Petition for Writ of Certiorari — Prisco v. New York

Supreme Court brief1972

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In The

15 Ne

MICHAS? Le? R. AR., Cl

Supreme Court of the United States

Octobe r Term 1972

o—

No. 72-

RUDOLPH PRISCO,

Petitioner,

v8.

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

NEW YORK COURT OF APPEALS

IRVING ANOLIK

Attomey for Petitioner

225 Broadway

New York, New York 10007

732-3050

(5603) LUTZ APPELLATE PRINTERS, INC.

Law and Financia! Printing

South River, N.J. New York, N.Y. Philadelphia, Pa. Washington, D.C.

7-6850 (212) 555-6377 (215) 563-5587 (202) 783-7288

SRR TY Te PEA UR

Peete,

Bete.

TABLE OF CONTENTS

Page

„„ „ wees tines 8

Opinions Below „ „ eee eee „ „ „„ „„ @

Jurisdiction . 7 * * * * * * * * * * . * o 2

Questions Presented „„ „„ §

Constitutional and Statutory Provisions

Involved * „ * * . * . * * * — * . * . *

Statement of the Case ö

Introductory . * * * J * — * * * * * * * *

The Suppression Hearing Considerec.

co * 8

The People’s Case at Trial ........ 14

Argument:

Point I. Serious error of constitution-

al dimension was committed in the

Trial Court when a juror became ill

and the Court interrupted the deliber-

ations of the veniremen. It called the

juror’s own physician, who admin-

istered a “drug” to the sick talisman

without ever informing defense coun-

sel or the petitioner of what had tran-

spired until it was too late to do

anything about it.

No opportunity to question the

doctor or the juror was afforded.

Since the jury “hung” on two counts

of the. charges, the inference may

Contents

. Page

be drawn that after the illness of

one juror had become known to the

others, the deliberations were no

longer being conducted free from

extraneous considerations but may

well have impelled the talismen to

arrive at a speedy conclusion in order

to accommodate their fellow venire-

man,

Prisco was entitled to be present

at every stage of the proceedings but

was not in Court during the crucial

events involving the ill juror. ..... 16

Point II. The Court erred in denying

petitioner’s application to controvert

the search warrant and to suppress

the evidence seized pursuant thereto.

This is another “dropsey” case and

the affidavit supporting the search

warrant was insufficient. ........ 21

Point III. There was serious prejudi-

cial error committed when the Dis-

trict Attorney in at least two places

during the trial, referred to the fact,

in the presence of the jury, that there

had been a “hearing” which had been

“passed upon” and thus gave the jury

the impression that the search must

have been valid because another tri-

bunal had approved it. 286

Conclusion ee a ee ee ee ee ee

iii

Contents

Table ef Citations

CASES CITED:

Aguilar v. Texas, 378 U.S.180 .....

Cameron v. Johnson, 390 U.S. 611, 620. .

Chapman v. California, 386 U.S. 18

Gatewood v. United States, 209 F. 2d 789

(D.C * Cir. 1953) 6 se * * * 5 * 5 * * —

Gray v. State, 143 Fla. 588, 197 So. 333.

Haley v. State, 123 Miss. 87, 85 So. 1929.

Jones v. United States, 362 U.S. 257.

LaGuardia v. State, 190 Md. 450, 55 At.

2d 913 . . e „ e 6 * e * e = — se — * e

Masiello v. United States, 304 F.2d 399

(D.C. Cir. 1962) „ * — — — „ * — * e *

Miller v. United States, 289 F. 2d 894

(D.C oe Cir. 1961) * * — + * * J * * *

Nash v. United States, 54 Fed. 2d 1006,

People v. Alfinito, 16 N. V. 2d 181

People v. Malinsky, 15 N. V. 2d 86, 93, 94.

Page

22, 26

People v. Hendricks, 25 N. V. 2d 129, 139.

Contents

People v. McCall, 17 N.Y.2d 1522

Phelps v. McAdoo, 47 Misc. 524, 94

N.Y.S. 265 * * * * * * * 5 . * * * * .

Sabbath v. United States, 391 U.S. 585,

591 (1968) oa + * e e e e * e e * * 0 0 e e

Shields v. United States, 273 U.S. 583

(1927) + . „ * * 9 e e * e * * ee ee e e „

Spinelli v. United States, 393 U.S. 410

Takarsie v. State, 162 P. 2d 197, 199.

United States v. Glick, F.2d (2

„ „„

United States v. Ramirez, C. A. 2, 1960,

279 F. 2d 712 * . e * * * * — . * — * * *

United States v. Schor, 418 F. 2d 26, 29-

30, 6 Cr. L. 2169 (2d Cr., 1969)

United States v. Ventresca, 380 U.S. 102.

Williams v. State, 171 So. 388.

UNITED STATES CONSTITUTION CITED:

Fourth Amendment

Fourteenth Amendment

Page

Contents

Page

RULES AND STATUTES CITED:

Federal Rules of Criminal Procedure,

Rule 43 * e * N „ — e . * — . 7 * 6 . * 17

New York Code of Criminal Procedure:

Section 421 M * ˙.A⏑⏑l ˙² ² = Eee

Section 799 es „ . * . * * * 6 J * * e 25

New York Criminal Procedure Law:

Section 310.10 toe eee „„ „%% % Me Oe ae

23A C.J.S., Section 1356 „ „ oe

28 U.S.C. §1257(3) VVV

New York Gambling Statute, Penal Law:

Section 225.10 J * * 6 — * — e e * * — * i. 3

Section 225.20 cae glen oe ke ee eee ee

OTHER AUTHORITY CITED:

ABA Project on Minimum Standards for

SU „ FF

APPENDIX

Decision and * of e Divi-

sion * . * 0 * . . * . „ * 0 . * a 5 e * 1a

Contents

Order of Appellate Division 7a

Order of the Zourt of Appeals? 8a

In The

Supreme Court of the United States

October Term 1972

No. 72-

RUDOLPH PRISCO,

Petitioner,

vs.

