap-

pears that at least on this one occasion they had talked in

the Chaplain’s office complex.

On May 15, 1981, Donna punched in on her time card at

12:08. This was her first day back after two days off

duty. She attended the line-up for the 1 to 9 p.m. shift

and received her assignments, the same assignments she

had had for the previous two weeks. Donna obtained the

equipment required for the assignment, and then proceeded

toward her first assignment.

Immediately following her (within a minute), Smith

emerged from the direction of the package room and pro-

ceeded towards the Chaplain’s office.

Donna, together with Officers King and Hinson, walked

toward her assignment. On the way, Officer Hinson took

a phone call on the corridor phone and was asked, ‘‘is

Payant around’’. She gave the telephone to Donna. The

Officer heard her say, ‘‘who, who’’. Donna was on the

phone for about one minute, and after the conversation

told Officer King that there was some sort of problem.

The only voice that Officer Hinson ever said sounded more

like the caller than other voices on the telephone was that

of Lemuel Smith. At trial there was no identification of

the voice.

On the day following the first anniversary of Donna’s mur-

der, the defendant, who was then in the exercise yard of

the special housing unit at Downstate Correctional Facil-

ity, told another inmate, ‘‘He shouldn’t never have made

the phone call, that he deserved to die.’? Smith also told

him ‘‘This was on his mind for awhile, he was, like he was

being driven and he couldn’t help himself, that he had to

do what he had to do.’’

After the telephone call Donna Payant headed for the

hospital corridor where the Chaplain’s office is located.

In the meantime Officer Rahilly was headed to the

Catholic Chaplain’s office to meet an inmate with whom

he was going to make telephone calls. As he approached

the door to the Chaplain’s complex, Smith was exiting,

varrying a homemade jewelry box. Smith asked Rahilly

and then another officer if they wanted to buy the jewelry

box. He then returned to the alcove. A short time later

the defendant and Donna entered the Catholic Chaplain’s

office complex. Both the defendant and Donna walked to

the rear room (the library) of the Chaplain’s office com-

plex. Donna Payant had only moments left to live.

Sometime after 1:00 p.m. an inmate approached the

door to the Catholic Chaplain’s office complex. He heard

loud music or television noise coming from the office. He

knocked on the door and Lemuel Smith ‘‘he came out too

strong on me’’ and chased him away.

Sometime between 1:50 and 2:05 p.m. Officer Rahilly

returned and opened the door to the Chaplain’s complex.

A piece of blue cardboard fell out of the door. The front

office was a mess—fallen chairs piled and strewn about.

He walked to the rear office (library); it was also dishev-

eled. There was a 55 gallon drum just inside the library

door on the right with two boards across the top of it.

On the desk there was an array of paper and books that

were not piled neatly and another area was clear. There

were books and papers on the floor as if they had been

knocked over. The fish tank which is normally at the

back wall was moved away from the back wall. The whole

complex was ‘‘out of order’’. He returned to the front

office to let an inmate make phone calls. The calls were

made between 2:12 and 2:45 p.m.

eT se -

a att tig Bk le eo 8

While they were in the Chaplain’s office Smith returned

carrying a plastic item of sot \e sort under his arm. Smith

approached the door yelling ‘‘what are you doing in here”’

however he quieted down when he saw Officer Rahilly. He

offered the Officer coffee, then went to the back of the

complex. After trying some phone calls the officer walked

to the rear room and saw Smith putting a shelf back in the

closet. Rahilly asked him the reason for the shabby con-

dition of the office and Smith indicated that he was paint-

ing the office. The Officer smelled paint but saw no freshly

painted walls. The Officer then returned to the front office

to attempt to make another phone call. Smith came to

the entrance of the office door and asked Rahilly if he

would be there for awhile and would he watch the office,

because Smith was going to take the garbage out. There-

after the Officer saw Smith walk past the Chaplain’s front

office carrying a 55 gallon drum and, after he passed,

heard the drum hit the floor with a thud. He heard the

door open and close and continued to try to make phone

calls. Smith left and returned again in about ten minutes.

(No one lec him back in. Apparently he had propped the

door latch again.) The Officer again left the front office

and went to the library where Smith was. He was again

rearranging the closet. The Officer started to have a con-

versation with Smith but the inmate yelled to him that

he had been cut off on the phone and the Officer came back

to the front office and indicated that they could make no

more phone calls. The two left.

Officer LaBoy encountered Lemuel Smith at about 2:00

p.m. on May 15th at a gate on gate corridor. Smith,

pushing a cart with two or three 55 gallon drums, was

travelling in an easterly direction. Once Smith passed

through that gate there were no more gates for him to

pass through until he reached the dumpster site on the

outside of the building. The cans on the cart he was push-

ing were full to within nine inches of the top. He was

perspiring. What was unusual was that the garbage cans

were not overflowing, as they usually were.

At approximately 5:45 p.m. Sergeant Greene discovered

that Donna had failed to report to her assignment. The

area of her earlier assignment was searched twice without

results. The inmates were locked in their cells at approxi-

mately 8:00 p.m. A state police bloodhound was brought

into the institution and three separate trails were run.

The dog was never taken to the area of the Catholic Chap-

lain’s office.

At approximately 1:25 a.m., May 16, Peter Cooper, the

civilian who drove the garbage truck was called back to

the facility. Prior to his arrival, Sgt. Finnigan had agreed

with the watch commander that all the garbage would be

dumped on the ground, but apparently the civilian garbage

truck driver had a conversation with the deputy super-

intendent in which it was agreed that the same procedure

would be used as was used when prisoners escape, that is,

dumping the dumpsters slowly into the garbage truck with

correction officers standing by the side watching what

fell in.

The truck had been emptied on the afternoon of the

15th and was empty when it was returned to Greenhaven.

Cooper proceeded to dump the dumpsters into the truck

while two correction officers stood on top of the truck

with hand held flashlights and Sgt. Finnigan stood on the

ground watching, and to compact the garbage when it was

in the truck. This of course was a terrible mistake. A

totally different process is effective when one is looking

for a live human being.

When the dumpsters had been dumped into the garbage

truck the truck was secured for the evening.

The next morning, the bulldozer operator at the Amenia

Dump spread the garbage out as it was dumped from the

truck and Donna Payant’s body was found.

Peter Cooper indicated that from the position of the

body when it finally came out of the truck, it would have

been in one of the first three dumpsters emptied, that is the

dumpster at building 13 or one of the first two dumpsters

at gate corridor. It was the gate corridor dumpsters to

which Officer LaBoy saw the defendant headed.

Donna Payant’s body was examined in two separate

autopsies.

When delivered to the medical examiner, the body was

partially covered in the four large plastic bags in which

it was wrapped when found at the Amenia Dump. Donna

was dressed in a correction officer uniform and the clothing

was in marked disarray; the blouse was open, the bras-

siere was pushed up exposing both breasts; there was a

big tear in the back seam and crotch of the pants; the

panties were in place. The arms were tied with a single

cord under the right arm in front of the shoulder, in back

of the neck, down the shoulder under the left arm, across

the back to the right wrist.* There was also a piece of

cord loosely wrapped around the neck in two loops.

Donna Payant died from strangulation but there were

numerous other injuries.* There was a large area of con-

tusion involving the front temple area, another involving

the bridge of the nose extended to the inner portion of the

left upper eye lid, and others on the face. There was dried

blood in the nostrils, the septum was broken. The frenu-

lum (a ridge or fold that attaches the upper lip to the

It would appear that the ligatures around the wrist were

placed after death.

*The pathologists had no difficulty distinguishing between in-

juries that were pre-mortem, and post-mortem injuries. The post-

mortem injuries were consistent with being compacted in a gar-

bage truck and run over with a bulldozer. The injuries discussed

herein are the pre-mortem injuries only (including ‘‘peri-mortem’’,

i.e., at about the time of death).

gum) was broken and there was hemorrhaging in the

surrounding tissues. There were ligature marks on the

neck. Injuries to the back indicated that the back was

traumatized either against a wall, a floor or by a blunt

object prior to death. There was extensive hemorrhage

in the skin on top of the skull bones, but the skull itself

was not fractured. The injuries to the head were capable

of causing unconsciousness. There was extensive hem-

morrhage in the muscles about the rectum indicating the

insertion of a blunt object. There was at least one bite

mark, possibly two, on the breast and the amputation of

both nipples appeared to have been done by biting.

The evidence indicated that the victim had been punched

or struck in the head, probably smashed against the wall

or floor, bitten on the breast, strangled, and a blunt instru-

ment inserted in her rectum.*

Four forensic odontologists unequivocally identified the

bite mark on Donna Payant’s breast as having been caused

by Lemuel Smith’s teeth. They also identified that bite

mark as having been made by the same person as made a

prior known bite mark of Lemuel Smith, that found on the

corpse of Marilee Wilson.°

On April 21, 1983, a jury returned a verdict convicting

the defendant of murder in the first degree. On June 10,

1983, the defendant Lemuel Smith was sentenced to death.

The Issue Raised

By motion dated November 25, 1981 the defendant moved

to dismiss the indictment alleging, inter alia,

‘‘The Statute under which the defendant has been

indicted is unconstitutional on its face and the in-

*> The pre-mortem injuries involved only a slight loss of blood.

®°The jury was not advised of the source of the prior known

bite mark.

dictment against the defendant must, therefore, be

dismissed’’ ‘‘The Supreme Court has mandated that

any death penalty statute to be constitutional must

provide for the consideration of relevant mitigating

circumstances relating to the particular offender and

the particular offense’’

The People opposed and the trial court, by order dated

December 11, 1981, denied the ‘‘motion to dismiss the in-

dictment on constitutional grounds’’.

ARGUMENT

The New York death penalty statute is constitu-

tional and constitutional as applied to defendant.

