# Petition for Writ of Certiorari — Cavalieri v. New York

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0706%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 406 U.S. 962

## Text

IN THE

Gupceme Court of the Muted States ‘

Ocrossr Term, | 97.1

ee Ve
_ > a VO:
SAMUEL CAVALIERI,
Petitioner.
against: os “ >

‘THE PBOPLE OF THE STATE OF NEW YORK.

Resporden t.

PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF THE STATE OF NEW YORK

ARNOLD E. WALLACH
Attorney for Petitioner
- 253 Broadway
New York, New York
(212) 227-0959

a

THE DICK BAILEY PRINTING SERVICE Telephone: (212) 447-5358

#

TABLE OF CONTENTS

Page
Jurisdiction ...... ee rn Bo ares Ves eae
ee

It would seem ‘therefore, since the-prosecutor followed a
course of conduct and a de facto rule as to advising the
petitioner as to immunity, that the prosecutor should have
explained immunity clearly, succinctly arid concretely and the
prosecution therefore should have been held to the fundamental
fairness of the law; thus, in Yellin v. United States, 374 U.S.
109, 10 L.Ed. (2) 778, 83 S.Ct. 1828 (1963) it was stated on:
page 124 of 374 US. that: |

“
e

. the ‘Committee prepared the ground work. for

prosecution. .... it is not too exacting to require that the
‘ Committee be equally meticulous in obeying its own
rules.” ‘

To supplant’ the Fifth Amendment right ef silence the
“immunity” must be as coextensive as the fundamental right.
See Counselman v. Hitchcock, 142 U.S..547,35 L.Ed. 11 10, 12
S.Ct. 195 (1892), :

The explanation of immunity in this case, by the prosecutor
was and is inexplicable. The prosecutor initially explained
‘immunity as forbidding a use of any of the compelled
' testimony sought from the petitioner, or any lead therefrom
(115). Then the prosecutor stated “in effect” that petitioner
couldn’t be “prosecuted because of anything you say” (1 16).
The expression “‘in effect”” was ambiguous and not explicit.

_____ Proceeding further, the prosecutor added that petitioner“ Rote

- must answer the questions, because there js no reason -you
cannot answer the questions at this time, since you cannot be
prosecuted for it. That means that what you are getting before
this'Grand Jury, you. are getting a bat. You are being walked
away from any possible prosecution, for anything that you say
before the Grand Jury cannot be used against you... .” (1 16),
see pages 6-7 , supra. ae

11

‘ The immunity thus explained was garbled and clearly
qualified the attempted grant af transactional immunity,
because the prosecutor concluded that the evidence cannot be
used against you... ”

Thus, the explanation of immunity as an amnesty from _
prosecution for answering was explained merely in terms of
“use” or testimonial immunity. Not only that, but in
attempting to. explain “transactional immunity” the
prosecution omitted and failed to explain that the petitioner
could not be prosecuted on the basis of any leads or any
matters that might. flow from any answer or evidence he would
give. In other words, that the petitioner was immunized from.
prosecution for any answers he gave that might relate to any
possible crime. See People v. Masiello, 28 N.Y. (2) 287: 321
N.Y.S. (2) 577; People v. Mulligan,29 N.Y. (2) 20; 323 N.Y.
(2) 681; People v. Tramunti, 29 N.Y. (2) 28, 323 N.Y.S. (2)

687. |

In effect, the language and explanation of the prosecutor, as.
to “immunity” constituted an absence of immunity justifying
the petitioner for relying on his privilege against
self-incrimination. As was stated in Stevens v. Marks, 383 U.S.
234, 15 L.Ed. (2) 724, 86 S.Ct. 788 at page 246 of 383 U.S.
that: *

“,.,. the State may not substitute for the privilege against
‘Self-incrimination an intricate scheme for conferring
immunity and thereafter hold in contempt those who fail
fully to perceive subtleties. A witness has, we think, a
constitutional right to stand on the privilege against
self-incrimination until it has been fairly demonstrated to
him that an immunity, as broad in scope as the privilege it
replaces, is available and applicable to him. . . “ye .

