Opposition Brief — Prisco v. New York

% nov 1 432

MICHAEL ROGAK, JR..S

No. 72-487

RUDOLPH PRISCO,

against

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

Petitioner,

— eee

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

—————

Burrow B. Roserts

District Attorney

Bronx County

Attorney for Respondent

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851 Grand Concourse

Bronx, New York 10451

TABLE OF CONTENTS

Preliminary Statement

Opinions Below

Jurisdiction

Questions Presented

Statement of the Case

Argument

Point One—No federal questions were waummee for

this Court’s review

ne ee ee See

sented --

A. Cunsnning tho Tied Comte failure to

notify defense counsel during the jury’s

deliberations that an ill juror had received

medical attention from his own doctor 7

B. Concerning the Hearing Courts’ denial of

A te

a ool

the motion to controvert the search war- :

rant and suppress the evidence seized 9 f

Appendix A—Decision and Opinion of Appellate Di-

vision wncceeeteneneneneeenenee Al

Appendix B—Affidavit for Search Warrant . AT

7]

PATIO) ARPA bo Peep

It

TABLE OF AUTHORITIES

PAGE

Cases:

Aguilar v. Texas, 378 U.S. 108 (1964) 9

Chapman v. California, 386 U.S. 18 (1967) ...... 14

Gatewood v. United States, 209 F.2d 789 (D.C. Cir.

1953) ele ee

Gray v. State, 143 Fla. 588, 197 So. 33 (1940), — F

Hair v. United States, 289 F.2d 894 (D.C. Cir. 1961) ll

Haley v. State, 123 Miss. 87, 85 So. 129 (1920) ... 7, Ad

Jones v. United States, 362 U.S. 257 (1960) ............. 9

LaGuardia v. State, 190 Md. 450, 58 A.2d 913 (1948)...7, Ad

Masiello v. United States, 304 F.2d 399 (D.C. Cir.1962) 11

Miller v. United States, 357 U.S. 301 (1958) .......... 11

People v. Durling, 303 N.Y. 382 (1952) .... 8

People v. Floyd, 26 N.Y.2d 558 (1970) ol a

People v. Gowasky, 244 N.Y. 451 (1927) ... iene a

People v. Hendricks, 25 N.Y.2d 129 (1969) .......... 9, 10

People v. Johnson, 231 N.Y.S. 2d 689 (Ct. Gen. Sess.

N.Y. Cty. 1962) ......... li

People v. Law, 55 Mise. 2a 1075 (Cortland Cty. 1968) 11

People v. Loria, 10 N.Y.2d 368 (1961) ........... 9

People v. Montague, 19 N.Y.2d 121 (1967) ...... 9

People v. Montanaro, 34 Misc.2d 624 (Kings Cty. 1962) 12

People v. Schnitzler, 18 N.Y.2d 457 (1966) .. 9

People v. Schwartzman, 24 N.Y.2d 241 (1969) ....... 14

Sabbath v. United States, 391 U.S. 585 (1968) 11

Spinelli v. United States, 393 U.S. 410 (1969) 9

PAGE

Takarsie v. State, 81 Okl. Cr. 189, 162 P.2d 197

SUTITTTTIE - scndsacsasomnssctcsonsnecteslstoniliniecniacesasdnadslaamanianiiishdaiillaabe 7, A4

United States v. Ventresca, 380 U.S. 102 (1965) ........... 9

Williams v. State, 171 So. 386 0000... A4

Constitution of the United States:

I 3

Miscellaneous:

New York Code Crim. Proc.

MII csi asada cies aneiatacamanaioreamsbtcaanamiadadiaaaecasia A3

§542 .... a ea’ EAS RAS 14

MUTI Gsncicesankseeiausssicaboukctenenusetaeintacenenaeineioemamainiedem 11

New York Crim. Proc. Law

ED snsctcdasdbvatsnasaceats ETT TT Na A3

Statutes:

rr ns A aanail 7, A5

Stern & Grossman, Supreme Court Practice, Sec. 3.29,

pp. 128-131 (4th ed. 1969) 20... ceeeeeeeeceeeeeee 5

Rvupotrx Prisco,

Petitioner,

against

Tue Peopite or THE State oF New York,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Preliminary Statement

This is a petition for a writ of certiorari to review an

order of the Court of Appeals of the State of New York,

entered June 1, 1972 [30 N.Y.2d 808], unanimously affirm-

ing, without opinion, an order of the Supreme Court of the

State of New York, Appellate Division, First Department,

entered November 16, 1971 [37 A.D.2d 369], which affirmed,

with an opinion, a judgment of the Supreme Court of the

State of New York, Bronx County, rendered December 17,

1970, convicting the petitioner, after trial by jury, of the

crimes of Promoting Gambling in the First Degree [New

York Penal Law, §225.10] and Possession of Gambling

Records in the First Degree [New York Penal Law,

£225.20], and sentencing him to serve a term of one year

in the New York City Correctional Institution for Men.

