Opposition Brief — G. L. Christian & Associates v. United States

TERE is Office-Supreme Court, U.S.

ME COURT, (3, fi! FILED -

= . ove. ct

IN THE

Supreme Court of the United States ;

October Term, 1964

(Now Number: 195, October Term, 1965)

FRED DE LUCIA and SALVATOR MONTELLA,

Petitioners,

; —against—

THE PEOPLE OF THE seat OF NEW YORK, :

8 Z ; Reepounente..

- RESPONDENTS’ BRIEF IN OPPOSITION TO —

PETITION FOR A WRIT OF CERTIORARI

Frank D. O’Connor ©

District Aftorney, Queens County

Attorney for Respondents —

: Regs *) 126-05 Hoover Avenue

ee Kew Gardens

Jamaica 15, N. Y.

Bens. J. JACOBSON

Member of the Bar of

the Supreme Court of. the United States

of Counsel

fives FELDMAN

<Q 32 Case Pass Inc.; 421 Hudson St., N.Y.—ORegon 5-4540

a aT

INDEX

A. Statement er poe Pp eae

B. The Grounds Upon Which the J urisdiction of

This Court i is Invoked ........ Leaecee a uweuwns

€. The Questions Preserited for Review ...........

_ D. Constitutional Provision and Statute Involved ..

K. A Concise Statement of the Case and Material

acts: Pertaining to the Vonsicoration of - the

uestions Presented ......... ent healeoar tures

Statement of Pertinent Facts ....... Ae re yey Oe

Pow I—There has beet no violation of any provi-

sion of the Constitution of the United States ....

Point II—The issues were not properly raised 0 or

preserved ..........-.4-. rerrerriee te tieeeece

Coxouustox scdaccccccsecccgenccces genahengesese

“Arrenpix A—Opinion of the Trial Justice ve , ‘ “

APPENDIX B—Opinions of the New York State Court ©

OE BN ai rad cid ivivascsccends sett beeeeeees

Appenprx C hea anaes alec cera eee hadiah

APPENDIX eye ee Pies ie tei Sy icen,

li

AvutTuHorities CITED -

Cases

ers : _ PAGE

Brown v. Mississippi, 297 U.S. 278 ......... ee |

Bute v. Tlinois, 398.U.S. 640... ss rerre 10

’ . Cafeteria and Restaurant Workers Union, Local 473,

AFL-CIO v. McElroy, 367 U.S. 886, 81S. Ct.1743 11°

Herbert v. Louisiana, 272 U.S. 312 ....3....¢0..... "9

In re Coates, 9 N * 2 ad 242, appeal dismissed, 368

U.Se 34... 000: eMC u Kd Mees wnb bok sass Serie a Se

Lyons v. Goldstein, 290 NY. Sele epee aS

People v. Berkowitz, 14 M. 2d 384, affirmed 7 A.D. D. :

Or EE chav Ge eeGhegandtaiesbeeeyssnnseevas \" ; 11

Schwartz’ Estate v Dunishtock 175 Mise. a... 2

‘Statutes \

\ 4 “‘\ 3”

28 U.S.0. §1257(3) Sere Se Roh Nea er Oe ae

New, York State Code of Criminal Procedure:

rs Sa RE ES kare aie ae

OO Never ce, re hrce oe haeere ab ee 3,12

| 7 Rules |

' Rules 19, Subdivision~1-of Supreme Court’......5.: 2-

: United ‘States Constitution .

Fourteenth Amendment . sad levstnessaatasiwens Jae 12 .

IN THE °

Supreme Court of the ited States :

. October Term, 1964

(Now Number 195, October Term, 1965)

y*

—

°

é a

‘Prep De Lucia and Satvator MonvELLA, ‘

_ : Petitioners,

"—against— :

Tue PEop.e or THE State or New York,

- Respondents.

A.

—>—

RESPONDENTS’ BRIEF IN OPPOSITION TO —

PETITION FOR A WRIT. OF CERTIORARI «.

_ This brief is submitted in opposition to the petition for

a writ of certiorari to review the judgment of the Court

of Appeals of the State of New York entered in the above-

entitled case on March 18, 1965 (15 N.Y. 2d 294).

A. Statement.

Petitioner seeks a ii of certiorari in order to review a

"judgment of the Court of Appeals of the State of New

_ York entered on March 18, 1965 (15 N.Y. 2d 294).

On appeal to the Appellat Division of the Supreme Court.

in and for the Second Jédicial Department of the State of

-* . New ‘York, the judgment and order appealed from were

affirmed without opinion (21 A.D 2d 805). °

Upon appeal to the Court of Appeals of the State of New.