12
II

THE PETITIONER WAS ENTITLED TO COUNSEL
WHEN HE APPEARED BEFORE THE GRAND JURY
AND PETITIONER SHOULD HAVE BEEN AFFORDED
TIME TO PROCURE COUNSEL: — ;

The petitioner was salad by counsel when he
"appeared before ‘and submitted to the interrogation by the
. Grand Jury. The right to counsel is based on the Sixth and_
Fourteenth Amendments to the Federal Constitution. It is put,
that petitioner was not in contempt because he desired counsel.
and he ‘was not given an opportunity to get counsel and was —
completely ignorant of the proceedings. This was compounded
by the explanation of the so-called immunity given by the
trained prosecutor. ;

The function of counsel would be two-fold. Counsel could

have explained the issue of the irrelevancy-of questions: counsel -———

could have also explored the issue of immunity; see People v.
Tanniello, 21 N.Y. (2) 418: 288 N.Y.S. (2) 462, at pages
423-425 of 21 N.Y. (2).
: rs
The facts of this case show that the petitioner was ignorant
having only attained the sixth grade of school (201). Ironically,
the Grand Jury assistant foreman who testified at the trial did
not know what transactional immunity was (138),

However, this petitioner stands convicted for contempt -
because he persisted in refusing to answer the question when -
there was an open question as to the extent of the immunity.
~ More was therefore demanded from the petitioner than from
the Grand Jury foreman who testified for the prosecution. ~

_The petitioner made known to the District Attorney. that he

3
desired counsel (202-205).

It would appear that the fundamental right to counsel has
been considered by this Court from-the aspect of the utility of

_counsel and a relevancy of a lawyer’s advice.

In Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. (2) 694, 86

S.Ct. 1602 (1966), it was held that the right to counsel is.
‘fundamental at a-time when an accused is subjected to custodial

questioning. In U.S. v. Wade, 388 U.S, 218,-18 L.Ed. (2) 1149,
87 S.Ct. 1926 (1967), it was held that an accused has a right to
counsel at a custodial pre-trial line-up conducted for identifi-
cation. Counsel it was held would insure the fairness of the

line-up.

Similarly; in this case, counsel would have been of great aid
to the petitioner in explaining what proper immunity consisted
of and. whether the sale vases’ had a: iatadis to refuse to answer..

Instead, the Courts below held that the petitioner knew his

. rights and didn’t need a lawyer: It seems difficult to understand

how the assertion of one constitutional right by a person can
work a forfeiture of another constitutional right. ‘Moreover, ©

_ there is a presumption against a waiver of a fundamental right.

See Johnson v. Zerbst, 304 wi 458, 82.L.Ed. 1461, 58 S.Ct.
1019-(1938).

14
CONCLUSION
_ FOR THE ABOVE STATED REASONS A WRIT OF
CERTIORAI SHOULD ISSUE TO REVIEW THE JUDG-
MENT AND OPINION OF THE COURT OF APPEALS OF
THE STATE OF NEW YORK.
Respectfully submitted,
Arnold E. Wallach

Atjtomey for Petstioner

Dated: April 6, 1972

15
, _ APPENDIX A
STATE OF NEW YORK
IN COURT OF APPEALS

At a Court of Appeals for the
“State of New York, held at
Court of Appeals Hall in the
City of Albany on the Twelfth
aye Gommy AD. 1972.

PRESENT, HON. STANLEY H. FULD, Chief Judge, —

r Mo. No. 5°
The People &c., :
. : Respondent,

Samuel Cavalieri,
’ Appellant.

A motion for reargument and/or to amend the remittitur in
the above cause to this Court having heretofore been made
upon the part of the appellant herein and papers having been
. Submitted thereon and due deliberation whe béen thereupon
had, it is

ORDERED, that the said motion be and the same hereby is
denied insofar as it seeks reargument, and it is

ORDERED, that the said motion be and the same hereby is
granted insofar as it seeks amendment of the remittitur; the
return of the remittitur is requested and, when returned, it will
be amended by adding thereto the following:

16
Appendix A

Upon the appeal hierein there was presented and necessarily
passed upon a question under the Constitution of the United
States, viz.: Whether the rights of the defendant under the ©
fifth, sixth and fourteenth amendments were denied. The
Court of Appeals held that there was no such denial of
defendant's constitutional rights.

AND the Sypreme Court, Bronx County, hereby is requested

. to direct its Clerk to return said remittitur to this Court for
amendment accordingly.
A copy
s/Kimball

7: Deputy Clerk

-_

17

APPENDIX B
Decision of Appellate Division

Harold A. Stevens, P.J.,
Louis J. Capozzoli,
Arthur Markewich,
Theodore R. Kupferman,
Aron Steuer; JJ. —

Appeal from a judgment of the Supreme Court of Bronx
County (David Ross, J.), without a jury, rendered June 26,
1970, convicting defendant of Criminal Contempt [Penal Law
§ 215.50] and sentencing him to serve a term of one year in the
New York City Correctional Institution for Men.