He is presently at liberty on bail pending determination of

this application.

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Opinions Below

The Appellate Division of the Supreme Court unani-

mously affirmed the judgment in an opinion [37 A.D.2d

369] which is reproduced in Appendix A. The Court of

Appeals unanimously affirmed without opinion [30 N.Y.2d

808].

Jurisdiction

The jurisdiction of this Court is evoked under 28 U.S.C.

§1257(3). The order of the Court of Appeals was entered

on June 1, 1972. The order of the Appellate Division was

entered on November 16, 1971.

Questions Presented

In our view no substantial federal questions have been

presented in this case. Nevertheless, we shall list the

claims petitioner has set forth:

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 without ever notifying defense counsel or petitioner,

until after the matter was a fait accompli?

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 medi-

cal aid for him and permitting the administration of a

drug, without first holding a hearing at which defense coun-

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

about the nature of his illness, the type of drug adminis-

tered, and his ability to resume deliberations?

3. Whether in this ‘‘dropsey’’ gambling case the pe-

titioner’s rights under the Fourth Amendment were vio-

RL SN i ee Le a ee

3

lated by the Trial Court’s refusal to suppress evidence ob-

tained 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?

Statement of the Case

But for several parenthetical references to the Four-

teenth Amendment to the United States Constitution in his

brief (Petition, pp. 2-3), petitioner fails to allege that any

substantial federal or constitutional question is raised by

the issues he is presenting for this Court’s consideration.

His claims appear to be that errors were committed by both

the trial court and prosecutor which deprived him of a fair

trial and hence of the due process guaranteed by the Four-

teenth Amendment. We note, however, that petitioner

failed to seek amendment of the remittitur to reflect that

the state courts passed upon federal or constitutional issues.

The arrest and subsequent indictment of defendant grew

out of observations made on March 24, 1969 by Detective

Walter Laurie of the New York City Police Department.

The detective had observed defendant drop three packages

in an alleyway the contents of which were banker’s state-

ments and slips of paper displaying dates almost a week

old and bearing in excess of 310,000 plays of Mutuel Race

Horse Policy—indications of a ‘‘banker’’ (Laurie A-120-

24, 127, 136-37 ;* Affidavit for Search Warrant).** Defend-

ant had just come from an apartment in which he had

remained approximately three and one-half hours and to

which he now returned (id., 119-26).

* References are to pages of petitioner's appendix in the Court

below unless indicated otherwise.

** See Appendix B to respondent's brief.

7

Such observatoins having been related to Patrolman

John Hatton of the New York City Police Department,

application was made by the patrolman on the following

day, March 25, 1969, for a warrant authorizing the search

of said apartment as well as the persons of petitioner and

one James Ercolani to whom the premises were registered.

The warrant having been issued, execution was made the

same day at which time defendant was arrested in the prem-

ises in possession of 14 banker’s statements, about 1,025,000

plays of Mutuel Race Horse Policy and numerous other

gambling paraphernalia (Hatton A-374, 375, 377-79).

Defendant was subsequently indicted by the Grand Jury

of Bronx County in two separate proceedings charging him

initially with the crimes of Promoting Gambling in the

First Degree (New York Penal Law, $225.10) and Posses-

sion of Gambling Records in the First Degree (New York

Penal Law, §225.20) arising out of the events occurring

upon the execution of the warrant on March 25 (Ind. #1809

of 1969) and, subsequently, with the same identical crimes

arising out of the events of the preceding day (Ind. #2281

of 1969).

Prior to trial a hearing was held upon defendant’s

motion to controvert the warrant and suppress the evidence

seized on both occasions. The motions having been denied

in a written opinion by Thomas Dickens, Justice of the

New York Supreme Court [61 Misc. 2d 730] after the hear-

ing, both indictments were consolidated for trial over the

People’s objection. Although the jury was unable to reach

a verdict as to Ind. No. 2281/69 and was discharged with

respect thereto, it did find defendant guilty of both counts

as charged in Ind. No. 1809/69 with respect to the events

of March 25, 1969.

