# Opposition Brief — G. L. Christian & Associates v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0665%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1965 - **Citation:** 382 U.S. 821 ## Text 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 — 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 . o . ~e—- @ 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 ty + . property without que — ° a ros ‘} J : oe g . s Lr -. « = o. o q © — . - a m 7 es ij cs) ° ie ' 4 ‘ 4 . ; » e e , ‘. ‘ ‘ Oe 5 é ia Vos a . \ J " Nae ? 9 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: --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0665%3A2. Public record. Not legal advice.