THE PEOPLE OF THE STATE OF NEW

YORK,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

AEN YORK COURT OF APPEALS

Petitioner appeals from an order of the Court

of Appeals of the State of New York affirming

an order of the Appellate Division of the Supreme

Court of the State of New York, First Department,

which in turn affirmed a judgment of the Supreme

Court, Bronx County, convicting petitioner of

violating the New York gambling statutes, Section

225.10 and 225.20 of the Penal Law, namely

promoting gambling in the first degree and posses-

sion of gambling records in the first degree.

It should be noted that a question of first im-

pression was passed upon by the courts below

concerning the right of a Trial Judge to have a

communication with a juror, summon medical aid

for him, and permit the administration of drugs,

without ever informing defense counsel until the

matter was a fait — — Of course there are

additional questions of great importance involving

the Fourth Amendment, and a question of fairness

of trial.

Opiaions Belew

The Court of Appeals affirmed without opinion on

June 1, 1972 (App. 8a). The Appellate Division

affirmed with an opinion on November 16, 1971

(App. la & 7a). The order of the Court of Appeals.

the order and opinion of the Appellate Division

appear in the Appendix, infra.

Jurisdiction

The jurisdiction of this Court is predicated upon

28 U.S.C. 1125763). The Court of Appeals affirmed

without opinion in June, 1972. The Appellate

Division affirmed the judgment of conviction and

its opinion appears in the annexed appendix.

Questions Presented

1. Whether petitioner was denied a fair trial

by virtue of the Trial Court’s communicating with

a member of the jury during its deliberations,

summoning the juror’s own personal physician,

and permitting the administration of a drug with-

out ever notifying defense counsel or petitioner,

until after the matter was a fait accompli? (Four-

teenth Amendment)

2. Conceding that a Court may react to any

medical emergency involving a juror, may the

Court permit such juror to resume deliberations

after having summoned medical aid for him and

permitting the administration of a drug, without

first holding a hearing at which defense counsel

could question the doctor and, if need be, the juror,

about the nature of his illness, the type of drug

administered, and his ability to resume deliber-

ations? (Fourteenth Amendment)

3. Whether in this “dropsey” gambling case

the petitioner’s rights under the Fourth Amend-

ment were violated by the Trial Court’s refusal

to suppress evidence obtained as a result of an

unlawful search and seizure?

4. Whether the petitioner received a fair trial

in view of the prosecutor’s remarks to the jury

that the Trial Judge had already passed upon the

propriety of a search and seizure? (Fourteenth

Amendment)

Constitutional and Statutery

Previsions lnveived

The Fourth and Fourteenth Amendments of the

United States Constitution are involved as well

as Sections 225.10 and 225.20 of the Penal Law,

and Section 421, Code of Criminal Procedure,

and Section 310.10, Criminal Procedure Law.

deliberating without notifying counsel.”

The Court continued in its opinion stating the

following:

“No New York statute or case law

appears to have considered the precise

question as to whether or not a defendant

is prejudiced by the failure to notify his

counsel after the jury commences delibera-

tions that an ill juror had received medical

attention from his own doctor under the

direction of the Court.”

Since the case was tried in December of 1970,

Section 310.10 of the Criminal Procedural Law,

effective September 1, 1971, provides:

In the case at bar, a jurorbecameill. Although

counsel had an office just across the street from

the courthouse and could have been present within

a matter of a few minutes at the very most, no

effort was made to communicate with counsel,

The District Attorney who has an office in the

same court building apparently was not notified

either.

A juror who had become ill was apparently

separated from the rest of the jurors and a doctor

of his own choice was summoned. This of neces-

sity, must have taken some time during which

interval it would have been a simple matter to

have notified counsel and the District Attorney.

The doctor apparently examined the ill juror

and administered a drug. The type of drug is

unknown. The nature of the illness is unknown,

The Court made no effort to inquire as to the

nature of the illness or the kind of drug ad-

ministered. The counsel for the defense and the

District Attorney were not informed until after

the entire episode had ended. An appropriate

motion for a mistrial, of course, was made but

denied.

A year of a man’s life hangs in the balance.

The jury was unable to agree as to two similar

counts in a consolidated indictment and it is

respectfully submitted that it is inferable that

perhaps there would have been a disagreement

or acquittal had there not been an illness which

perhaps caused the jury to resolve their de-

liberations for the convenience of the ill juror as

soon as possible.

The petitioner, Rudolph Prisco, was tried,

under two separate indictments charging identical

offenses. The first indictment, 1809 of 1969,

related to events occurring on March 25, 1969.

The later indictment, No. 2231 of 1969, para-

doxically related to events of the previous day,

namely the 24th day of March 1969. It is signifi-

cant to note that the indictment relating to the

events of March 24th did not involve the use of

a search warrant. The indictment relating to the

events of March 25th, however, did depend upon

the use of a search warrant, predicated upon the

events charged in the March 24th true bill (A6).

A hearing wherein a suppression of the evidence

and contravention of the search warrant was

sought, was held before Justice Dickens prior to

the trial. The motions were denied. It is sig-

nificant, however, that there has been no con-

viction upon the indictment relating to March 24,

1969, particularly in view of the fact that if the

charges therein were improperly brought, the

indictment of March 25th would also be vulnerable

since without the March 24th activity of the police,

which the petitioner maintains was illegal, there

could not have been an indictment on March 25th.