5

During the jury’s deliberations one of the jurors be-

eame ill. After deliberations were discontinued, the trial

court determined the identity of the juror’s doctor and

without notifying defense counsel summoned him to the

courthouse where the juror was administered a drug, rested

a few minutes and then rejoined the other jurors who there-

upon recommenced deliberations. After the doctor had

administered his treatment he was allowed to leave and

was not held available for examination by defense counsel.

On December 17, 1970 defendant was sentenced to a

term of one year in state prison. Such judgment was af-

firmed, with an opinion, by the Appellate Division and

again by the New York Court of Appeals, without opinion.

No application has been made to amend the remittitur.

Defendant has been at liberty throughout pending final

determination of his direct appeal.

ARGUMENT

POINT ONE

No federal questions were presented for this Court’s

review.

Indicative of the absence of any federal questions raised

by this record is petitioner’s failure to seek an amendment

of the remittitur in the New York Court of Appeals. Such

failure makes the basis for the Court of Appeals’ affirmance

without opinion unclear and necessitates dismissal of the

instant petition [see Stern and Grossman, Supreme Court

Practice, §3.29, pp. 128-131 (4th ed. 1969) ].

GAR IGE ED PET EES PRIS LTS, BY LET IPE

6

Nor does the opinion of the lower state court indicate

that a federal question was raised. In the Appellate Divi-

sion petitioner raised the identical points which he argues

before this Court, all three of which were determined to be

‘‘without merit’? (see Decision and Opinion of Appellate

Division, Appendix A, infra, p. 1a). Although such Court

did expound upon the propriety of summoning a doctor to

treat an ill juror during the jury’s deliberations without

notifying counsel, such question being one of first impres-

sion, it found no statutory violations nor any prejudice to

petitioner. No mention of the existence of a federal ques-

tion appears in such opinion. In fact, the entire record

is devoid of any such question warranting this Court’s

review.

We note further that the Appellate Division, in its

opinion, has delineated a procedure to be followed in the

future, viz.—to hold the physician available for examina-

tion by defense counsel. As a practical matter, therefore,

the procedural problem occurring in this record will no

longer arise.

POINT TWO

No constitutional issue has been presented.

Although petitioner’s arguments imply the denial to

him of due process, an analysis of the record indicates that

such arguments lack merit. Such a conclusion gains force

from petitioner’s failure to amend the remittitur.

A. Concerning the Trial Court’s failure to notify defense

counsel during the jury’s deliberations that an ill juror

had received medical attention from his own doctor

[answering petitioner’s brief, Point I, pp. 16-21].

Upon the discontinuance of the jury’s deliberations due

to the illness of one of the jurors, the Trial Court ascer-

tained the identity of the juror’s doctor and, without noti-

fying defense counsel, summoned him to the courthouse

where the juror was administered a drug, rested a few

moments and then rejoined the other jurors whereupon

deliberations recommenced. The only communications with

the juror related to his physical condition. The drug ad-

ministered was not morphine and the physician had indi-

cated that the juror was fully able to participate in the

deliberations (A-585-88).

The New York state courts determined that such pro-

ceedings did not prejudice petitioner and that, absent any

prejudice, reversal of the judgment was not required. Other

jurisdictions have concurred in such a holding [see, e.g.,

LaGuardia v. State, 190 Md. 450, 58 A.2d 913 (1948) ; Takar-

sie v. State, 81 Okl. Cr. 189, 162 P.2d 197 (1945); Gray v.

State, 143 Fla. 588, 197 So. 33 (1940); Haley v. State, 123

Miss. 87, 85 So. 129 (1920) ; C.J.S. §1356, p. 955, n. 58].

eee

As the Appellate Division indicated, a reasonable rule

to follow under such circumstances would be to allow the

Court to determine, in its sound discretion, what course of

action to follow in treatment of an ill juror, whether to

notify defense counsel or defendant and await their pres-

ence, and whether, in view of the proceedings that do take

place, a new trial should be granted. For example, treat-

ment of an urgently ill juror should not be required to

await such notification and presence. Nor should the fail-

ure to notify counsel of such fact, even where the illness

is minor, mandate reversal of the judgment absent preju-

dice to the defendant.

