Brief in Opposition — Lucas v. New York

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IN THE é;

Supreme Court of the United States

OCTOBER TERM, 1971

No.-346868

CORNELIUS LUCAS,

Petitioner,

—against—

NEW YORK,

Respondent.

=

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

Evucene Goro

District Attorney, Kings County

400 Municipal Building

Brooklyn, New York 11201

(212) 643-5100

Rocer Bennet ADLER

Assistant District Attorney

of Counsel

PAGE

ED ain ciccbtanasccnssessnbseusccdapesoenaee 1

PE cj jiccuredsadebeendasagendereusaanaee 2

SEL cckabubacnsndessksbabeeteeneanwnekeamene 2

I on kind dackednwnsescinneadenssedenians 2

1. The trial court’s refusal to grant a continuance

was not an abuse of discretion. The court’s de-

nial of a continuance did not deprive petitioner

petitioner any constitutional rights ....... o 9

II. The identification procedures at the precinct

did not violate due process ..............+6-- 13

III. Neither the court nor the assistant district at-

torney failed to correct false testimony. Peti-

titioner was not denied due process .......... 16

ND oa cic cnciccinccisckndnccadecsnemeeseces 17

TABLE OF AUTHORITIES

Cases

Avery v. Alabama, 308 U. S. 444 (1940) .......... 10

Coleman v. Alabama, 399 U.S. 1 (1970) ............ 13

Foster v. California, 394 U. S. 440 (1969) .......... 13

Franklin v. South Carolina, 218 U. S. 161 (1909) .... 10

Nenue v. Illinois, 360 U. S. 264 (1959) ............ 16

Nilva v. United States, 352 U. S. 385 .............. 19

ii

eee ©. A, Gg Be Wis Es Be FO CROTOD oaccccccsecces

People v. Brown, 20 N.Y. 2d 238 (1967) ...........

People v. Caple, 31 A.D. 2d 752 (2d Dept. 1969) ....

People v. Mangi, 10 N. Y. 2d 86 (1961) ............

People v. Rensing, 14 N. Y. 2d 210 (1964) ..........

People v. Richardson, 36 A.D. 2d 25 (4th Dept. 1971)

People v. Roberts, 29 Misc. 2d 621 (Co. Ct. 1961) affd.

17 A.D. 2d 1030, cert. den. 374 U.S. 854 ..........

People v. Savvides, 1 N.Y. 2d 554 (1956) ..........

People v. Shea, 147 N. Y. 78 (1895) ...............

People y. Weiss, 32 A.D. 2d 856, cert. den. 397 U. S.

PE. TARA ASAE Rede SERORS EA EKE SCE OS SAAD OO Ems B Oe

Powell v. United States, 420 F. 2d 799 (9th Cir. 1969)

Reiss v. United States, 324 F. 2d 680 (1st Cir. 1963)

Simmons v. United States, 390 U. S. 377 (1968) ....

Stovall v. Denno, 388 U. S. 293 (1967) ..............

Torres v. United States, 270 F. 2d 252 (9th Cir.) ....

United States v. Arlen, 250 F. 2d 491 (2d Cir.) .....

United States v. Ellenbogen, 365 F. 2d 982 (2d Cir.

1966) Cert. Den. 386 U. S. 923 ......... ccc ceees

United States ex rel. Hussey v. La Vallee, 302 F.

Supp. 305, 309 (E.D.N.Y. 1969) ................

United States v. Leach, 429 F. 2d 956 (9th Cir. 1970)

United States v. Wade, 388 U.S. 218 (1967) ........

United States v. White, 324 F. 2d 814 (2d Cir. 1963)

Ungar v. Sarafite, 376 U. S. 575 (1964) ............

Washington v. Texas, 388 U. S. 16 (1967) ..........

IN THE

Supreme Court of the United States

OCTOBER TERM, 1971

No. 715381

Corneuius Lucas,

Petitioner,

—against—

New York,

Respondent.

d..