‘*. . . the death penalty undoubtedly is a significant

deterrent . .. And there are some categories of

murder, such as murder by a life prisoner, where

other sanctions may not be adequate’’.

Gregg v. Georgia, 428 US 153, 49 LEd 2d 859,

96 SCt 2909 (1976), reh den 429 US 875, 50 LEd

2d 158, 97 SCt 197

In the case of Lemuel Smith, a life prisoner, the fact

that no sanction other than death is adequate has been

proven beyond any possible doubt. The defendant at the

time of the commission of the instant crime was serving

five sentences of 25 years to life. Additionally, two other

murder charges arising out of crimes occurring at dif-

ferent times and places had been dismissed because it was

impossible to impose further punishment on the defendant.

A. THE STATUTE

The statute under which the defendant was charged and

convicted is potentially applicable only against the most

egregious offenders, those who have intentionally mur-

dered another, who have intentionally attempted to murder

a police or corrections officer, who have committed arson

by incendiary device of an occupied building, who have

kidnapped for ransom or certain other insidious reason,

who have possessed or sold (or attempted to do so)

large quantities of narcotic drugs (real or synthetic}, who

have been convicted of three or more violent felony of-

fenses or who have been convicted of three or more felony

offenses and whose history and character and the nature

and circumstances of whose criminal conduct has war-

ranted imposition of a life sentence.

The statute, even then, does not apply to all homicides

but only to intentional murders where the intent of the

perpetrator is to cause the death of the person killed. The

defendant must be more than 18 years old at the time of

the commission of the crime and must not have been act-

ing under the influence of extreme emotional disturbance.

The potential application of the statute is limited to an

extremely limited group of proven perennial criminals

against whom no other adequate sanction may be imposed.

Lemuel Smith is a perfect example; two independent

murder charges against him were dismissed solely because

no adequate sanction could be imposed. (See: Gregg v.

Georgia, supra.)

The New York statute duly enacted by the elected rep-

resentatives of the People is presumed to be valid absent

clear evident to the contrary (Gregg v. Georgia, supra;

People v. Davis, 43 NY 2d 17, 400 NYS2d 735, 371 NE2d

456 (1977), cert den 435 US 998, 438 US 914).

B. MANDATORY OR DISCRETIONARY?

Does New York have a mandatory statute? ‘*. . . The

New York statute is not truly a ‘mandatory’ capital pun-

ishment statute, as that term has been used by the Supreme

Court’’ (at 43). ‘‘True, other capital punishment statutes

have provided for consideration of mitigating factors after

the jury has convicted defendant of the substantive of-

fense. But there is no reason to assume that mitigating

factors could not, instead, and even preferably, be built

into the definition of the substantive offense . . . Cer-

tainly, if every possible mitigating factor were made a

defense to the substantive crime, there would be little

reason for the jury to consider mitigating factors in mak-

ing a discretionary sentencing determination”’ (at 44, cit.

om.). ‘‘But, in any event, the New York statute although

written in mandatory terms, is not embracively manda-

tory in that it does not encompass, indiscriminately and

without consideration of mitigating factors, a mass ag-

gregation of crimes. Thus, since Section 125.27 of the

Penal Law does require the jury to consider mitigating

factors as elements of the substantive crime of first de-

gree murder, there is no constitutional violation.’’ (at 45)

(People v. Davis, supra, dissenting opinion per Breitel

CJ).

C. CONSIDERATION OF THE STATUTE AS

MANDATORY

This Court has held that a ‘‘mandatory death penalty

for a broad category of homicidal offenses constitutes

cruel and unusual punishment within the meaning of the

Eighth and Fourteenth Amendments’’ but has refused to

prohibit all mandatory death sentences, stating that ‘‘a

mandatory death penalty limited to an extremely narrow

category of homicide, such as murder by a prisoner serv-

ing a life sentence, defined in large part in terms of the

character or record of the offender”’’ is not included in the

general prohibition. (Woodsen vy. North Carolina, 428

US 280, 304, 49 LEd2d 944, 96 SCt 2978 (1976) n. 7 [em-

phasis supplied]). That category, ‘‘defined in large part

in terms of the character or record of the offender’’, takes

into consideration ‘‘aggravating’’ and ‘‘mitigating ’ cir-

cumstances as related to each other by definition in a

manner similar to that required under a discretionary

statute. The permissible statute thus suffers neither the

harshness nor arbitrariness of the statutes condemned in

Furman v. Georgia, 408 US 238, 33 LEd2d 346, 92 SCt

2726 (1972), reh den 409 US 902, 34 LEd2d 164, 93 SCt 89,

and the early days of our country.

A mandatory death penalty statute such as that under

consideration contains within the definition of the crim-

inal offense consideration of appropriate aggravating and

mitigating circumstances. ‘‘. . . intentional killing by a

person serving a life sentence or by a person previously

convicted of an unrelated murder defines the capital crime

at least in significant part in terms of the character or

record of the individual offender. Although even this

narrow category does not permit the jury to consider pos-

sible mitigating factors, a prisoner serving a life sentence

presents a unique problem that may justify such a law.’’

(S. Roberts v. Louisiana, 428 US 325, 49 LEd2d 974, 96

SCt 3001 (1976), reh den 429 US 890 50 LEd2d 173, 97 SCt

248; H, Roberts v. Louisiana, 431 US 633, 52 LEd2d 637,

97 SCt 1993 (1977]).

While in most cases prior to imposing the death penalty

the sentencing authority must consider any relevant miti-

gating factor, such need not be considered in what may be

categorized as ‘‘the rarest kind of capital case’’ (Lockett

v. Ohio, 488 US 586, 57 LEd2d 973, 98 SCt 2954 (1978).

As to what is the ‘‘rarest kind of capital case’’ the

Court refers to ‘‘a mandatory death sentence as, for

example, when a prisoner—or escapee—under a life sen-

tence is found guilty of murder’’. (Lockett v. Ohio, supra,

n. 11).

The New York statute applies only to ‘‘the rarest kind

of capital case’’ and this Court has never intimated that

a ‘‘lifer’? who commits an intentional murder must be

subjected to any penalty other than death. (H. Roberts v.

Loutsiana, supra, 635, n. 2; 8. Roberts v. Louisiana, supra,

334 n. 9; Woodson v. North Carolina, supra, nn. 7, 25;

Gregy v. Georgia, supra; Lockett v. Ohiv, supra, 604 n.

11). And, using the test applied to discretionary sen-

tences, under all circumstances proof of the crime proves

aggravating circumstances which outweigh any possible

mitigating circumstances and which mandate the penalty

of death (See: Proffitt v. Florida, 428 US 242, 49 LE2d

913, 96 SCt 2980, (1976) reh den 429 US 875, 50 LEd2d

158, 97 SCt 197).

The New York statute is ‘‘limited to an extremely nar-

row category of homicide . . . defined in large part in

terms of the character or record of the offender.’’ (Wood-

son v. North Carolina, supra, 287, n. 7)’ and applies only

to that ‘‘rarest kind of capital case’’ where no possibly

mitigating circumstances must be considered (Compare:

Lockett v. Ohic, supra, n. 11). For all that is constitu-

tionally required is that, acting with an even hand, the

State be it the legislature or courts find that aggravating

circumstances outweigh mitigating. The New York Leg-

islature, as permitted by the Constitution, has determined

that the aggravating cireumstance of the intentional mur-

der of another by a person over the age of eighteen who

is serving a sentence of at least 15 years to life and did

not act under the influence of extreme emotional disturb-

ance* outweighs any possible mitigating factor. That de-

termination does not offend the decisions of this Court,

Woodson v. North Carolina, supra; Gregg v. Georgia,

supra; H. Roberts v. Louistana, supra; S. Roberts v. Loutsi-

*See Also: Marshall v. Lonberger,

646, 103 SCt 843 (1983).

®*The issues were taken out of the case when defense counsel

stated he wanted no lesser charge (5980).

US ——, 74 LEd2d

ana, supra; Lockett v. Ohio, supra.’ The New York statute

is constitutionally permissible.

D. CONSIDERATION OF THE STATUTE AS

DISCRETIONARY

In capital cases ‘‘where discretion is afforded .. . that

discretion must be suitably directed and limited so as to

minimize the risk of wholly arbitrary and capricious ac-

tion’’ (Gregg v. Georgia, supra, 189), and that direction

and limitation ‘‘requires consideration of the character and

record of the individual offender and the circumstances

of the particular offense’’ (Woodson v. North Carolina,

supra).

However the Constitution requires consideration of only

relevant mitigating factors (Lockett v. Ohio, supra) and

only consideration thereof, not that they be given any

particular weight (Eddings v. Oklahoma, 455 US 104, 71

LEd2d 1, 102 SCt 869 [1982]). In any event, the court

retains its traditional authority ‘‘to exclude, as irrelevant,

evidence not bearing on the defendant’s character, prior

record, or the circumstances of his offenses’’ (Lockett v.

Ohio, supra, 604 n. 12).

If a discretionary statute is to pass constitutional mus-

ter, the relevant factors to be considered must be set forth

or in some way limited so that the arbitrariness of Furman

v. Georgia, supra is not present. Florida uses a ‘‘laundry

list’’ of mitigating factors, Texas three questions, and

New York the definition of the crime. On aggravating

factors, Florida a laundry list, Texas knowing and inten-

tional murder in five circumstances and New York know-

®* The court of the State of Nevada (Shuman v. State, 578 P2d

1183 (Nev 1978) cov vae on he (Shuman v. Wolff, 571 FS 213

(DC Nev 1983), on appeal and Alabama (Thigpen v. State, 355

So 2d 392, aff’d 355 So 2d 400 (Ala 1977)) have reached similar

conclusions on similar issues.

ing and intentional murder in one circumstance.” Each

statute is constitutionally permissible and each mandates

consideration of basically the same factors.

