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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 1039

## Text

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,

N

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,
c

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

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

Page

25

25

28

22, 26
People v. Hendricks, 25 N. V. 2d 129, 139.

23
23

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
23

25

25

17

23

19

17

24

17

23

20

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

vi
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.

to

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.)

10

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.

11

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

13

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.

14

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.”

15

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,

16

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.

17

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.

21

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,

23

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

24

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.

25

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

27

“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.”

28

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-

29

* 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
Pu
tied ath
i
Ii
Iten

|

Section 310.10 of the Criminal Procedure Law,
effective September 1, 1971, provides:

4a

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.”

5a

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

f
a

g

aF AJA
HA

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.

6a

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

7a

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,

8a

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.

9a

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1427%3A1. Public record. Not legal advice.