Brief in Opposition to Petition for Writ of Certiorari — Ottawa Tribe v. United States

Cttrce Supreme Cort, Us.

KFIIL_ED

NOV 17 1964

i)

JOHN F. DAVIS, CLERK

IN THE

hija Court of the Anited Btates.

October Yorm, 1964

nw. 304... *

, . SAMUEL CARTHAN,

Petitioner,

-—against— |

SHERIFF, CITY OF NEW YORK,

Respondent.

‘BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI —_

Aaron E. Koora

Acting District Attorney.

Kings County.

aiiciaa for Respondent ,

Aaron E. Koora

Acting District Attorney

Of Counsel

IRVING P. SEIDMAN

Assistant District Attorney

On the Brief

a .

°e

Qi 320 Case Parss Inc., 421 Hudson St., N.Y.—ORegon 5-4540

TABLE OF CONTENTS

Statement .2.....2- eee e eee eter eee et oneae

Previous Proceedings .....--- wan aet cceereeess

Point [—An investigation by a Grand Jury involves

all the powers necessary to a complete inquiry ...

Porst 11—The Information requested by the Sub- ;

poena, Duces Tecum served upon this witness is

material and relevant to the Grand Jury’s investi-

gation into the alleged bribery and corruption of

the New York City Charter does not contravene

any of petitioner’s cognizable constitutional rights .

-PorNt V—Petitioner’s contention that his waiver of

immunity was exacted through duress of Section

1123 (formerly Section 903) of the New York City

Charter is without substance .....----- panneians |

CONCLUSION . 0.0 cece reece eterees POET OTE TTT Toy. ;

AUTHORITIES CITED °

. Citations |

Anonymous No. 14, 7 A.D, 2d 874 eS POE eT ET :

Anonymous No. 16 et al., 7 A.D. 24.874 ...2ccccees

Application of Inter-City Associates, 207 Mise. 1012

Application of Ryan, 281 App. Div. 953, app. dis.

306 N.Y. 1 SEAT ieee b babe asendse ehanghi hee

or

10

12 .

14

a om ©

6s

il

| Application of Second Additional Grand Jury, 234 -

ORES ac cvscscsscomupser esos testes 3

Application, of Slipyan, 208 Mise. 515, app. dis. 986

App. Div. 1001 .....-- 00+ cress ence sense" lots...

Application of Umbach, Okl., 350 Pac. 2d 299 ....-- 10

Barr v. Dolphin Holding Corp., 141 N.Y.S. 2d 908 . 6,7

Beilan v. Boara oi Education, 357 U. S. J are 11

Blair v. U.S., 250 U.S. 273 ....-- +s see errr errs: S-:

- Board of Trustees: v. O. D. Wilson Co.; 133 Fed. 2d

Be Sr i eee kane ear ses esate e eee eee ee sss 13

Cohen v. ,. Hurley, 366 U.S. 117, 125 ...------ praee we ie

Connecticut Importing Co. v. Continental Distilling:

- Corp., 1 F.R.D. 190 (D. Conn.) ...-----s++e000° 10

Deshong V. City of N.Y., 176 N.Y. 479, ec... ome

Elmer v. Byrd, 220 N.Y.S. Qd 985, aff’d ‘227 N.Y.S.

Oe ER... cucisecuacdenccusesdssnsnsebeness*** - 7,9

Garner v. Board of. Public Works, 341 U.S. 716 . 12

Gould v. Sullivan, 54 N Y.S. 2d 430, aff’d 269 App.

Div. 737 ....- sacennennsndyswessmngee enna ents s**

In re Ericson’s Will, 200 Misc. We - ketansecesss 6

In the Matter of the Brooklyn Bar Association, 19 M.

RR ran cia pins aeacagecay est terns erst F* 9

Matter of Edge Ho Holding Corporation, 256 N. 2 - .

ee idee omg earn 6

Matter of Goldway v. "Board of Higher —

178 Mine. 1023 .......--ccccececccesegioeseses® 10

Matter of Koval] v. Board of Education, 197 Mise. 221 ~=«+10

Matter of Lerner v. Casey, 357 U.S. 468 .....------ 11, 12-

Manning v.: Valente, 272 App. Div. -, aff'd 297

Oe OE casa caswneena mr teons > Hans 508550 ee" 6,8 -

-MeAuliffe v. New Bedford, 155 Mass. 216 SAS OP

Moore v. Delaney, 180 Mise. 844 ....---- eee reer 6

People v.’ Connelly, 253 N.Y. 330 -.....- thy Cee Te 8, 12

pe ad ex — Karlin Vv. Calkin; 248 N.Y.-465 .....-- 4)