_

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

Statement

Petitioner seeks a writ of certiorari to review a judgment

of the Court of Appeals of the State of New Y~vrk, affirming

an order of the Supreme Court of the State of New York,

Appellate Division, Second Department, which affirmed

without opinion (1) a judgment of conviction rendered in

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

on September 5, 1965, convicting petitioner after a trial

before a jury of the crimes of Rebbery in the First Degree,

Grand Larceny in the First Degree, and Assault in the

Second Degree; and (2) an order of the same date affirming

an order of the Supreme Court of the State of New York,

Kings County, entered October 15, 1968, denying after a

hearing petitioner’s motion for a writ of error coran: nobis

to vacate the above-mentioned conviction.

Jurisdiction

The jurisdiction of this Court is invoked pursnant to 28

U.S.C. 1257(3).

Petitioner argues that he was denied due process of law

in violation of the United States Constitution, VI and

XIV Amendments.

Facts

On May 19, 1965, before the trial in the action actually

began, Norman Adderly, a co-defendant, offered to plead

guilty to Robbery in the First Degree, Unarmed (2-4).*

The Court then questioned Adderly who admitted the

charges and implicated Lucas and Polhill (5-73). All de-

fendants and their attorneys were present in Court during

the proceedings. The Assistant District Attorney then re-

vealed that it was his understanding that if Adderly testified

to the truth on trial, substantially the same as he had just

testified, then the First Degree Robbery plea would be

vacated and a plea of Attempted Robbery in the Third

Degree weuld be accepted (73-74). The Court said Adderly

must tell only the truth and that the Court assumed that

what he had just related was the truth. Adderly said he

still wanted to take the plea (75). The Court then said

that Adderly must tell the gospel truth on the witness stand

even if it varied from what had just been related (78).

The trial began and in the opening of the People, the

prosecutor informed the jury that Adderly had been prom-

ised consideration (92). The prosecutor also said that when

Adderly was arrested, a .38 caliber gun was found in the

car. An objection was sustained and the jury was instructed

to disregard the statement. Lucas and Polhill both moved

* Numerical references are to stenographer’s minutes.

a |

3

for mistrial and observed that they were not in the auto

when the gun was found. The prosecutor promised that he

would identify the gun as one used in the rovbery (102-03).

The motions were denied (98-101). The attorneys for the

defendants also told the Court and the prosecutor that the

defenses would be alibi and that identification was in issue

(90).

Norman W. Adderly testified that he was a defendant in

this case, had a prior conviction and pleaded guilty to Rob-

bery in the First Degree concerning the charges at bar. The

witness said that if he told the truth he had been promised

that the plea would be changed to Attempted Robbery in

the Third Degree (106-07). No objections were taken to

these statements. °

Adderly said that he met Polhill and appellant on April

23, 1964 at about 9:00 or 9:30 P.M. and they went to Almeta

Gardner’s house with one James Brown. (Apparently a

misprint in the record exists and the witness really meant

Viola Jackson’s house) (108-09). Brown told them that a

numbers writer had about $5,000.00 in her house, under 2..

pillow to pay off someone who had been a winner (111-13).

Polhill, Lucas and Adderly after agreeing to secure the

money (113-14) went to Almeta Gardner’s house. Adderly

knocked, a lady answered and they all forced their way in

with guns drawn (116-17). Adderly told the woman they

~vanted the money and Lucas began to search the apartment

(117-19). Polhill was near the bathroom from which a man’s

head suddenly protruded. The witness then heard a slap-

ping sound (118-19). Adderly forced Mrs. Gardner into the

bedroom, made her lay on the bed and tied her hands and

feet (120). Polhill searched the woman’s pocketbook and

took some money out (120-21, 123-24). The victim said

+

she did not have the ‘‘hit’’ money but had given it te her

sister who lived across the street (121). Adderly gagged

Mrs- Gardner but did not blindfold her and they all there-

after left after having been in the aguntnent for about 10

minutes (123-24).