York the judgment of the Appellate Division was’ affirmed

Cage

, ..,

y eal by a divided Court, Soa (4) Judges voting to affirm the

judgment and order below and three (3) Judges dissenting.

Said opinion is reported at 15 N.Y. 2d 294. Copies thereof

are attached to-this brief as Appendix B.

_ There, were no other opinions written i in connection with

ie

Be The Guienils Upon Which the Jurisdiction :

2 This Court Is Invoked .

- Juriediction in this Court is tavaied under Title 28,

U.S. Code §1257 (3) and Rule 19, Subdivision I of the

" rules of this Court.

The judgment sought to be reviewed STS is the judg- |

ment of the Court of Appeals of the State of New York.

4 (15 N. Y. 2d 294) made on March 18th, 1965 as aforesaid,

and see hereto as bution E:

‘C. The Questions Presented for Review

1) Were petitioners deprived of rom process of law in’

_ violation of the Fourteenth Amendment to’ the United

States Constitution in that they were deprived of a basic

protective right to a fair trial where several jurors, in con-

travention of the New York State Code of Criminal Pro-

cedure, and acting without the knowledge or authority of

: the Court or counsel, went to the alleged scene of the crime,

investigated there to check on the arresting officers’ testi- ,

mony, and reported their findings to the fellow members of

the jury? et ee

ee ee ; ; ‘ , * ‘ x

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~e—-

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ee

2%

2) Were petitioners deprived of due process of. law in .

‘ violation of, the ‘Fourteenth Amendment to the United

’ States Constitution in that they were deprived of the basic

protective right to a fair trial by being denied a hearing

as to the alleged misconduct by the jurors who in contra-

vention of the New York State Code of Criminal Procedure, |

_ and acting without the knowledge or authority of the. Court

or counsel, went to thé alleged scene of the crime, investi-

gated there to check: on. the arresting officers’ testimony,

and reported their findings to the fellow members of the

“jury? .

D. Constitutional Provision and Statute Involved °

The constitutional provision involved is the due process

_ clause of the Fourteenth Amendment to the United States”

Constitution. The statutes involved are §465 and §411 of

the Code of Criminal Procedure. of the State of Hew York.

Each of the foregoing i is set forth verbatim i in Appendices

Cand > i elie of this petition.

_E. AConcise Statement of the Case and Material Facts

‘Pertaining to the Consideration of the

a pscanesen Presented

’ Petitioners were indicted by a Grand -Jury in Kings

County in the State of New York for the crimes of at- .

tempted burglary in the third degree and possession of

’ burglar’s instruments. They were tried in ‘the Supreme

Court of the State of New York,.Queens County, upon said

indictment, before Honorable Peter T. Farrell, a: Justice —

9

4

- of said Court, and a jury. They were convicted as charged

in the indictment by the verdict of a jury after trial. Sub-

sequent to the jury verdict, an application was made by the

’ attorney for the petitioners for a new trial. The basis of

the application were statements made by the attorney for

_ the petitioners ef conversations he had with members of

the jury, and the attorney stated that several of the jurors

had informed him that they had visited the scene of the

crime the night before the case was submitted to them for

deliberation, and that the visit was without knowledge or

authority of the Court or counsel. This motion was denied

on June 12, 1963 by Mr. Justice Farrell, and the opinion

‘is appended hereto as Appendix A.

The motion was denied on the grounds that:

(1) An unauthorized visit to the place of the crime

will not require a new trial if the jurors were not guilty

of misconduct while there and if they could not have

_ acquired any improper information that might have

influenced their verdict.

(2) That jurors cannot impeach their verdict and

even more so they cannot do it by the unsworn state-

ment of others.

An appeal was then taken to the Appellate Division of the

Supreme Court of the State of New. York in the Second

Judicial Department from this order. While the trial pro-

ceeded and application was made for re-argument and in

the re-argument the petitioners submitted affidavits from

- five of the twelve jurors. This motion for re-argument was

. granted and-upon the re-argument the Court adhered to its

original ears of June 13, 1963.

. — 1

_ The ‘Appellate Division affirmed the conviction without

opinion. The Court of Appeals affirmed the conviction and

.the opinions of the Court are set forth in Appendix B.

Statement of Pertinent Facts

Oo

‘Joun Francis McGuire testified fhat he and Norton

Peppis ran a restaurant and night club at 120-20 Queens

Boulevard, in Queens, known as Pep-McGuire’s (20-21, 35).