Arnold E. Wallach of counsel (Joseph Panzer, attorney ) for
appellant.

Daniel J. Sullivan of counsel (Burton B. Roberts, District
attorney ) for respondent. : . |

STEVENS, P.J.:

‘Even though immunity was conferred by the Grand Jury and
the meaning thereof explained in simple language, there was a
continuing, considered and contumacious refusal by defendant
to answer questions which we find to be clearly relevant to the
stated purpose of the inquiry. The defendant was informed that
no testimony, truthfully given, coul-. be used against him and,
further, any lead obtained from ech testimony that might hurt
him “in some criminal way” could not be so used .-Moreover, it
was made clear to the defendant that he was not the target of
the investigation. Immunity when conferred by the Grand Jury
includes both testimonial and transactional immunity (cf. Code

of Criminal Procedure § 619-c; Gold v. Menna, 25 N.Y. 2d 475).

18
7 Appendix ie

From the defendant’s own testimony he understood that he was
being subpoenaed to testify as a witness before the Grand Jury.
Since he received several subpoenas and appeared pursuant
thereto prior to the date of actual testimony, there was ample |
opportunity to consult with counsel had defendant so desired.
Nor did he, on the occasion of his actual appearance before the
Grand Jury, ask to be excused from the Grand Jury room. in
order to consult counsel. Indeed, if, as defendant asserts, he did
not at any time confer with counsel prior to his appearance,
_defendant was remarkably alert and precise in asserting. his
constitutional privilege against self-incrimination. Defendant
admitted that he understood at least certain of the questions,
which he ‘refused to answer. Immunity having been properly
conferred, defendant had no right to remain silent (Gold v.
Menna, supra). Nor do we find the sentence of one year to be
excessive.

The judgment entered June 26, 1970, should be modified on —
the law, to the extent of holding that the refusal of defendant
to answer the questions contained in the multiple count
indictment constituted, in effect, a single contempt with a
maximum sentence of one year since all referred to a single area
_of inquiry, and it became clear, at the outset, that defendant
would refuse to answer any questions (cf. People v. Chestnut,
296 N.Y 2d 481, 491-492). As so modified, the judgment
appealed from should otherwise be affirmed.

=

All — except Capozzoli, J., who dissents in a dissenting
opinion. |

Appendix B
CAPOZZOLI, J. (DISSENTING):—
This is an appeal from a judgment convicting the defendant
of criminal contempt (Penal Law § 215.50), after a non-jury
trial. The conviction is based on a refusal of the defendant to

answer questions before a Bronx County Grand Jury. —

The Grand Jury was engaged in an investigation of “a

_conspiracy to violate the gambling laws, loan sharking, taking of -

money illegally and putting them into legitimate business in
Bronx County”. (R-115). The District Attorney, after having
informed the defendant of the purpose of the investigation by
the Grand Jury, addressed the defendant, in the presence of the
Grand Jury, as follows:-

“I tell you now, the foreman of the Grand Jury has told me

to tell you. that the Grand Jury has voted to give you. —

immunity. Now, when the Grand Jury votes to give you

immunity, it means if you are directed to answer questions

by the foreman, of the Grand Jury, and since you have been
granted immunity, anything you say under oath, and you

have been sworn as a witness before the Grand Jury, cannot

[sic] be used in evidence against you. It also means if you say
anything that we can get a lead from, that may hurt you in
some criminal way, that cannot be used in evidence against
you.” : fy

After having made this statement to the defendant the
District Attorney followed it up with the following:—

“So that in effect, you cannot be prosecuted because of
anything you say.” (R-116).

y

20
Appendix B
‘Later, on the same page, the District Attorney further said:— _

“By that I mean, you must answer questions, because there is
no reason you cannot answer the questions at this time, since
you cannot be prosecuted for it. * * * You are being walked
away from any possible prosecution for anything that you
say before this Grand Jury cannot be used against you.”

Following the last quoted statement of the District Attor-
ney, the defendant refused to answer all questions put to him on
the ground that the answers would tend to incriminate him. The
majority holds that immunity was conferred by the Grand Jury
and that the failure of the defendant to answer nena
thereafter was contumacious and contemptuous.