Adderly, Lucas and Polhill drove to a bar on Fulton

Street and on the way Polhill divided up the money, each

of them, including Brown, receiving $18.00 (125-26).

The witness looked at an Army model Colt .45 gun and

identified it as the one used by Polhill in the robbery. The

gun had sandpaper marks on it which the witness recog-

nized. After a voir dire the pistol was admitted in evidence

(129-35).

Another gun was shown Mr. Adderly which he identified

as the .38 caliber snubnosed revolver which he used that

night. He had given the .45 to Polhill and Polhill had given

the .38 to him (136-39, 142). Lucas had used a Beretta dur-

ing the commission of the crime (143).

Adderly was arrested two days after the robbery, along

with Polhill at about 9:30 or 10:00 at night while they were

in Adderly’s mother’s automobile (144-45).

On cross-examination Adderly said he denied participat-

ing in the robbery when first questioned by the police but

he had lied (157). The witness said that before he took

the plea he knew he would take the witness stand and testify

to the truth that the others were involved in the crime. That

was the reason he was getting the Attempted Robbery Third

Degree plea (164-65). It was not his understanding that

he had to include the others if it was false, only if it was

true (165-66). The witness had a prior conviction for Man-

slaughter (168). He had the .38 revolver a long time and

5

had gotten the .45 a few weeks prior to the crime and kept

it in the closet of Mrs. Jackson‘s apartment, his girlfriend

(174).

Upon further cross-examination Adderly ssid thst the

alibi he gave to the Assistant District Attorney in the

Precinct was a lie (1$1-S2): bu if convicted here he would

be faced with additional penalties as a sevond felony of-

fender (199-201), but that the deal he made was conditioned

on him taking the witess stand and telling the truth

03). The witness further said thst after the robbery he

and Lucas and Polhill agreed to have alibi defenses gn

he had lied in the Previnet in accord with that sereement

(211-12).

Carl Junior Gardner, the husband of Almets Gardner.

was taking a bath on April 23. 1964 (222-23). He hesrd

his wife yell and he jumped out of the bathtub. As he was

opening the door, he was struck on the side of his hesd

with a gun by a man who told him to get back in the mb

(224-25). He saw the man and the enn and ght he

was bleeding, he did what he was told (225). The man left

the bathroom but the witness could not get out until s chsir

which had been placed against the outside of the door was

removed (226). The police were called and sfter they sr-

rived, the witness was taken to the hospital (227). The

witness identified Polhill as the man who hit him with the

pistol (231-32).

On cross-examination the witness said he hsd seen Polhill

in the police station and mar have seen him in Criminal

Court (237-38). Polhill was wearing a brown bst st th

time of the robbery but the witness could not reesll if he

I]

Was Wearing a tle or jacket (235-39). The Srst time he ssw

Polhill after the robbery was through a peephole st the

precinct (241). There were about five colored men in the

room wtih Polhill when the witness picked him out and the

witness did not recall any of them wearing uniforms (246-

48).

The witness had one prior conviction for Disorderly Con-

duct (257-58).

Almeta Gardner was ironing in her apartment while her

husband was taking a bath on the evening of April 23, 1964

(274). She heard a knock on the door and asked who it was.

After a voice answered ‘‘Elijah’’, she opened the door and

three men forced their way in (276). The lights were on

and she saw all three men. Adderly grabbed her around

the mouth and she was forced into the bedroom (277). All

three men had guns (277). Adderly said that if she screamed

he would kill her (278). She also said they took some money

from under the pillow (278). The witness identified Polhill

and Lucas and said they had guns (280).

Mrs. Gardner said that she saw the bathroom door start

to open and that Polhill went over and raised his hand with

a gun in it (281-82). She heard a noise and then Polhill

closed the door (282). The witness then identified Adderly

as the third man and said that while Adderly tied her up

with a sheet, Lucas searched the apartment (283-86). About

$140.00 was taken from under the pillow and from her

pocketbook (287). Adderly asked her for the rest of the

money and she told him it was at her sister’s house. She

gave them a false address and they all left (290-91). The

witness said that the colt .45 looked like the gun Polhill

had and the .38 looked like the one Adderly had (291-92).