'. He closed the restaurant at about 4:30 A.M. on Monday

~ morning, May 14th and had checked and locked the windows

and the two doors (22) and when he returned later in the

morning, the doors were locked, but the metal rear exit door

. was loose at the bottom, leaving an open space of an inch

_. and a half (23-24, 40, 49). This condition was not so when

he had left that morning (26). There were also markings

and indentations on the door and sash (26-27, 42). He had

used that door, but never saw the indentations before (43,

154). He did not give the defendants permission to enter

‘the premises (27). The rear door opened into a stairway

-which opened on to a pathway which led from Queens.

Boulevard to the stairway door and -then to the next street

. (31-32, 41-42).

Der. JosePH Szarwas testified that he was in the vicinity

of 120-20 Queens Boulevard at about 5:30 A.M: on May: 14,

1962. He observed the defendants riding in a 1956 Cadillac.

The car slowed near Pep-McGuire’ s and then continued |

(66-67, 185, 187). The detective watched the alleyway and

ten minutes later saw the defendants in the alleyway going ~

towards Queens Boulevard from the next street (68, 190)

and then saw the defendant: Montella open the building side

door and both defendants entered the building (70-71, 191-

6.

192). The detective and his brother officers, Detective

- Goggin and Lt: Lester, moved towards the door. Szarwas

saw DeLucia inside looking out. Szarwas opened the door,

told the defendant, DeLucia to stay there, and went up the-

stairs to a landing where Montella stood with a screw driver

jammed between the restaurant door and the door frame.

‘Montella pulléd the screw driver out.and dropped it at his

feet, from where Szarwas picked it up. The officer searched

Montella and found a flashlight in his left outer coat pocket

(72, 90, 199, 201-203, 208). The bottom of the door was

pulled out from the jamb and there were about fifteen or

twenty sharp edged indentations in the jamb and the door

(92). At the indentations, the paint was chipped away and

orange paint showed (92, 93). Szarwas asked Montella for.

_ his car keys and Montella said he had no keys and had no

_ match. The Cadillac was located about a block away, the

_ keys were under the driver’s seat and Montella’s identifica-

tion was found in a wallet in the glove compartment (94,

121). The detective identified the screw driver as a bur- -

glar’s tool (96, 213, 218-219). The police laboratory report.

"was marked defendants’ Exhibit C. It stated that an exami-

nation of the foot end of the screw driver disclosed green, —

gold, maroon and orange paint. The door was painted green

and had layers of gold, maroon and orange which was

microscopically similar to the paint on the screw driver

(165). Based on physical measurements, the tool marks on:

the door would have been caused by the serew driver, but.

there were insufficient microscopic comparative points: to .

make a determination (165).

(In. the absence of: the jury, DeLucia admitted a prior

‘’ eonviction upon his arraignment on a prior Offense Infor-

| mation (100)).

‘

»

——~—4 = —— —-—-a-~

Derecrive Francis J. Gocern testified that at the time

_ and place he was with Lt. Lester and Detective Szarwas and

followed Detective Szarwas into the alleyway and doorway |

and saw defendant DeLucia at the inside of the door and

saw Detective Szarwas on the landing with Montella (238-

239, 249- 250-254). DeLucia said to him, ‘‘The only thing

' you got us for is loitering”’ (240, 258). Goggin heard some-

thing drop and then saw Szarwas pick up a screw driver

from the floor at the landing (255-256).

Lr. Epwarp J. Lester testified that after both defendants

and Detective Goggin were in his car, DeLucia said, ‘‘Can’t

we straighten this thing out?’’ and Montella said, ‘‘Isn’t .

there something we can do about this??? (276-278)

Norton Perris testified for the defense. He was a pait

owner of Pep-McGuire’s restaurant. During the night of

May 13-14, the bandleader introduced him to the defendants .

and two girls who were in the restaurant (286-287). “The

following morning he entered the restaurant through the

front door and opened'the padlock on the. back door (292). .

The back door was loose and old and there were marks on

it from before and he:coultin’t tell the difference (294, 296-

297, 317, 323).

Anprew Senatore testified that he. was ‘the Pep-McGuire .

- pandleader. The defendants and two gitls came.in at about

11:30 P.M. and he said good night to them when he left at

3:00 A.M. (326-328). ; ie

Karuueen Levisenxorr testified that she and another girl.

met the defendants at a’cocktail lounge at 10:00 P.M. Then

she and her girl friend left in“her car-and went to Pep- _

McGuire’s where they met the defendants again (330-332). _

They. stayed there until 4:00 A.M. and then went in her car

"to a diner where they stayed for an hour. She then dropped

off both defendants in front of Pep-McGuire’s. The de- —

fendants had a black Cadillac (334, 336).