It is, of course, well settled that both Amendment V of the
U.S. Constitution and New York State Constitution, Article I,
§6, protect one from being compelled to be a witness against
himself. The New York statute, which bears upon tnis subject,
was enacted in 1967 and is to be found in the Code of Criminal
Procedure, § 619-c, and is Guived from nani of the former ,
Penal Law.

It prescribes the type of immunity. that must be granted to a
witness before he may be compelled tc surrender his constitu-
tional privilege against self incrimination and it also specifically
designates those who are authorized to grant immunity. What is
extremely important is the fact that it directs “* * * such
person shall not be prosecuted or subjected to any penalty or
forfeiture for or on account of any transaction, matter or thing
concerning which, in accordance with the order by competent
authority he gave answer or produced evidence, * * *”’. (Code
of Criminal Procedure § 619-c, subd. 2.)

21
Appendix B
‘It is to be noted that there is a very important distinction

between transactional immunity and testimonial immunity. The
latter, sometimes known as “‘use’”’ immunity, protects oné from

using the testimony itself in any subsequent criminal pro-

ceeding. On the other hand, “transactional” immunity, under

the last quoted section, is far more reaching and gives “‘absolute .
immunity . against . future prosecution for the offence tc which ~

the question relates”. (Counselman v. Hitehcock, 142 U.S. 547,
586.)

It has been repeatedly held that the immunity is not
adequate if it does no more than assure that the testimony will
not be used in evidence against one in a criminal prosecution.
To force disclosure the immunity must be so broad that the risk
of prosecution is ended altogether. Nor is he required to show,
in order to make his privilege available, that the testimony
which he declines to give is certain to subject him to
prosecution. (Matter of Doyle, 257 N.Y. 244.)

In the last cited case, at pp. 250, 251, Chief Judge Cardozo.

‘said :—

“The appellant is, therefore, privileged to refuse to answer
questions that may tend to implicate him in a crime, unless
by some act of amnesty or indemnity, or some valid
resolution equivalent thereto, he has been relieved from the
risk of prosecution for any felony or misdemeanor that his
testimony: may reveal. The immunity is-not adequate’ if it
does no more than assure him that the testimony coming

from his lips will not be read in evidence against him upon a_

criminal prosecution. The clues thereby developed may still
supply the links whereby a chain of guilt can be forged from
the testimony of others. To force disclosure from unwilling

22

Appendix B
lips, the immunity must be so broad that the risk of
prosecution is ended altogether. (Citing cases.)’’. ;

" Again, at p. 257, the Court said:—

“x * * The immunity must. be as broad as the privilege
destroyed.”

It therefore becomes important to consider what was said £0 -
this defendant on the basis on which the prosecution arid the
majority are convinced that proper immunity was conferred. It
must clearly appear that the witness is being offered transac-
tional immunity, as distinguished from testimonial or use
immunity. As was said by the Court in People v. DeFeo, 308
N.Y. 595, at p. 600:— aia

“The validity of the proceeding depends on whether the
immunity conferred at the December 4th hearing was
complete and coextensive with his constitutional protection
against self incrimination as found by the court below or, as
claimed by the defendant, was qualified-and restricted by the
limitation mentioned by the foreman of the Grand Jury. In
other words, was the immunity granted as broad as the
peril?”

As has been indicated, the District Attorney, in commun-
icating to the defendant the instructions of the Grand Jury
foreman that the Grand Jury voted to give him immunity, said
“if you are directed to answer questions by the foreman of the
Grand Jury * * * anything you say under oath * * cannot be
used in evidence against you. It also means if you say anything -
that we can get a lead from, that may hurt you im some criminal
way, that cannot be used in evidence against you.” It is true |

23
Appendix B

that, following the last quoted language, the District Attorney
said: “So that in effect, you cannot be prosecuted because of
anything you say”. But this was his interpretation of what the
Grand Jury foreman had offered to the defendant. What had
been offered was not complete transactional immunity, but
assurance that nothing the witness would say under oath would
be used in evidence against him. There was not even a reference
to the particular section involved in this proceeding, viz: 619-c
of the Code of Criminal Procedure. The least that can be said
about the language used by the District Attorney is that it was
confusing and equivocal.