While a remand for a hearing to consider whether peti-

tioner was in fact prejudiced might of course be ordered

in an appropriate setting [see People v. Durling, 303 N Y

382 (1952) ], we note that there is no evidence that the ill

juror was influenced in any way or even approached in

regard to the case. Indeed, the Appellate Division opinion

took that tack, but also decreed that henceforth in New

York doctors appearing under similar circumstances should

ideally be kept available for examination by defense coun-

sel. Here, there appears to be virtually no chance of the

instant problem arising again in New York State—a juris-

diction whose reaction to the relevant issue comports, we

submit, with modern notions of due process.

In sum, no prejudice to petitioner resulted from the

Trial Court’s action. He was not deprived of the due

process of law and his claim does not warrant this Court's

review.

BR Concerning the Hearing Court's denial of the

motion to controvert the search warrant and

Petitioner argues that Patrolman Hatton’s affidavit [see

Appendix B, infra, p. A7) failed to establish sufficient

probable cause to justify issuance of the search warrant.

Determination as to whether a constitutionally valid hear-

say affidavit [see People v. Hendricks, 25 N.Y. 2d 129, 133

(1969); People v. Loria, 10 N.Y. 2d 368, 374 (1961)] evi-

dences sufficient probable cause depends upon whether it

states “‘a substantial basis for crediting’? such hearsay

[Jones v. United States, 362 U.S. 257, 272 (1960) ]. In such

a case the affidavit must satisfy a dual test. It 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 demonstrate suffi-

cient probability of credibility to allow the search of

the premises or person in question”’ [People v. Hend-

ricks, supra at 133, citing Spinelli v. United States, 393

U.S. 410 (1969) and Aguilar v. Texas, 378 U.S. 108

(1964) }.

The affidavit before the issuing Court stated that the

afiant’s information was ‘‘based upon statements supplied

to me by an undercover New York City Police Officer as-

signed to the First Deputy Comissioner’s Public Morals

Administrative Division’? (A-596). Being a government

agent, the informant’s ‘‘veracity could with relative as-

surance be relied upon”? [People v. Montague, 19 N.Y. 2d

121, 123 (1967); see United States v. Ventresca, 380 US.

102, 111 (1965) ], his character could accordingly be vouched

for (cf. People v. Schnitzler, 18 N.Y. 2d 457 (1966)], and

his reliability thereby inferred.

ie wrt ce >

Moreover, probable cause sufficient to justify issuance

of the warrant was established by Detective Laurie's, the

informant’s, disclosure of the circumstances upon which he

concluded that defendant had committed a crime and that

a search of the premises in question would reap contraband.

The affidavit recounted petitioner’s entry into the subject

apartment, his exit therefrom three and one-half hours

later, and his discarding of three packages evidentiary of

the illegal promotion of gambling and possession of gam-

bling records and of his status as a ‘‘banker."’ The recita-

tion of such factual basis in the affidavit satisfied the second

prong of the constitutional test—the information was suffi-

ciently detailed to set it apart from the category of rumor

and there is no question but that the informant was speak-

ing from firsthand knowledge and observations [c/. People

v. Hendricks, 25 N.Y. 2d 124, 134 (1969) )}.

It is further claimed that Patrolman Hatton's failure to

announce that he was in possession of a search warrant

rendered unconstitutional the procedural execution of the

warrant (see petitioner's brief, pp. 24-25).

The evidence at the hearing established that, in execut-

ing the warrant, Patrolman Hatton knocked on the apart-

ment door, stated that he was a police officer, waited about

fifteen seconds ‘‘for an answer, to give somebody more in-

formation if they requested it,’’ and then forced the door

open with his shoulder and entered the premises (A-34, 54,

55).° Petitioner was seated in the back room of the apart-

ment.

* At trial, an additional witness corroborated that entrance was

made approximately fifteen seconds after the knock (A-485).

11

Although forcible entry in execution of a warrant is

permitted ‘‘if, after notice of (the officer's) authority and

purpose, he be refused admittance’’ (Code Crim. Proce.