The defendant Montella testified in his own defense. He

was never convicted of a crime, he never touched the rear

door and he didn’t own the screw driver (338). He had been

. at Pep-MecGuire’s for four and a half hours until closing ©

time and then went to a diner and left the diner close to

5:30 A.M. He had parked his sister’s 1956 Cadillac about -

a block away from Pep-McGuire’ s and then walked through ©

the alleyway-from Kew Gardens Roads to Queens Boulevard

and had met the girls in front of Pep-McGuire’s (339-341).

The girl was to take them to their car but continued on

Queens Boulevard. They got out of the car and started

through the alleyway to get to their car when the detectives

approached frdm the front and from the back and shoved

them into the hallway (342-343). .At first he said the screw

driver was in the detective’s hand (343), but then said that -

. he did not see the screw driver until it was -at his feet at

a point a foot. or two past the outer door. He did not see

anyone put the screw driver there (358-360). The flashlight

was in the glove compartment of hi®sister’s car (345). The

_ sister lived in Staten Island. He had her auto on. Friday,

Saturday and Sunday. Before he went to Pep-McGuire .

he left the keys under the mat and the wallet in the car’s .

glove. compartment (348-349). He did not tell the detectives

what kind of a car he had or where he had parked it (363). .

Shown a photo of the alley; he could not point out there

where one could see from the alleyway to the other street

( 351-358). mea

9

POINT I

There has: been no violation of any provision of the

_ Constitution of the United States.

» Iti is submitted as set forth j in H — v. Louisiana, 272

\

U.S. 812, 316- 317. ce

°

The due process of law clause in the Fourteenth -

Amendment does not take up the statutes of the

_ several states and make them the test of what it re-

quires: nor does it enable this Court to revise the

decisions of the state cqurts on questions of state

law. What it does require is that state action,

whether through one agency or another, shall be con-

sistent with the fundamental principles of liberty

and justice which lie at the base ef all our civil and

political institutions and not infrequently are desig-

nated as ‘law of the land’. Those principles are ap-

plicable alike in all the states and do not depend upon

or vary: with local legislation. »? Herbert v. Louisiana,

272 U.S. 312, 316-317.. :

This Court has never attempted to define with precision

the words ‘‘due process of law”’, nor is it necessary to do so

in this case. It is sufficient to say that there are certain ©

“immutable principles of justice which inhere in the very

“idea of free government which no member of the union may

disregard, as that no man shall be condemned in his person

or property without due notice and an opportunity of being .

heard in his defense. Holden v. Hardy, 169 U.S. 366, 389-390. -

The foregoing statements were referred to with approval

in Powell v. Alabama, supra, at pp. 67, 71-72. The present

case, on the other hand, illustrates equally well the kind of

judgments by a state court that should not be invalidated as

lacking in the due process of law required by the Fourteenth

2

Se

‘Amendment. This is so, although the procedure followed,

in 1938, by the state court in the instant cases, as to counsel

for the accused might not have satisfied the-practice then

required of a federal court in the case of comparable federal

crimes.. The Fourteenth Amendment, however, does not say

that no state shall deprive any person of liberty without.

. following the federal process of law as prescribed for the

federal.courts in comparable federal cases. It says merely

‘‘nor shall any state deprive any person of life, liberty, or.

property, without due process of law; . . .”? This due

_ process is not an equivalent for the process of. the federal

courts or for the process of any particular state. It has

reference rather to a standard of process that may cover

any varieties of processes that are expressive of differing

combinations of historical or modern, local or.other judicial

standards, provided they do not conflict with the ‘‘funda-

| mental principles of liberty and justice which lie at the base

_ of all our civil and political institutions . . .”’ Herbert v.

Louisiana, supra, at p. 316. This clause in-the Fourteenth

Amendment leaves room for much of the freedom which,

under the Constitution of the United States and in accord-

ance with its purposes, was originally reserved to the states

for their own control over the procedure to be followed in |

criminal trials in their respective courts. It recognizes that

differences arise naturally between the procedures-in the

_state courts and those in he federal courts. Bute-v. Iinois,

333 U. 8. 640, 648-50.

The state may regulate the procedure of its courts in

accord with its own conceptions of justice, unless in doing

so it violates basic dictates of due process of law. ‘Brown v.

. Mississippi, 297 U.S. 278. The exact meaning and scope of

_ &

e

Son

-the phrase due process of law has never been decided with

precision but requires an orderly procedure adapted to the

nature of the case including the opportunity to be: heard

and offer a defense or explanation at a hearing or trial. _

However, no particular type of form or method of state pro-

cedure is mandated. In re Coates, 9 N.Y. 2d 242; appeal .

dismissed, 368 U.S. 34; Lyons v. Goldstein, 290 N.Y. 19;

Schwartz’ Estate v.. Dunishtock, 175 Mise. 860; People \ v.