The search warrant was based on the March 24th

activities.

There are two other issues that were raised

in the Court below which the petitioner believes

also merit consideration; namely, (1) Prisco’s

1, Numerals in parentheses preceded by the letter A“ refer to

pages of the petitioner’s appendix in the Court below, unless

otherwise indicated.

motion to contravert the search warrant and

suppress the evidence was improperly denied

and (2) the District Attorney improperly referred

during the trial to a pretrial suppression hearing.

The Suppression Hearing Considered

Patrolman John Hatton, testifying for the de-

fense stated that he applied for a search warrant

in this case and submitted an affidavit which was

based, however, primarily upon the observations

of a brother officer, Detective Laurie (A16, A18).

Hatton declared that Detective Laurie informed

him that he saw the petitioner on March 24, 1969

dropping certain envelopes at 1910 Belmont Avenue

or thereabouts. Laurie also told Hatton, the

latter declared, that he saw Prisco enter a cer-

tain building at about 2:00 P.M. and leave at

about 6:05 P.M. (A18, 419). Hatton recalled

that Detective Laurie also mentioned that peti-

tioner had a key in his hand and opened the door

to a particular apartment, but that this fact had

not been disclosed until the morning of March 25,

1969. Detective Hatton admitted that the presence

of a key in the petitioner’s hand was not men-

tioned in the affidavit in support of a search

warrant (A20).

_ Patrolman Hatton acknowledged that Judge

Braun signed a search warrant based upon the

affidavit itself. At no place in the affidavit is

there any mention of having seen the petitioner

with a key (A596-A600).

Patrolman Hatton declared that the first time

he spoke to Detective Laurie was on the morning

of March 25, 1969. Hatton remembered that

Laurie told him that he saw the petitioner enter

premises 670 East 176th Street in the Bronx at

about 2:00 P.M. and observed him enter apartment

2E at about 2:30 P.M. Hatton related that Laurie

then disclosed to him that he saw Prisco leave

that apartment at about 6:05 P.M. on March 24th

and proceed to the vicinity of 1908-1910 Belmont

Avenue, enter a small alleyway, he removed from

one pocket, one Packet, and two packets from

another pocket and threw it to the ground.” De-

tective Laurie related to Hatton that he then

proceeded to pick up these packets without losing

sight of them (A27). Inside of each package were

slips bearing notations of “Mutuel Racehorse

Policy” (A27).

Patrolman Hatton declared that these packets

contained 410,000 plays and that 500 plays are

sufficient to make the crime a “felony.” The

officer conceded however that no arrest had been

made on the 24th even though a felony apparently

had been committed in the presence of Detective

Laurie (A30, A31).

Apartment 2E at 670 East 176th Street was

leased to one James Ercolani and not to the de-

fendant (A32-A33). Hatton explained that Inspector

Guido, Lieutenant Nevins, Detective Laurie and

himself executed the search warrant (A34).

Patrolman Hatton asserted that when they

reached the apartment, he knocked on the door

and announced that he was a police officer. There

was no response so he forced the door (A34).

(It_is_ to be noted that the patrolman did not an-

nounce the fact that he had a search warrant.)

The officer said that upon breaking into the apart-

ment he saw the petitioner seated at a table with

a pencil in his hand, apparently writing (A35).

Patrolman Hatton related that there were many

pencils, pens, rubber bands, empty manila en-

velopes, white envelopes, a radio and mutuel

race horse policy slips. Hatton asserted that he

announced his identity to the petitioner and showed

him the search warrant. He also then placed

the petitioner under arrest (A36, A37).

Officer Hatton revealed that the petitioner was

arrested for a felony committed on “March 24th,

at approximately 6:05 P.M.” (A37). 2

Hatton declared that the petitioner had been

convicted nine times previously for gambling

violations. This was vehemently disputed by the

petitioner (A39).

Patrolman Hatton asserted that the mutuel

race horse policy slips which were dropped by

the petitioner related not to March 24th but to

March 17 (A49).

Hatton declared that he did not announce when

he knocked on the door on the 25th of March, 1969,

that he had a search warrant (A54).

The search warrant itself was directed against

James Ercolani (A46).

2. He had no arrest warrant.

The patrolman explained that although they

found a key to the apartment in possession of the

petitioner ‘at the time of his arrest, the key was

returned to him (A59, A60). Patrolman Hatton

admitted that the petitioner had last been arrested

for gambling violation twenty-five years ago (A105,

A106). This was contrary to the statements made

to the judge that signed the search warrant,

Detective Walter Laurie stated that on March

24, 1969, he had been attached to the Public Morals

Administrative Division, Manhattan (A118). De-

tective Laurie stated that he had the petitioner

under observation on March 24, 1969, from about

2:30 P.M. when he saw him on the second floor

landing of 670 East 176th Street, Bronx. He

related that the petitioner emerged from the

first floor landing, approached apartment 2E,

removed a key from his pocket and entered the

apartment (A118-A120).

He recalled that the petitioner emerged from

the apartment at about 6:05 P.M. Officer Laurie

stated that he had gone to this vicinity to keep

Rudolph Prisco under surveillance. Detective

Laurie said that he followed the petitioner and

saw him throw three packets to the ground in an

alleyway. Without losing sight of the packets,

the officer declared that he picked them up (A123-

A124). The packets themselves contained three

different denominations of envelopes secured by

a rubber band relating to March 17, 1969 and

March 18, 1969 and March 19, 1969(A125). Laurie

admitted that once he had retrieved the package

he already knew that a crime had been committed

(A126).

Detective Laurie sated that he accompanied

Patrolman Hatton to Judge Braun, at which time

the search warrant wasobtained (A128).