The witness thereafter worked herself loose, went to the

bathroom, removed the chair and found her husband bleed-

ing (294). She called the police and after they came, her

7

husband was taken to the hospital (296-97). She said she

did not pay attention to the clothes of the three men, but

couid not forget their faces (302). On April 26 she went to

the Princinct and saw about six men through a peephole

(309-12). None of them were wearing uniforms (313). She

identified Adderly, Polhill and a Ulysses Bryant about

whom she said at the time she was not sure of (317-22, 366,

369). Polhill had not worn a hat during the robbery but

Adderly had (355).

Detective Arthur W. Broughton was on duty on April

23, 1964 and was waiting in front of 799 Marcy Avenue

(373-74). Through binoculars he saw two men enter the

building. He later saw Lucas pull up, enter the building

and fifteen minutes later three men came out and drove away

(370-75). Lucas was driving, Polhill was next to him and

the third man was Adderly (376). He followed the car

and after two stops, it stopped again at Bergen Street and

Classon Avenue, about 200 feet away from 660 Classon

Avenue, where Mrs. Gardner lived (377-79). On Saturday,

April 25, the witness was present when Adderly and Pol-

hill were arrested (380). Lucas was arrested the next day

(382).

On cross-examination the witness said he was the one

who found the gun in the car in which Adderly and Polhill

were arrested (388).

The prosecution rested and defense motions to dismiss

were denied (400-03).

Barbara Polhill was the first defense witness. She said

that on the evening of the robbery her husband was home

all evening except when he went out from 7:00 P.M. to 8:00

P.M. or 8:30 P.M. He did not leave between 8:30 and 12:00

8

except to walk Miss Myrtle Brown to get a taxi at around

midnight. A friend of Miss Brown, whose name was not

recalled, was also there (408-09).

Myrtle Brown testified that on April 23 she arrived at

appellant’s kome about 9:00 P.M. and stayed there until

22:00 (429-30). Polhill was there the whole time and did

not leave except to walk with her to get a taxi (431).

Cornelius Lucas, the appellant, said that after leaving

the barbershop at about 7:45 P.M., he went to a service

station at Atlantic Avenue and South Oxford Street. He

picked up a transmission, towed it to Atlantic and Clinton

and attempted to put it in his car (443). He worked on the

ear from 8:30 until 11:15 P.M. (444). He stopped at 722

Fulton Street from 12:30 until 1:00 A.M., and then went

home (444). He was not with Adderly or Polhill that eve-

ning and took no part in the crime (444-45, 447).

On cross-examinatior. Lucas admitted a prior conviction

for embezzlement ana that he owned a white Cadillac sim-

ilar to that described by Detective Broughton (457, 462-63).

Viola Jackson said that Adderly was at her home and

left around 9:00 P.M. Polhill and Lucas were not there

that night as Adderly had previously testified (474-75).

Adderly returned to her apartment alone at 11:00 o’clock

(476). On cross-examination the witness said that Adderly

had been her boyfriend but had stopped coming to her house

in December, 1964 (489-498).

Clarence Oliver Wallace, a mechanic at a gas station on

Clinton Street and Atlantic Avenue, said that Lucas came

in about 7:00 or 8:00 P.M. (503-05). He worked on the

transmission for a while and they both went to a bar on

Fulton Street until 1:00 or 2:00 A.M. when they broke up

9

(505-06). The witness had a prior conviction for Possession

of a Gun (507).

Cornelius Lucas was recalled to the witness stand and

after the close of the case, the sixth count of the indictment,

charging burglary, was dismissed (526).

The jnry convicted both men of Robbery in the First De-

gree, Grand Larceny in the First Degree and Assault in the

Second Degree.

ARGUMENT

I.