Berkowitz,’ 14 M. 2d 384, affirmed 7 A.D. 2d 1031.

~The very nature of due process negates any concept of

inflexible. procedures universally applicable to every “im-*

aginable situation but is unfixed and based | upon considera-

tions of time, histofy, reason, and past course of decisions. —

Cafeteria and Restaurant Workers Union, Local 473, AFL- . -

C10 v. McElroy, 367 U.S. 886, 81 S. Ct. 1743.

The ‘Court of Appeals has effectively ruled in the case at

bar that there has been no violation of-any right of defend-

ant. That there is an overriding concept that jurors may

not impeach their own duly rendered verdict and that these

particular. defendants, the petitioners herein were not prej-

udiced in a substantial right affecting the verdict. A fair

trial was afforded the petitioners ; they received able repre-

sentation; and they were not in any .way prejudiced by the

actions of the Court: nor by any Anas misconduct of

the jury. an

_ Under the iii that. a ps may iibaiete ‘procedures

of its own criminal proceédings in keeping with its own

sensé of justice and fairness ‘it cannot be said that peti-

tioner received anything but a fair trial free from error of

~ constituti pal magnitude. °

| POINT I

The issues were not properly raised or preserved.

Respondent submits that the petitioners objected to the

_verdict of the jury on the grounds that it violated aa

411 and 465 of the Code of Criminal Procedure of the S

of New York. It i is submitig@ that as is evidenced b

record hérein the issue of. denial of due process of the vr

Amendment of the United States Constitution was not

raised upon a motion for a new trial, nor upon motion for

re-argument of the order denying them their motion for a

new trial: It i is further submitted, that, as the record will

demoiistrate, the issue of denial of due process and the

~ issue of violation of. the 14th Amendment were not spe-

cifically raised in the Appellate Dvision nor in the Court -

of Appeals. The sole attack throughout is the question of a

whether or not there has been a violation of the particular

statutes involved.

i

13>

CONCLUSION

The writ of ceriorari prayed for should be denied.

Dated: Queens, N.Y. — 7 mo |

July, 1965 ae : a,

Respectfully submitted, .

Frank D. O’Connor

_ Attorney for Respondents

Bens. J. ‘JACOBSON <n ie

. Member of the Bar of we laa

* the Supreme-Court of the United States

* of Counsel —

EvcENe FELDMAN

wn

oF,

| APPENDIX A “Spl aes

hy NS ne Opinion of the Trial Justice | |

| SUPREME COURT

“QUEENS Covey

- Cnisawan Tams, Parr I

Seen ae | “Peven Fanny J

Dated June pram, 1963

- 122-63 superseding Ind. No. 878-62)

wn .

7

Pela, a

_ Tue Peopwe or THE State or New York

_ —against—

_ Frep De Lucia |

_ SatvatorE MonTenta= ‘

Vo eae - — . Defendants. -

—

vv

\

, This j isa ‘ation by the defendants for an order setting

aside the verdict of guilty and granting a new trial to the

defendants upon the ground that the j jury violated Sec. 465,

subd. 2 and 3, of the Code of Criminal P ure.

as‘to De Lucia, and Attempted Bursary in the Third

- Degree and Possession of Burgiars Instruments. as a Mis-

demeanor as to Montella. ;

¢

la

who rendered judgment in this matter.’ < -

: an

- Appendia. A—Opinio * thé Prial Justice *

The defendants ini: in iabitesis that during the trial

| and without direction .of the Court, pursuant to’ Sec. 411 ,

of-the Code of Criminal Pracedure, the jury ‘visited the -

| "scene of the alleged crime and conducted thereat their own

experiments in receiving and evaluating’ evidence.

‘Defendants by their affidavits submitted in ‘support of

_ this motion and by oral argument in open Court base their |

allegations only upon information and, statements of j surors 1"

} .

Tt is well established law that the fact that the jury ‘weeds

an unauthorized visit to the place of the crime will not. ‘

require a new trial, if ‘they were not guilty of misconduct |

while there, and could not have acquired any improper. .

oe information that might have influenced their verdict. (24. .

C.J.S. Criminal Law, Sec. 1449(14) p. 135; People v. Kraus,

147 Mise. 906; Haight v. City of Elmira, 42 N.Y. 391)

‘‘Tt is incumbent oh the defendant to show that the |

_ facts bring the case within the provisions of Sec. 465

' of the Code of Criminal Procedure, and.that his sub-

stantial rights have been prejudiced by the miscon-

duct of a juror or jurors about which the defendant

complained.’?, (People v. Kraus, supra)

‘It is also well setiled law that jurors cannot by their affi- -

davits, or testimony, even though these affidavits aver their

misconduct outside of the jury room, impeach,. attack, or

discredit the verdict which they have in fact recorded and

rendered. Much less can they.do so by their unsworn state-

| _ ments presented through the affidavits | ers. (People v.