Detective Laurie decribed the activities of the

25th of March, 1969, recalling that at about 5:00

P.M, he and several other officers including

Patrolman Hatton went 0 the premises on Belmont

Avenue where he had dserved the petitioner the

day before (A130-A131)

Laurie stationed himself outside the window.

Detective Laurie aimitted that the affidavit

for the search warrantdid not mention the bulges

in Rudolph Prisco’s 20ckets to which he had

testified (A158).

Detective Laurie sid that the petitioner on

March 24th had left 70 East 176th Street and

walked into the alleymy between 1908 and 1910

Belmont Avenue about 1 block away (A162-A163).

The officer stated tha he thought the alleyway

was about 10 to 15 feet vide (A163).

Laurie recalled tmt he was about 65 feet

away at this time and lid not remember if there

were any street lights around (A164).

The detective declared that on March 25th when

the petitioner was arrested, no arrest warrant was

in his possession (A178)

In the Grand Jury testimony about which De-

tective Laurie was questioned, he admitted that

he had stated that the petitioner had gone about

half way into the alley between 1908 and 1910

Belmont Avenue (A179).

It is significant to view the trial testimony of

Detective r

testimony. At the trial, Detective Laurie admitted

that the alleyway to which he had been referring

where Prisco allegedly dropped three packets of

policy slips was only four or five feet in width

not fifteen (A323). At the trial a “view” of the

premises was ordered (A383-A385), and at this

“view” it became evident that 1908-1910 Belmont

Avenue was a single building and that there were

two alleyways in front of that building. This too

was a deviation from the testimony at the hearing

and showed perhaps perjured testimony on the

part of the officers (A387).

Officer Laurie admitted at the trial that he

was mistaken that the alleyway was between 1908

and 1910 Belmont Avenue and that the building to

the right was really 1900 Belmont Avenue (A391-

A392). At the trial, Detective Laurie stated that

the distance between the two buildings which he

had referred to was only about seven or eight

inches (A394).

It is respectfully submitted that under the cir-

cumstances the search warrant should have been

controverted and the objects seized pursuant to the

search warrant should have been suppressed.

The People’s Case at Trial

Pursuant to a motion by the petitioner, both

of the aforesaid indictments were consolidated for

trial (A211). At the opening, the petitioner ob-

jected and asked for a mistrial on the grounds

that the prosecutor stated that the petitioner was

known’ “by sight” by certain officers (A225).

Detective Laurie testified for the prosecution

along pretty much the same lines that he testified

to during the hearing (A227, etc.).

lt has previously been noted however that in

testifying at the trial the detective deviated from

his testimony at the suppression hearing. At the

hearing he had testified that the alleyway of

1908-1910 Belmont Avenue was about 10 or 15

feet ‘wide but actually at the trial it developed

that there was no alleyway between the two build-

ings at all except perhaps seven or eight inches

and that the alleyway was between1900 and 1908-

1910 Belmont Avenue. Actually, 1900 Belmont

Avenue was not mentioned either in the affidavit

for the search warrant or the hearing testimony

(A390-A393).

A serious error was committed by the prose-

cution during the testimony of Detective Laurie

when the Assistant District Attorney during an

objection notified the jury that the search warrant

had already been approved in another hearing

(A337):

Mr. Bornstein] We're not to review

the procedure in which a search warrant

was obtained. It has already been reviewed

and passed upon.”

Patrolman Hatton also testified substantially

similarly to his testimony as of the hearing.

Inspector Guido and Captain Nevins testified

fairly similarly to that of Hatton and Laurie.

Nevins, however, declared that he did not re-

member Hatton saying anything at all when he

knocked on the door in an effort to gain entrance

to apartment 2E on the 25th of March (A508).

Ironically at the trial itself, however, none of

the four officers who testified identified the

petitioner as the person whom they saw in the

apartment in question at the time of the arrest

(A526).

At A543; the Assistant District Attorney again

referred to the “hearing” leading the jury to

believe that the hearing must have been resolved

against the petitioner otherwise there would be no

trial.

Inspector Guido and Captain Nevins also testi-

fied during the trial. Nevins declared that he did

not recall Patrolman Hatton say anything after he

had knocked on the door when they sought to

execute the search warrant (A508, A509).

Finally, a serious error occurred during the

deliberations of the jury when apparently a juror

became ill. Neither counsel for the defense nor

the petitioner himself were notified. Instead, the

Court determined to call a doctor, separated this

juror from the jury during the deliberations, and

had the doctor administer a drug to this juror,

Defense counsel, Fusco, explained that since his

office was only three or four minutes away he could

easily have come if he had been notified (A585,

A587).

Argument

Peint |

SERIOUS ERROR OF CONSTITUTIONAL DI-

MENSION WAS COMMITTED IN THE TRIAL

COURT WHEN A JUROR BECAME ILL AND THE

COURT INTERRUPTED THE DELIBERATIONSOF

THE VENIREMEN. IT CALLED THE JUROR’S

OWN PHYSICIAN, WHO ADMINISTERED A “DRUG”

TO THE SICK TALISMAN WITHOUT EVER IN-

FORMING DEFENSE COUNSEL OR THE PETI-

TIONER OF WHAT HAD TRANSPIRED UNTIL

IT WAS TOO LATE TO DO ANYTHING ABOUT IT.

NO OPPORTUNITY TO QUESTION THE

DOCTOR OR THE JUROR WAS AFFORDED.