PAGE _

- iil

PAGE

~ People ex rel. Sillifant v. Sheriff, 6.N NY. 2d 487 . 1, 8, 12

‘People v. Doe, 247 App- Div. 322, aff’d 272 N.Y. 473 a

People vy. Doe, 196 Wie, FOE... . cos civtes seuss ses -”,

People v. Stern, 3 N.Y. 2d 698 ...--- Saaveenn sauawe . 9

-Regan v. New York, 349 ope ee oeageneess 13

Slochower V. Board of Education, : 350 US. 501 . .- 10,11

Smith ‘v. Russo- Asiatic Bank, 170 Mise. 408 ..-.---- ee

~ Speetor v. Allen, QOUTAT. GAY os eps eenseeeseese” a

U.S. v. O’ Mara, 122 Fed: Supp. 399 ene ks havea 10

Ww ornicke v. Scheuer, 11 M. 2d eo aies ee 9

Staetuies. -

Charter of the City of. New York:- | re aes

Section PSE OEE TS TEL SS dal ole 10, 12, 13

| Internal Revenue Code, Title 26, ‘Section 6103 caaa as 9

New York State Code of Criminal Procedure: _

—— Seetion 619... +--+ noe AGN aguan ae ana see see -. ff

“New York State Constitution : . |

Article I, Section ape es Aen sor ew aan we

New York State Judiciary Law:

Section 750..-.+.eeererereee a haees lanes

New York State Tax Law, Section ee pieeee

M iscellaneous

Restatement of Law of Contracts: .

Section 493 .....6eee ee eeeetee aun eueees ore 13

Williston on ¢ ‘éntracts : .

vient Ed., Vol. V, pages 4497, A0'- ak ae |

IN THE

Supreme Court of the United States

October Term, 1964

No.

dé.

7

SAMUEL CARTHAN,

2 Petitioner,

—against—

Suerte, City or New York,

Respondent.

dy.

-

BRIEF IN OPPOSITION TO PETITION FOR

- WRIT OF CERTIORARI --

Statement ©

Petitioner seeks a writ of certiorari in order to review

a.judgment of the United States Court of Appeals for the

Second Circuit, entered on April 6, 1964 which judgment

unanimously affirmed an order of the United States Dis-

trict Court for the Eastern District of New York denying

the above-named petitioner’s petition for a writ of habeas

corpus. : }

Previous Proceedings

The Second Additional Grand Jury of the County of

Kings, for the September, 1961 Term, as extended, had

been conducting an investigation into the construction of

new homes in the Canarsie and Mill Basin areds of Kings

County. The Grand ‘Jury was seeking to determine.

whether the crimes of conspiracy, bribery, corruption, and

other crimes had been committed by certain builders, con-

tractors, and public officials.

_ The September, 1961 Grand Jury had been hearing

testimony and had subpoenaed the books and records of

builders, contractors, public agencies and public officials.

In addition, cettain employees of the Building Depart-

ment of the City of New York had. submitted completed

financial questionnaires to the Grand Jury, which reflected

‘their financial condition during the years of their employ-

ment. e

There was evidence before the Grand Jury that certain

one and two-family homes in the Canarsie and Mill Basin

areas of Kings County had been constructed in violation

of the Building Code of the City of. New York, and that

other crimes may have been committed in connection there-

with. All phases of such construction were subject to the

inspection and approval of certain employees of the Build-

- ing Department of the City of New York assigned to the

Brooklyn office.

Petitioner was and ix a plaster inspector employed by

the Building Department of the City of New York in Kings

County. Petitioner’s duties were to make inspection of

new home. construction to determine whether the require-

ments of the Building Code of the City of New York had

been complied with prior to the issuance of a Certificate

of Occupancy, by the Building Department. There was

evidence ‘before the Grand Jury that with respect to cer-

tain homes inspected by petitioner the Building Code re-

quirements concerning plastering had not been complied

with. Further, records, in the possession of the Grand

Jury, contained written notations of numerous alleged pay-

ments of monies to City inspectors of these homes,

Petitioner appeared before the Grand Jury on December

5, 1961, executed a Limited Waiver of Immunity, and tes-

tified. Thereafter, on February 26, 1962, petitioner sub-

mitted, at the request of the Grand Jury, financial ques-

tionnaires for the years 1959, 1960, and 1961. Subsequent-

ly, the Grand Jury issued a subpoena duces tecum to the

petitioner, directing him to produce copies of his Federal -

and State income tax returns for the years 1959, 1960, and

1961. :

On September 24, 1962, the petitioner appeared before

‘the Grand Jury in response to the subpoena duces tecum.