Sprague, 217 N.Y. 373, 384; Tartacowér v. New York City _

Transit Authority, 9 Misc. 2d 606, 608; Fisch‘on New York-

bs

.

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F . ° 7% gs

‘ P oy r rp y A BD Da

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© 2

Appendiz A—Opinion of the Trial Justice

. Bvidsnte, Sec. 305, pp: 305, 306 ; Richardson on Evidence,

8th Edition, Sec. 423) | eke aes

_ The sound reasoning for this rule is set down as follows

.. in Payne v. Burke, 236 App. Div. 525, 529; ‘The reason for

_ this rule is founded on:sound public policy. If jurors, after

they have been discharged and have mingled with the pub-

lic,. were permitted to discredit the verdict which they had

sdlemnly rendered in’ open. Court, no verdict would be safe,

| if and judgments would rest-on a very uncertain foundation..

_ The consequences of-such practice would be most mischie-

"vous; it would open the door for tampering with jurors and _

would make it, easy for a corrupt or dissatisfied juror to

destroy the very. verdict to which he had deliberately given .

his assent under the sanction of an oath. Jurors would con-:

Stantly be importuned by dissatisfied litigants and pressed

for affidavits upon which their verdict might be assailed.

_ Every trial lawyer knows full well how“easy it would be ~

to find some complacent juror who would yield to such |

_ appeal. If such practice were ‘countenanced few, -if any,

verdicts would mrsogettia and there would be no end to liti-

Zation.”’

Since defendants have indicated ‘no other means ito sub-

stantiate ‘their claims and since the evidence by which the

ry. defendants intend to establish their contentions is inadmis-

sible as a matter of law, this motion must in all respects

_ be denied. :

Order entered. accordingly. 3

The clerk of the Court is directed to mail a copy of the

decision and order to the attorneys for the Se

Peres T Fayusiz

J. 8.6.

‘ . -

et NR ath Se RN

he

” APPENDIX B

- Qrinions of the New York State Court of Avene

“STATE OF NEW YORK

COURT OF APPEALS

Seamer 2

Respondent,

Feet DeLvcta and Savator ais

+

‘Drs, J.:

,in this joint appeal by permission, ‘the ipa con:

oo

Appellants.

‘tmad that the affirmance in ‘the court below of the trial court’s.

order denying their motion to set aside the verdict and for

a new trial amount to reversible error.: The motion was

based on an’ affidavit by defendant’s trial counsel in which

‘he referred to statements allegedly made to him by certain

of the jurors shortly after the ‘verdict had been. rendered,

to the effect that _ they had viewed the premises-where the

Cee a aS

‘“ erime -was ‘allegedly committed for the purpose of more _

* easily understanding the-evidence. There is no allegation

that the jurors involved met or spoke with anyone except —

eck other. The premises in question, at 120-20 Queens

t

- . Boulevard in the Borough of Queens, are across the street

“5a

Appendia B—Opinions of the New Y ork State

Court of Appeals |

4 ee about" one block away from ‘the court house where the

_% . trial was held. It has long been familiar law that jurors

A Gee \ ‘may not impeach: their own duly rendered verdict by state-

| : \ ments or testimony averring their own misconduct within

3 or without the jury room ; much less can. they do so by state-

_ ments: presented in the form of hearsay affidavits: (People v.

Sprague, 217 N. Y. 373; Dalrympfe v. Williawis, 63 N.Y.

'- 361;' Fisch on New 'York Evidence, § 305; Richardson on .

Evidence, 8th Ed., § 432). The rule is founded on sound

public policy (Payne v. Burke, 236 App. Div. 525. followed

and cited with approval in MeDonald v. Pless,.238 U. 8.

264) which the courts have applied to preclude a juror from -

testifying as to his own misconduct (cf, Haight v. City of .

. Elmira, 42 App. Div. 391). Even though an unauthorized ~

view of such premises is improper it is not, without more, |

such an impropriety as to require the ‘granting of a lew

‘App. Div. 66; See 58 A L R 2d 1147). Absent any ‘compe-

_ tent proof that the defendant was prejudiced in a substan- .. -

tial right affecting the verdict, the motion was “properly

“denied (Code of Crim. Pro. " § 465; cf. People v. K raus, 147

‘Mise. 906). ge St

Other assigned errors-need not detain us. "We te ie

ae ~~~ fied that the proof, adduced was sufficient as matter of law

. to support the judgment of conviction of each defendant on

error was committed with respect. to ‘the arresting officer’s

_ testimony on identification from which it might be inferred

that the defendant DeLucia had a prior criminal record:

The judgment of conviction should be affirmed.