The trial court’s refusal to grant a continuance was

not an abuse of discretion. The court’s denial of a con-

tinuance did not deprive petitioner any constitutional

rights.

Petitioner asserts, and we agree, that an accused has a

right to secure and call witnesses in his own behalf. The

accused has a right to compulsory process in order to ob-

tain witnesses in his own behalf. Such a right is clearly

binding upon the States. Washington v. Texas, 388 U.S.

16, 18 (1967). Just as a defendant has the right to confront

his accusers, he also has a right to present his own witnesses

in order to establish a defense. Washington v. Texas, supra

at p. 19.

At issue in the case at bar, however, is the question

whether the trial judge abused his discretion in refusing

to grant petitioner a continuance to locate a defense wit-

ness, and to secure compliance with a subpoena issued for

hospital records sought to be used during cross-examina-

tion for the purpose of impeachment. ‘‘Disposition of a

request for continuance is of this nature and is made in

10

the discretion of the trial judge, the exercise of which will

ordinarily not be reviewed.’’ Avery v. Alabama, 308 U.S.

444, 446 (1940).

In Franklin v. South Carolina, 218 U.S. 161, 169 (1809)

in a murder case this court was confronted with a situation

where the trial judge refused to grant a continuance sought

on the ground that counsel for the accused had not had

sufficient time or opportunity to examine the notes of the

testimony taken before the coroner who investigated the

case. The notes of the testimony were somewhat illegible

and the party who prepared the notes was not at hand.

The accused’s counsel sought to use the testimony for im-

peachment purposes. This court held that the refusal to

grant a continuance was no deprivation of due process.

This policy of treading lightly before reviewing the dis-

cretionary acts of a trial judge has been followed most

recently in Ungar v. Sarafite, 376 U.S. 575 (1964). Reh.

den. 377 U.S. 925. ‘‘(I)t is nut every denial of a request

for more time that violates due process even if the party

fails to offer evidence or is compelled to defend without

counsel.’’ Ungar v. Sarafite, supra p. 589.

‘‘There are no mechanical tests for deciding when a

denial of a continuance is so arbitrary as to violate due

process. The answer must be found in the circumstances

presented to the trial judge at the time the request is de-

nied. Nilva v. United States, 352 U.S. 385, 77 S. Ct. 431,

ALL. Ed. 2d 415; Torres v. United States, 270 F. 2d 252

-—" (C.A. 9th Cir.); ef. United States v. Arlen, 250 F. 2d 491,

C.C.A. 2d Cir.).’’? Ungar v. Sarafite, supra p. 589 (see also

U. S. ex rel. Hussey v. La Vallee, 302 F. Supp. 305, 309

(E.D.N.Y. 1969) ; United States v. Leach, 429 F. 2d 956, 963

(9th Cir. 1970).

11

The policy according the trial judge discretion in grant-

ing a continuance and reviewing only abuses of this power

has always been the law in New York. People v. Shea, 147

N.Y. 78, 89, 41 N.E. 405 ( 1895) ; People v. Caple, 31 A.D. 2d

752, 297 N.Y.S. 2d 498 (2d Dept. 1969) ; People v. Roberts,

29 Mise. 2d 621, 216 N.Y.S. 2d 959, 965 (Co. Ct. 1961), affd.

17 A.D. 2d 1030, 235 N.Y.S. 2d 832, Cert. Den. 374 U.S.

854.

The policy is follewed in the federal courts.

‘‘It must be shown that the trial judge acted arbi-

trarily and substantially impaired defendant’s abil-

ity to defend himself, before an appellate court will

conclude that the trial judge abused his discretion.

The test is a stringent one.’ United States v. Ellen-

bogen, 365 F. 2d 982, 985 (2d Cir. 1966) Cert. den.

386 U.S. 923; see also Powell v. Unitea States, 420

F. 2d 799 (9th Cir. 1969) ; Reiss v. United States, 324

F. 2d 680, 682 (1st Cir. 1963) cert. den. Jacobs v.

United States, 376 U.S. 911.