Age” is a factor which is often considered on the issue

of mitigation. In Florida, a child of any age who commits

a crime punishable by life imprisonment or death may be

charged and punished as an adult [F.S.A. 39.02(5) (c)].

1° See: People v. Davis, supra.

™ Georgia: The age of criminal responsibility is thirteen (Ga.

Code Ann 26-701). Age can be considered by the jury when it

considers ‘‘appropriate’’ mitigating cireumstanees (Ga. Code Ann.

ims). Moore v. State, 233 Ga 861, 213 SE2d 829 |Ga

75]).

Oklahoma: ‘the age of criminal responsibility is seven and a

defendant can be certified for trial as an adult if the charge is a

felony (10 Okl. St. Ann. $1112). The statute stricken by the

Court (Green v. Oklahoma, 428 US 907, 49 LEd2d 1214, 96 SCt

3216 [1976]) mandated tke death penalty upon conviction with-

out any consideration of mitigating factors including the age of

the defendant (21 Okl. St. Ann. § 701.3).

See also: Eddings v. Oklahoma, supra. ‘‘ ... When the de-

fendant was 16 years old at the time of the offense there can be

no doubt that evidence of a turbulent family history, of beatings

by a harsh father, and of severe emotional disturbance is par-

ticularly relevant’’.

North Carolina: A defendant who has reached his fourteenth

birthday and is charged with a felony may be tried in an adult

court but if he is charged with capital crime must be so tried

(N.C. Gen. Stat., 7A-280). Upon conviction of murder in the

First Degree, the statute stricken by the Court (Woodson v. North

Carolina, supra) mandated the death penalty without any con-

sideration of age in mitigation (N.C. Gen. Stat., 14-17).

Louisiana: The age of criminal responsibility is seventeen, but

in the ease of a capital crime, fifteen (LSA-R.S. 13:1570 [5]).

The statute held unconstitutional (S. Roberts v. Louisiana; H.

Roberts v. Louisiana, supra, in addition to redycing the age of

criminal responsibility mandated the death penalty upon the con-

viction of Murder in the First Degree (LSA-R.S. 14:30).

~ Ohio: The statute stricken in Lockett v. Ohio, supra, applied to

any person fifteen years or older (Ohio Rev. Code Ann. § 1251.26).

Age is considered as a mitigating factor, but only where

the defendant is under eighteen (See: Songer v. State, 322

So 2d 481 (SC Fla 1975) vac oth gr 430 US 952). In

Texas the age of adult criminal responsibility is fifteen

but no person may be punished by death for an offense

committed while he was younger than seventeen (V.T.C.A.

Penal Code $8.07).

New York like Florida, Texas and Georgia considers

age a mitigating factor and like Texas considers it such

by definition. Thirteen is the age of criminal responsi-

bility for murder in New York (Penal Law 430.00), but

no person can be convicted of Murder in the First Degree

unless he ‘‘was more than eighteen years old at the time

of the commission of the crime’’. (Penal Law § 125.27(1)

(b)). In New York youth is a mitigating factor to a

greater extent then in Texas or Florida and unlike in

Georgia and Florida, it must be found beyond a reasonable

doubt not to be present before the death penalty can be

imposed.

The mental state of the defendant is another factor that

is often considered in mitigation. The Florida statute lists

as a mitigating, but not controlling, circumstance the fact

that the crime ‘‘was committed while the defendant was

under the influence of extreme mental or emotional dis-

turbance.’’ The Texas statute permits consideration of

the issue of emotional disturbance only as part of three

questions to be answered by the jury. In New York, ex-

treme emotional disturbance is an absolute defense to the

crime of murder in the first degree.

Almost every defense or mitigating cireumstance which

would be potentially available can be considered under

the general category of extreme emotional disturbance, if

not effective in its own right to be a defense to all crim-

inal activity. As stated by the Court of Appeals,

‘“‘This defense (extreme emotional disturbance) al-

lows a defendant charged with the commission of acts

which would otherwise constitute murder to demon-

strate the existence of mitigating factors which in-

dicate that, although he is not free from responsibility

for his crime, he ought to be punished less severely

by reducing the crime upon conviction to manslaughter

in the first degree’’.

(People v. Casassa, 49 NY 2d 668, 427 NYS 2d

769, 404 NE2d 1310 (1980), cert den 449 US 842

There is no magical formula to determine what consti-

tutes extreme emotional disturbance and the jury is free

to extend mercy upon what it believes to be appropriate

facts.

‘*In the end, we believe that what the Legislature in-

tended in enacting the statute was to allow the finder of

fact the discretionary power to mitigate the penalty

when presented with a situation which, under the

circumstances, appears to them to have caused an

understandable weakness in one of their fellows.

Perhaps the chief virtue of the statute is that it al-

lows such discretion without engaging in a detailed

explanation of individual circumstances in which the

statute would apply, thus avoiding the ‘mystifying

cloud of words’ which Mr. Justice Cardozo abhorred.’’

(People v. Casassa, supra, 680)

‘‘Absence of any prior conviction” is a relevant factor

which may be considered in mitigation (H. Roberts v.

Louisiana, supra). Florida sets forth as a mitigating

factor the fact that ‘‘the defendant has no significant his-

tory of prior criminal activity’’ (F.S.A. 921.141) but the

finding of that mitigating factor does not mean that the

death penalty cannot be imposed if the aggravating cir-

cumstances outweigh the mitigating cireumstances. In

Georgia, a defendant’s prior record is considered under

the general category of other appropriate aggravating or

mitigating circumstances and in Texas the prior record is

considered in determining ‘‘whether there is a probability

that the defendant would commit criminal acts of violence

that would constitute a continuing threat to society’’

(V.T.C.A., Code Crim. Proe. §37.071(b)). The other

statutes considered and found by the Court to violate con-

stitutional mandates allow no consideration of a defend-

ant’s prior record.” The New York statute applies only

to defendants who have a serious prior felony record and

have been sentenced to at least 15 years to life, and the

jury must find that fact beyond a reasonable doubt. Lack

of a prior criminal record is not only a mitigating factor,

it is an absolute defense to a charge of murder in the

first degree.

The intent of the defendant is another factor often con-

sidered on the issue of mitigation. In order to sustain the

imposition of the death penaity it is only necessary that

the defendant kill, attempt to kill, intend that a killing

take place or that lethal force be employed. (Enmund v.

Florida, 458 US 782, 73 LEd2d 1140, 102 SCt 3368 [1982]).

So long as the defendant is the killer, capital punishment

is permitted in an appropriate case whether or not he had

the intent to kill. Under the Florida,’** Texas and Georgia

122N.C. Gen. Stat 14-17; LSA-R.S. 14:30; 21 Okl. St. Ann.

§ 701.3; Ohio Rev. Code § 2929.03.

13 The Florida statute broadly defines the crimes which subject

a defendant to the death penalty and includes certain ‘‘ felony

murders’’. (F.S.A. 782.04). Thus one of the mitigating circum-

stanees is that ‘‘the defendant was an accomplice in the capital

felony committed by another person and his participation was

relatively minor.’’ Yet, one who did not commit or attempt the

killing or intend ‘that the killing be committed could be sen-

tenced to death if aggravating factors outweigh that mitigating

factor.

The Ohio statute would not allow consideration of the defend-

ant’s lack of intent or minor role on the issue of mitigation.

For an analysis of other jurisdictions, see: Enmund v. Florida,

supra.

statutes approved by the Court, it is not necessary, in

order to sustain a capital sentence, to prove that the de-

fendant intentionally committed the murder. Lack of in-

tent is an absolute defense to the charge of Murder in the

the First Degree under the New York law.

The factors most commonly considered on the issue of

mitigation in the states where the statutes have been up-

held are absolute defenses to the charge in New York.

Thus, in those states, even if they are all present and the

aggravating circumstances outweigh, the death penalty

may be imposed, but, in New York, even if one is present,

the defendant cannot be convicted of a capital offense.

E. OTHER POSSIBLE SANCTIONS

It is not necessary to consider whether any less severe

sanction would be appropriate

‘*. . . in assessing a punishment selected by a demo-

cratically elected legislature against the constitutional

measure, we presume its validity. We may not re-

quire the legislature to select the least severe penalty

possible so long as the penalty selected is not cruelly

inhumane or disproportionate to the crime involved.

And a heavy burden rests on those who would attack

the judgment of the representatives of the people.’’

Gregg v. Georgia, supra, 174

but even if considered, the conclusion is inescapable that

under the circumstances outlined in the New York statute,

no other sanction is effective.

It is argued in general against capital punishment that

‘‘capital punishment does not deter’’. Compare, e.g.,

People v. Davis, supra, (Breitel, CJ, dissenting). In fact,

that statement is never meant literally. Of course the

death penalty deters’ and it is absurd to suggest that at

14See comments of John Wojtowicz while he was holding

hostages (209a).

least some people in the population would not be de-

terred from committing an offense (whether it be homicide

or reckless driving or illegal parking) were the sanction

of the death penalty the mandatory sentence therefor.

What the argument really means to say is: ‘‘The death

penalty does not deter in a demonstrably more effective

way than the sentence of life imprisonment’”’.

However true that may be with respect to the imposi-

tion of the death penalty in ordinary cases, the one case

in which a priort that proposition is untrue is the case of

the person who is already serving a sentence which may

confine him for the remainder of his life.

Yor most of us, to be sentenced to state prison for life

would be as total a destruction of life as we know it as

being put to death, and there is very great merit in the

argument that in most cases the death penalty probably

does not deter in a more significant or more effective way

than life imprisonment. However, for the lifer in our

state prisons, the opposite is true.