It is, of Course, true that the Grand Jury proceeding was not
a prosecution of the witness, but, rather, a general investigation.
Hence, it has been held that the witness has no right. to be
represented by counsel in the technical sense. (People v.
Iannello, 21 N.Y. 2d 418.) However, under the circumstances of
this case, the least that -should have been done with this
defendant was to arraign him before a Judge who might have
given him the proper advice as to the type of immunity. to
which he was entitled. While the defendant testified that he
asked for counsel, even if he did not do so, the proper and fair
thing to have done was to see that he obtained counsel to be
properly advised. As the Court said in People v. Iannello, “—,
at p. 424:—

“* * * in light of current recognition of the importance of
counsel in providing effective notice of rights, it is difficult to
maintain that the witness is not entitled to the advice of his
lawyer. (cf. Miranda v. Arizona, 384.U.S. 436, 475, Escobedo
v. Illinois, 378 U.S. 478, 486; People v. Donovan, 13 N.Y. 2d
148, 153). |

** * *

24
Appendix B

“* * * The legal rights which may be critically affected
before the Grand Jury, and concerning which the witness
should be entitled to consult with his lawyer, are several.
First, the witness may be put in a position of determining
whether to assert or waive his privilege against self incrimin-
ation. * * * The witness who is not a target of the inquiry
faces an even more critical decision for, unless he claims his
privilege and thereby invokes immunity, his statements can
be > used against him substantively. Faced with a confusing
variety, of rules concerning the existence and scope of his
privileges, a witness should not be required to make these

_choices unaided 7” his lawyer.”

_ It is true that this defendant had received several Grand a
subpoenas for prior days, but he was never brought into the
Grand Jury room until March 7th, 1969, the day when the
alleged contempt took place. That is the day that he was
offered this so-called immunity which is now under attack. That
was the time when he was in need of legal advice as he did not
know what his rights were after having been addressed by the
* District Attorney on the subject of immunity. In such a highly
technical situation, where he had to understand ‘the difference
between transactional immunity, as distinguished from tes-
timonial immunity, it is too much to expect that this defendant —
should have made a decision without the advice of counsel. In
fact, the foreman of the Grand Jury, when asked if he knew the
_ meaning of transactional immunity, answered truthfully and to
the point “‘no”’. (F-138)

_ Since the complete immunity contemplated by § 619-c was
not offered to this defendant by the Grand Jury, he was
justified in continuing to assert his privilege. :

25
Appendix B

For the reasons stated, I would reverse the judgment of
conviction and dismiss the cnchewment.

APPENDIX C
Judgme.t of Appellate Division

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE Di VISION—FIRST DEPARTMENT

PRESENT— .

Hon. Harold A. Stevens, Presiding Justice,
Louis J. Capozzoli,

Arthur Markewich,

Theodore R. Kupferman,

Aron Steuer, Justices.

An appeal having been taken to this Court by the defendant-
appellant froma judgment of the Supreme Court, Bronx
County (Ross, J.), rendered on June 26, 1970, convicting
defendant, after trial without a jury, of Criminal Contempt, and
said appeal having been argued by Mr. Arnold E. Wallach of
counsel for the appellant, and by Mr. Daniel J. Sullivan of
counsel for the respondent: and due deliberation having been
had thereon, and upon the Opinion of this Court filed herein,

It is'ordered that the judgment so appealed from be and the
same is hereby modified, on the law, to the extent of holding
that the refusal of defendant to answer the questions contained
in the multiple count indictment constituted, in effect, a single
contempt with a maximum sentence of one year. As #0
modified, the judgment is affirmed. [One of the Justices
dissents in an Opinion. }

HYMAN W. GAMSO

Entered April 15, 1971 -

27

APPENDIX D
Order and Opinion of Supreme Court, Bronx County _

At a Special Term, Part 1, of
the Supreme Court of the State
of New York, held in and for
the County of Bronx, at. the
- Courthouse, 161st Street.and °
Grand Concourse, Bronx, New
York, on the 23rd day of July,
1970. ;

PRESENT:

‘The Hon, Isidor Dollinger,

PEOPLE OF THE STATE OF NEW YORK
«against
SAMUEL CAVALIERI,

Defendant.