Petitioner refused to produce copies of his Federal and

State income tax returns for the years stated, contending

that the Grand Jury had no legal right to request their

production. ‘

Thereupon, the District Attorney of Kings County

moved in the Supreme Court of the State of New York,

Kings County, for an order directing petitioner to comply

with said subpoena. Said motion was granted by Mr. Jus-

tice Miles F. McDonald, who by an order dated November

5, 1962, directed the petitioner to appear before said Grand

Jury and comply with said subpoena by producing the .

aforesaid Federal and State income tax returns. (Applica-

tion of Second Additional Grand Jury, 234 N.Y.S. 2d 64.)

“Petitioner appeared before said Grand Jury on November

21, 1962, and again refused to comply with said subpoena

- and the direction contained in the order of Mr. Justice

Miles F. MeDonald, dated November 5, 1962.

a

4

Based upon appellant’s refusal to comply with the order

of Mr. Justice McDonald, dated November 5, 1962, the-

District Attorney ‘moved to punish appellant for criminal

contempt of court pursuant to Section 619 of the Code of

Criminal Procedure and Section 750 of the Judiciary Law.

Said matter came on before Mr. Justice McDonald in the

Supreme Court of the State of New York, Kings County, —

Criminal Term, Part I, on December 17, 1962. Mr. Justice

‘ McDonald again directed petitioner to comply with the di-

rection of the Court. Petitioner, then and there, wilfully

refused to comply with the order of said Court to produce

copies of his Federal and State income tax returns for the

years in question. Mr. Justice McDonald thereupon granted

the motion ‘adjudging petitioner in criminal contempt of

court. ° 7 : :

The order so adjudging petitioner in criminal contempt

- of court is the underlying subject of this appeal.

The ‘Appellate Division of the Supreme Court of . the

‘ State of New York, Second Judicial Department by an

order made and entered on March 18, 1963, unanimously —

affirmed without opinion the order of commitment adjudg-

ing petitioner to be in criminal contempt. :

Thereafter, on April 29, 1963, the Appellate Division of

.the Supreme Court of the State of New York, Second Judi-

cial Department, denied petitioner's application for leave

to appeal to the Court of Appeals of the State of New York

from the order of affirmance made and entered on March

18, 1963. |

On May 20, 1963, counsel for petitioner appeared before

Judge Stanley H. Fuld, an Associate Judge of the Court

8

of Appeals of the State of New York in his chambers, for

the purpose of seeking a stay pending the hearing and de- :

termination of the application for leave to appeal to the

_ Court of Appeals. After apprising Judge Fuld of the rele- .

vant facts, the District Attorney cdfisented that the order

below be stayed pending the hearing and determination of

the application for leave to appeal. The Court of Appeals

of the State of New York denied petitioner’s application

for leave to appeal on J uly 10, 1963. e

On November 20, 1963 petitioner’s application for a writ

- of habeas corpus was denied by Honorable Walter Bruch-

hausen, a Judge of the Federal District Court, Eastern

District of New York. oy es

The United States Court of Appeals for the Second Cir-

euit, by judgment entered on April 6, 1964, unanimously

affirmed the order of the District Court, denying the ap- °

plication for a writ of habeas corpus.

. POINT I

An investigation by a Grand Jury involves all the

powers necessary to a complete inquiry.

An investigation by a Grand Jury involves all the powers

necessary for & complete inquiry and includes the power

of compulsory process OF subpoena. People ex rel. Karlin

y. Culkin, 248 N.Y. 460. It has the widest latitude in the

exercise of its power: and in the absence of a clear consti-

tutional or legislative expression to the contrary, ‘such

powers may not be curtailed. People v. Stern, 3:-N.Y. 2d.

658. It has always had the power to subpoena all types of

relevant records. Its subpoenas have been held to be pre-

6 .