SINCE THE JURY “HUNG” ON TWO COUNTS OF

THE CHARGES, THE INFERENCE MAY

BE DRAWN THAT AFTER THE ILLNESS OF

ONE JUROR HAD BECOME KNOWN TO THE

OTHERS, THE DELIBERATIONS WERE NO

LONGER BEING CONDUCTED FREE FROM Ex-

TRANEOUS CONSIDERATIONS BUT MAY WELL

HAVE IMPELLED THE TALISMEN TO ARRIVE

AT A SPEEDY CONCLUSION IN ORDER TO

ACCOMMODATE THEIR FELLOW VENIREMAN,

PRISCO WAS ENTITLED TO BE PRESENT AT

EVERY STAGE OF THE PROCEEDINGS BUT WAS

NOT IN COURT DURING THE CRUCIAL EVENTS

INVOLVING THE ILL JUROR.

We are dealing with Section 421 of the New

York Code of Criminal Procedure and are con-

sidering Section 310.10 of the New York Criminal

Procedure Law, both of which forbid ex parte

communications with the jury except as to in-

quire whether a verdict has been reached. We

nevertheless feel it important to remind this

Court of Rule 43 of the Federal Rules of Crim-

inal Procedure which forbids ex parte communi-

cations with the jury and also requires the pres-

ence of the defendant at every stage of the pro-

ceedings.

In United States v. Glick, F. 2d. (2 Cir.,

6/29/72), for example, the the Second Circuit declared

that it was improper for a judge to even com-

municate a single word to the jury without notify-

ing defense counsel and the defendant.

In Glick, supra, (11 Cr. L. 2399), the Court

of Appeals explained:

“It is clear to us * * * that the private

communications between the judge and jury

violated the unequivocal mandate of Rule

43, which requires the defendant to be

present ‘at every stage of the trial.’ See,

e.g., United States v. Schor, 418 F.2d 26,

29-30, 6 Cr. L. 2169 (2d Cir., 1969); see

also Shields v. United States, 273 U.S.

583 (1927); ABA Project on Minimum

Standards for Criminal Justice, Trial by

Jury Sec. 5.3 and Commentary at 139-45

(Approved Draft, 1968). Although we recog-

nized that in appropriate circumstances

judge’s bare assertion that the jury

recommend leniency, omitting any

ing or restricting admonitions and given

Glick’s absence, was highly prejudicial.”

incident had on the propriety of the jury’s de-

liberations and its ultimate verdict.

While we would not suggest that there was a

calculated design to keep defense counsel in

ignorance, ‘he portent of approving such a

procedure cannot eliminate the possibility of such

calculated designs. There is no rational explana-

tion in the record as to why defense counsel,

whose office was only one block away, had not

been notified. Defense counsel on the record

stated the following (A586):

“We don’t even know what kind of drug

was administered nor was I advised. Here

it is 5:22 and Your Honor had come out

briefly just about three or four minutes ago

and I was not advised that anything had

transpired here.

“The Court: You have any exception

you wish.“ 3

The Appellate Division declared that there

were no controlling precedents but referred to

certain cases which they claimed expressed an

enlightened view.

In Takarsie v. State, 162 P.2d 197, 199, an

Oklahoma case holds:

“We do not think the taking of a juror

to the drug store for medicine to relieve

his ailment by the bailiff who did not allow

him to converse with anyone, while leaving

the remaining jurors with the other bailiff

3. Mr. Fusco implicitly was asking for a hearing. Certainly no

hearing was waived.

was a violation of the terms of the Statute,

which provide that the jury must be kept

together and not permitted to communicate

with any other person.”

Another case, Williams v. State, 171 So. 386,

an Alabama decision, held as follows:

“During the deliberation of the jury,

one of the jurymen became ill and was al-

lowed to leave the juryroom and spend a

short time with his son, a physician, in the

private room of the Presiding Judge, and

then allowed to resume deliberations with

the remaining jurors when he got better.

There is nothing to the prejudice of this

defendant in the action of the Court in

permitting this juror, who was ill, to be

attended by his physician, under the super-

vision of the Court, and without any pre-

text that the act in any way controlled the

judgment of the jury in making up his

verdict.”

See also: LaGuardia v. State, 190 Md. 450, 55

At.2d 913; Gray v. State, 143 Fla. 588, 197 So.

333; Haley v. State, 123 Miss. 87, 85 So. 129;

23 A C. J. S. Section 1356, p. 955, n. 58.

It is submitted that the interruption of a jury

in its deliberations is perhaps the most serious

thing that can occur during a trial because it is

the verdict of that jury that determines the guilt

or innocence of the defendant at trial.

While the courts below assumed upon a barren

record that no prejudice occurred, the very least

that should have been ordered was a remand of

the case for a full hearing at which time the physi-

cian, the juror, the Trial Judge, and, if need be,

the other jurors, could be questioned to determine

whether the verdict was in any way tainted or

whether Prisco’s rights were in any way traduced.

It cannot be assumed that no prejudice occurred

beyond a reasonable doubt (Chapman v. Cali-

fornia, 386 U.S. 18).

THE COURT ERRED IN DENYING PETI-

TIONER’S APPI.ICATION TO CONTROVERT THE

SEARCH WARRANT AND TO SUPPRESS THE

EVIDENCE SEIZED PURSUANT THERETO, THIS

IS ANOTHER *DROPSEY” CASE AND THE AFFI-

DAVIT SUPPORTING THE SEARCH WARRANT

WAS INSUFFICIENT.

Patrolman Hatton furnished the affidavit based

upon the observations of Detective Laurie. Al-

though from the testimony at the hearing, Detec-

tive Laurie was present with Patrolman Hatton

when the latter sought to obtain the search war-

rant, the affidavit in support thereof which was

presumably read by Detective Laurie, did not

mention important observations such as the fact,

as later testified to at the hearing by Detective

Laurie, that he saw Prisco with a key and that he

opened apartment 2E of the premises which were

later searched.