What the Court in essence said in Woodson is that even

for the crime of murder it is appropriate for discretion to

be applicable to the death penalty and the sentencing

authority should always (except in the ‘‘exceptional’’ situ-

ation) be able to choose between the death penalty and

unother significiant substantial punishment. However, in

the ease of a lifer, no other punishment is significant or

substantial,”® and if the rule of Woodson were applied to

killings by lifers, the rule of law it represents would be

distorted to say that the sentencing authority must have

discretion to impose the sentence of death or no punish-

ment at all.

It has been suggested, that to apply the death penalty

to a person sentenced to a term of 15 years to life who

15 See e.g., Furman v. Georgia, supra, Stewart concurring, 307-

GS.

has only a very short time remaining to that sentence be-

fore parole is not defensible. Consider however the hypo-

thetical situation of an inmate who has one week remain-

ing to serve on an indeterminate life sentence who attacks,

maims and sexually assaults a female correction officer in

the institution. At thai point it is reasonably certain not

only that he faces extensive imprisonment upon an indict-

ment for those offenses, but that in any event he is subject

to being detained for the remainder of his life without

release on parole as a result of this conduct. What deter-

rent, at that point, would exist to dissuade him from kill-

ing the female correction officer thereby eliminating the

witness against him and increasing the possibility of

avoidance of any punishment unless the punishment he

knew would be imposed for the killing (were he found

guilty of it) was one substantially more serious than

being confined for the remainder of his life as an exercise

of discretion by the parole authorities? It is perfectly

obvious that the only such sentence is death.

Life imprisonment in solitary confinement is not, even

if constitutionally permissible, a viable alternative. For

example, at the time Johnny Harris murdered a guard

during a riot, he was serving five life sentences and was

in punitive segregation at a maximum security prison

(Harris v. State, 352 So 2d 479, 484-85 [Ala 1979]).

F, THE RIGHTS OF OTHER PRISONERS

The Eighth Amendment to the Constitution creates an

obligation on the State to ‘‘(furnish) sentenced prisoners

with adequate food, clothing, shelter, sanitation, medical

care, and personal safety’’ (Woljish v. Levi, 573 F2d 118,

125 (2 Cir 1978) rev 441 US 520). Those rights are

secured to inmates under Correction Law Section 137 (see

also 18 USC 4042). It is the duty of the State to ensure

the safety of its inmates and, of course, is employees, by

enforcing the penal law against the other prisoners.

Effective enforcement of penal provisions mandates the

availability of effective sanctions. The Legislature has

recognized that fact, not only in setting forth the penalties

for proscribed conduct but also in the statement of the

general purposes of the law. Among the purposes of the

penal law are, ‘‘to give fair warning of the nature of the

conduct proscribed and of the sentences authorized upon

conviction’’ and to insure the public safety by preventing

the commission of offenses through the deterrent influ-

ence of the sentences authorized .. .’? (PL $125.27).

If the State does not impose necessary penal sanctions

against persons who commit crimes in prisons, the State

violates the constitutional rights of the other prisoners

in the prison system. In the case of a ‘‘lifer” who commits

murder the necessary penal sanction is death.

G. CONSTITUTIONAL AS APPLIED TO

LEMUEL SMITH

Death is an appropriate penalty in any instance in

which a life is taken provided aggravating factors out-

weigh relevant mitigating factors. Applying the most

stringent of tests (even though it does not apply in the

instant case), Lemuel Smith merits the death penalty.

1. THE MURDER OF DONNA PAYANT

At the time of the instant crime, the defendant was

incarcerated under five 25 year to life sentences. His vic-

tim, Donna Payant, was a correction officer..* On May 15,

16 In enacting a death penalty statute, the New York Legisla-

ture made it applicable in only three instances: 1) the victim was

a police officer; 2) the victim was a correction officer; 3) the de-

fendant was serving 15 to life or more. While the first two pro-

visions were stricken by the Court of Appeals (People v. Davis,

supra), the legislative considerations and intent are important. The

defendant, a ‘‘lifer’’ murdered Donna Payant, a correction of-

ficer thus coming under two categories out of three which the

Legislature determined warranted the death penalty.

1981, the defendant lured the victim into the Chaplain’s

complex and there viciously and sadistically, beat, stran-

gled, bit and assaulted her causing her death. After tying

her body, he placed it in plastic bags and threw it into

trash dumpsters.

2. THE DEFENDANT’S PRIOR CRIMINAL HISTORY

a) DOROTHY WATERSTREET

On January 21, 1958, Dorothy Waterstreet was robbed

and kicked and stomped repeatedly in the head. The

victim was a neighbor of the defendant who died on the

street near her home. The defendant was 17 years old

at the time of the murder and though a suspect was never

charged; he later admitted the crime.

b) EDNA JOHNSON (Robbery with a deadly

weapon, Assault to murder)

On July 30, 1958 the defendant accosted his victim at

her place of employment in Baltimore, Maryland, tied her

hands and feet and beat her about the face with a metal

pipe. The victim suffered a double compound fracture

of the head which required six and one-half hours of

surgery and injuries to her face and nose which required

plastic surgery. The victim’s life was saved when a custo-

mer entered the store and defendant fled. The defendant

was sentenced to 10-20 years and was paroled November

25, 1968.

c) CAROL FERRUCCI (Kidnapping, robbery,

attempted rape, assault)

On May 19, 1969, the defendant armed with a knife, ab-

ducted the 23 year old woman at her car at about noon.

He forced her to drive to a park, put her in the back

seat, tied her hands and feet, put kleenix and a handker-

chief in her mouth, slapped her face, took currency and

rings, tore her clothes and attempted to rape her. She

was spared when a car horn blew and the defendant got

into the front seat and attempted to drive away. Instead,

he backed the car into a tree and the victim managed to

open the back door and escape. The defendant fled.

d) ANN PAIGE (Kidnapping, rape, sodomy)

On May 19, 1969, at about 2:10 p.m., the defendant went

to the home of Mrs. Paige, a friend of the family, grabbed

her around the neck and displayed a knife. He tied her

hands behind her with rawhide, forced her to her car,

tied her feet with rawhide, then drove her to his parents’

house in Saratoga, New York. Upon arriving, the de-

fendant raped her, tied her to a bed with a towel around

her mouth to keep her quiet, then left. Upon his return,

he untied her then tied her again using tape. He then

put lit cigarettes out on her breast and neck, punched her

twice in the face and forced her to perform acts of both

oral and anal sodomy. The victim obtained her release by

promising not to tell what had happened. She drove back

to Schenectady and the defendant got out of the car at

about 8:00 p.m. The defendant was sentenced to two con-

current 4-15 year sentences consecutive to the Maryland

sentences (plea covered Ferucci and Paige charges). The

defendant was paroled October 5, 1976.

e) MARGARET BYRON AND ROBERT HEDDER-

MAN (Murder, Robbery)

On November 24, 1976, the defendant accosted the victims

in the religious book store they operated. The victims

were robbed, tied, tortured and repeatedly stabbed. The

throats of both were slit. The defendant was sentenced to

25 vears to life two terms concurrent and two to be served

consecutively and 1214 to 25 years to be served con-

eurrently.””

‘* Judgment affirmed, People v. Smith, 59 NY 2d 156, 464 NYS

2d 399, 451 NE 2d 157 (1983) ; see also People v. Smith, 77 AD2d

712, 430 NYS 2d 713 (1980) lv den 51 NY2d 776.

f) JOAN RICHBURG (Murder, rape)

On December 23, 1976, the 24 year old victim was

abducted at her car, tied, her scarf stuffed in her throat

(which caused her death by asphyxiation), beaten about

the face and raped. There were ligature marks on her

neck, her throat was slit from ear to ear and her body was

sexually mutilated. The charges were dismissed because

no effective punishment was available.

g) MARILEE WILSON (Murder)

On July 21, 1977, the defendant abducted the victim,

tied, strangled (she died of ligature strangulation), beat

(face) and crushed (chest) her. Teeth marks and

cigarette burns were found on the victim’s nose. Sticks

were rammed into the various orifices causing massive

internal damage and the body was sexually mutilated. The

charges were dismissed because no further punishment was

possible. ?

h) MARYANN MAGGIO (Kidnapping, robbery,

rape, sodomy )

On August 19, 1977, the defendant armed with a starter’s

pistol abducted the 18 year old victim from her place of

employment and robbed her. He then forced the victim

to drive him to his parents’ house in Saratoga. There he

tied the victim, punched her in the stomach, slapped her

face, forced her to commit oral sodomy, raped her, com-

mitted anal sodomy upon her and raped her again. He

then forced her to drive back toward Schenectady and on

the way the vehicle was stopped by the police.

The defendant was sentenced to concurrent 25 years to

life sentences as a persistent felony offender to be served

consecutive to any other sentences (Schenectady Co.).**

He was sentenced to 10-20 years (Saratoga Co.).”

18 Affirmed People v. Smith, supra.

*® Affirmed People v. Smith, 81 AD 2d 1046 (3 Dept 1981).

3. CULPABILITY OF DEFENDANT

The defendant was the actual prepetrator” of the instant

intentional murder as well as six previous intenticnal

murders.

4. AGE OF THE DEFENDANT

The defendant was 39 years of age at the time of the

instant crime. He committed his first murder at the age

of 17 and between the two, committed five additional

murders.

5. MENTAL CONDITION OF THE DEFENDANT

The defendant did not present any defense or any evi-

dence of insanity or extreme emotional disturbance (see

People v. Casassa, supra). In fact, counsel specifically

stated that he did not want a downcharge to manslaughter

(5979-80) .**

On two prior occasions (Maggio and Byron/Hedderman)

the defendant raised the defense of insanity and in each

instance the defendant was convicted and the conviction

affirmed. Prosecution witnesses testified that the defend-

ant had an antisocial personality.

6. ALCOHOL AND DRUG INVOLVEMENT

There is no evidence of the presence of alcohol or drugs

in this or any of the other criminal activity of the de-

fendant.