‘ sumptively valid, and they can only be challenged by an

affirmative showing of impropriety or bad faith. Matter of

Edge Ho Holding Corporation, 206 N.Y. 374; Manning v.

Valente, 272 App. Div. 358, Affirmed 297 N.Y. 681; Appli-

cation of Ryan, 281 App. Div. 953, Appeal dismissed 306

N.Y. 11 (Labor Union records held procurable) ; In re .

Ericson’s Will, 200 Misc. 1905 (hospital records held sub-

ject to subpoena); People v. Doe, 247 App. Div. 324, Af-

§rmed 272 N.Y. 473 (Bank accounts held subject to sub-

- poena); Application of Inter-City Associates, 207 Mise.

1012 (Corporate records held obtainable). Grand Juries

~ have the power to initiate full investigations on their own

motion into any area in which they suspect crime, and wit-

nesses cannot set limits to the inquiries that Grand Juries

may conduct. Blair v. U.S., 250 U.S. 273, 282.

The broad powers of a Grand Jury investigating corrup-

tion in public office should not be hampered and curtailed

by ultra-refined contentions.

POINT Il

The information requested by the subpoena duces

tecum served upon this witness is material and rele-

vant to the Grand Jury’s investigation into the alleged

bribery and corruption of certain City employees.

The issuance of a subpoena duces tecum by a Grand Jury |

is within its power and must be complied with by a witness

if the demand is not unduly burdensome and the documents

sought are in any way. relevant to the Grand Jury’s in-

quiry. Spector v. Allen, 981 N.Y. 251; Moore v. Delaney,

180 Mise. 844; Application of Slipyan, 208 Mise. 515, Ap-

peal dismissed 786 App. Div. 1091; Barr v. Dolphin Hold-

(_——

.

——

7

ing Corp.,.141 N.Y.S. 2d 906; Smith v. Russo-Asiatic Bank, F

170 Mise. 408; People v. Doe, 156 Misc. 304. .

The Grand Jury is not seeking the records of any official

agency, but merely the personal records of a witness. His

income tax returns ‘should’ be considered in the same light

as any other personal records. The demand that the wit-

ness submit copies of his Federal and State income tax |

returns to the Grand J ury can certainly be in no way op-

pressive nor create an undue burden,*since the witness has

testified under oath that he has such copies in his posses-

sion. Consequently, no hardship would be worked on the

witness sinte it will require no effort on his part to pro-

duce these documents. The courts have even directed the

person to obtain copies of his tax returns from the Govern-

ment when he had no such copies in his possession. , Elmer

v. Byrd, 220 N.YS. 2d 985, aff ‘d 227 N.Y.S. 2d 248.

Tlie Grand Jury desires to have these returns in order

-that they may be used in connection with financial question-

naires already submitted by the witness for the years in.

question and ‘in connection with his testimony concerning .

them. The propriety of requiring a witness to furnish the

Grand Jury with financial questionnaires has been estab-

lished in People ex rel. Sillifant v. Sheriff ;.6 N.Y. 2d 487.

The records sought are relevant to the Grand Jury’s inves--

tigation and. are necessary to give proper meaning to the

questionnaires in its possession. »

“The Grand Jury is an arm of the Court.. Its sub-

| poenas are presumptively valid and can only be chal-

~ lenged by an affirmative Showing of impropriety

_ . No witness may :tvoid obedience to the direc-

tions of the court without establishing by concrete

evidence that the subpoena was issued in bad faith

8 o

or that it is for some other reason invalid. These

rules inhere in the very nature of the grand jury’s

‘function and of its authority. (Citations omitted)

Nor may petitioner refuse to produce documents and

records under g subpoena Duces Tecurr unless he

can show that the documents are so unrelated to the

subject of inquiry as to make it obvious that their

production would be futile as an aid to the court.”’

Manning v. Valente, supra, p. 361. |

In an investigation into bribery, an historic avenue of

approach is an examination into the financial affairs of

the public servant. Evidence of possession of financial as-

sets or income in amounts not justified or accountable for

by salary and other legitimate origins is a pertinent source |

_ of inquiry ‘where the misconduct of a public officer is the

subject of the probe. People v. Connelly, 293 N.Y. 330, 340,

The witness has executed a limited waiver of immunity,

and consequently the documents sought are not subject to

the privilege of self-incrimination: There are no statutory

or other prohibitions against their produetion and no rea-

son why the subpoena of this Grand Jury is.in any way

‘improper. |

Needless to say, we do not suggest that either the Dis-

trict Attorney or the Grand Jury should be permitted to

sacrifice fundamental or constitutional rights of.a witness

| upon the altar of expediency or to simplify and ease @°

burderisome task of law enforcement authorities. But our

contention is that ccmpulsion here to produce these records

violates no fundamental or constitutional prerogative of

this witness before the Grand Jury, since he has chosen to

@ waive his constitutional privilege against self incrimina-

@ tions. People ex rel. Sillifant v. Sheriff, supra.