In United States v. White, 324 F. 24 814 (2d Cir. 1963)

the Court of Appeals held that the denial of a continuance

was an abuse of discretion. In the White case, however,

the defendant relied on the defense of entrapment, and the

defense requested a continuance in order to call a ‘‘special

employee’’ of the g: vernment as a witness. His where-

abouts were known, and his temporary unavailability

stemmed from an illness.

In the case at bar, defense counsel sought an adjourn-

ment in order to locate one Ulysses Bryant. As petitioner

apparently concedes at p. 11 of his petition, ar investigator

employed by the defense was unable to locate Bryant. The

presence of Bryant—indeed the question of whether he

2S CE

was even alive—apparently could not be answered defini-

tively at the time the continuance was sought. Apparently

no evidence was before the court to indicate the reasonable

likelihood of ever locating Bryant.

Fetitioner contends that Bryant was a relevant and

material witness to petitioner’s defense on the issue of

guilt. Bryant had been tentatively identified in a pretvial

lineup as the perpetrator who, through a second lincup,

was in fact petitioner.

Ideally, during the course of trial, both sides have all

the evidence and witnesses at their disposal. Sometimes,

as in the case at bar, this is not possible. If one considers

that the absence of Bryant cannoi ve placed at the feet of

the presecutor’s office, and there was no strong likelihood

that in the foreseeable future Bryant would be located, the

trial judge did not abuse his discretion.

In any case, the fact of the erroneous tentative identifica-

tion was before the jury through the context of cross-

examination of one Mrs. Gardner Bryant’s presence

would only be of a cumulative nature. The trial judge quite

clearly acted reasonably in denying petitioner’s request.

(2)

Under attack also is the court’s refusal to grant a con-

tinuence until certain psychiatric records, diligently sub-

poened by defense counsel, could be produced. The court

denied a request for a continuance, saying that it would

not speculate on the records, and counsel could act to punish

them for contempt. Appellant correctly points out that, if

the witness had been found insane, the jury should know

it on the question of credibility. People v. Rensing, 14 N.Y.

TE ee

13

2d 210, 250 N.Y.S. 2d 401 (1964). Although the action of

the court may have heen a little hasty, later events show

that it would have made no difference,

Petitioner, subsequent to his conviction, sought to col-

laterally attack the judgment via a writ of error coram

nobis. During the course of that proceeding, it was shown

that Adderly had not been found insane, nor had any mental

deficiencies been’ discovered at the hospital.

The facts as adduced on that hearing, if viewed as an

offer of proof in the case at bar, show that, had the sub-

poenas been honored, the result of this litigation would

not have been altered.

The identification procedures at the precinct did not

violate due process.

Petitioner attacks the pre-trial stationhouse identifica-

tion procedure in this case as not being within our concepts

of due process. It has been held that while United States

v. Wade, 388 U.S. 218 (1967) is not retroactive (Stovall v.

Denno, 388 U.S. 293 (1967); People v. Brown, 20 N Y 2a

238 (1967) the identification must Square with our own con-

cepts of due process. Thus the question which must be

resolved is whether the identification procedure was so un-

fair as to amount to a denial of due process and whether Mrs.

Gardner’s identification of the petitioner was in any way the

product of that unfairness. Such a claim must be -deter-

mined by a consideration of the totality of the surrounding

circumstances. Stovall v. Denno, supra, pp. 301-302; Sim-

mons v. United States, 390 U.S. 377 (1968) ; Foster v. Cali-

fornia, 394 U.S. 440 (1969) ; Coleman v. Alabama, 399 U.S.

1 (1970).

a ry se EE I, LOLOL LLEO LL VEIL LLY ITO A

.

14

When a lineup was first held, Mrs. Gardner picked out

Adderly, Polhill, and when she pointed out Bryant, she

said at the time, she was not sure, he looked like the man

(314, 317-322, 366, 369). Later on, while she was being

questioned by the Assistant District Attorney, a series of

men were brought in for her to look at individually.