“The omission to mention the key was an im-

portant factor. There were no observations on

the 24th of March between 2:30 P.M. and 6:05

P.M. of anyone entering or leaving apartment 2E

except Rudolph Prisco. The affidavit related that

the informant, without naming him, then followed

the petitioner to an alleyway between 1908 and

1910 Belmont Avenue. This apparently was per-

jurious testimony since at the trial itself, a “view”

of premises revealed that there was no alleyway

“between” 1908 and 1910 Belmont Avenue. The

alleyway which apparently was in mind was between

“1900” and the building known as 1908-19107

Belmont Avenue (People v. Alfinito, 16 N.Y.2d

181).

The only observations on the 24th of March

were made by Detective Laurie who said that after

he had followed the petitioner to the aforesaid

alley, he saw Prisco drop some packets which

the officer later retrieved. These contained

plays of mutuel race horse policy. Thus, this is

another one of the so-called “dropsey” cases.

Although presumably, the officer knew that a

crime had then been committed, no arrest was

made.

Detective Laurie had not made any observa-

tions inside apartment 2E. The apartment itself

was not registered in the name of the petitioner,

but rather in the name of someone completely

different. The dropping of the three packets at

an alleyway a block or so distant from the premises

later searched, was the sole basis for obtaining

the search warrant,

While search warrants should not be invalidated

by interpreting them in a hyper-technical, rather

than a common sense manner, the law is never-

theless clear that the magistrate must be informed

of the underlying circumstances which support the

conclusion and belief of the affiant that his in-

formant was credible and his information re-

liable (People v. Hendricks, 25 N.Y.2d 129, 139;

United States v. Ventresca, 380 U.S, 102).

People v. Hendricks, supra; People v. Malin-

sky, 15 N.Y.2d 86, 93, 94; People v. McCall, 17

N.Y.2d 152. The affidavit in support of a search

warrant must conform to the two-pronged stand-

ard set forth in Aguilar v. Texas, 378 U.S. 180,

and more recently re-affirmed in Spinelli v.

United States, 393 U.S. 410. There the Supreme

Court of the United States declared that the

affidavit must show (1) whether the informant is

in fact reliable, and (2) whether the underlying

circumstances as to how the informant came by

his information demonstrates sufficient probability

of credibility to allow the search of the premises

or the person in question (see Jones v. United

States, 362 U.S. 257).

The Second Circuit Court of Appeals has in-

dicated that the Jones case may require the affi-

davit to contain independent factual corroboration

of the hearsay.

“Jones v. United States, 362 U.S. 257,

267-272, 80 S. Ct. 725, 734-736, 4 L. Ed.2d

697 (March 28, 1960) has now established

that an affidavit consisting primarily of

hearsay information may be sufficient to

support the issuance of a search warrant.

However, the requirement that the affiant

shall have personal knowledge still exists,

for, under Jones, the affiant must not only

believe the hearsay report, but, in all

likelihood, the affiant must further demon-

strate that his informant has established a

reputation for reliability so as to be worthy

of belief. In addition, Jones may require

that the affidavit include some factual in-

formation independently corroborative of the

hearsay report.”

(United States v. Ramirez, C.A. 2, 1960, 279

F. 2d 712.)

The above decision was noted in a case which

held an affidavit to be sufficient where the hear-

say was corroborated by “additional reliable

sources of information” and independent “concrete

facts” were presented to the United States Com-

missioner.

In the case at bar, neither Patrolman Hatton

nor any other detective testified that when the

search warrant was being executed, that there

was any announcement of the authority of the

officers, namely that they were armed with a

search warrant.

Patrolman Hatton merely said that he knocked

on the door and announced that he was a police

officer. Captain Nevins never remembered any-

thing having been said at all. Inspector Guido

did not remember anything being said about a

search warrant.

In executing a search warrant it is essential

that before an entry can be made, the officer

seeking to execute it must announce his authority

and identify himself. This means that until the

fact that a search warrant exists is articulated,

no entry may be made except an unlawful entry.

See Section 799 Code Crim. Pro.; see also Masiello

v. United States, 304 F.2d 399 (D.C. Cir. 1962);

Sabbath v. United States, 391 U.S. 585, 591 (1968);

Miller v. United States, 289 F.2d 894 (D.C. Cir.

1961); and Gatewood v. United States, 209 F.2d

789 (D.C. Cir. 1953).

The foregoing authorities indicate that except

where an emergency exists where personal peril

or bodily harm may befall the agents or where a

“no knock” endorsement has been affixed to the

warrant, there must be an articulation of the

authority under which the officer seeking entry

is acting, which means that he must disclose the

existence of a search warrant,

In the case at bar no such notification was

given at any time. Thus the search warrant was

clearly executed improperly by the self-admission

of the officer who executed it, namely Patrolman

Hatton.

Under Section 799 of the Code of Criminal

Procedure, the statute clearly requires that an

officer announce his authority and his purpose

before he attempts to break a door or window

in executing a search warrant. This was not

done in the case at bar, and thus the procedure

in executing the warrant was clearly uncons ti tu-

tional (Phelps v. McAdoo, 47 Misc. 524, 94 N.Y.S.

265).

It should be noted that there was no provision

in this search warrant to dispense with notification

before entering the property. The discrepancies

between the trial and the hearing clearly reveal

that at the hearing or at the trial perjury was

committed (People v. Alfinito, supra).

It is again submitted that Detective Laurie was

obliged to very accurately describe his observa-

tions and Patrolman Hatton was equally obligated

to be extremely precise in his affidavit. When

describing the alleyway between 1908 and 1910

Belmont Avenue, the information given to the Magis-

trate was absolutely incorrect. There was just

no alleyway there. This would raise the inference

that the policy slips were not even obtained in

the manner described, There were clearly in-

sufficient observations and surveillance outside of

apartment 2E on the 24th of March. There was no

evidence of any gambling activity going on at all.