9

POINT Ill

Copies of income tax returns and other personal

financial records have been required to be produced

in legal proceedings. |

If the privilege against sélf-incrimination is inapplicable

to these records, or has been waived, then they can stand _

in no light different from any other type. of record, which

is subject to subpoena by a Grand Jury where relevant to

its investigation. In In the Matter of the Brooklyn Bar

Association; 19 M. 2d 491, ‘a subpoena duces tecum was

issued in connection with a judicial inquiry ordered by the

Appellate Division of the Supreme Court into improper

‘practices of attorneys, requiring the production of all of

- the attorney’s businegg and personal financial reoftds for

a four year period. The Court held that the subpoena was

proper, that it was not so broad as to be unjust or unreason-

able, that there was-no illegal search and seizure, and that

it was not contrary to the 14th Amendment. There were

similar holdings in connected cases. ‘Anonymous No. 14,

7 A.D. 2d 874; Anonymous No. 16 et.al., 7 A.D. 2d 874.

In civil actions also, copies of income tax returns have

been held to be discoverable where they were relevant to

the issues presented by the pleadings; and in some deci-

sions, the courts have even directed the person ‘to obtain:

copies from the Government .here he had no such copies -

in his possession. Elmer v. Byrd, 220 N.Y. 2d 985, Af- —

firmed 227 N.Y.S. 2d 248; Worntcke wv. Scheuer, 11 M. 2d

188; Gould v. Sullivan, 54 N.Y.S. 2d 430, Affirmed 269 App.

Div. 737. : so

The secreey imposed by Section ‘384 of the New York

State Tax Law and Title 26, Section 6103 of the Internal

: 10 .

. Revenue Code only prohibits disclosures by officers of gov-

ernmental agencies except in accordance with proper judi-

cial order, or as otherwise provided by law, not. by_the tax-

payer himself. U.S. v. O’Mara, 122 Fed. Supp. 399. It would

appear that the intent and purpose of these sections is to

prevent the disclosure of confidential information to those

who do not have a legitimate interest in it. Application of

Umbach, Okl., 350 Pac. 2d 299, Connecticut Importing Co.

v. Continental Distilling Corp., 1 F-R.D. 190, 192 (D. Conn. ).

There is legal precedent sustaining’ the Grand Jury’ 8

right to subpoena copies of the Federal and State income

tax returns of a witness. The witness has stated that such

‘copies are in his possession, he has executed*a_ limited

waiver of immunity, and the documents sought are Peleyant

and necessary to the Grand Jury investigation. -

.

Si POINT IV

Section 1123 (formerly Section 903) of. the New.

York City Charter does not contravene any of peti-

tioner’s cognizable constitutional rights. :

We believe that any discussion by us as to the constitu-

tional validity of Section 1123 would be egregious and large-

ly academic. The constitutionality of _— 1123 has been

sustained.

. Matter of Koval v. Board of Education, 197 Mise.

221.

Matter of Goldiway v. Board of Higher ane:

tion, 178 Mise. 1023.

The Slochower case, ciged by petitioner is « indigo.

Slochower should be limited to the peculiar facts of that

case. .

eR

was quite another thing ;

ll

Slochower v. Board of Education, 350 U.S. 551 5.’

“Cohen v. Hurley, 366 U.S. 117, 125;

‘Matter of Lerner v. Casey, 387 U.S. 468, 477;

McAuliffe v. New Bedford, 155. Mass. 216, 220.

In Slochower, the witness was appearing before a con-

gressional committee which was conducting an investiga-

tion into subversive influences in the American educational

system, and had not executed a waiver of immunity. The

following appeared in the niajority —. in Slochower

at 350. U.S. 558:

‘*Here the Bose has pomeied the pertinent infor- sh

_ mation for 12 years and the questions which Pro-

fessor Slochower refused to answer were admittedly

asked for a purpose wholly unrelated to college fune-

- tion, On such a record the Board.cannot ‘claim that,

its action was part of a bona fide’ attempt to gain.

needed and relevant information.”