The defendant above named having been convicted of
violation of Section 215.50 of the Penal Law Criminal
Contempt in the County of Bronx, State of New York, o> the
26th day of June, 1970, and said defendant having received a
sentence of one year in the New York City Correctional

28
Appendix D

Institution for Men and said defendant having appealed from
said judgment of conviction and sent to the Appellate Division,
First Judicial Department, and having moved this Court at
Special Term, Part 1, for a certificate that in its opinion there is
a reasonable doubt that the judgment of conviction and
sentence against him should stand and for an order admitting
the said defendant SAMUEL CAVALIERI to bail pending the
hearing and determination of his appeal and said motion having
duly come on in Special Term, Part I, of this Court on the 9th
day of July, 1970, and the motion having been heard by the
Court

Now, upon reading and filing the Notice of Motion dated the
29th day of June, 1970, the affidavit of Joseph Panzer duly
sworn to the 29th day of June, 1970, and upon all the
proceedings heretofore had herein and with due proof of service
of the application for a Certificate of Reasonable Doubt upon
the District Attorney of Bronx County all in support of said
application and after hearing Joseph Panzer, attorney for
defendant, in support of said application and Harvey Kaminsky,
Assistant District Attorney, Burton Roberts, District Attorney,
in opposition and due deliberation having been had and upon
the filing of the decision of the Court, it is

Ordered that the motion for a Certificate of Reasonable
Doubt whether the judgment convicting the defendant of the
crime of a violation of Section 215.50 Criminal Contempt
should stand by reason of the fact that there are arguable

questions of law for review by the Appellate Court and it is
further

Ordered that the said defendant SAMUEL CAVALIERI be
admitted to bail during the pending of the appeal herein upon

bald

29
Appendix D-

the furnishing of a proper bond or undertaking in the sum of
$1,000.00.

ENTER:

s/ ISIDOR DOLLINGER
J.S.C. one

30

APPENDIX E
Order of Court of Appeals Entered Nov. 11, 1970

COURT OF APPEALS

STATE OF NEW YORK, ss:

PLEAS in the Court of Appeals, held at Court of Appeals
Hall, in*the City of Albany, on the 17th day of November in the
year of our Lord one thousand nine hundred and seventy-one,
before the Judges of said Court.

WITNESS,

The HON. STANLEY H. FULD,
Chief Judge, Presiding.

RAYMOND J. CANNON, Clerk.
Remittitur November 17, 1971.

BE IT REMEMBERED, That on the 21st day of June in the
year of our Lord one thousand nine hundred and seventy-one,
Samuel Cavalieri, the appellant in this cause, came here unto the
Court of Appeals, by Joseph Panzer, his attorney —, and filed in
the said Court a Notice of Appeal and return thereto from the
order of the Appellate Division of the Supreme Court in and for
the First Judicial Department. And The People &c., the
respondent — in said cause, afterwards appeared in said Court of
Appeals by Burton B. Roberts, District Attorney. >

Which said Notice of Appeal and the return thereto, filed as
aforesaid, are hereunto annexed. \

ws Re Fes A ALC ME lly ED:

31. a
| -
wv

Appendix E

WHEREUPON, The said Court of Appeals having heard this
cause argued by Mr. Arnold E. Wallach, of counsel for the
appellant —, and by Mr. Albert A. Capellini, of counsel for the
respondent—, and after due deliberation had thereon, did order
and adjudge that the order of the Appellate Division of the
Supreme Court appealed from herein be and the same hereby is

And thereafter a motion for reargument and/or to amend the
remittitur having been submitted, this Court on January 12,
1972, having denied the motion as to reargument aid granted
the motion as to amendment of the remittitur, this remittitur is
hereby amended by adding thereto the following: Upon the
appeal herein there was presented and necessarily passed upon a
question under the Constitution of the United States, viz.:
Whether the rights of the defendant under the Fifth, Sixth and
Fourteenth Amendments were denied. The Court of Appeals
held that there was no such denial of defendant's constitutional

rights.

And it was also further ordered, that the records aforesaid,
and the proceedings in this Court, be remitted to the Supreme
Court of the State of New York, there to be proceeded upon

according to law.

Therefore, it is considered that the said order be affirmed, as
aforesaid:

32
. Appendix-E

And hereupon, as well the Notice of Appeal and return
thereto aforesaid as the judgment of the Court of Appeals
aforesaid, by it given in the premises, are by the said 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, &c.

s/ Raymond J. Cannon
Clerk of the Court of *>peals
of the State of New York.

COURT OF APPEALS, CLERK’S OFFICE, —
Albany, November 17, 1971.

{Seal}

he I HEREBY CERTIFY, that the
preceding record contains a cor-
rect transcript of the proceedings
in said cause in the Court of
Appeals, with the papers or-
iginally filed therein, attached
thereto.

Raymond J. Cannon
Clerk.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0706%3A1. Public record. Not legal advice.