(799(a)), such an entry should not be proscribed where a

knock on the door and an announcement of “‘police’’ pro-

duce no response. In cases where forcible entry was held to

nullify execution the officers either failed to give any notice

whatsoever [People v. Floyd, 26 N.Y. 2d 568 (1970) (arrest

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

(officers knocked but did not identify themselves); Gate-

wood +. United States, 209 ¥F 2d 789 (C.D. Cir. 1953) (offi-

cers claimed they were from Western Union)] or failed

to await refusal of admittance despite acknowledgment of

their presence [Miller v. United States, 357 U.S. 301 (1958),

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

which the accused had stated “‘Just a minute’’); Hair v.

United States, 289 F. 2d 894 (D.C. Cir. 1961)}.

No such acknowledgment was offered in the instant case.

Petitioner was still in the back of the apartment when the

officers entered indicating his lack of intention to respond

and the police may justifiably have assumed that the apart-

ment was unoccupied, a circumstance permitting of forcible

entry (cf. People +. Johnson, 231 N.YS.2d 689, 691 (Ct.

Gen. Sess. N.Y. Cty. 1962) ; People v. Law, 55 Mise. 2d 1075,

1078 (Cortland Cty. 1968)]. Having knocked, announced

themselves and received no response, the officers should not

have been required to continue to verbalize a catechism

which, under the circumstances, would have been only an

unnecessary, time-wasting formality. Mandating such an

exercise where initial inquiry has prodaced no response

would be to exalt a formal procedure above common sense.

12

Moreover, the objects of the search under the warrant

were gambling records, easily disposable items. Under

such circumstances officers should only be required to make

a conscientious effort to enter peaceably (e.g., knock, an-

nounce that they are police and wait for a response) and,

if there is no response, forcible entry should be permitted

[cf. People v. Montanaro, 34 Misc. 2d 624, 630 (Kings Cty.

1962) }.

The Hearing Court's denial of petitioner's motions to

controvert and suppress was properly based upon sufficient

legal evidence and did not deprive him of any constitutional

rights.

C. Concerning the alleged prosecutorial misconduct

[answering petitioner’s brief, Point III, pp. 26-29].

Petitioner argues that his right to a fair trial was preju-

diced by the District Attorney’s statements during trial

and summation that (A-337)

_ Your Honor, I’m going to persist in the objection

as to the irrelevancy on this matter. We're not to

review the procedure in which a search warrant was

obtained. It has already been reviewed and passed

upon.”’

and that (A-543) ‘‘the crime occurred in March of 1969.

The hearing in this case occurred in November of 1969. The

Grand Jury—.’’ He claims that such references, to which

he raised timely objections, indicated to the jury that there

had been another hearing and that they ‘‘obviously * * *°

believed that they should not * * * second guess another

tribunal’’ (petitioner’s brief, p. 27).

13

It is first noted that discussion of the pre-trial hearing

was initiated by defense counsel himself who, in cross-

examination of Detective Laurie, asked ‘‘ And these answers

“you read only how long ago, the answers you made back

in November of °69, in front of Judge Dickens. When did

you read these last, your answers?’’ (A-288) and ‘‘ Were

you given a transcription of your answers that you made

back in November "69 * * *?’’ (A-289). During summation

as well defvi:se counsel stated that the detective ‘‘testified

here that he also read questions that were directed to him

back in November before Judge Dickens.’’

Furthermore, to the extent that the Court sustained

counsel’s objection to the People’s statement (A-337-38), it

later instructed the jury that (A-553)

**(D)uring the course of the trial, the court has made

rulings with respect to evidence. It has ruled certain

questions improper and directed certain testimony to

be stricken. Anything the court has directed to be

stricken, you will disregard. You cannot take that

into consideration in arriving at your verdict.

**And of course, gentlemen, you may not consider

questions as evidence in the case. Questions by them-

selves or the implications contained in questions mean

nothing. What is important is the answer * * * But

you cannot impart into this case implications, innuen-

does or suggestions which are contained in questions

not borne out by testimony given by a witness.’’

Such a curative instruction was sufficient to assure that the

People’s statements would not be considered in the jury’s

deliberations since jurors ‘generally do their duty when

it is made clear to them”’ [People v. Gowasky, 244 N.Y.

451, 464 (1927)].

14

In any event, the prosecution’s remarks did not preju-

petitioner’s guilt or innocence of the crimes charged. In

making such determination, the jurors were not required

to ‘‘second guess another tribunal’’ (petitioner’s brief, p.