The affidavit must stand or fall on its own merits

and not on what was later testified to at the hear-

ing or the trial. Since no mention of a key was

made in gaining ingress to the apartment, a

serious flaw is evident. The hearing court, there-

fore, should have suppressed the evidence andcon-

troverted the search warrant.

THERE WAS SERICUS PREJUDICIAL ERROR

COMMITTED WHEN THE DISTRICT ATTORNEY

IN AT LEAST TWO PLACES DURING THE TRIAL,

REFERRED TO THE FACT, IN THE PRESENCE

OF THE JURY, THAT THERE HAD BEEN A

“HEARING’® WHICH HAD BEEN “PASSED UPON”

AND THUS GAVE THE JURY THE IMPRESSION

THAT THE SEARCH MUST HAVE BEEN VALID

BECAUSE ANOTHER TRIBUNAL HAD APPROVED

IT.

It is extremely important to note that the jury

convicted the petitioner only on Indictment 1809/

69 which was predicated upon use of the search

warrant, The jury hung“ on Indictment No.

2281/69 which covered the events upon which the

search warrant was later obtained. The trial

jurors therefore were, no doubt, very much con-

cerned with the fact that on the 24th day of March

there had been no search warrant, but on the

25th since a search warrant had been approved,

they must have assumed that the arrest was

proper. But to make matters worse, the District

Attorney informed them that another tribunal

had already reviewed and passed upon the merits

of the search warrant. This indicated there had

been another hearing prior to the trial and ob-

viously the jurors believed that they should not

even second guess another tribunal. Thus, at page

A337, the District Attorney declared:

“Your Honor, I am going to persist in

the objection as to the irrelevancy of this

matter. We’re not to review the procedure

in which a search warrant was obtained.

It has already been reviewed and passed

upon, ;

“Mr. Fusco: Look, I object to these

remarks, I move for a withdrawal of a

juror and a mistrial, Judge.”

Again, in summation, the District Attorney,

Mr. Bornstein, again notified the jury that an-

other proceeding had taken place in this case,

namely a “hearing.” At page A543, the District

Attorney said, “The hearing in this case occurred

in November of 1969.”

The defense counsel immediately objected and

stated that there was no evidence that any hearing

had taken place. The Court did not even tell

the jurors to disregard the remarks. The Court

said that it would, but there is nothing actually

instructing the jury to do so (A337, A338).

But even if the instruction had been given, it

is clear that it would have made little difference.

As Judge Learned Hand very clearly explained:

“The naive assumption that the preju-

dicial effects can be overcome by instruc-

tions to the jury, * * * all practicing law-

yers, know to be unmitigated fiction * * *

The recommendation to the jury of a mental

gymnastic which is beyond not only their

powers, but everybody elses.”

(Nash v. United States, 54 Fed.2d 1006, 1007

[Cir. 2, 1932].)

Thus, the Supreme Court of the United States

in Cameron v. Johnson, 390 U.S. 611, 620 de-

clared:

“We have not hesitated on direct review

to strike down applications of constitutional

statutes which we have found to be un-

* constitutionally applied to suppress pro

n freedoms.“ (Citing cases.)

It is not necessary to detail to this Court the

fact that prosecutors are quasi judicial officers

and bear a high degree of moral responsibility

not to prejudice a defendant.

The Petition for Certiorari should be granted

and the Judgments of Conviction should be re-

versed. At the very least, a hearing should be

directed with respect to the ex parte communica-

tion between the Trial Judge and a juror.

Respectfully submitted,

IRVING ANOLIK

Attomey for Petioner

en ee

APPENDIX

Decision and Opinion of Appellate Division

SUPREME COURT, APPELLATE DIVISION

First Department, October 1971

Harold A. Stevens, PJ.,

Appeal from a judgment of the Supreme Court,

Bronx County, rendered on December 17, 1970,

convicting defendant of the crimes of Promoting

Gambling in the First Degree and Possession

of Gambling Records in the First Degree

after a trial before Greenfield, J., and a jury.

Irving Anolik, attorney for defendant-appellant

Eliot L. Kaplan of counsel (Burton B. Roberts,

District Attorney) for respondent.

Decision and Opinion

4355

McNALLY, J.

The defendant appeals from a judgment of the

Court, Bronx County, rendered December

17, 1970, convicting him, after trial to

the crimes of promoting gambling in the first

degree and possession of gambling in

the first degree and sentencing him to a term of

one year.

On this appeal, the defendant claims that (1)

his motion to controvert the search warrant and

suppress the evidence was improperly denied;

(2) the District Attorney improperly referred

during the trial to a pre-trial suppression hear-

ing; and (3) the court erroneously permitted a

doctor to administer medical treatment to an ill

juror after the jury had commenced deliberation

without notifica to defense counsel.

We have examined these assignments of error

and find them to be without merit, and conse-

quently we affirm.

However, there is an important question posed

by this appeal, apparently one of first impression

in this State, concerning the right of the trial

judge to summon medical aid for a juror while

the jury is deliberating without notifying counsel.

No New York statute or case law appears ww

have considered the precise question as to whether

or not a defendant is prejudiced by the failure to

chy 22

tied ath

Iten

Section 310.10 of the Criminal Procedure Law,

effective September 1, 1971, provides:

Decision and Opinion

performing administerial duties with re-

spect to the jurors, such public servant or

servants may not speak to or communicate

with them or permit any other person to

do so.”