7° No view of the evidence would support only a lesser offense

and the defendant, through counsel, stated that he wanted no such

charge (Compare: Beck v. Alabama, 447 US 625, 65 LEd 2d

392, 100 SCt 2382 [1980]).

#1 Which would be appropriate in the case of extreme emotional

disturbance.

7. PROGNOSIS

Both times the defendant was released after extended

periods of incarceration he committed violent crimes. Now,

with no prospect for release, he has commtted murder in

prison.

The defendant was paroled November 25, 1968 and on

May 19, 1968 kidnapped and sexually assaulted two women

in separate incidents. He was paroled on October 5, 1976,

and by December 23, 1976 had brutally murdered three

people. Within a year of his release he had brutally

murdered four people and kidnapped and sexually as-

saulted another. The defendant’s first life sentence was

affirmed by the Appellate Division in July 1980 and leave

to appeal to the Court of Appeals denied September 15,

1980. With no prospect of release, exactly eight months

later, May 15, 1981, he murdered Donna Payant.

8 CONCLUSION

There are ne possible relevant mitigating circumstances

which could outweigh the aggravating circumstances.

Lemuel Smith was properly sentenced to death.

Conclusion

The New York statute mandating the imposition of the

death penalty upon a defendant then serving a sentence of

at least fifteen years to life who is convicted of the inten-

tional unmitigated murder of another is constitutional.

The instant petition for a writ of certiorari to the New

York Court of Appeals should be granted.

Respectfully submitted,

B. AntHony Morosco

Counsel to Witt1am EK. Stanton

Special District Attorney

Dutchess County

Office and P.O. Address

99 Court Street

White Plains, New York 10601

(914) 997-9666

RicHuarp ScHIsLER

JANET CUNARD

Of Counsel

STATE OF NEW YORK

COURT OF APPEALS

—_—— ee SS er ates *

SupC No. 235

THE PEOPLE &C.,

Respondent

bit OPINION

LEMUEL SMITH, This Opinion is

Appellant. uncorrected and

subject to

revision before

publication

in the New York

Reports.

(235) William M. Kunstler, Mark B.

Gombiner, & C., Vernon Mason, NYC,

for appellant.

William E. Stanton, Special District

Attorney, Dutchess County (B. Anthony

Morosco & Richard Schisler of counsel)

for respondent.

Robert Abrams, Attorney (Michaei S.

Buskus, Peter H. Schiff, & Peter J.

Dooley of counsel) pro se.

Jonathan E. Gradess, Albany, for NYS

Defenders Assn. & Mitchell E. Karlan &

John H. Hall, NYC, for NAACP Legal Fund

et al., amicus curiae.

KAYE, J.

After a jury trial, defendant

was convicted of murder in the first de-

gree and sentenced to death. This direct

appeal as of right by defendant (Const.,

Art VI, §3, subd 6; CPL 450.70, subd 1),

the lone resident of New York's death

row, presents three questions:

(1) whether the evidence was sufficient

to prove his guilt beyond a reasonable

doubt; (2) whether alleged trial errors

deprived him of a fair trial; and_ (3)

whether state's mandatory death sentence

(Penal Law, §60.06) for one convicted of

murder while "confined in a state cor-

rectional institution . . . upon a sen-~

tence for an indeterminate term the

minimum of which was at least fifteen

years and the maximum of which was natu-

ral life" (Penal Law §125.27, subd l,

par (a), subpar (iii)) is constitutional.

We conclude that the evidence was suffi-

cient to prove defendant's guilt beyond

a reasonable doubt and that the court

below committed no reversible error in

eS ee

the conduct of the proceedings. We

also conclude, however, that New York's

mandatory death penalty law is uncon-

stitutional. For these reasons we

modify the judgment by vacating the

sentence of death, reducing the convic-

tion to murder in the second degree,

and remitting the case to the Supreme

Court, Dutchess County for resentencing

and, as so modified, we affirm the judg-

ment.

In May 1981, Donna Payant was

employed as a corrections officer at the

Green Haven Correctional Facility in

Stormville, New York, where defendant

was serving an indeterminate sentence

of 25 years to life. Some time after

1pefendant was actually given three con-

secutive sentences of 25 years to life,

but they were imposed under §70.30 of

the Penal Law as it existed before the

1978 amendment (L 1978, c. 481, § 24),

reporting for work on the afternoon of

May 15, 1981, Payant disappeared. Her

body was discovered the next morning at

a landfill in Amenia, New York, when re-

fuse from Green Haven was dumped and

examined. An autopsy revealed that she

had died of ligature strangulation.

Three weeks later, an informa-

tion was filed in Beekman Town Court ac-

cusing defendant of Payant's murder and

charging him with violation of section

235.27 of the Penal Law, a felony which

mandates a sentence of death upon con-

viction. The Dutchess County Grand Jury

indicted defendant in October 1931. Be-

cause of a potential conflict involving

the Dutchess County District Attorney's

office, a Special District Attorney was

and therefore merged into a single 25-

year-to-life term.

appointed by the court, and at a later

date defendant's present counsel was

appointed pursuant to County Law arti-

cle 18-B. Defendant's pretrial motions

to dismiss the indictment, for refusal

of the trial judge, and for a change of

venue were denied.

Defendant's trial commenced

in January 1983. On April 21, 1983,

after three days' deliberation, the

jury returned a verdict of guilty.

Defendant's motion to set aside that

verdict was denied, and on June 10,

1983 he was sentenced to death. This

appeal followed.

The People's case consisted of

circumstantial evidence showing that

Payant's known movements at Green Haven

on May 15, 1981 brought her to an area

near the Catholic Chaplain's office,

where defendant worked that day, that

Payant and defendant had previously

spoken, that Payant and defendant were

observed entering the Catholic Chap-

lain's office together on the day of

her disappearance, and that defendant

had access to a room (the library of

the Chaplain's office) to which he

could have lured Payant and killed her

in relative seclusion, to materials

(cord, plastic bags and masking tape)

similar to those with which she was

killed and her body was wrapped, and to

vehicles (a large waste drum, a cart for

moving refuse, and trash dumpsters) for

disposal of her body. The People also

introduced testimony of an inculpatory

admission defendant made to a fellow in-

mate approximately one year after

Payant's death, ana expert testimony

that a pre-mortem wound on Payant's

chest was a bite mark made by defendant.

Defendant at trial showed

that several corrections officers had

made prior statements that Payant had

been seen at various points of the in-

Stitution on May 15 after the aileged

time of her murder, and that the in-

vestigation of Payant's death had pro-

duced no evidence -- save the bite

mark -- connecting defendant to Payant's

murder. The defense introduced its own

expert testimony to show that the mark

On Payant's body could not be attributed

to defendant, and indeed that it was not

even a bite mark.

As discussed in the ensuing

sections, we conclude that defendant's

guilt was established beyond a reason-

able doubt, that there was no reversible

error in the conduct of the trial, and

that the mandatory death penalty statute

is unconstitutional.

On this appeal from a judgment

of death, the New York Constitution em-

powers us to review the facts (NY Const,

art VI, §§ 3, 5). The scope of our in-

quiry has been defined in People v.

Davis (43 NY2d 17, 36, cert denied

435 uS 998) and People v. Crum (272 NY

348, 350) °

A review of the facts means that

we shall examine the evidence to

determine whether in our judgment it

has been sufficient to make out a

case of murder beyond a reasonable

doubt. We are obliged to weigh the

evidence and form a conclusion as to

the facts. It is not sufficient, as

in most of the cases with us, to find

evidence which presents a question of

fact; it is necessary to go further

before we can affirm a conviction and

find that the evidence is of such

weight and credibility as to convince

us that the jury was justified in

finding the defendant guilty beyond

a reasonable doubt.

Even in a capital case, however, "this

court should not readily interfere with

verdicts of jurors who have had the ad-

vantage of seeing and hearing witness-

es." (People v Crum, 272 NY 348, 357,

supra.)

The People's theory is that

defendant killed Payant in the early

afternoon of May 15, 1981 inside the

Catholic Chaplain's office complex,

wrapped her body in plastic bags, placed

the body in a 55-gallon waste drum, and

dumped it into a dumpster maintained for

the disposal of trash, from which it was

collected and later discovered. Upon

our review of the record, we conclude

that the evidence supported this theory

and was sufficient to make out a case

of murder beyond a reasonable doubt.

The evidence which in our view justified

the jury in finding defendant guilty may

be summarized as follows.

Donna Payant began her career

at Green Haven some two months before

10a

her death. She had spoken with defend-

ant on at least two occasions prior to

the date of her disappearance: once

when she told him she admired a reli-

gious article he had crafted and he in

turn told her that he worked in the

Chaplain's office, and a second time

when they spoke in an area of Green

Haven's hospital corridor, near the

Chaplain's office, on May 12, 1981.

(A diagram of Green Haven is annexed

to this Opinion.)

On May 15, Payant was sched-

uled to work the 1:00 to 9:00 p.m. shift

and reported to a line-up to receive her

assignments. Her assignments that day

were to patrol the A/B yard area, then

to escort two companies of inmates from

D block to the mess hall for dinner and

back, lock those inmates in and conduct

a count, and finally to report to the

lla

mess hall area at 6:00 p.m. Payant,

along with officers Claude King and

Barbara Hinson, after line-up went into

the officers' mess, where she purchased

a soft drink, then proceeded back to the

westside corridor and headed south to-

ward their assignments. The telephone

in the westside corridor rang and Offi-

cer Hinson answered it. The caller ask-

ed for Payant and Hinson called her to

the telephone. Payant was on the tele-

phone briefly and was overheard saying

"what," "who," "yes," and "okay." After

hanging up the telephone, Payant told

King there was a problem she had to

straighten out and that she would be

right back, and she headed back down the

westside corridor.