__—_—rial (People \ v. Johnson, 110 N. Y. 134; People v. Klein, 213

a ae

both counts of the indictment.. Nor do we find that any

MOT BRE LAER

.

_ 6a

7 B—Opinions of the N ew ¥ ork State

Court of a

whi: OS. ‘di. (dtsedatingy:

‘The catch-phrase ‘(jurors may ‘not ¢ iinpeal their verdict? ’

does not dispose of the proof that these jurors, depriving

defendant of a basic protective right, went on ‘their own to |

* the crime scene, investigated there to check on the officers’

ee testimony’ ‘ahd reported: back to their fellow members of es

~ jury, all without, the knowledge of court or ‘counsel, The wi

. rule prohibiting self-impeachment by i jurors is ‘stretched too .

far and in. the wrong direction. -when it is., uséd to validate:

_ Such, a transgression of fundamental fair trial rules.

The rule has been so applied on ocdasion in some lower

as courts (Clum v. Smith, 5 Hill 560 ; Sindle v. 761 Ninth Ave.

Corp., 127 N. ¥. S. 2d 258, affd. 283° App. Div. 939; Tarta-

_ eee vy. Transit Authority, 169 N, Y. S. 2d: 695; also ‘per- -

, haps in “Haight v. City of: Elmira, 42 App. Div. 391, 395).

There is nq. doubt, however, that the rule and its purposes .

‘primarily and: reasonably relate to affidavits or statements. .

by jurors describing jury room deliberations and methods

of arriving at vers le and. error or misconduct or mistake

in doing so (Dalrymple v. Williams, 63.N. Y. 361, 363; Slater —

v. United Traction Co., 172 App. Div. 404, 405; Stein v. New

York, 346 U. S. 156, 178). As Wigmore puts it (vol.:8, Mc-

Naughton revision, § 2349), the effort is to protect against”

. the jurors being ‘questioned after ‘verdicts as to their

‘methods of decision or their motives, beliefs, intentions or

understandings. Wigmore points oat (see §§ 2353-2354).

‘that if is anomalous that in most States while the affidavits

‘of jurors cannot be used to go behind the verdict itself,

nonetheless an illegal view by j jurors 1 is a ground for setting —

. : 3

° . Pole : . Ja . i. e

" Appendis B—Opinious of ihe New i 4 ork State

; Court of Appeals” :

a

aide a verdict (see Code CrimzPro,, $465) if the fact be

__ established by. someone other. than a juror. There i is an in-"

| pone ge by Justice Brennan i in State v. Kociolek

¥ QONT . 92, 98-100) in which he reminds us that the early

_-—~~ eommon law had none of these prohibitions and that when

the rule. against impeachment was adopted ; in England ae

" expressed only’ a policy against post-trial questioning of

jurors as to how they arrived at their verdict. ‘As Justice

Brennan shows, this ane) te not reasonably apply ‘to.

proof that jurors without gfithority. went out, and eee

illegal. evidence on which they acted. .

— destroying the rule where it properly: applies we

shoul hold that it does not apply to a situation like this

wherg the investigation is not as to what happened in the |

‘jury om or why; but as to.a fact (illegal view) which has

always been. considered to be a strong ground for setting

ie aside a verdict-(see Code Crim. Pro., § 465, supra; People v.

‘ Gallo, 149 N. Y. 106, 114 et seq:). : : ®

J _ , I would reverse and serid the.case back to the trial judge.

: to hold a hearing to determine whether. a. new trial should.

“be granted on proof that certain jurors visited and ‘in-

abt the scene of the alleged crime.

°

a Ney = f * & * * *

oh udgments affirmed. Opinion by Dye, J. All concur ex-

cept Desmond, Ch. J., who dissents.in an opinion in which _

Fuld and Burke, JJ., concur. ; vad Stee ss

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_ AMENDM

? .

APPENDIX C

ae

Nt XIV to THE Unrrep States’ Constitution “

‘“‘Secfion 1. * * * nor < any state deprive any

person, of, life, liberty, o

_, Process of law ** *.””

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APPENDIX D

Cove / OF. dialects Procepure Section: 411

“View of premises, when ordered, and how con-

‘ducted. ‘Wher, i in the opinion of the court, it is proper .

_ that the jury should review the place in which the .

-erime is charged to have been committed, or in which .

- any material fact occurred, it may order the jury to

-be gonducted, ina body, under charge of proper

_ Officers, to the place, which must be shown to them’: !