It appears upon the discontinuance of the jury’s

deliberations due to the illness of one of the

jurors, the court ascertained the identity of the

juror’s doctor and, without notifying defense coun-

sel, summoned the doctor to the courthouse where

the juror was administered a drug, rested a few

moments and then rejoined the other jurors,

whereupon deliberations continued. The only

communication with the juror related to his phys-

ical condition. The physician had indicated that

the juror was fully capable of participating in

the jury deliberations.

Several cases not necessarily controlling point

the way to our decision and appear to us to ex-

press an enlightened view.

Takarsie v. State, 162 P.2d 197, 199, an

Oklahoma case, holds:

“We do not think the taking of the juror

to the drugstore for medicine to relieve

his ailment by the bailiff who did not allow

him to converse with anyone, while leaving

the remaining jurors with the other bailiff

was a violation of the terms of the Statute,

which provides that the jury must be kept

together and not permitted to communicate

with any other person.”

Decision and Opinion

v. State, 171 So. 386, an Alabama

case, held as follows:

“During the deliberation of the jury, one of

the jurymen became ill and was allowed to

leave the jury room and spend a short time

with his son, a physician, in the pri

room of the presiding judge, and

remaining jurors when he got

is nothing to the prejudice of this

in the action of the court in permit*!

juror, who was ill, to be attended

physician, under the supervision

court, and without any pretext that

in any way controlled the judgment

jury in making up his verdict.”

See also: LaGuardia v. State, 190 Md. 450, 58

A.2d 913; Gray v. State, 143 Fla. 588, 197 So.

333; Haley v. State, 123 Miss. 87, 85 So. 129; 23 A

C.J.S. $1356, p. 955, n. 58.

ges

aF AJA

A reasonable rule to follow under such cir-

cumstances would be to allow the court to deter-

mine in its discretion what course of action to

follow when a juror becomes ill after delibera-

tions commence, It would appear that it is the

court’s first duty to summon medical assistance.

Defense counsel, defendant and the public prose-

cutor should be informed as promptly as feasible

as to what has taken place. Treatment of an ill

juror should not be required to await such notifi-

cation. Nor should the failure to notify counsel

of such fact, mandate reversal of the judgment,

absent prejudice to the defendant.

Decision and Opinion

In this case, the trial court represented to

counsel that no discussion had occurred other than

that relating to the juror’s illness; that morphine

was not administered and that the doctor had

indicated that the juror was fully able to partici-

pate in deliberations. In our opinion, the record

establishes the fact that the defendant suffered

no prejudice by reason of the illness or the

medical aid. Here there was no separation from

the panel as contemplated by the Statute and con-

sequently no violation of the statutory mandate.

The circumstances are not substantially different

than the need of a juror to respond to a call of

personal necessity or the separation of jurors

in different sleeping rooms when resting for the

night.

In future cases it would be good practice to

detain the doctor in court if possible, and, if not

possible, to make suitable arrangements for the

doctor to attend at a later date in the event counsel

wishes to examine the doctor concerning the

matter. Deliberations of the jury should go

forward in any event.

Under the circumstances of this case we find

no statutory violation or prejudice, and conse-

quently we affirm.

ALL CONCUR

Order of Appellate Division

At a term of the Appellate Division of the

Supreme Court held in and for the First

Judicial Department in the County of New

York, on November 16, 1971.

Present-Hon. Harold A. Stevens, Presiding Justice,

Louis J. Capozzoli,

Emilio Nunez,

Theodore R. Kupferman,

James B. M. McNally, Justices.

The People of the State of New York,

Respondent,

-against-

Rudolph Prisco,

Defendant-Appellant.

An appeal having been taken to this Court by

the defendant-appellant from the judgment of the

Supreme Court, Bronx County (Greenfield, J.),

rendered on December 17, 1970, convicting de-

fendant, after trial by jury, of the crimes of

Promoting Gambling in the First Degree and

Possession of Gambling Records in the First

Degree, and said appeal having been argued by

Mr. Irving Anolik of counsel for the appellant,

and by Mr. Eliot L. Kaplan of counsel for the

respondent; and due deliberation having been had

thereon, and upon the Opinion of this Court filed

herein,

Order of Appellate Division

It is unanimously ordered and adjudged that

the judgment so appealed from be and the same

is hereby, in all things affirmed.

ENTER:

HYMAN W. CAMSO

Clerk.

Order ef the Court of Appeals

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 Ist day of June in the year of our Lord

one thousand nine hundred and seventy-two,

before the Judges of said Court.

WITNESSES,

The HON. STANLEY H. FULD,

Chief Judge, Presiding.

RAYMOND J. CANNON, Clerk.

Remittitur June 1, 1972.

Order of the Court of Appeals

1. No. 3. 72

The People & c.,

Respondent,

vs.

Rudolph Prisco,

Appellant,

BE IT REMBERED, That on the 3rd. day of

January in the year of our Lord one thousand

nine hundred and seventy-two, Rudolph Prisco,

the appellant- in this cause, came here unto

the Court of Appeals, by Irving Anolik, his attor-

ney-, 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, after-

wards 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.

WHEREUPON, The said Court of Appeals hav-

ing heard this cause argued by Mr. Irving Anolik,

of counsel for the appellant-, and by Marian Blank

Belenky, 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 affirmed.

10a

Order of the Court of Appeals

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.

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, accord-

ing 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.

Raymond J. Cannon

Clerk of the Court of Appeals of the

State of New York.

Court of Appeals, Clerk’s Office,

Albany, June 1, 1972.

lia

Order of the Court of Appeals

0 I HEREBY CERTIFY,

that the preceding re-

cord contains a correct

transcript of the pro-

ceedings in said cause

in the Court of Appeals,

with the papers ori-

ginally filed therein, at-

tached thereto.

Raymond J. Cannon

Clerk.

Zw p

See er

CCC KL LIME ED Hie

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