Payant passed both the west-

Side control station in the hospital

corridor, heading east, at about 1:00

12a

p.m. That direction would lead to the

Chaplain's office complex at the other

side of the hospital corridor -- an

area where defendant worked and had

been seen that day.

Defendant was a clerk to the

Catholic Chaplain. His duties included

cleaning the Chaplain's office complex

and emptying the garbage collected

there. He also worked in Green Haven's

package room where, once again, his

duties included cleaning the area and

transporting and dumping the garbage.

On May 15, 1981 the Catholic

Chaplain was away from the institution

on military leave. When defendant ar-

rived for work there at 8:30 a.m. the

officer in the hospital corridor, as he

had done before, let him through the

control gates and into the Chaplain's

office. After returning to his cell for

a count, defendant came back to the

Chaplain's office, which was opened

for him again at 12:30 p.m. Defendant

was observed by ccrrections officers

in the hospital corridor area near the

Chaplain's office at or about 1:00 p.m.,

and around that same time another inmate

(Teddy Goodman) saw defendant and Payant

enter the Chaplain's office complex and

walk down an enclosed corridor to the

rear room, the Chapiain's library.

Although defendant elicited

testimony from several corrections of-

ficers that they had, at various stages

of the investigation, previously given

statements that Payant was seen else-

where in the institution on May 15,

1981 after 1:00 p.m., none of the wit-

nesses testifying at trial could recall

with certainty seeing her alive after

1:00 p.m.

l4a

Some time after 1:00 p.m., an

inmate knocked at the outer door to the

Chaplain's office complex after iiearing

loud noises from inside. Defendant

appeared from the rear office and, in

a "nasty" manner, told the inmate to go

away. That inmate later met a correc-

tions officer in the hospital corridor,

and the two of them proceeded back to

the Chaplain's office to make phone

calls. When no one answered their

knock, they kicked the Chaplain's office

outer door and it opened, a piece of

cardboard falling out of the door. Once

inside the complex, the corrections

officer and another inmate who arrived

shortly afterward noticed that the

office was in disorder. The 55-gallon

waste drum usually maintained in the

outer alcove had been moved to the

Chaplain's library, was about two-thirds

15a

full, and had boards placed over its

top.

Defendant returned to the

Chaplain's office with a plastic object

under his arm, and went into the rear

room. He told the corrections officer

he had to empty some garbage, and left

with the 55-gallon drum, returning some

minutes later. Defendant was observed

by officers in the hospital corridor and

the gate corridor dumpster area trans-

porting large waste drums on a cart. The

officers did not check the drums, which

one officer observed to be filled to

about nine inches from the top. The cor-

rections officer and the other inmate

left the Chaplain's office about 2:45

p.m., while defendant remained at the

package room to empty the garbage, al-

though defendant usually emptied the

garbage there in the morning. *This also

l6a

was the first time the package roo:

officer could remember that defendant

brought the Chaplain's office waste

cart with him. The last sighting of

defendant that afternoon was near the

A blcck foyer around 3:25 p.m., when he

asked a corrections captain to return

a cart to the administration corridor

or accompany him while he did so.

Although Payant never showed

up for her assignments on May 15, her

absence was not reported until approxi-

mately 6:00 p.m. Subsequent telephone

calls and searches by corrections offi-

cers failed to locate her. At about

8:00 p.m., the inmates were locked in

their cells.

The state police were contact-

ed, and that evening a state police

bloodhound unit arrived. The bloodhound

was given Payant's scent and began his

17a

trail at the westside corridor tele-

phone where Payant received her call.

On the first trail, the dog went from

there up the westside corridor to D

block, back down that corridor to A

block, across the administration corri-

dor, and up the eastside corridor. The

dog paused and became visibly excited

near an alcove in H block, then con-

tinued up the eastside corridor, out

through the truck gates, back into the

corridor, and up to the industry build-

ing, where he again became excited at

an area on the second floor. The trail

ended at the east side of the industry

building. On the second and third

trails, the dog took basically the same

route, deviating only at one point to

go into the A/B yard. After the dog

completed his trails, he was led through

the hospital corridor but exhibited no

18a

excitement, even though Payant unques-

tionably was in the hospital corridor

on at least two occasions that day. The

dog was not taken through the Chaplain's

office.

The institution's dumpsters

also were searched that evening. Two

corrections officers climbed inside some

of the dumpsters and tried to examine

the refuse. One officer saw some plas-

tic bags in the gate corridor dumpster,

but could not get at them. In the

early morning on May 16, the institu-

tion's garbage truck was brought in,

and the dumpsters at industry, the gate

corridor, the mess hall and the admini-

stration corridor were emptied into the

truck and compacted, while corrections

officers shone their flashlights onto

the garbage. The search failed to turn

up Payant's body. Later that morning,

19a

Green Haven's civilian garbage truck

Operator, accompanied by two correc-

tions officers, took the truckload of

garbage to a dump in Amenia, where the

garbage was spread out and examined

with the aid of a bulldozer. At that

time Payant's body was found encased

in three plastic bags, her hands tied

behind her back, her clothes in dis-

array, and a cord tied around her neck.

The location of the body led the truck

Operator to believe that it entered the

truck via the industry or the first two

gate corridor dumpsters.

Plastic bags and cord were

present in the package room, and the

cords in the venetian blinds of the

Chaplain's office had recently been

replaced by defendant and others. The

plastic bags had been taped together by

masking tape. Masking tape was kept in

20a

the Chaplain's office.

Payant's indentification card

and badge were found in a utility closet

near H block on May 18. An examination

of those items yielded insufficient

fingerprints for any identification.

Hairs were found near the door to the

rear room -- the library -- of the

Catholic Chaplain's complex, and also

in the closet of that room. Examination

showed those hairs to be microscopically

Similar to samples of Payant's hair, but

it was not possible to make a positive

identification. In addition, hairs were

found in the belt buckle area and in the

bra on Payant's body. Those hairs were

found to be microscopically similar to

defendant's hair, although again a posi-

tive identitioeeen could not be made.

Several stains in the Chaplain's office

tested for blood were negative. Some

2la

scrapings from the office did reveal

blood, but there was not sufficient

quantity to determine its source or age.

Dusting of the offive and the 55-gallon

drum for fingerprints produced nothing.

The plastic bags, cord and tape found

with the body of Donna Payant were also

examined. While one plastic bag was

Similar to bags taken from Green Haven,

the others were not. Although all

eleven pieces of masking tape used on

the bags were determined to be from the

same roll, the ends of that tape could

not be matched to the end of the roll of

masking tape found in the Chaplain's

office, which was of similar width. No

fingerprints were found on the tape. The

cord on the body did not match the cord

removed from the Chaplain's office

venetian blinds on May 27, 1981.

The first autopsy on Payant's

22a

body was performed during the evening

of May 16, revealing multiple injuries

both before and after death. The pre-

mortem injuries included injuries to

the face and head which could have

rendered her unconscious instantly,

injuries caused by the cord around her

neck and hands, and certain injuries

on her chest, including a curvilinear

erosion on the upper right portion and

amputation of both nipples. The post-

mortem injuries were consistent with

the compacting and bulldozing of the

garbage. The pathologist testified

that his findings were consistent with

the theory of the murder posited by the

People.

A second autopsy was performed

on May 19, 1981 by a pathologist who

also reviewed photos taken at the first

autopsy. He concluded that Payant had

3 Pe mere oir oy Mey

23a

died of strangulation. Most of Payant's

pre-mortem injuries were found to be

internal, which would not produce much

external bleeding, including trauma to

the head that could have caused rapid

loss of consciousness. The pathologist

was of the opinion that the amputation

of the nipples was caused by a human bite

and that the mark on the upper right

chest, which occurred shortly before

death, could have been a human bite

mark. For this reason, he contacted a

forensic odontologist. Because of the

perceived importance of the wound on

Payant's upper right chest, an expert

photogrammatrist was employed to re-

produce photographs of that area of her

body in life-size. These and other

materials subsequently were examined by

several forensic odontologists retained

by the People and by the defense.

24a

The bite mark evidence was

highly significant: if the curvilinear

erosion on Payant's upper right chest

was defendant's bite mark there was no

innocent explanation for its presence

there. The People produced four foren-

sic odontologists (Drs. Homer Campbell,

Arthur Goldman, Lowell Levine and Neil

Riesner) who testified that the mark was

a bite mark made by defendant. The

prosecution's expert witness used two

methods of identification. First, they

compared a stone model of defendant's

teeth, as well as impressions made in

aluwax from the model, with the life-

sized photograph of Payant's chest,

identifying by. visual observation in-

dividual characteristics of defendant's

teeth such as shape of the arch and

tooth shape, spacing and rotation, upon

which their opinions were based. Second,

25a

the prosecution experts made photo-to-

photo comparisons of the Payant mark and

a bite mark known to have been made by

defendant on human tissue four years

earlier. The expert witnesses for the

defense -- three forensic odontologists

(Drs. Haskel Askins, Lester Luntz and

Irvin Sopher) -- were of the opinion

that the mark was not defendant's bite

mark, and indeed was not a bite mark at

all. Their opinions were in large part

based on a different technique involving

the production of transparencies, made

from a model of appellant's teeth, which

were laid over the photograph of the

mark on Payant's body. Although the

defense technique was portrayed as a

controlled method by which the results

could be objectively evaluated, in

fact the experts acknowledged that steps

in the production of the transparencies

26a

were subject to human variations and

that, whichever technique was used,

there was no completely objective method

of identifying a bite mark. The methods

used all depended in part upon expert

judgments to establish relationships be-

tween teeth and marks.

Finally, the Peopie introduced

the testimony of an inmate (Robert

DiBona) who was housed in the same unit

as defendant. That inmate testified

that on May 16, 1982, approximately one

year after Payant's death and after de-

fendant had been charged with her murder,

he and appellant were speaking when

defendant, who seemed to be in a very

emotional state, “blurted out * * *

that he was being driven and he couldn't

help himself, that he had to do what he

had to do," and that “he shouldn't never

have made the phone call, that he deserv-

27a

ed to die." The inmate believed that

the reference to the phone call related

to defendant's case.