There were no suggestions of any sort and she imme-

diately identified Petitioner. The reason she was unsure

of the first man was because in the lineup he wore a hat,

whereas during the commission of the crime, he had not

(321). The witness’ unwillingness to identify just anyone

is indicative of her free will. It added to her subsequent

identification because then, when she was sure, she was

more likely to have made a deliberate and uninfluenced

choice. As she stated: ‘‘I told them in the beginning I

didn’t know for sure that was the man, but as soon as I

seen the right man, I told him’’ (322).

It should also be noted that she said she saw him close

up, the area was lighted and she said that the face left an

impression because she was frightened (359, 277). She had

also given the police a description, so apparently she was

familiar with the faces (306).

The other factors which showed that no suggestive influ-

ences were present were that no one tried to intimidate,

direct her, or suggest anything to her.

She said that the police did not suggest when they first

asked her to come down that they had caught her assailant

(309). She wert to the precinct in her own car, not with

the police (309), she went to the squad room without escort

(311) and the police only told her that they wanted her to

see if any of the men shown were the men who had com-

15

mitted the crime (311). There were six men in the lineup

and she described it in great detail (310-315). After the

lineup, men. were brought in to her singly from time to time

and when Lucas was brought in, apparently the only thing

asked of her was if she recognized him (359).

It seems to Respondents that unless the Court will hold

that showing appellant to the witness alone was ipso facto

reversible error, under pre-Wade law, there was no unfair-

ness here because not the hint of a suggestive influence was

present. In a recent case, the Third Department did not

vitiate a judgment because of an identification without a

lineup. People v. Weis, 32 A D 2d 856, 301 N.Y.S. 2d 186,

191 (cert. den. 397 U.S. 1047). Also, the witness had a clear

opportunity to see appellant during the crime and it is

likely that the precinct procedure did not affect her in-

court identification. See also, People v. A.C., 27 N ¥ 2d 79

(1970) and People v. Richardson, 36 A D 2d 25 (4th Dept.

1971).

Additionally, the wrong identification was argued to the

jury by counsel (533-534) and the Court gave a lengthy,

clear and comprehensive charge on the issue of identifica-

tion (625-630). The jury was told that they should consider

the fairness of the procedure and that the identification

must not have been the result of suggesting or prompting

(627, 628-629). They were also told it would have to be

accurate, reliable and unmistaken, that it should be strong,

cogent and must be believed beyond a reasonable doubt (627,

628-630).

16

Ill.

Neither the court nor the assistant district attorney

failed to correct false testimony. Petitioner was not

denied due process.

Petitioner has contended during trial and on appeal

through the State Courts, that Norman Adderly had a mo-

tive to implicate Petitioner in the crime. The fact is that

the possible motives were all set out and inquired into at

length (159-168), and the jury was fully aware of the in-

ducements he had to testify, the conditions under which he

testified, and his motives to tell or not to tell the truth. The

jury was thus able to take this into consideration in decid-

ing whether Adderly was a person worthy of belief and in-

deed, who should be believed. There simply was no with-

holding or suppression of evidence by the prosecutor.

We are cognizant of the policy set out in Napue v. Illinois,

360 U.S. 264 (195°) and followed in our Court of Appeals

(People v. Savvides, 1 N Y 2d 554, 136 N.E. 2d 853, 154

N.Y.S. 2d 885 (1956); People v. Mangi, 10 N Y 2d 86, 217

N.Y.S. 2d 72 (1961). We merely assert that the record sup-

ports our contention that there was neither active nor pas-

sive non-disclosure as per the terms of Adderly testifying

for the State. The weight to be given, if any, to his testi-

mony was for the triers of fact and not reviewable on

appeal.

esse

17

CONCLUSION

The petition for the writ of certiorari should be de.

nied.

Dated: Brooklyn, New York

September 27, 1971

Respectfully submitted,

Evcess Gorp

District Attorney

Kings County

Rocrer Besser Aprre

Assistant District Attorney

of Counsel

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