27) which had made a ruling on the legality of the search

warrant and the admissibility of the proffered evidence

seized thereunder. On the contrary, the jury was not con-

cerned with the warrant but rather only the factual issue

of whether or not petitioner was in possession of the gam-

bling records and was promoting gambling. The existence

of the search warrant, no less its legality, did not affect the

jury’s deliberations and verdict and petitioner was not

prejudiced by reference to the pre-trial hearing.

However, should this Court disagree and be of the opin-

ion that the People’s statements were improper, it is sub-

mitted that any error flowing therefrom was, in view of

the overwhelming proof of guilt of the crimes charged

relating to March 25, harmless beyond a reasonable doubt

[Chapman v. California, 386 US. 18 (1967); People v.

Schwartzman, 24 N.Y. 2d 241, 251 (1969) ; New York Code

Crim. Proe., §542). .

We note, finally, that the New York cases cited comport

with the due process requirements mandated by this Court

and that no constitutional question is presented.

15

Conclusion

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Burton B. Roserts

District Attorney

Bronx County

Attorney for Respondent

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LEER APOIO LINE ITD Nh REI IE LL NTO ip

DOERR NR Red 0 AS OOS SHINS HBR ood

APPENDICES

BEAN!

wo Say

Appendix A

Decision and Opinion of Appellate Division

SUPREME COURT, APPELLATE DIVISION

First Department, October 1971

Harold A. Stevens, P.J., :

Louis J. Capozzoli, 4

Emilio Nunez

Theodore R. Kupferman,

James B.M. McNally, JJ.

EF

RENE, Sg at AO

The People of the State of New York,

Respondent,

—against—

Rudolph Prisco,

Defendant-Appellant.

RR a

Appeals from a judgment of the Supreme Court, Bronx

County, rendered on December 17, 1970, convicting de-

fendant 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, Dis-

trict Attorney) for respondent.

i ipininsasiachininseanitaiienasesidniapitieiiiimaeammiaeasill

Appendia A

McNatty, J.

The defendant appeals from a judgment of the Supreme

Court, Bronx County, rendered December 17, 1970, convict-

ing him, after trial to a jury, of the crimes of promoting

gambling in the first degree and possession of gambling

records 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 improp-

erly referred during the trial to a pre-trial suppression

hearing; and (3) the court erroneously permitted a doctor

to administer medical treatment to an ill juror after the

jury had commenced deliberation without notification to

defense counsel.

We have examined these assignments of error and find

them to be without merit, and consequently 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 noti-

fying counsel.

No New York statute or case law appears to have con-

sidered the precise question as to whether or not a defend-

ant is prejudiced by the failure to notify his counsel after

the jury commences deliberations that an ill juror had

received medical attention from his own doctor under the

direction of the trial court.

A3

Appendia A

This case was tried in December 1970. Consequently

Section 421 of the Code of Criminal Procedure applies.

It provides:

‘After hearing the charge, the jury may either decide

in court, or may retire for deliberation. If they do

not agree without retiring, one or more officers must

be sworn, to keep them together in some private and

convenient place, and not to permit any person to

speak to or communicate with them, nor do so them-

selves, unless it be by order of the court, or to ask

them whether they have agreed upon a verdict, and

to return them into court when they have so agreed,

or when ordered by the court.’’

Section 310.10 of the Criminal Procedure Law, effective

September 1, 1971, provides:

‘*Following the court’s charge, the jury must retire

to deliberate upon its verdict in a place outside the

courtroom. It must be provided with suitable accom-

modations therefor and must be continuously kept to-

gether under the supervision of an appropriate public

servant or servants. Except when so authorized by

the court or when performing ministerial duties with

respect 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 delib-

erations due to the illness of one of the jurors, the court

iseertained the identity of the juror’s doctor and, without

notifying defense counsel, summoned the doctor to the

courthouse where the juror was administered a drug, rested

Us en ee ee ee are

ee

Aé

Appendiz A

a few moments and then rejoined the other jurors, where-

upon deliberations continued. The only communication

with the juror related to his physical condition. The phy-

sician had indicated that the juror was fully capable of

‘cipating in the jury deliberati

Several cases not necessarily controlling point the way

to our decision and appear to us to express 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 drug-

store for medicine to relieve his ailment by the bailiff

who did not allow him to converse with anyone, while

leaving the remuining 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.’’

Williams v. State, 171 So. 386, an Alabama case, held

as follows:

‘During the deliberation of the jury, one of the jury-

men became ill and was allowed to leave the jury room

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 supervision of the court,

and without any pretext that the act in any way con-

A5

Appendiz A

trolled the judgment of the 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.