The theory posited by the

defense both at trial and on appeal is

that Payant was murdered as part of a

conspiracy among unknown corrections

officers, who lured her to the eastside

corridor area of the institution by

the telephone call, murdered her in the

H block or industry area, and placed her

body in the Green Haven dump truck while

it was temporarily abandoned. This

theory, which defendant concedes is

"bizarre," takes Payant far from her

assigned area, and means that both

Payant's murder and the hiding and dis-

posal of her body occurred in relatively

open areas to which many people had ac-

cess. This would have required a truly

substantial conspiracy, which had no

28a

basis in the proof at trial.

The evidence linked defendant

to the bite mark on Payant's body. The

remaining circumstantial evidence esta-

blished that defendant had both the Op-

portunity, and access to the materials,

for killing Payant and disposing of her

body. We therefore conclude that the

evidence was of such weight and credi-

bility as to convince us that the jury

was justified in finding defendant

guilty beyond a reasonable doubt.

The various errors in the pro-

ceedings charged by defendant are with-

out merit:

The Bite Mark Evidence

Defendant's major point in

Support of his request for a new trial

concerns the admissibility of a photo-

graph of a bite mark allegedly made by

29a

him in August 1977 on the nose of

another victim, Marilee Wilson. In its

presentation of the case the prosecution

Originally set out to identify the bite

mark on Donna Payant's body by comparing

a stone model of defendant's teeth to

a photograph of the mark on Donna Pay-

ant's body. However, Dr. Campbell, a

prosecution expert, testified on cross-

examination that, for purposes of iden-

tifying bite marks, human skin was the

ideal material in which to takebite mark

impressions. The prosecutor argued that

in light of that testimony the People

should be permitted to introduce the

Wilson photograph for comparison of a

bite mark by defendant in human skin

with the Payant photograph. The court

thereafter conducted a hearing out of

the Jury's presence to determine (1)

whether there existed an independent

30a

basis for concluding that defendant was

responsible for the Wilson bite mark and

(2) whether such a photographic com-

parison of bite marks was scientifically

acceptable, and it held that a black and

white photograph of the Wilson bite

mark, redacted so as to show little more

than the mark itself, could be admitted

and a comparison made to the Payant

photograph.

Defendant argues that the

evidence should have been excluded for

three reasons. First, he claims that

his alleged confession to the Wilson

homicide either was not ~ade or was ob-

tained in violation of his constitution-

al right. If so, the only remaining

evidence of his commission of the Wilson

murder would have been the expert's com-

parison of the stone cast of his teeth

to the photo of the bite mark. Such

3la

evidence, defendant maintains, would

suffer from the same flaw as comparison

of the stone model of his teeth to

Payant's photograph, and thus could not

be admitted to corroborate that compari-

son. Second, defendant contends that

the Wilson photograph was inadmissible

because a photo-to-photo comparison is

not a generally accepted scientific

procedure for identifying bite marks.

Third, defendant urges that even if the

evidence were otherwise admissible, it

should have been excluded because the

danger of unfair practice outweighed

its probative value.

At the hearing conducted to

determine the admissibility of the

Wilson bite mark photograph, State

Police Investigator William Barnes

testified that on August 22, 1977, he

met with defendant and his attorney,

32a

Sanford Rosenblum, to administer a

polygraph test regarding the Wilson

homicide. Barnes said he brought

defendant to the polygraph room, recited

the Miranda warnings, and conducted a

four and one-half hour interview during

which defendant confessed to the Wilson

homicide but then refused to take the

polygraph test. Throughout the inter-

view Rosenblum sat in an adjacent room

where he could see but not hear the

interview. Barnes denied agreeing with

Rosenblum that any statement defendant

made would not be used against him,

nor did he ever hear of any such agree-

ment. Rosenblum's testimony contra-

dicted Barnes. Rosenblum said he ar-

ranged the polygraph examination but had

an oral understanding with Barnes that

defendant's statement would be limited

to other charges arising out of a kid-

33a

napping and sexual assault on Mary Ann

Maggio. Rosenblum testified he did not

hear the Miranda rights administered,

but could not hear the interview clearly

because of static in the speaker system,

and was told at the end of the inter-

view that a polygraph test was not given

because the length of time Barnes spent

with defendant would have rendered any

result suspect.

Supported by a full explana-

tion of its reasoning, the court found

Barnes' testimony credible and ruled

that the People had sown by independent

evidence that defendant was responsible

for the murder of Marilee Wilson as

well as the bite mark found on her body.

Defendant now argues that

even if the confession was made, it was

obtained in violation of his constitu-

tional rights. Specifically, he claims

34a

that the interrogation violated the

Sixth Amendment right to the presence

of counsel, the Fifth Amendment privi-

lege against self-incrimination which

could only be waived knowingly and vol-

untarily, the Station Constitutional

prohibition of uncounseled waivers of

the right to counsel, and the due pro-

cess right to demand compliance with the

terms of the agreement concerning the

polygraph test.

Defendant's arguments assume

that Rosenblum's testimony must be

credited and Barnes' rejected. Having

reviewed the testimony, we find no rea-

son to disturb the conclusion of the

trial court that Barnes was a credible

witness. With the added benefit of

having observee@ both witnesses as they

testified, the trial court was justified

in concluding that Rosenblum's testimony

35a

may have been affected by personal con-

cern about possible claims of inadequate

representation, and that the arrangement

as related by Barnes may well have been

thought to serve defendant's interests

at that time in establishing an insanity

defense (see People v Smith, 59 NY2d

156). Crediting Barnes’ testimony, it

is evident that defendant was deprived

of no constitutional rights. Appellant

waived his Miranda rights and no agree-

ment was breached because of the

questioning regarding the Marilee Wil-

son murder. Nor was there any violation

of defendant's right to counsel under

the New York State Constitution since

defense counsel agreed to the question-

ing outside of his immediate presence

and placed no limit on the scope of the

interview (cf People v Beam, 57 NY2d

241, 253-254; People v Yut Wai Tom, 53

36a

NY2d 44). Thus, the trial court pro-

perly found that there was independent

basis for concluding that defendant

was responsible for the Wilson bite

mark.

Similarly, there is no merit

in defendant's second argument: that

the technique of identification of the

Payant bite mark by a photo-to-photo

comparison with the Wilson bite mark

was not shown to have requisite scienti-

fic acceptability.

The chief expert witness for

the People, Dr. Levine, testified that

he could make a positive identification

by comparing a photograph of a bite mark

to a stone cast of teeth, but the best

2rhe testimony of the remaining experts,

both for the prosecution and for the

defense, was substantially similar to

that of Drs. Levine and Luntz, respec-

tively.

37a

means for identifying a bite mark would

be comparison with another bite mark

made in skin in similar circumstances.

According to Levine, photo comparison

of different bite marks on the same

victim is an accepted technique. Levine

testified that, though there has been

little occasion for comparison of bite

marks on different persons, among foren-

Sic odontologists such a procedure was

reliable and accepted, and he named

seven odontologists (there are 45 to

50 in the nation) who have recognized

it. Levine had himself used this

technique previously and on one occa-

Sion testified in court on the procedure.

For the defense, the principal expert

witness, Dr. Luntz testified that the

comparison of a 1977 photograph of a

bite mark on a nose with a 1981 photo-

graph of a bite mark on a chest was not

38a

generally accepted as a reliable tech-

nique for identifying the biter. He

noted differences in the elasticity of

skin and in skin properties depending on

the affected area of the body, and ob-

served that skin is not a good medium

for registering bite marks. Dr. Luntz

testified that photographs create dis-

tortions, but acknowledged that he had

relied on a photo-to-photo comparison

for purposes of excluding a suspect as

the biter.

The court overruled defend-

ant's objection to the evidence, reason-

ing that the photographic comparison was

admissible here, as buttressed by

identification through additional, more

conventional means, such as (1) the com-

parison of a 1977 stone cast of defend-

ant's teeth with a photograph of the

1977 Wilson bite mark, (2) the compari-

er eceeermeiemteeeiiaililieieieiaeaaimaaaiiiaall

39a

son of the 1977 cast with a cast of

defendant's teeth taken in 1981, and

(3) the comparison of the Payant

photograph with the 1981 stone cast

of defendant's teeth.

In People v Middleton (54 NY2d

42), this court recognized that identi-

fication of the perpetrator of a crime

through bite mark evidence had gained

general acceptance in the scientific

community. "The test is not whether a

particular procedure is unanimously in-

dorsed by the scientific community, but

whether it is generally acceptable as

reliable." (Id. at 49.) The techniques

employed in Middleton (photography,

freezing of tissue specimens, taking of

dental molds, visual observation) were

approved by the majority of experts in

the field as well as by appellate courts

and therefore were accepted as generally

40a

reliable without a hearing concerning

the scientific principles involved.

The need for comparison of

bite marks on different victims appar-

ently arises infrequently, and there are

no published standards governing the

process. Middleton specifically men-

tioned the use of photographs as a gene-

rally reliable technique in bite mark

identification. Moreover, this was not

a situation, like Middleton, where tech-

niques were accepted without a hearing.

Extensive examination and cross-examina-

tion of the experts centered on method-

Ology. The prosecution experts testi-

fied that the technique was reliable and

accepted by the scientific community.

The defense experts acknowledged the

reliability and acceptance of photo-

graphic comparisons for exclusion pur-

posed, and there was testimony esta-

4la

blishing the reliability of such com-

parisons for inclusion purposes when

bites appear on different parts of the

body of a single victim. Given the

acceptability of photographs for com-

parisons of bites on a single victim

and the other evidence, we conclude

that the process here was not signifi-

cantly different. Indeed, because of a

similarity in both the substance on

which the bite marks were imprinted and

the circumstances surrounding infliction

of the marks, a photographic comparison

could have a reliability not present

with other techniques. We therefore

agree that no error was committed in

permitting the photo-to-photo comparison.