Furthe+more, the Court stated, in Slochower at 558, it

‘

WL. hee ee discharge to be based entirely on

events occurring before a federal committee whose

inquiry was announced as not directed at the prop-

erty, affairs, or government of .the City, or

official conduct of city employees.’’

In the’ instant case, we have a duly authorized ‘state

grand jury specifically investigating official conduct of city

. employees. Therefore, as Scetion 1123 of the Citv Charter

has been applied in the instant case, the petitioner has not

been deprived of any Federal Constitutional privileges. |

_Beilan v. Board of Education, 357 .U.S. 399

(1958); | ;

t. ai " 4. £4 . : Ae

54 ~~ -" ¢ Y

. p o

Garner v. Board of Public Works, 341: U.S:.716

(1951). : .

+ «. + Of course, petitioner had the right. to assert his privilege

against self-incritnination. That right was his as it would

be the right of any citizen and it was not denied to him.

+ - Basic to consideration of this aspéét’of petitioner’s case is

; the fact that any ultimate discharge from employment

based upon his failure to execute a limited waiver of im-

munity would be predicated not upon any unfavorable in-

. ference to be drawn from his failure to do so-and testify -,

_or any assertion of his constitutional privileges, but solely

upon his refusal to discharge obligations which, as an em-

ployee of. the City of New York, he owed to cooperate in

an investigation into alleged bribery and corruption in the

- conduct of his office. The faithless public servant disturbs

the welfare of countless thousands. A government em-

ployee need no longer be entrusted with public office and

trust, if he refuses to explain to proper. authority his con- »

duet in office. . ‘ oes

aa oe ~. Matter of Lerner v. Casey, supra;

ae -. » Cohen v. Hurley, supra;

a va People ex rel. Sillifant v. Sheriff, supra;

People v. Connelly, supra.

POINT V

Petitioner’s contention that his waiver of immunity

was exacted through the duress of Section 1123 (for- _

merly Section 903) of the New York City Charter is

without substance. - sao: :

We urge-that the provisions of the New York State Con-

. - stitution, Article 1, Section 6, and Section 1123 of the New

7

ae

Ps ©.

York City Charter do not constitute legal duress. Even

if we assume. that petitioner signed ‘the ‘waiver, thraugh

fear of losing his office as a plaster inspector, it would not

constitute duress cognizable-i in law. His act was voluntary.

Legal duress connotes wrongful or venal conduct by a con-.

tracting party exerted against another. (Restatement of

‘Law of Contracts, Section 493, cited with approval in Wil-

liston, on Contracts, Revised Ed., Vol. V, page 4497). In

Deshong v. City "* New York, 176 N.Y., 479, 479, the Court

said:

‘‘Payment “aii by duress or unlawful biased

may be retovered back. The sogreen however, must

be Regal, wages or oppressive.” sill

WwW illiston, supra, at page 4500 says:

‘One element of the early law ‘of duress cotitinues to

exist, however its boundaries may be otherwise ex-

_ tended. The pressure must be w rongful and not 7

pressure is wrengful.”’

At bar, petitioner was confronted with the alternative

of forfeiting his office or executing the waiver. No wrong-

ful pressure was exercised by the statute or the constitu- |

‘ tion. He could have refused to‘execute the document and .

have instituted legal proceedings to contest the forfeiture

‘_” of his office. In such event no legal duress could be posited.

Board of Trustees v. O. D. Wilson Co., 133 Fea.

~ —— 2d.399. |

In addition, we urge that the determination of the con-

stitutional validity of petitioner’s waiver of immunity is

not properly sub judice. That issue should be resolved in

_ some other action or. ‘proceeding in the event petitioner is

' indicted for a substantive crime.

men v. New Fork, 349 U.S. 59.

14

- CONCLUSION |

The petition for writ of certiorari should be denied.

Dated: Brooklyn, New York

November, 1964. —

ae Respectfully submitted,

Aaron E. Koota ~

Acting District Attorney

2 Kings County |

Attorney for Respondent

’ Aaron E. Koota

- Acting District Attorney

Of Counsel

~

Irvine P. SzemMan

Assistant District Attorney

On the. Brief