A reasonable rule to follow under such circumstances

would be to allow the court to determine in its discretion

what course of action to follow when a juror becomes ill

after deliberations commence. It would appear that it is

the court’s first duty to summon medical assistance.

Defense counsel, defendant and the public prosecutor 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 notification. Nor should the failure to notify

counsel of such fact, mandate reversal of the judgment,

absent prejudice to the defendant.

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 participate in deliberations. In our opinion, the record

establishes the fact that the defendant suffered no preju-

dice by reason of the illness or the medical aid. Here there

was no separation from the panel as contemplated by the

Statute and consequently no violation of the statutory man-

date. The circumstances are not substantially different

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

2 NN RRR Phe AEE

~~ &

rte er errr"

Appendiz A

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 consequently we affirm.

Aut Concur.

AT

Appendix B

Affidavit for Search Warrant

CRIMINAL COURT OF THE CITY OF NEW YORK

Part 1A, County of New York

State of New York )

County of N. Y. ) ss:

Patrolman John C. Hatton, Shield #17071 being duly

sworn, deposes and says:

1. I am a Police Officer assigned to the First Deputy

; sastener's Public Morals Administrative Diviel

2. I have information based upon statemen‘s supplied

to me by an undercover New York City Police Officer as-

signed to the First Deputy Commissioner’s Public Morals

Administrative Division that premises 670 East 176th

Street, apartment 2E, County of Bronx, City and State of

New York is being used for illegal gambling in violation

of Sections 225.05 and 225.15 of the New York State Penal

Law, by Rudolph Prisco. Rudolph Prisco is known to the

New York Police Department under B#79956. He has

been arrested nineteen times for violations of the gambling

’ statutes, and has been convicted seven times.

Said undercover Police Officer made the following ob-

servations: On Monday, March 24, 1969, from 2:30 PM to

6:05 PM, officer had premises 670 East 176th Street under

observation. At 2:30 P.M., officer observed Rudolph Prisco

|

;

A8

Appendiz B

enter said location and proceed to and enter apartment 2E.

Officer continued observation of premises and at 6:05 PM,

he observed Rudolph Prisco exit from the building. Prisco

proceeded to Belmont Avenue towards Tremont Avenue

between 1908 and 1910 Belmont Avenue, and in an alley,

Prisco stopped and removed from his right coat pocket a

package which he threw to the ground. From his left coat

pocket Prisco removed a package which he threw to the

ground and then removed another package from his left

coat pocket and threw it to the ground. Prisco then con-

tinued to Tremont Avenue. Officer immediately retrieved

the three packages without losing sight of same and ob-

served numerous envelopes with paper wrapped around

them held together by rubber bands. Further examination

revealed each package to be dated; package dated March

17, 1969 contained two bankers statements, 32 envelopes

with identities of collectors, inside the envelopes were ap-

proximately 3,040 slips of paper having approximately

209,760 plays of MRHP with amounts; package dated

March 18, 1969 contained 2 bankers statements with 34

envelopes with identities of collectors containing approxi-

mately 1,122 slips of paper bearing approximately 71,930

plays of MRHP with amounts; package dated March 19,

1969 contained 2 bankers statements with 27 envelopes with

approximately 648 slips of paper being approximately

29,160 plays of MRHP with amounts and identities.

Premises 670 East 176th Street, apartment 2E, County

of Bronx, City and State of New York was verified through

Consolidated Edison Company as being registered to James

Ercolani.

A9

Appendiz B

3. Based upon the foregoing reliable information and

upon my personal knowledge there is probable cause to

believe that such policy slips, written records and other

gambling paraphernalia commonly used in unlawful policy

activities, and may be found in the possession of Rudolph

Prisco and James Ercolani or at premises 670 East 176th }

Street, apartment 2E, County of Bronx, City and State of

New York.

;

Wuenrerorg, I respectfully request that the court issue :

a warrant and order of seizure, in the form annexed, au- :

thorizing the search of and directing that if such property

or evidence or any part thereof be found that it be seized :

and brought before the court; together with such other

and further relief that the court may deem proper.

No previous application in this matter has been made :

in this or any other court or to any other judge, justice

or magistrate.

s/ John C. Hatton 17071 Ptl § MPAD

Police Officer Shield Rank Command :

(Duly sworn to

March 25, 1969)

s/ Arthur Braun

Judge