Finally, the probative value

of the Wilson photograph outweighed its

potential for unfair prejudice and was

therefore properly admitted.

42a

Evidence of uncharged crimes,

though inadmissible to establish crimi-

nal propensity, is admissible if offered

for some other relevant purpose (People

v Allweiss, 43 NY2d 40, 46). One recog-

nized ground for admission is to prove

the defendant's identity, so long as

identity is not otherwise conclusively

established (People v Beam, 57 NY2d 241,

Supra; People v Condon, 26 NY2d 139).

"In final analysis the process is one of

balancing in which both the degree of

probativeness and the potential for

prejudice of the proffered evidence

must be weighed against each other"

(People v Ventimiglia, 52 NY2d 350,

359-360, supra).

The redaction of the Wilson

photograph was so complete that little

more than a jagged line representing

the teeth marks appears, and the parties

43a

were required, in the presence of the

jury, to refer to the exhibit only as

defendant's known bite mark in human

tissue. Based on our own examination

of the photograph, we find it highly

unlikely that the jury could have drawn

any conclusions about defendant's past

acts of violence. Similarly, while a

juror micht perhaps have speculated as

to the origin of the bite mark, the

redacted photograph as well as the

inocuous description were fully con-

sistent with noncriminality and certain-

ly conveyed none of the circumstances

Surrounding Marilee Wilson's brutal

murder, Thus, the danger of unfair pre-

judice, if not eliminated, was minimal.

In characterizing the proba-

tive value of the evidence as negligible,

defendant claims that the identification

of the bite mark on Donna Payant's body

44a

through a photographic comparison was

cumulative (see People v Ventimiglia,

52 NY2d 350, 360, supra; People v

Blanchard, 83 AD2d 905, 906). Prosecu-

tion experts did identify the mark on

Payant's body by comparing it with

models of defendant's teeth. But

defense experts vigorously disputed

this identification; moreover, testi-

mony was elicited by the defense to the

effect that human skin was an ideal

medium for bite mark identification.

In these circumstances, identifying the

bite mark through another procedure

cannot be dismissed as cumulative.

Defendant also argues that

the comparison of the photographs was

unnecessary because the prosecutor

could have applied for a court order

compelling defendant to bite into his

own skin. Without determining that a

45a

court order could have required defend-

ant to bite himself with the force

necessary to leave a mark like that

present on Payant's body, no error was

committed in not following that course.

The mark left by defendant, who would

have known both how this evidence was

to be used and the precise method of

infliction of the mark on Payant, could

properly be regarded as not representa-

tive.

In light of the limitations

placed on the prosecution's use of the

Wilson photograph and the probative

value in comparing the unknown Payant

mark to one known to have been made by

defendant in human tigsue, no error was

committed by the admission of that evi-

dence.

The DiBona Testimony

Defendant contends that rever-

seal

sal is appropriate because of a document

discovered after trial which allegedly

cast doubt on the testimony of the

prosecution witness DiBona. DiBona

testified that on May 16, 1982, during

a recreation period, defendant made

statements implicating himself in the

murder of Donna Payant.

At some point in the prosecu-

tion, the defense submitted the follow-

ing request for disclosure: "it would

be appreciated if you would send to my

attention Lemuel Smith's institutional

record and the daily log book while

Mr. Smith was housed in Cell Number 11."

In response to this request the Special

‘Prosecutor turned over excerpts from

the SHU (Special Housing Unit) logbook,

a detailed record of events such as meal

periods, prisoner visits and inmate

counts. The excerpts also reveal that

47a »

several recreation periods were con-

ducted throughout the day on May 16.

Two of these periods are reflected in

the following entries:

8:50 PC? back from red.

8:55 PC to rec (6 inmates)

9:50 PC back from rec.

After trial, defendant himself

obtained a "Chronological Report on

Inmates Assigned to Special Housing Unit

-- Downstate Correctional Facility."

This report covers defendant's activities

over a 24-day period and contains one

or more entries for each day. It re-

cords such events as church visits,

court appointments, showers and the

administration of medication. Though

the report does not disclose when de-

fendant went to recreation, it does in-

Supe, denoting "Protective Custody,"

refers to the inmates.

48a

dicate that he refused recreation ten

times on nine different days during the

. 24-day period. The three entries for

May 16 are:

9:30 AM Seen Father Licata

9:35 AM Med. from R.N.

2:20 PM Call out to visit #2

Sgt. R...

There is no indication that defendant

refused recreation on May 16.

Defendant moved, pursuant to

CPL 330.30, to set aside the verdict be-

cause of this "newly discovered evi-

dence. "* The report, according to de-

4In a noncapital case, "the power to

review a discretionary order denying a

motion to vacate judgment upon the

ground of ‘newly discovered evidence

ceases at the Appellate Division."

(People v Crimmins, 38 NY2d 407, 409.)

Even in a capital case, this court has

been most reluctant to substitute its

discretion "to overturn the lower

courts' exercise of discretion in deny-

ing a motion for a new trial upon the

ground of newly discovered evidence."

(Id. at 416.)

49a

fendant, demonstrated that he did not

visit the recreation yard on May 16 and

thus could not have made the statements

to DiBona. In reply, the People claimed

that there was no indication of a re-

quest for this document and, in any

event, the report failed to demonstrate

that DiBona and defendant were not in

the recreation yard at the same time.

The court denied the motion, finding the

evidence "ambiguous and of only specula-

tive value." On appeal, defendant con-

tends that the prosecutor breached his

duty to disclose exculpatory material.

The suppression of exculpatory

evidence in the face of a specific and

relevant defense request will seldom, if

ever, be excusable (United States v

' Agurs, 427 US 97; Brady v Maryland, 373

US 83; People v Cwilka, 46 NY2d 434).

However, where the defense makes only a

50a

general request, or none at all, the

failure to turn over obviously exculpa-

tory material violates due process only

if the omitted evidence creates a rea-

sonable doubt which did not otherwise

exist. (United States v Agurs, 427 US

97, 112, supra.)

It would be inappropriate to

apply the standard which obtains where

the prosecutor had notice of exactly

what the defense desired and suppressed

it. Since the request did not put the

prosecutor on notice that this specific

document existed, he could have reason-

ably concluded that the disclosure of

the SHU logbook satisfied the request.

The record is devoid of any indication

of prosecutorial bad faith or negligence.

Thus, applying the Agurs standard, a new

trial would be required only if the

material were obviously exculpatory and

5la

created a reasonable doubt not other-

wise existing, |

The report satisfies neither

requirement. Initially, it fails to

establish that defendant did not parti-

cipate in the recreation period between

8:55 a.m. and 9:50 a.m. because he could

have been called out of recreation to

meet with the priest. The discussion

between DiBona and defendant could have

occurred during one of the other recrea-

tion periods that day. Indeed, to the

extent the report sheds any light on

the question whether defendant went to

the recreation yard on May 16, the report

implies that he did, since -- unlike the

days when defendant refused recreation

-- there was no record of defendant's

refusal to attend recreation on May 16.

Accordingly, the trial court properly

denied this braneh of defendant's motion

52a

to vacate.

Additional Issues Supporting Request for

New Trial

The Unusual Incident Report:

Corrections Officer Eric Johnson, a

defense witness, testified that he was

assigned to the F and G corridor during

his 9:45 a.m. to 5:45 p.m. shift on

May 15, 1981. Three days after the mur-

der, on May 18, 1981, Johnson told po-

lice that on the day of the crime he ob-

served Payant*walking toward him shortly

after 2:00 p.m. However, on September

18, 1981, he signed a statement indica-

ting that this observation was made on

the same day he assisted an inmate in

setting a digital watch, an event which

occurred on May 8, 1981, a week before

the murder. In the midst of the prose-

cutor's summation, the defense obtained

from a third party a copy of an "unusual

53a

incident" report, containing the follow-

ing notation, "2:08 (a.m., May 16, 1981)

per conversation with Officer Johnson

-- he reported seeing Officer Payant in

F and G corridor at approximately 1:30

p.m." Counsel moved for a mistrial,

arguing that the jury would have been

much less likely to accept Johnson's

story about the mix-up in dates had it

been aware that a mere 12 hours after

the observation Johnson said he saw

Payant on the 15th. Any error in the

proescutor's nondisclosure of this report

was cured when the trial court interrup-

ted the People's summation, allowed de-

fense counsel to recall Johnson and

place this evidence before the jury, and

permitted him to address the jury on

this issue before the prosecutor resumed

his summation.

Recusal of the Trial Judge:

54a

Defendant next argues that the trial

judge should have recused himself for

three reasons: he appointed the prose-

cutor whose conduct with respect to the

submission of evidence to the Grand

Jury was being questioned; he had ex-

hibited hostility toward defense coun-

sel in denying several pretrial motions;

and he had been associated with the

Special District Attorney, when, as

District Attorney of Dutchess County,

he had hired the Special District Attor-

ney as an Assistant District Attorney.

These claims are unpersuasive. A trial

judge's impartiality is not undermined

merely by appointment of counsel for

one of the adversaries. Nor did the

court exhibit bias in ruling on defense

motions. To the contrary, the record

demonstrates that the court dealt with

defense requests in an evenhanded man-

55a

ner. Finally, the decision on a re-

cusal motion is generally a matter of

personal conscience. While it may have

been the better practice for the court

to insure that defense counsel was

aware of its previous relationship with

the Special District Attorney, the as-

sociation was not so substantial that

the court abused its discretion in pre-

Siding over the trial. (Compare

Corradino v Corradino, 48 NY2d 894;