_- by a jadge of the court, or -by a person sees a

by the court for that purpose.’”’ -

’CopE oF Crmiwan Procepune Suorsiat 465°

‘*TIn what cases . The court in:which a trial

has been had upon an/issue of fact-has power to grant

* a new trial, when a verdict has been rendered against

the defendant, by which his substantial rights have

‘ been prejudiced, we his ene" in the following Bi

cases :

2. “When the—jury tien received evidence out of e)

court, other than that resulting from a View, as pro-—

* vided in section four hundred ‘and eleven ; E..

a When the j jury wae have been guilty of any-mis-

conduct by whieh a fair-and due consideration of-the

case has been prevented gh 2:28 4

ees ee

<. APPENDIX E

& Sulit of the Court of Appeals

| _ COURT OF APPEALS |

_ Srare or New Yorx, 68.: SORE ah ws

PLEAS; in the Court of ‘haces held atCourt —_

-_ Appeals Hall, in the City of Albany, on —

‘the 18th day of March in the year of our:

. Lord one thousand nine hundred and sixty-

five, before the Judges of said Court. -

. ey.Fs* a

+ a:

+ -

WITNESS,

The. Hon. Caries S. Dzsstonp,

Chief Judge, Presiding

- Raymonp J. Cannon; Clerk. . :

Rewirrrur March 18, 1965..

ae .

No. 501

a.

vv

THe Perorie &e.,

. Respondent, ,

vs.

. Frep DeLuca and Satvator Montes,

@

Appellants.

+

. lla

Appendia E—Judgment of the Court. of Appeals ~~

Be rr nemeémpenep, That on the 23rd"day of December in

| the year of our Lord one thousand nine hundred and sixty- oy

four, Fred DeLucia and Salvator Montella, the appellants

‘in this cause, came ‘here unto the Court of Appeals, by-

Evseroff, ‘Newman & Sonenshine, their attorneys, and filed

in the said Court a Notice of ‘Appeal and return thereto. -

from the judgments of the Appellate Division of the Su-

preme Court in and’ for the Second Judi Department.

And The People &., the respondent i in said .cause, after-

wards appeared in said Court. of — by | Frank |)

0’Connor, District Attorney. .

- Which said Notice of Appeal and. the return thereto, filed

as aforesaid, are hereunto annexed.

" Wuerevron, The said Court of Appeals having heard this

cause argued by Mr. William Sonenshine, of counsél for the

appellants, and by Mr. Harvey B. Ehrlich, of counsel for the

respondent, and after due deliberation had thereon, ‘did

_ order and adjudge that the judgments of the Appellate Divi-

sion of the Supreme Court appealed from herein be and the

. same hereby are affirmed.

“¢ And it was also further ordered, that the records afore-’

| said, and the proceedings in this Court, be remitted to the .

haya Court of the State of New York, there to be pro- |

ceeded upon according to law.

- Thrmnerorz,. it is sonabiieved that the said a. be

affirmed, as aforesaid.

An® P hereupon, as well the Notice of hoya and return

thereto aforesaid as the judgment of the Court of Appeals

aforesaid, by it given in the premises, are by the said

ERS TCT e

2 78a

-Appendiz E—Judgment of the Court. of Appeals

Court of Appeals remitted into the Supreme Court of the

State of New York before the Justices thereof, according

‘to the form of the statute in such case made and provided,

to be enforced according to. law, and which record now

remains in the said Supreme Court, before the- Justices

thereof, and so forth. - .

*

3 /s/ Raymonp J. Cannon”

_ Clerk of the Court of Appeals of the

State of New York

13a.

“Appendix E—Judgment of the Court in! Appeate

iia OF ) APPEALS

CLERK’s OFFICE:

- Albany, March 18, 1965 |

I HeREBy CERTIFY, that ih ‘preceding record containe a

correct transcript of the proceedings in said cause in the

Court of Appeals, with the papers asia filed nm,

attached thereto. 7

/s/ Raymonp-J. Cannon

: Clerk

(Seal) er :

- : No. D 13380

'- Srave or New Yorx, Ee } a

County or QuEENSs, ee = oy

L, Pavn Laven, Clerk of. the County of Queens and Clerk

of the Supreme Court and County Court in and for said |

_ County, the same being courts of record having a seal, po

HEREBY CERTIFY that I have compared the annexed with the

‘original Order ‘Affirming Judgment—Peo. of the State of

New York vs. Fred DeLucia and Salvatore Montella filed

‘or entered in my office April 26, 1965 and that the same is

a true transcript thereof, and of the whole of — original.

“In TESTIMONY WHEREOF, I have hereunto set my hand and

affixed the seal of said ne and: sc this sad of May |

25, 1965.

/s/ Pavuu Livort

‘Clerk: