Appendix — Pobliner v. New York
Supreme Court brief1974
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73-1178
SUPREME COURT, U, B.
IN THE
Supreme Court of the United States
October Term 1973
JAY POBLINER,
Petitioner,
—against—
PEOPLE OF THE STATE OF NEW YORK,
Respondent.
EEE
PETITIONER’S APPENDIX
——————————eeeeeeeeeeeee
HERBERT InA HANDMAN, Esq.
Attorney for Petitioner
Office and P.O. Address
36 West 44th Street
New York, New York 10036
INDEX TO APPENDIX
PAGE
Appendix A—Excerpts From Trial Transcript ........ A-la
Appendix B—New York Court of Appeals Order and
Opinion on Appeal ................. A-400
Appendix C—New York Court of Appeals Order
stein fens Bc tte Nate aE Pe A-417
Appendix D—Order Extending Time For Filing
Re eS Se ea A-418
Appendix E—Constitution and Statutes Involved ... A-419
Appendix F—Wiretap Material .0.........c..cccccessssccsssesses A-425
A-la
APPENDIX A .
INDEX
Excerpts From Trial Transcript
Indictment
Decision-Order of Kelly, C.J. of December 31, 1969,
Denying Defendant’s Motion to Inspect Grand
Jury Minutes and/or Dismiss Indictment and
Partially Granting Other Relief
Defendant’s Notice of Motion to Inspect Grand Jury
Minutes and/or to Dismiss Indictment, and for
Other Relief
Affidavit of Philip R. Edelbaum, Read in Support of
Foregoing Motion ...............
Minutes of Huntley Hearing .
Preliminary Colloquy of Court and Counsel
Se eeeeeeeeeeee
Statement on Behalf of Defendant
Statement on Behalf of The People .
Rebuttal Statement on Behalf of Defendant
Colloquy of Court and Counsel
eeeeeees
Minutes of Motion With Respect to Wire Tap Evi-
dence
TAT ETCEP OSE EETOT OES ESEOESS ESSE SESS ESOS ESS OES
A-2
A-1b
PAGE
Testimony of Liliane Scudder (in Chambers) Exami-
nation by Asst. Dist. Atty. Lewis A-62
Testimony of Det. Henry Andreoli (in Chambers) Ex-
amination by Asst. Dist. Atty. Lewis A-70
Testimony of Det. Henry Andreoli (in Chambers) Ex-
amination by Defendant’s Counsel A-73
Testimony of Det. Eugene Schoenberger (in Cham-
bers) Examination by Asst. Dist. Atty. Lewis.... A-101
Testimony of Det. Eugene Schoenberger (in Cham-
bers) Examination by Defendant's Counsel.......... A-104
Testimony of Det. Eugene Schoenberger (in Cham-
bers) Examination by <Asst. Dist. Atty. Lewis.... A-107
Testimony of Det. Sgt. Matthew Bonora (in Cham-
bers) Examination by Asst. Dist. Atty. Lewis.... A-108
Testimony of Det. Sgt. Matthew Bonora (in Cham-
bers) Examination by Defendant's Counsel.......... A-1l11
Testimony of Joe Lyle Hall (in Chambers) Exami-
nation by Asst. Dist. Atty. Lewis .......-.--------+ A-151
Testimony of Dr. Herbert L. Newbold, Jr.—Exami-
nation by Defendant’s Counsel A-305
Motion for Directed Verdict of Acquittal—Denied .... A-397
Summation on Behalf of People .........---------e:seseseeere A-398
Witnesses for the People:
Henry A. Andreoli
Direct A-35
Raymond K. Chmiel
Cross A-42
Joe Lyle Hall
Direct A-118
Cross A-167
Redirect A-277
Recross A-293
Re-redirect A-299
Re-recross .. A-300
Recalled
Recross , A-322
Re-redirect ; : . A-329
Witnesses for Defendant:
Dr. Herbert Leon Newbold, Jr.,
SPOR eee eee eee teeeeeeeeeees
CP PeOCCePCOODODODESOOOS ELSES OODECLO LCOS O LOCO C CCE SOOESCCCCEOCCCS
STOO ee OOO E Eee eee eee eeeeeeeee
POCO Ree eee serosa seeeeeeseeee
Indictment
COUNTY COURT
Nassau Country
—_—_0-——
Tue Prorte or THE State or New York,
against
Jay T. Posriver, Selene
endan
——s
ae
Tae Granp Jury or THE County or Nassau, by this in-
dictment, accuse the defendant of the crime of Murder,
committed as follows:
The defendant, Jay T. Pobliner, in the County of
Nassau, State‘of New York, on or about the 27th day of
December 1968, with the intent to cause the death of Brenda
Pobliner, did cause the death of said Brenda Pobliner by
shooting her with a gun.
Dated: March 28, 1969
Witum Cann -
District Attorney
Decision-Order of Kelly, C. J. of December 31, 1969,
Denying Defendant’s Motion to Inspect Grand Jury
Minutes and/or Dismiss Indictment and Partially
Granting Other Relief
"COUNTY COURT
Nassau County
Sprecta, Teru—Panrr I
Motion Cal. #C1418
Indictment #26,940
Present: r .
Hon. Paut Ketty, County Judge.
—
’ Vw
ProrLe or THE State or New York,
against
Jay Posuryer,
Defendant.
How. Wittuam Cann
District Attorney
Nassau County
Mineola, New York
Pur R. Eversaum, Esq.
Attorney for Defendant
250 Broadway
New York, New York
This is a motion by the defendant for an Order (1)
granting leave to inspect the Grand Jury Minutes or, in the
a
Decision-Order of Kelly, C. J. of December 31, 1969,
Denying Defendant’s Motion to Inspect Grand Jury
Minutes and/or Dismiss Indictment and Partially
Granting Other Relief
' alternative dismissing the’ indictment, (2) directing the
District Attorney to furnish defense counsel with a copy of
the autopsy report, (3) directing the District Attorney to
furnish defense counsel with a copy of the ballistic reports,
if any, (4) directing that a hearing be held to determine the
validity of any and all statements given by defendant, and
(5) directing that the District Attorney furnish defense
counsel with copies of any and all statements made by
defendant, and (6) directing a hearing to be held to deter-
mine the validity of a certain eavesdropping warrant.
The Court after reading. the Grand Jury minutes is
satisfied that the evidence presented is sufficient to sustain
the indictment herein and that phase of the motion is denied.
a copy of the autopsy report on or before January 12, 1970,
The third branch of the motion is denied. The defend-
would warrant this court to exercise its diseretion in favor
of the defendant. People y. Wells, Nassau County Court,
9/26/68. ;
Upon consent of the District Attorney the fourth phase
of the motion is granted to the extent that a hearing will
be held immediately preceding trial. Code of Crim. Proce.
§ 813-f et seq.
The fifth phase of the motion is granted. The District
Attorney is further directed to furnish counsel for defend-
ant with a copy of any and all written statements given by
defendant to law enforcement authorities. People v. Bach,
NYLJ p. 17 1/8/69 (App. Div. 2d Dept.). However, ‘an
alleged oral admission has no legal existence except when
and as testified to by the witness”’, People vy. Riley, 46 Mise
*, toe —— pm
SS Bors Chane Rey iat
Pere pro 5
RA a AL a a a a eh teers
Decision-Order of Kelly, C. J. of December 31, 1969,
Denying Defendant’s Motion to Inspect Grand Jury
Minutes and/or Dismiss Indictment and Partially
Granting Other Relief
2d 221, 223. Therefore the motion with respect to oral
admissions is denied.
Upon consent of the District Attorney the final branch
of the motion is granted to the extent that a hearing will
be held immediately preceding trial. Code of Crim. Proc.
§ 813-1 et seq.
So Ordered
Granted Dec. 31, 1969
Harotp W. McConne.i
Clerk
“re
ed
at
Defendant’s Notice of Motion to Inspect Grand Jury
Minutes and/or to Dismiss Indictment, and for
Other Relief
COUNTY COURT
Country or Nassau
Indictment No. 26,940
——01—
Tue Peortz or THe Strate or New York,
against
Jay Posner,
n
——
- Defendant.
*
Sir:
PLEASE Take Notice that upon the annexed affidavit of
Philip R. Edelbaum, Esq., duly sworn to the 17th day of
October, 1969, the Indictment and all the proceedings here-
tofore had herein, the undersigned will move this Court on
the 29th day of October, 1969, at 10 o’clock in the forenoon
of that day or as soon thereafter as counsel can be heard,
for an Order granting the defendant an inspection of the
Grand Jury minutes hearing and/or in the alternative, dis-
missing the Indictment herein, or in the event such relief
.is denied, a copy of the autopsy report, a copy of any
ballistic reports of the alleged murder weapon, for a hear-
ing to dctermine the validity of certain eavesdropping war-
rants and to suppress evidence gathered as a result of
telephonic interceptions, a copy of defendant’s statements
if any were given, for a hearing to determine the volun-" .
tariness of any statements of the defendant if any were
given, and for such other and further relief as this Court
may deem just and proper. :
<5 a a ORY NED
Defendant’s Notice of Motion to Inspect Grand Jury
Minutes and/or to Dismiss Indictment, and
for Other Relief
Dated: New York, New York
October 17,1969.
Yours, etc.,
Epetsaum, Aprams, Ferrer, & EpeLsaum -
Attorneys for Defendant
Office and P. O. Address
250 Broadway
New York, New York 10007
RE 2-1300
To:
Hox. Wniusm Cann
District Attorney
Nassau County Courthouse
Old Country Road
Mineola, New York
CLERK .
County Court
Old Country Road
Mineola, New York
eter
ay
Affidavit of Philip R. Edelbaum, Read in Support
of Foregoing Motion
COUNTY COURT
County or Nassau
Indictment No. 26,940
——
Tue Peorte or true State or New York,
against
Jay Posiiner,
Defendant.
—
>
State or New Yorxe ) :
County or New York (*=
Pump R. Evetsaum, being duly sworn, deposes and
says that: —
I make this affidavit on behalf of the defendant for an
Order granting the relicf requested in the attached Notice
of Motion. KS
As To tHE Motion For INSPECTION OF THE Granp Jury
Minutes ann/on In THE ALTERNATIVE FoR DisaissaL
OF THE INDICTMENT
On information and belief there is no direct testimony
linking this defendant with the alleged shooting of his wife.
The only evidence it seems that the District Attorney has,
is evidence which is purely circumstantial. If the circum-
stantial evidence is of such nature that a reasonable man
can equally interpret innocence from it as well as guilt,
then the indictment must be dismissed.
SS SE ee —_ . - =k
i]
--*
Affidavit of Philip R. Edelbaum, Read in
Support of Foregoing Motion
Concernixc Avutorsy anp Bauuistic Reports
Should this case go to trial, defendant requires copies of
the autopsy and ballistic reports if there are any, in order
to intelligently prepare his defense at the trial. It is there-
fore requested that the Court direct the District Attorney
of Nassau County to turn over copies of these reports to —
counsel for the defendant (Silver vs. Sobel, 7 Appell Div
2d 728, People vs. Nancy Wells, County Court, Nassau
County, J. Oppido decided September 26, 1968).
Concernixnc Derenpant’s STATEMENT
Immediately after the death of the defendant’s wife, the
defendant was questioned extensively by the police. At that
time he was under great mental stress and his memory as
to those statements is not accurate. If any statements were
given, they should be turned over to counsel for the de-
fendant. (See People vs. Wells, supra.)
Coxcerninc EavespropPinc
On May 2, 1969, defendant was served with a Notice
pursuant to Title 3, Section 823 of the Code of Criminal
Procedure, that conversations on the defendant’s telephone
were intercepted pursuant to eavesdropping warrants is-
sued January 15, 1969 and January 16, 1969. Therefore,
the defendant respectfully requests a hearing to set aside
these warrants and suppress any evidence obtained there-
from. +)
Wuenerore, it is respectfully requested the motion be
granted in its entirety.
Pump R. Epetnaum .
(Sworn to October 17, 1969.)
PE PE? &
Minutes of Huntley Hearing
COUNTY COURT
Nassau County—Parr II
Ind. #26940
——o-
Tue Peorue or THE State or New York,
against
Jay T. Posuiner,
; Defendant.
r=
we
Mineola, New York
January 21, 1970
Before:
Hon. Pauu Ketry, County Court Judge.
Appearances:
Joun RK. Lewis, Esq., Assistant District Attorney, for
the People. .
Maurice Epevsaum, Esq., for the Defendant.
_ Micnaet Wowx
“Micnaet YESNER
Official Court Reporters
The Clerk: People v. Jay T. Pobliner. :
Mr. Lewis: The People are ready.
Mr. Edelbaum: The defendant is ready.
ee ee sy ————— ——— .
oie BIE a ESS STR
LOSERS LESS PSS TLIO E RL TIEN IE EGER INE PL OEE, LEELA IA LILLIE cag
Preliminary Colloquy of Court and Counsel
The Court: Now let us set a few ground rules. I ima-
gine this will be rather a lengthy trial.
Mr. Edelbaum: It will, your Honor.
The Court: Now, I understand, Mr. Edelbaum, your
office is in New York.
Mr. Edelbaum: Yes, your Honor.
The Court: And you live in New York?
Mr. Edelbaum: Yes, your Honor.
The Court: And you must travel back and forth?
Mr. Edelbaum: Yes, your Honor.
The Court: We will start the case every morning at
10:00 o’clock. | ;
Mr. Edelbaum: Good.
The Court: That will give you an opportunity and the
District Attorney, as well, to do whatever activities have to
be done thereafter. We will adjourn every day at. 4:00
o’clock. f
Mr. Edelbaum: Thank you, sir.
_ The Court: That will give you a chance to get back to
your office, and Mr. Lewis also.
Now, are there any other suggestions that anyone would
care to make? *.
Mr. Edelbaum: No, but could we have some estima-
tion about how long the District Attorney’s case, that is,
his direct case might take, because I think that might be
important on Munday in selecting a jury, that we apprise
the jury about the length of time.
The Court: Well, on a rough basis. N obody is going to
hold anybody to anything. Just if you have any idea based
on your experience. usa?
,Mr. Lewis: Of course, your Honor, it would depend a
great deal on the cross-examination. Pass
The Court: Of course.
Mr. Lewis: But I would say two wecks for the People.
The Court: Two weeks for you to put the . People’s
case in?
A 10
:
SPOUSES AS TIRE CEA De En FOS
Preliminary Colloquy of Court and Counsel
Mr. Lewis: Yes, sir.
Mr. Edelbaum: 1 would estimate the People’s case
would take at least three weeks, having in mind some of
those days that we talked about.
The Court: That doesn’t include the Picking of the jury.
Mr. Lewis: No, sir, that is exclusive of the selection of
the jury.
Mr. Edelbaum: Then I would estimate about four weeks
on the direct case, __
The Court: I would say so.
Mr. Edelbaum: And it could well be that my defense
might take one to two weeks.
The Court: Well, I had figured before we started it
would be somewhere in the neighborhood of four to six
weeks, ;
Mr. Edelbaum: If we apprise the jury of that fact, it
will be fair to them, because it may well be that some of
them may have an economic problem.
The Court: We will g0 into that very thoroughly.
Mr, Edelbaum: In selecting the jury, can we follow the
Same procedure as we have in the past?
The Court: I think I’m going to use the box method.
I will let you question them individually in the box, but
there are some questions, as you know, that you can ask,
‘“‘How about you and’ you and you?”? And then we can
save a little time on that.
Mr. Edelbaum: All right. The only reason why I would
want it individually, if possible, is because there has been
in the past year from time to time considerable publicity
about this, and it has come to my ears that it has been a topic
of discussion among people, as would naturally be in this
type of case.
The Court: Well, I think you will find, Mr. Edelbaum,
that the interest in this case would be centered pretty much °
in the small area from Which it arises, | doubt very seri-
ously if a great deal of interest was had. ,
— OR
ji San
Ear. a — ay EST aS ARES eR RRR
BAR ie pre at eas A z
Seats =" -
FPG SO FL OF. Ee St —
Preliminary Colloquy of Court and Counsel
Mr. Edelbaum: From what I heard, it extended into the
area where you live, because I happen to have a son who
lives there.
The Court: Thai is the same area, but it is a small part
of the county. I don’t think we will have too much trouble
with that. ;
Mr. Edelbaum: All right, because I know it has been
a topic among the ladies in beauty parols and things like
that.
The Court: We will cover that. Now, what is the pro-
cedure this morning? What is the intention of the District
Attorney? ;
Mr. Lewis: Your Honor, there were two hearings
ordered, one on the voluntariness and constitutionality of
the statements made by the defendant Pobliner, and the
other dealing with the question of wire taps as a result of
an eavesdropping order, and at this time, your Honor, I
wish to inform the Court and Mr. Edelbaum that the People
do not intend to offer any of the wire taps into evidence, and
{ will state for the record that there was no information
gleaned from any of those wire taps that led to any evi-
dentiary matter that will be placed in evidence before this
Court. .
Mr. Edelbaum: Well, your Honor, I have been involved:
in other matters similar to this, and your Honor is familiar
with the recent Supreme Court cases. I think what has to
be done is that, first of all, I would like to know—perhaps,
your Honor, in the interest of insuring a fair trial to the
People and to the defendant, we could adjourn to your
chambers and diseuss these ground rules.
The Court: All right. Do you have any objection to
that? ,
Mr. Lewis: None at all.
The Court:.’ All right. Now, before we do that I have .
two other matters that I will take in chambers and then a
will call you. '
A 12
on
Preliminary Colloquy of Court and Counsel
Mr. Edelbaum: All right.
(A recess was thereupon taken.)
(After recess the following occurred in chambers :)
The Court: For the record, the procedure that will be
followed is this: Mr. Edelbaum at this time will be given
the complete number of tapes which are the results of the
wire taps that were obtained by the police. He will spend
today and tomorrow, as much as is necessary, listening to
those tapes.
As soon as that listening is completed, then the hearing
will start with reference to the statements.
This case will be recessed until Mr. Edelbaum indicates
he has completed his listening.
(This hearing was thereupon adjourned without date.)
Mincola, New York
February 4, 1970
Before: ,
Hon. Pavt Keury, County Court Judge.
Appearances:
Joun R. Lewis, Esq. and Lewis Burcer, Esq., Assist-
ant District Attorneys, for the People.
Mavnice Eversaum, Esq., for the Defendant.
The Clerk: The People v. Jay T. Pobliner.
Mr. Lewis: People are ready.
The Clerk: Tliis is a IIuntley Hearing.
A 13
Statement on Behalf of Defendant
Mr. Edelbaum: Defendant is ready.
The Clerk: Both sides ready?
Mr. Lewis: Yes.
Mr. Edelbaum: Your Honor, I have an application. I
respectfully move, your Honor, that the proceedings pre-
liminary to the selection of a jury including the hearings
directed by your Honor’s decision to be held today, that
with respect to those hearings the public and the press be
excluded with the consent of the defendant, who will place
that consent on the record personally.
1 ask this be done in the interest of insuring a fair and
impartial trial both to the defendant and to the People of
the State of New York.
The Court: Mr. Pobliner, do you consent to that?
The Defendant: Yes, your Honor.
The Court: Mr. Lewis, do you have any objection?
Mr. Lewis: I have no objection to the application, your
Honor. :
The Court: All right. Everyone will be excluded
except the actual defendant and the District Attorney and
his staff, just’ for the hearing.
The Clerk: May we have the courtroom cleared with
the exception cf the defendant and counsel.
The Court: All right, gentlemen.
Mr. Edelbaum: Your Honor, I think the record should
note thaf pursuant to my request and your Honor’s diree-
tion, the defendant and his counsel were permitted to hear
certain alleged recorded conversations taken place on the
telephones where the defendant resided with his parents at
7 West 81st Street, New York City, pursuant to an eaves-
dropping warrant issued I am informed by notice served
by Mr. Cahn, the District Attorney of Nassau County, on
May 9, 1969, that there were several eavesdropping war-
rants obtained by him from the Hon. Mareus G. Christ,
an Associate Justice of the Appellate Division, Second
Judicial Department, on January 15, 1969 and January
14
LE FEL SI PLE et FS
Statement on Behalf of Defendant
16, 1969, and that there were some fifty odd tapes that
I was permitted to listen to during the preceding nine
court days.
I think that in the interest of a proper record, your
Honor, that tliese tapes should be produced and marked
as an exhibit on this hearing.
Mr. Lewis: I don’t know yet what hearing Mr. Edel-
baum has reference to, your Honor. The motions or the
applictions for such hearings, I believe, were to be put on
oon and the reasons for same I be-
lieve were also to be placed on the record at this time.
The Court: All right. Go ahead, Mr. Edelbaum.
Mr. Edelbaum: Well, your Honor, I think in order to
keep a proper record, your Honor directed, by an order,
decision dated December 31, 1969, that with respect to the
fourth phase, the motion is granted to the extent that the
hearing be held immediately preceding the trial and the
hearing being on our motion t6 Suppress any interceptions
taking place by telephone, so that is the hearing here now,
I assume, that we are having, and in order to precede the
hearing, I was given properly the opportunity to listen to
these tapes so I could talk intelligently about what I con.
tend here.
I have made the motion and I do make the motion
athered as a result of telephonic
ground that they were illegally ob-
defendant’s constitutional rights -
and particularly it develops that on these tape interceptions
there appears time and again conversations between coun-
sel for the the defendant and the defendant, w
hich were
intercepted, overhear » the gist of the conversations were
recorded and that in addition to that, conversations be-
tween an investigator employed by the defend
intercepted and heard while he was
for the attorney for the defend
ant was also
acting as an agent
ant in this case, and I say
A 45
- Sep SETS SP:
Fe RO re EIS TERR LE IE a
Ee RS ee ee oe
\
Statement on Behalf of Defendant
that on its face that is a clear violation of law. The Dis-
trict Attorney had no right to listen to those conversations,
and I call your Honor’s attention to the well-known Mor-
haus case which was decided in the New York State Court
of Appeals, which was sent back, and one of the scrious
questions there was, it was sent back as a question of fact
as to whether or not the eavesdropping participants, the
police, had actually stopped recording when they heard
conversations or were about to hear conversations between
attorney and client, and that was one of the big issues in
this case to be determined by a question of fact.
In this case it is conceded from listening to the tapes
and from the memoranda that was given to me to follow
as a guide as to some of the things taken down by the police
who were monitoring these conversations, there was no
such effort made that they clearly violated the defendant’s
constitutional rights by overhearing discussions between
attorney and client about the facts and cireumstanees sur-
rounding that which the defendant has been acensed of
now.
Your Honor, I think that in order to make a proper
record on this hearing, these tapes should be produced,
identified for the record, so that we-can have a possible
review in case of it going cither way, and also I would
like produced at first the transcripts which were loaned to
me before each day when I listend to them, and they were
taken back each night; I would like to take a look at them
and the transcripts, so I can properly point out to your
Honor the different times that there were overheard on
the part of the police these confidential conversations
between attorney and client. And also to ascertain whether
or not any leads to evidence were obtained from these
tapes or taps. .
The District Attorney has alleged that on his affirma-
tive case he is not going to use any of the material on
A 16
<2 aes eeg ee e a a a a ae at Tee
SE ONT YES CCE RN
eee PR eT IEMA ORR 3s
Dy RP Se) Pe PY
PEE PAA MRD re ;
.
‘
Statement on Behalf of Defendant
the tapes, and the District Attorney has also represented
that there were no leads.
Well, your Honor, that may be his opinion and he
may muke it in good faith, but I would like an opportunity
to demonstrate that there were leads developed from those
conversations.
I would like an opportunity to develop whether or not
as a result of these interceptions there was surveillance of
the defendant because of the fact of places and times of
meeting with various people who are identified on the
tapes, the defendant going to the place where his wife’s
parents lived in Carolina, Ashville, North Carolina, which
was developed, the time and place, and by coincidence,
shortly after his arrival down there the police were there.
So I say to your Honor that we just can’t have it on
representations of the District Attorney. I should have
an opportunity to explore and find out from the detectives
who monitored these. The detective in charge should be
questioned as to what was done with respect to these tape
conversations.
Now, your. Honor also knows that there are in exist-
ence, and has to be in existence in every type of case
like this, different reports of detectives in charge of this
case from time to time. I don’t know what they are known
by out here, but in New York City the first report is the
UF 61, and then thereafter it is DD 3’s. I assume that
out here they may be ‘called by some other number, but
whatever they are, I would like an opportunity to examine
the supplementary reports of the continued investigation
up to the time or at the time surrounding these intercep-
tions, and I think that would point oyt as to whether or
not there were leads obtained from these constant 24-hour-
a-day taping or tapping of the defendant’s ( ‘ephone from
_the period January 15th until February 4th.
I would like to know when it actually started. I would
like to have it under oath when it actually started, whether
A i
—— COT OE ELS lS PS ae
ELT MPP RE NP ELITIST SYREN NOTES RNS PRIME I | PNY ot a» gl
ae
i.
‘
Statement on Behalf of The People
it started before. I would like to have it under oath when
it terminated, whether it was ever reactivated. I would
like to inquire as to all of those things, and I would like
some live witnesses to develop that.
I am told that a Sergeant Vaneri was in charge. I
don’t know whether he was in charge at first. At first
it was a Lieutenant Guido. I believe he was in charge
first. I would like to find out.
I would like to go into this, and I would also respect-
fully ask your Honor before we go any further, that I
be given an opportunity to examine the eavesdropping war-
rant issued on January 15, 1969 and January 16, 1969 by
the Hon. Marcus G. Christ, an Associate Justice of the
Appellate Division, and any papers upon which they were
based, whether they were based on affidavits or any
transcript of any hearing that was held before Judge
Christ.
I would like that opportunity to examine it so that I
can formulate an opinion as to whether or not they were
properly exercised. :
Of course, I can’t point out anything else until I
examine the papers, and it may well be there may be a
difference of opinion as to whether or not there was
probable cause for the issuance of the warrants.
The Court: Mr. Lewist
Mr. Lewis: As Mr. Edelbaum pointed out, your Honor,
initially he made a motion for a hearing to determine the
validity of the eavesdropping warrant and to suppress
any evidence obtained therefrom. I have stated to the
Court before, and I will so state again that the People
do not intend to of er during their direct ease any of the
eavesdropping tapes that were made, and T further state
for the record that no evidenciary leads were obtained
from the use of the eavesdropping warrant in question.
Mr. Edelbaum correctly indicated, your Tonor, that
not only did we provide to him all of the tapes of all of
*
REN Te AL EAT ON . a) eae
ren 9
Statement on Behalf of The People
Police Department who monitored these same conversa-
tions. In effect, your Honor, although it didn’t come out
ing of one sort or *-vther, and the mere allegations of
Mr. Edelbaum that these tapes were used by the People
Honor, that would be the purpose of the hearing as sect
forth in the Statute, to determine their admissibility in
evidence on the trial.
I think, in accordance with what I just brought to the
Court’s attention, it would be the Conrt’s determination
at the time that Mr. Edelhaum would make his objection
to the evidence that was heing offered as to at that time
whether or not the evidence was in fact obtained as a
result of the search warrant and then at that time the
Court conld determine whether or not it was obtaine:]
through the use of the wire tap evidence, and then we
could have the hearing to determine the admissibility andl
validity of the underlying warrant.
There were two things that had been mentioned earlier
by Mr. Edelhaum that were not mentioned here. There
1:
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Rebutial Statement on Behalf of Defendant
were tapes provided to Mr. Edelbaum, your Honor, which
were defective in one way or another in that on some
tapes there were entire conversations not on the tape,
or an entire reel of tape was either blank or inaudible,
and there were transcripts of the conversations that would
have appeared on that tape. Now, of course, it’s the
People’s contention, your Honor, that these conversations
were not deliberately erased, but through some mechanical
error or some human error involving the people and the
machinery in use at the time these conversations were not
in fact recorded by the tape recorder while they were
recorded by the detective who was listening to them. For
that limited purpose, your Honor, for that limited purpose
only, to determine the propriety, if you will, of these
tapes in question—and I don’t know how many there are—-
the People would not oppose a hearing at this time, but
the balance of Mr. Edelbaum’s motion the People do
oppose as not being necessary at this time. The People
have no intention of using these tapes, and insofar as
any evidenciary matter is concerned I fee] that there is
a burden new on Mr.. Edelhaum to come forward with
proof that in fact this did in fact occur. _
Mr. Edelbaum: Your Honor, I helieve the purpose of
the statute directing that notices be given after the eaves-
dropping has been completed to counsel for the defendant
was that we should have an orderly procedure of a hearing
before the trial. Now, to take the distriet attorney’s con-
tention here that I should wait ‘until something is offered
or some witness is offered and then make at that time a
motion for a hearing would cause this trial to be inter-
rupted maybe ten or fifteen times with such things, and I
don’t think it’s orderly. . an
I would like an opportunity to call the detective in
charge of this case to learn how these tapes were made,
how the conversations were intereepted, the mechanical
means, who was present, what notes were taken.
a ee
Rebuttul Statement on Behalf of Defendant
I was given a typewritten transcript, which they say
is a copy of some notes, and I’m sure there wasn’t a type-
writer in the room, and as the conversation came over I am
sure that that didn’t happen. So I would like to see and
like to know what happened to any notes, whether they
were in writing, whether they were in a book or anything.
I would like to examine those notes and see what there is
because, as was pointed out by the district attorney, there
are some tapes here that were inaudible despite the fact
that they are on transcripts that are alleged to be sub-
Stances of different conversations.
In any event, your Honor, we have the basic fact that
the defendant’s rights as to privacy between attorney and
client was directly violated, and I think the threshhold
question to determine in View of that is to. determine
whether or not, first, these were valid interceptions at all,
or not there are some basic defects and whether I should
offer any testimony based upon what some police officer
may have said or may not have said at the time. I don’t
know what’s contained in there.
The Court: Well, Mr. Edelbaum, as I understand your
motion, first of all, you want all of the tapes produced and
marked for identification ?
Mr. Edelbaum: Yes, your Honor.
The Court: I can see no objection to that.
Mr. Lewis: No objection, sir.
The Court: AN right, that will be done.
Secondly, the district attorney has advised this Court
that he does not intend to make any use of any tapes that
Were taken in this proecdure. :
Mr. Edelbaum: Well, he has said that on his direct
case.
The Court: Well, I am going to go one step further.
I am going to rule that, first of all, you are not entitled to
A 21
Colloquy of Court and Counsel
go into the question of the affidavits or the procuring of
the tap, and, secondly thet the district attorney will not
be permitted to use any of these ‘tapes either directly or
indirectly during the course of this trial.
Mr. Edelbaum: Now, the only reply—
The Court: Now, if you come to the question of leads—
Mr. Edelbaum: Yes, sir. :
The Court: —It will be up to you, Mr. Edelbaum, armed
as you are with the information that you have received
from the many days of listening to the tapes, to at any time
you feel that you are approaching an area where the district
attorney has used leads that he might have obtained from
these tapes, it will be up to you then to make your appro-
priate objection and motion, and I at that time will rule
upon them.
Mr. Edelbaum: Your Honor, in aid of that there was
given to me a typewritten transcript of what was believed
to be notes taken by the monitors at the time, the detectives.
I used those as a guide. Now, I am unfortunately not a
court reporter, and it was difficult enough for-me to listen
to the tapes—Judge, if you ever heard of Chinese torture,
just listen to these tapes for nine days and you can forget
about the water cure or anything like that. I sec somebody
is nodding quite in agreement with me. I would like your
Honor to direct that I be given that copy. I have seen it,
it’s no secret. I would like to see it so I can examine it and
make my appropriate notes so that I can be in better posi-
tion at the time such testimony is offered.
The Court: Which copy is that, Mr. Edelbaum?
Mr. Edelbaum: He knows what I am talking about.
Mr. Lewis: This would not be, your Honor, a transeript
of the tapes themselves. As I indicated to the Court
earlier— ,
The Court: What is it, a summary?
Mr. Edelbaum: No, it’s subject matter.
A 22
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Colloquy of Court and Counsel
Mr. Lewis: These are transcripts of notes made by the
detectives who were actually present listening to the con-
versations as they were in fact occurring.
Mr. Edelbaum: It’s a guide to me to refresh my recol-
lection of what I heard as I listened for nine days.
Mr. Lewis: May I be heard now, your Honor?
‘The Court: Yes.
Mr. Lewis: Prior to the offer to Mr. Edelbaum to listen
to these tapes, Mr. Edelbaum made inquiry, your Honor,
about having a court ‘stenographer take down those con-
versations which he felt would be the ones he was most
interested in. I don’t believe this was done, but I have in-
formation from the detective who operated the machine for
Mr. Edelbaum that Mr. Edelbaum was making notes all
during the course of these nine days, I believe, that have
been mentioned that these tapes were in fact listened to.
These are the notes I would assume would be of interest to
Mr. Edelbaum, not the notes made by the detectives who
were present at the time the conversations were taking
place.
Mr. Edelbaum: I have seen them before. Why should
he refuse to give them to me again? What is so sacred
about them when I have seen them? I have seen every one
of them. So I say to you that it’s going to help me with
my notes in making a more orderly presentation as the trial
progresses, proper objections, without fumbling or any-
thing so I can be prepared.
The Court: I can see no reason—do you have a copy?
Mr. Edelbaum: Sure, he has.
The Court: If you do I would suggest that it would
merely expedite the proceedings. As Mr. Edelbaum says,
and ] assume he is correct, he has already seen them.
Mr. Lewis: Yes, sir.
The Court: Well, for the purposes of expedition and
for no other purpose, I would so direct. ;
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Colloquy of Court and Counsel
Mr. Edelbaum: Thank you.
Then I have an exception tu your Honor’s ruling. That
disposes of that hearing.
The Court: Yes.
Mr. Edelbaum: Now, I think the burden is upon the
district attorney to move forward with certain statements
to prove that they were voluntarily given.
Mr. Lewis: Yes, your Honor.
The Court: All right, sir.
Mr. Lewis: We have now left the area, your Honor of
the tapes.
The Court: Of the tapes, that’s right.
Mr. Edelbaum: Except that I will be given a copy of
that transcript.
The Court: Yes. And the tapes will be marked for
identification.
Mr. Lewis: Your Honor, so that I ean comply with
one of the Court’s directions, may I have a short recess to
get the tapes down here?
The Court: Yes, ten minutes,
(Recess taken.)
(After recess.)
The Clerk: Hearing continued.
Mr. Edelbaum: We thought we would save you the
trouble of waiting here, your Honor, while we are marking
these. :
The Court: Well, I would suggest and I will direct that
they be put in the box and sealed up and that box marked
for identification, and then if you want any particular one,
you already have these numbered. ;
Mr. Edelbaum: Yes,
The Court: .Then you can say, ‘We want such and
such,’’ and we will have that marked.
A 2%
: 2 +S Toe PE Perr yes PSR EGE Re IES AR Ee RR
Colloquy of Court and Counsel
Mr. Edelbaum: All right. I think you are one hundred
percent correct.
The Court: Do you have any reason why you wouldn’t
want to do it that way, Mr. Lewis?
Mr. Lewis: Not really, no, your Honor.
The Court: All right. Put them in the box, seal the
box, and we will have it marked.
Mr. Edelbaum: I think we can say there are 35 tapes
on telephone such and such, the first telephone number, and
there are 14 tapes on the other telephone number.
The Court: All right. Let the record so indicate.
Mr. Edelbaum: Why don’t you specify that number,
Mr. Lewis, again.
Mr. Lewis: One second please. I will get them back
in order. I will be in a better position to know what we
have.
The Court: Can you get them all in the box?
Mr. Lewis: Yes, I can get them all in. We may have
the record indicate that this one box contains 35 boxes of
tapes with regard to Court Order 1-69A, machine 36R, reels
1 through 35, and also containing Court Order 1-69B, ma-
chine 34, reels 1 through 14, for a total, your Honor, of 49
boxes of tapes. aii
The Court: All right. Let that box be sealed and
marked as a Court exhibit this time, and it can be kept in
the custody of the District Attorney.
(Box containing 49 reels of tape received and marked
Court Exhibit AA for identification.)
The Court: All right, gentlemen, proceed.
Mr. Lewis: Before we proceed, your Honor, you also
directed me to provide Mr. Edelhaum with copies of the
transcripts of the notes made by the detectives relative to
the reels of tapes that have been marked as a Court exhibit
for identification.
A 2525
DEW SET OR pie aS Aree mon neers SE i Sr Re: ae
Colloquy of Court and Counsel
At this time, with the Court’s permission, I would like
to have these marked for identifieation and present them
to Mr. Edelbaum.
The Court: Mark them for identification.
Mr. Lewis: Without actually counting them, there
would be no way of getting the number of pages, just
suffice to say that they deal with recls 1 through—your
Honor, I think the last couple of pages have been ripped
off this copy that Mr. Edelbaum had used. I don’t know
what happened to them, but I will make copies of the trans-
cript that are missing—I’m sorry, they are right here—
reels 1 through 35 on Court Order 1-A-69, machine 36R, and
Court Order 1-B-69, machine 34R, reels 1 through 14, with
the understanding, your Honor, that these are being pro-
vided to Mr. Edelbaum for his use solely during the course
of this trial.
The Court: Yes.
Mr. Edelbaum: I will have no use for them after that.
The Court: All right, mark them as a Court exhibit.
(Transcripts referred to received and marked Court
Exhibit BB for identification.)
Mr. Edelbaum: Thank you.
Mr. Lewis: Now, as to the Huntley Hearing, your
Honor, the People will call Lieutenant Godsman.
4
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Bherrereinermanmernco PMR TR ONSEN RT
Minutes of Motion With Respect to Wire Tap Evidence
COUNTY COURT
Nassau Counry—Parr II
Ind. #26940
/ ee
~
Tue Peopie or rue State or New York,
s against
Jay T. Posiner,
Defendant.
. ae
—— ae
Mineola, New York
September 14, 1970
Before:
Hon. Pau Ketiy, County Court Judge.
Appearances:
Joun R. Lewis, Es
q-, Assistant District Attorney, for
the People.
Maurice Evetsaum, Esq., for the defendant.
MicnaeL, Wowx
and
Micuar, Yesner
Official Court Reporters
———_—_———
The Clerk: ‘The confe
designated as Part II of th
of these procecdings.
rence room of Judge Kelly is
e County Court for the purpose
ene
ee ree 7 - * +} Se xs 3
Sg ey PLT PEE ES i
ea a as % 2
papa Ana Tadinastare EON: “-
Minutes of Motion With Respect to Wire Tap Evidence
Mr. Edelbaum: The reason that it is in the conference
room, your Honor, is that since I have been apprised of the
application informally by the District Attorney, I have
asked your Honor that this be held in the absence of the
public and the defendant presently consents to that. Is
that correct, Mr. Pobliner?
The Defendant: Yes, sir.
Mr. Edelbaum: So the record is quite clear this is done
with the application of the defendant in the absence of the
public.
The Court: All right. Now, is there an application?
Mr. Lewis: Yes, there is, your Honor. There is an
application by the People.
At the preliminary trial or the first trial of this case,
I, on behalf of the District Attorney’s office, made a state-
ment for the record that I did not intend to use any wire
taps in evidence during the course of the trial. .
I further stated that no leads were obtained by the
District Attorney’s office as a result of these wire taps.
This statement, your Honor, was made by me in response
to an application at that time by Mr. Edelbaum for a hear-
ing to determine the validity of the wire taps.
At that time, I believe, based upon the statement made
by myself, your Honor ruled that the wire taps would not
be admitted iato evidence during the course of the trial] and
that further, I would be precluded from utilizing any in-
formation or the wire taps during the course of the cross-
examination of any defense witnesses that might testify in
behalf of the defense, and prior to the selection of the jury
in this case, your Honor, Mr. Edelbaum, for the record,
repeated and read, as a matter of fact, I believe, from
your Honor’s prior rulings into the record of this ‘trial
before the jury was selected. ;
Now, your Honor, I have been preparing this case and
I had not had an opportunity to read through the various
minutes—I am not saying the first time—but at this time
A 28
SSSR MOQ VOY PEARL SRO AR YN TTA Yi
CED Ree OP EK, RY Sr TE AL
Minutes of Motion With Respect to Wire Tap Evidence
I had not had an opportunity to read through the minutes—
not the minutes, but the recordings or the typewritten notes
of the recordings of these wire taps.
I did this on Saturday and I went over it with myself
and Detective Andrioli and Detective Schoenberger, and I
feel, your Honor, that now as the question of the validity,
the legality of the wire taps has never been raised in issue
and has never been decided by the Court that the People
would ask for a hearing at this time before we continue
during the course of the trial for a hearing to determine
the validity, the legality of the wire taps, the order of the
wire taps that we now have in our possession.
These taps have been marked by the Court and they
have been sealed at the Court’s. direction and have been
marked as an itera of evidence, I believe, at the request of
Mr. Edelbaum on the previous trial, and as far as I am
concerned, they are still so sealed and still so marked and
they have not been interfered with since that time.
The Court: Do you still maintain that you are not
going to offer these in evidence, that is on your direct case?
Mr. Lewis: At this time, your Honor, on my direct
case I have no intention of offering any of these wire taps
themselves, the tapes per se, into evidence, ;
The Court: Mr, ‘Edelbaum?
Mr. Edelbaum: Your Honor, I object to this applica-
tion on two grounds. On December 31, 1969 your Honor
made a decision.
The Court: What page is that?
Mr. Edelbaum: This was on page 12, and I am just
calling to your attention that on December 31, 1969 your
Honor made an order and decision pursuant to -an appli-
cation that I made to Suppress any wire tap hearing and
that the motion is granted to the extent that the hearing be
held immediately preceding thé trial and the hearing being:
on our motion to suppress any interceptions that took place
by telephone.
Saas puesta eae BAS yn Earn shoes SS) PL LTEL LE NSS LEWIS EAI OE a
Ree ers at = : = .
OR le RS eR
aR ka FR MF I ID, FRE TE
Minutes of Motion With Respect to Wire Tap Evidence
Now, prior to the commencement of the first trial in
January of 1970, your Honor dirceted that I listen to all of
the tapes. I spent more than two wecks listening to fifty-
one tapes. I learned during those tapes that the People, in
violation of law, had permitted interceptions of telephone
conversations between the defendant and his attorneys,
which is in direct violation of law, and I asked for a hearing
after the tapes, and your Honor at that time, after Mr.
Lewis had assured you that he was not going to offer any
of the tapes and not going to use any of the tapes, decided
that these tapes were not to be used in any way, shape or
form, indicating that they couldn’t even be used for cross-
examination purposes of the defendant, if the defendant
wished to take the stand, and at that time, your Honor
said you were going to deny me a hearing and you were
going to deny me permission to look at the order of the
Appellate Division and the affidavits upon which the order
was based until such time if during the trial any testimony
was offered or any evidence was offered which I felt from
listening to the tapes resulted in leads from these tapes,
and if it became necessary, you would hold such a hearing,
and that was the ruling. Then, unfortunately, we had the
mistrial and, your Honor, very frankly, I put out of my
mind entirely anything. about the tapes and no detectives
were called. As a matter of fact, it developed that there
Was one or more tapes that couldn’t be found or wasn’t
audible, or for some reason, although there were notes, and
yet there were no tapes. a
Now, we selected a jury and we spent all last week
selecting a jury and we have a jury sworn.
I say at this late stage that we shouldn’t be obliged to
wreck this second trial, because if it should be developed
at a hearing that your H onor would permit the use of these
tapes and if it had developed at the other trial, I had every
intention of inquiring on my voir dire of jurors their feel-
A 30
a
en. SEE STE TR LL LETT EE ATE ee Te Oe erence lee
Nui par eae: on Se oR end g Sere Le LASTS RNET OST REE eT Sa
é ~
Minutes of Motion With Respect to Wire Tap Evidence
ings about wire taps and everything, which I would have
a right to do, which I refrained from doing in the selection
of this jury, which I say would be very unfair to this
defendant.
I say to your Honor and I urge you most strenuously
to adhere to your original ruling, and if at any time there
should become apparent to counsel that any evidence is
offered resulting directly or indirectly from these leads,
from the tapes, that at that time the only question that will
have to be determined would be whether or not—in the first
instance, whether or not they were actually leads from the
tapes, and if your Honor should determine that they were
leads from the tapes, only then. would it become necessary
for your Honor to determine the validity of the wire taps.
If it should become apparent to your Honor that these
leads didn’t come from the tapes and should find that asa
fact, that would be something that we would have to deter-
mine at that time,
So the District Attorney has assured your Honor that
there is no evidence being offered in this case that came as
a result of any leads unless his position is different now,
that he has learned there are leads that were obtained from
these wire taps, and if so, I would like to know.
Mr. Lewis: Well, I don’t understand, your Honor,
Mr. Edelbaum’s argument, I cannot see any harm to the
defendant from us having the hearing that he requested
on the previous trial. And insofar as his now bringing to.
the Court’s attention his reliance upon iny statement to the
Court, it was not so back on January 21st, when he stated
to the Court that more or less he appreciated the fact that
I was making that Statement in good conscience but that
he would feel that it would be up to somebody else ‘other
than myself to determine whether or not in fact I did obtain
- any leads or we did obtain any leads from the tapes.
It would seem to me, your Honor, that this is a problem
that is going to arise during the course of the trial, and
¢ ;
: A PE FAI Jl. IEEE FITS AT LN OTERO EOE IRI EGS ea
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eu
-
Minutes of Motion With Respect to Wire Tap Evidence
if we are going to have it then, rather than disrupt the
trial, especially if it is going to be a lengthy procedure,
then I would assume that for an orderly trial and a speedy
trial, your Honor, that the chances for such a trial would
be enhanced by our having this hearing now and getting
it over with.
As your Honor is well aware, your decision on that
first trial resulted in not only my being precluded from
using any evidence or leads developed from these tapes,
but I was also precluded from using it on cross-examina-
tion. That was based on the statement that I made to the
Court, and the merits of the underlying wire tap orders
and affidavits were never gone into and that is what I would
like to have resolved now before we proceed with the trial.
In the event that it does come up in your Honor’s opinion
that a lead was developed, then, that question will then
have entered now and we will not have to interrupt the
trial at that time. I have witnesses available now that Mr.
. Edelbaum might want. I don’t know if I would have the
Same control over those witnesses or if they would be avail-
able at that particular time.
There were certain statements utilized in getting this
initial wire tap order. These people are available now.
If Mr. Edelbaum wants to talk to them, I have some control
over them—not talk to them, I mean, cross-examine them.
Mr. Edelbaum: Well, we are placed now in this posi-
tion, your Honor: Your Honor had ruled that all of these
preliminary hearings should take place in advance of the
selection of a jury. We have got a jury now. It took us
all week to get this jury. It’s going to at least take two
weeks, if not more, and I would estimate almost three wecks
before your Honor could finish this hearing and listen to
these tapes. What are we going to do with this jury now?
They are going to adjourn it for two weeks and have them
in the air for two wecks wondering what’s going to happen.
A 32
wb
Si Sse ow See
insite eaten
Minutes of Motion With Respect to Wire Tap Evidence
How can that be fair to the client that I represent, your
Honor, with the newspapers speculating as to why there
has been a two-week hiatus here. I think it’s horribly unfair
to this defendant to be obliged—to be placed in this posi-
tion at this time. To have him come in—why didn’t they—
they had since February to make this determination if they
wanted to reverse their position just because they saw fit
on Saturday to look at these things. We didn’t have to
select a jury last week. What happened since last Feb-
ruary, Judge? ;
We can’t try murder cases with such Serious conse-
quences and have a jury laying by for two weeks with no
fault of the defendant, purely at the fault of the prosecu-
tion. And you can lay it at no other place but the prose-
cution. I say it’s unfair and I say the application should
be denied in your Honor’s discretion at this time.
The Court: All right, I will reserve decision until to-
morrow morning at 10:00 o’clock. The case will be recessed
until then. -
Mr. Edelbaum: In the meantime, Judge—go off the
record.
(Conference held off the record.)
(Case adjourned until Tuesday, September 15, 1970 at
10:00 o’clock a.m.)
2 Ee eae ete ra a —e NS pen EE a sa a
Statement of Defendant, Read into Record for People
Direct examination by Mr. Lewis:
Q. Detective Andreoli, at anytime you were in the
presence of Jay Pobliner, did you strike him, sir? A.
No, sir.
Q. Did you threaten him? A. No, sir.
Q. Did you use any force or coercion? A. No, sir.
Q. Anyone do so in your presence? A. No, sir.
Q. At anytime you were present with Mr. Pobliner,
did he request an attorney? <A. No, sir.
Mr. Lewis: I will repeat my offer.
The Court: All right. There being no objec-
tion—
Mr. Edelbaum: I have no objection. And, so
that it will be quite clear,, we at no time are con-
tending that any officer used any force, used any
coercion or struck the defendant. So I don’t under-
stand these questions, but I just want to make it
perfectly clear.
The Court: Yes,
Mark it in evidence.
(Thereupon, People’s Exhibit 43 for Identifica-
tion was received and marked People’s Exhibit 43
in evidence.) _ |
Mr. Lewis: With the Court’s Permission, may I
read the statement to the jury?
The Court: Proceed.
Mr. Lewis: ‘Tuesday, December 31, 1968.
“‘Statement of Jay Pobliner,
“*T have the right to remain silent, refuse to an-
Swer any questions. Anything I do say may be nsed
against me in a court of law. I have the right to
consult an attorney before speaking to the police and
to have an attorney present during any questioning
A 35
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Minutes of Motion With Respect to Wire Tap Evidence
Mineola, New York
September 15, 1970
Before:
Hon. Pau Keuty, County Court Judge
(Appearances as before noted.)
The Clerk: Let the'record show that this conference
room is designated as Part II of the County Court for the
purpose of these proceedings.
The Court: Now, I have before me an application by
the District Attorney requesting a hearing on the wire taps
taken in the case of People v. Pobliner.
I am at this time denying the application on the grounds,
first of all, that it-is not timely made, and secondly, that
it would jeopardize the entire: trial inasmuch as the jury
has been picked by the defense under the assumption that
the wire taps would not be used. This assumption being
based on the statement of the District Attorney, so at this
time the application is denied.
Now we can proceed with the trial forthwith.
Mr. Edelbaum: Thank you, your Honor.
| eee
CERTIFICATION:
I hereby certify this is an accurate transcript.
Micnart Yesner
Micware, Wowx
A 34
SaaS eel ete
Statement of Defendant, Read into Record for People
now or in the future. If I cannot afford an attor-
ney, one will be provided for me without cost. If I
do not have an attorney available, I have the right
to remain silent until I have had an opportunity to
consult with onc. I understand the foregoing right,
and I am willing to answer questions without an
attorney present.
“I live at 2856 Bay Drive in Merrick. I did live
_ there with my wife, Brenda, and one child, Neil,
about fifteen months old.
“‘Thursday I arrived home at about 5:30 or a
quarter to 6:00 or maybe even 6:00 o’clock. I was
with a friend, Illis Jurisson. I parked my 1965
Ford in the garage. Brenda was expecting Illis to
come home with me for supper. Brenda told me
what had happened with the baby after I got home.
She told me that she had called the Dr. Eichenficld,
and that he advised her on the telephone. The baby
was fine when I arrived home,
“Tilis had a drink. My wife made some soda.
We started eating at about 7:15 in the kitchen. My
wife cleaned up the dishes after supper.
“Tllis and I went out in my car to get some gas
for the car. We went to the Esso station on Sunrise
and Merrick Avenue. We then went back home.
Brenda told me that a neighbor from down the block
had called to say that he had gotten a new coat for
me. Illis and I went over to Stan Markowitz’s house
and we brought home the coat. We got back at about
9:00 or 9:15.
“We watched TV for a while, the three of us, in
the basement.
‘‘My wife and I had some soda and ITllis had one
more drink. Then she made some coffee and she
brought down some cake. *
A 36
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sae Ee TEN teeta co, remem eee REE TS
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Statement of Defendant, Read into Record for People
*‘Between 10:00 and 10:30 she and I went up-
stairs with Illis and she showed Illis what bed he
was to sleep in. I believe that Ilis had slept in my
house before.
“Ilis went down to the den to watch T.V.
Brenda went downstairs to make a bottle for the
baby, and I went into the bedroom. I had told Illis
that I was going to put the alarm on and that he
should not touch the doors. Before this, when I put
the dog out in the backyard for a run, I believe that
Nis went outside, also.
“I then checked the patio door, and then I
checked the front door, I did not check the kitchen
door.
“I do not believe that the spread was on the bed
Thursday night as it was not cold enough. This
spread would then be on the floor at the foot of the
bed. We have two pillows in the bed, a top sheet
and an electric blanket, which was not plugged in.
“T sleep in my underpants, and I put my clothes
‘in a corner by the windoy . I believe that Brenda
had on her green nightgown, but I am not sure. The
T.V. had an automatic timer and it was on, but I
did not watch it. She came into bed shortly after
I was in bed. We had left on a small light during
the night between the baby’s room and the guest
room, :
“I woke up before the alarm went off, which is
not uncommon for me to do. So I got up at about
5:00 o’clock. I went to the bathroom that is in the
bedrom and washed and shaved, no shower. I had
an undershirt and underpants on, and I went in to
wake up Illis. I went back to my room. Brenda was
still sleeping. The bathroom light is on and I
turned the light on in my closet. I then got dressed
A. 37
SEY SOREN TANT RI
PARE PES GPR MAP PRB NAL NG TRIE PERN, SPRATT VIR TRAE A YORE ETE CPIM Tey
Statement of Defendant, Read into Record for People
in my room. I then went down to the kitchen and
Illis was there. I had turned both lights out before
I left the bedroom. Before I left the bedroom I
kissed her on the top of her head. If I did not kiss
her, she would know. I do not recall which position
she was in. I think that she was on her back.
“I put the alarm in the off position as I left the
room. Illis was drinking a coke or juice. I heard the
baby, and I made up a bottle and took it to his room
and gave it to him. I came back to the kitchen. I
never eat in the morning. We both went downstairs
and got out our coats. I cannot recall if I turned
off the kitchen light or not. I put the chain on the
dog, Ike, and we went out the inside garage door.
I pressed the button to open the garage overhead
door, and I started the car. .
“*Tilis and I went outside with the dog. I do not
recall seeing anyone on, the street. We came back
to the house. Illis got right into the ear, which was
facing into the garage. J opened the inner door of
the house and put the dog in and put the chain on the
table. I did not go into the house except to reach
in to put the chain inside, I got into the car and
backed out of the garage and pressed the button and
the door closed and we drove away. This would be
about 5:30 to 20 to 6:00. I did not see anyone else
on the street as we drove away.
“I drove directly to Ilis’ house and dropped him..
off at West 64th Strect and Central Park West. I
then drove to my parents’ home which is on 7 West
8lst Strect and went up there to the apartment,
which is number 8C. My mother had the door open.
My father, Herman, was still sleeping and my
mother woke him up at about 7:00 o'clock,
A 38
SYR a a
Statement of Defendant, Read into Record for People
“‘My father and I left there at about 7 330. We
went to 601 West 26th Street. I parked my ear in
the building and we went up to the office on the fifth
floor. This was about a quarter to 8:00. As soon
as we get in I call my wife every morning. I called
number 378-2476. If that number was busy it would
ring in on number 2635. I did not get any answer.
A few minutes later I called the number again and
no answer. I called my mother and I asked if she
had heard from Brenda. She said no. I went
through the mail.
“‘I went in my car—”’
Mr. Edelbaum: What was the last?
Mr. Lewis: ‘‘I went in my car to the other office,
Cloud Tours, 271 Madison Avenue. There was no
one there. I went in at about 8:20 to 8:30 and I
called home again and I got no answer. I do not
know if my mother called me or I called my mother,
but I spoke to her and she was nervous, and she
asked me to call a neighbor. I called Adele Pober.
I asked her to go over to the house and see if every-
thing was all right, that she could go around to the
back door, as Brenda would usually go and put the
dog out and leave the door’ unlocked.
“‘Donald Pober called me back in a few minutes.
He said that something had happened at the house
and that I should come home. I asked him what,
and he said that Brenda was bleeding and that Adele
was calling an ambulance, that she was alive and
that the baby was all right. Donald seemed quite
calm when he was talking to me.
“I went and called my father and told him what
Don had said. My father said that he would go out
with me, and I said that I could not wait.
A 39
Berens rena acgen emer rmenenmmynesemntenn
SES See SSE St ee eR ES aE RTP Ee
P
Statement of Defendant, Read into Record for People
*“*I went down to the garage. I had one of the
guys from the garage drive me out to the house. I
do not recall anything I said to the driver.
“I noticed all of the police at the house. I ran
into the house. Someone made me sit down, and
he told me that she was dead.
“T do hold a pistol permit, New York City carry
permit. There are three guns on this permit, a
Colt Python, a 357 Magnum, a Colt .38 special snub
nose, a high-stan iard Derringer .22 caliber. I also
own a rifle, .30 caliber Marlin, and .22 lever action
rifle. Howard Polack has a 16-gauge shotgun of
mine and also a .22 caliber rifle that comes apart
and folds into the stock. The only other guns that
I have ever had were a 380 caliber Larma that Mr.
Waxmann has, and a .22 caliber automatic that I
believe that I traded in for the Derringer. I did
have a .22° automatic down south that I got from
Lieutenant Wellborn in Nashville, North Carolina,
and I gave it back to him. I also at one time had an
unregistered gun that I got from my ex-father-in-
law about 1964 or 1965, and I turned this over to
Mr. Waxmann at the same time.
“To the best of my knowledge, there is no
jewelry missing from the house. She does not have
any furs. My father gave Brenda $50 for Christmas.
She should have had $25 to $39 left and this should
have been in the wallet. The police turned over the
pocketbook to me and it had $125 in it in bills. We
had gotten a check for $350, and I told her to keep
$125 and deposit the rest in the bank, the National
Bank of North America. Rms,
“*T have been asked if I had ever closed the bed-
room door last Friday morning so that it would
latch. I am almost certain that I did not.
“I cannot recall ever using the top drawer of my
wife’s. I have used it but not often.
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Det. Henry Andreoli—for People—Direct
“*I have read this statement and it is the truth.
“Signed: Jay T. Pobliner, 2856 Bay Drive,
Merrick, New York. ;
‘Witnessed: Detective Henry Andreoli.”
Q. Detective Andreoli, at any time during your conver-
sations with Mr. Pobliner, did you discuss with him the
presence of a glass in the bedroom? A. Yes, sir, I did.
Q. When did this discussion take place? A. On the night
of the statement, on December 31, 1968.
Q. Would you tell us what you said to Mr. Pobliner and
what he said to you? A. Yes, I said the Identification Di-
vision has the glass that was taken off the hi-boy and it
appears to have a stale drink.
Mr. Edelbaum: I don’t hear you. |
The Witness: It appears to have a stale drink
in it, and he informed me that that glass had been
there for some time. ..
The Court: Where did you say you found it?
The Witness: On the hi-boy. As you enter the
room it would be directly in front of the entrance.
Q. And during any of your discussions with Mr. Pob-
liner, Detective Andreoli, did you discuss with him the
weather conditions at the time the dog was walked that
morning? A. Yes, sir.
Q. Would you tell us when this conversation took place?
A. On December 3ist. a“
Q. And what did Mr. Pobliner say to you about that, sir.
A. He said it was cold.
Q. Detective Andreoli, I show you People’s Exhibit 40
for Identification and ask you to look at it without ‘remoy-
ing it from the bag, if you can, and ask you if you can
identify that, sir. Look at the contents if you will, but
do not remove it from the bag. A. Yes, sir,
Det. Sgt. Raymond K. Chmiel—for People—Cross
Q. At that point? A. No, sir.
Q. Then what were you talking about, the opposite side
of the fingers? A, Taking a first digital of the finger, if
you rolled it from nail to nail side you would have approxi-
mately one inch or on a larger finger an inch and a half.
The impressions that were found on the vodka bottle were
very emall, thereby only getting part of that fingerprint
supposedly in a person in a common category, and it might
have been an ulna print on the left hand. On the whiskey
glass the opposing side was on it, which showed a delta
area showing a person with an ulna loop in the left hand,
and it would just be that opposite side, possibly the same
finger, but no conclusion could be drawn from it.
Q. But possibly the same finger? A. Possibly, but
could not be concluded.
Q. But if you had the fingerprint of a suspect, and if
they were the same you could testify from those prints
that those prints are the person of the suspect, couldn’t
you? A. Yes, sir. n
Mr. Edelbaum: Thank you, Detective, I have no
further questions.
Mr. Lewis: No further questions.
The Cowt: All right, Detective, you may step
down.
The Witness: Thank you, sir.
Mr. Lewis: The People will call Liliane Seudder.
Mr. Edelbaum: I have an application, May we
come up to. the bench?
The Court: Yes, sir.
(The following oceurred at the bench not within
the hearing of the jury :)
A 42
SELLE EEF EE ALLE LE LILO I IONE SELON, BLE LOR, AF DEE
Colloquy of Court and Counsel
Mr. Edelbaum: I would like to make a record
outside the presence of the jury with respect to this
witness. It will be prolonged, and I would like the
jury excused and I would like to make this in the
absence of the press.
I say it is very important, because I am of the firm
opinion that this testimony is not admissible and I
would like to tell Your Honor why when we go along.
The Court: What do you say, Mr. Lewis?
Mr. Lewis: As to what, Your Honor?
The Court: Making it outside of the presence of
the public. .
Mr. Edelbaum: Yes, because in the event Your
Honor should sustain me, it would be prejudicial if
this was revealed to the ‘press in view of what has
already been in the press, and I am interested in
saving any possibility of a mistrial.
Mr. Lewis: It doesn’t make any difference ts’ me
either way. We can go into chambers.
The Court: We can excuse the jury and we will
take a recess.
Mr. Lewis: Are we going to go into chambers?
The Court: Yes.
Mr. Lewis: Are you going to take a recess first?
The Court: We will take a five-minute recess.
(The following occurred in open court :)
The Court: Now, the defense has certain legal
argument that it wishes to make outside the presence
of the jury with reference to this witness. So the
jury at this time will retire to the jury room.
We will take a five-minute recess and then I will
go into session with the defense and the People as
soon as it is over. You are not to discuss the case
while you are outside of the.courtroom.
(A recess was thereupon taken.)
A 43
ae
FPR LE LSA NOS HY, IS TONE PEE RES RIOR COL EI EE ET —
Colloguy of Court and Counsel
(The following ensued after recess in the Court’s
chambers in the presence of the Court, Mr. Edel-
baum, Mr. Handman, Mr. Lewis, the Clerk, the court
reporter and the defendant :)
The Clerk: Let the record show that the con-
ference room is designated as Part II of the County
Court for the purposes of these proceedings.
Mr. Edelbaum: And that it is at our request that
it has been adjourned in the absence of the public,
and we waive our right to a public trial as to this
particular proceeding; is that correct, Mr. Pobliner?
The Defendant: Yes, sir.
The Court: All right.
Mr. Edelbaum: Now Your Honor, first of all, I
forgot to do something, which I would like to do now
or I can do it later in front of the jury if you want
me to. I move to strike Exhibit 40 from the evi-
dence, that being the ‘‘T’’ shirt, in view of the tes-
timony adduced affirmatively from the detective who
was last on the witness stand. I think to permit that
to be introduced in evidence would be speculative and
it would be prejudicial. There is no proof that some
of the stains—that all of the stains were there at
the time that Detective Andreoli saw them because
he only saw it laying there, according to his evidence,
and here we: have evidence that it was moved and
moved to the floor. There is no evidence whether
there was blood there or not. I think the chain has
been broken, and I move to strike it from the evi-
dence because I don’t know the purpose of this
being in evidence, but I say it is speculative and it
should be striken out, and I ask Your Honor to in-
Struct the jury, in the event yon strike it, to elim-
inate from their consideration any reference to this
shirt.
A 4
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Colloquy of Court and Counsel
The Court: Your application is denicd.
Mr. Edelbaum: I except.
Now, with respect to Liliane Seudder: She is the
lady who was married and with whom the defendant
had an affair. To produce her on the stand for the
purpose of showing a relationship, the commission of
the crime of adultery on his part and her part, is evi-
dence of another crime. It is prejudicial. I don’t know
the purpose of her testimony, but unless her testimony
directly connects with the commission of this crime, I
say to Your Honor that it’s highly prejudicial. For in-
stance, if there had been plans made between the
defendant and the witness which has a relationship
to the murder, I could see that that might be admis-
sible on possible motive. If there is an admission
from the defendant to her which is being offered in
evidence, I concede that that could be admissible to-
gether with the other thing. But, absent that, I say
it would be highly speculative. To permit the tes-
timony just because a man has relations with a
woman, speaks to her, sees her, absent any other
plans connected with this murder, I don’t think any
jury should speculate on that alane. There has to
be something else, and that is the purpose that I ask
Your Honor at ‘this time to get an offer of proof
from the District Attorney because, as I said in an-
other matter, I like to win my cases here. I don’t
want a mistrial after the laborious weeks I have had
already in this courtroom in this case again. I would
like to try this case and finish it.
The Court: All right.
Mr. Edelbaum: And then there is another thing.
I understand that she has been given immunity and
that there is going to be.a request for immunity
again, and, of course, if that’s done before this jury
that is highly prejudicial because that’s tantamount—
A 45
EE SR TREES RTE Y SANE PE NRT Ne a
Colloquy of Court and Counsel
The Court: Immunity from what?
Mr. Edelbaum : I don’t know, but I understand that
her lawyer is going to request immunity for her.
The Court: On the question of adultery?
Mr. Edelbaum: Right, or, ‘‘anything else’’, he
said, whatever that means.
Now, the District Attorney has been apprised of
that. That’s tantamount to taking the fifth amend-
ment without testifying and, Your Honor, it is the
Pollick case in the Court of Appeals which forbids
that, anything like that in front of a jury. So we
have that as the second problem.
So I would like, first of all, the first problem of the
offer of proof, and then, if Your Honor should con-
clude that she is—of course, if the first problem is
resolved against the People, then the second problem
falls. '
The Court: Well, if there is an application for
immunity and it is spelled out what the immunity is
for, that is for a prosecution for adultery.
Mr. Edelbaum: It shouldn’t be before this jury.
The Court: Well, that isn’t what you are object-
ing to. You were talking about an immunity for
perhaps she and he plotting here.
Mr. Edelbaum: Well, I want to know. I think we
ought to have Mr. Krohn in here, who represents
her, and make 4 record of all of this so that we know
where we are going.
The Court: Let’s see what the District Attorney
has to tell us.
Mr. Lewis: On which phase, Your Honor?
The Court: Well, first of all, on the first, phase.
Mr. Lewis: On the first phase, Your Honor, the
Molineuy case, the section in Richardson, the cases,
what is prohibited, of course, is the introduction of ©
evidence of other crimes merely to show the criminal
A 46
Ne Nan
-
Colloquy of Court and Counsel
disposition of a particular defendant to say that be-
cause he has committed other crimes he is likely to
have committed this one. I think that is a basic rule,
and, of course, the offer of proof here is not for any
such purpose. However, it is the People’s belief,
Your Honor, that the witness’ testimony as to their
relationship and things that came about as a result
of that relationship all tend to bear upon the motive
of the defendant in this particular case.
The Court: Well, what have you besides the fact
that he and she were sleeping together?
Mr. Lewis: Conversations between them.
The Court: Concerning this crime?
Mr. Lewis: No, sir, not directly concerning this
crime.
The Court: Concerning a future relationship?
Mr. Lewis: Concerning a reason to show intent
of the defendant, Your Honor, as to why he would
have done this. It negates what we have so far. So
that I can spell it out for you, it negates the fact that
this was the perfect marriage, the ideal marriage,
with both parties being a hundred percent contented.
It shows the reason or part of the reason, if you will,
part of the motive for the commission of this crime.
Now, in all candor—and I must bring this to the
Court’s attention—that particular conversation I
don’t think would be precluded in any event because
it doesn’t impend or come about during any act of _.
intercourse or as a result of it or anything else. In
other words, what I am saying is, I think the wit-
ness could testify without mentioning having inter-
course with the defendant, and that would still be
admissible because it doesn’t take place under eir-
cumstances where it would be obvious that it was
during the course of an act of intercourse or any-
thing. |
A 47
—
Colloquy of Court and Counsel
Mr. Edelbaum: Now, wait a minute. I don’t un-
derstand. All I have got here is words. I don’t
have what she is going to say except an interpreta-
tion of Mr. Lewis as to what she is going to say.
Now, are you telling us that what he told her is a
motive for killing his wife?
Mr. Lewis: It bears on motive, Mr. Edelbaum.
Mr. Edelbaum: I don’t know what you mean by
‘bears on the motive’’.
Judge, now, you se>—you know, Judge, first of all,
on this question of happy marriage, openings are not
evidence, Judge. What a lawyer says on an opening
is not evidence. It’s when evidence is offered along a
certain plane. Evidence may be brought out to rebut
it, but before any testimony is offered as to the so-
called happy marriage, Your Honor, to bring in a wit-
ness to show that.they weren’t happily married—my
God, there is hundreds of thousands of people not
happily married. They don’t kill their wives and that
is not a motive. So that can’t be spelled out as motive
and the jury can’t speculate on that in this type of
case. So there must be something really concrete con-
nected with this event, not some talk. I would like to
find out—I think Your Honor should be entitled to
know exactly what she is going to say with respect to
it, and you decide whether that’s any possible motive
to kill his wife:
Mr. Lewis: Number one, I can only recall to Your
Honor’s attention the cross-examination of some of
the earlier witnesses by Mr. Edelbaum where ques-
tions were asked directly by him as to the condition
of the marital status between the defendant and the
deceased.
The Court: Well, that I don’t particularly con-
eern myself with. You are coming in and you are
going to offer a witness here—
A 48
.
a
Colloquy of Court and Counsel
Mr. Lewis: Your Honor, if I may oral
The Court: Go ahead.
Mr. Lewis: If I may just interject this, too:
There are other indications. We have the defendant
in this case given to this casual acquaintance, and this
is where it would start to become chopped up, and I
don’t think anybody could get any kind of informa-
tion or feel of this thing. We have him giving her
on two separate occasions within a short period of
time before the commission of this crime some rather
valuable pieces of jewelry.
Mr. Edelbaum: Is that a motive for Ailing your
wife?
Mr. Lewis: As I said, Your Honor—
Mr. Edelbaum: Is the jury going to —
about that? .
Mr. Lewis: As I said, Your Honor, they all have
to be taken together. I am not saying, and I don’t
wish to mislead cither the Court or Mr. Edelbaum,
and I am not saying that this and this alone is the
motive for this crime. I say it bears upon it: It is
part of the motive. It shows eventually the motive
and intent in this case. I don’t want to have to dis-
close my whole case at this time to Mr. oo
Your Honor.
The Court: What about this question of im-
munity?
Mr. Lewis: This is the first—I don’t believe, and
I would like to just refresh my recollection—this wit-
ness did testify before the Grand Jury.
The Court: Didn’t? .
Mr. Lewis: Did. There was no a for im-
munity at. that time.
The Court: If there were, it would only = a ques-
tion of immunity as to adultery.
A 49
Colloguy of Court and Counsel
Mr. Lewis: It would be a limited immunity spe-
cifically dealing with the crime of adultery, which is
what I believe is my understanding of what Mr.
Krohn is concerned with for his client. This just
came up-today, Judge. This is the first time I have
heard it, Judge.
The Court: If Mr. Krohn were to ask for any
immunity, that is the only immunity he would get,
and it would be spelled out to the jury that it would
be the only immunity, of course, if this testimony is
being allowed in at all.
Mr. Edelbaum: Well, I am going to object to
any immunity: being given this witness before the
jury for any reason whatsoever, and I say it’s preju-
dicial, and, Your Honor, I still haven’t heard any
basis for the introduction of her testimony outside
of some bearing on the possible motive.
The Court: Bearing on the possibility of a
motive.
Mr. Edelbaum: What does that mean? Just be-
cause a man has relations with a woman—
The Court: That’s what’s bearing—
Mr. Edelbaum: And you say that’s admissible?
The Court: I don’t say that. I say that’s what
we are being told. ;
"Mr. Edelbaum: That’s what we are being told.
Mr. Lewis: No, that is not what you are being
told. It isn’t. rea
Mr. Edelbaum: It has to go further than that.
Mr. Lewis: No, that’s not what you are being
told, Your Honor.
The Court: What is it? 3?
Mr. Lewis: You are being told not the fact that
he has relations with this woman—
The Court: And that he gave her jewelry.
A 50
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Peer Rees Sp
Colloquy of Court and Counsel
Mr. Lewis: —but the number of times, the period
of time that’s covered, the period of time that is
happening, the expensive gifts and the period of
time of these expensive gifts, conversations.
- The Court: Conversations pertaining to what!
Mr. Lewis: Conversations, Your Honor, of this
defendant’s discontent with his married life at the
* time of the commission of the crime. © se
The Court: All right, that’s something."
‘ Mr. Lewis: And I think that all of these things
taken together certainly go to show motive.”
Mr. Edelbaum: Well, of course, Your Honor, I
objéct to this whole line of testimony: I’ni going to
object: to any—I will reserve the right to object to
any particular questions that are put, ard I am also
going to reserve the right to strike it-all, and if it’s
the type that is prejudicial, if he wants to risk this,
and if Your Honor should strike it, I may be in the
position to move for a mistrial, which I will‘have to
‘do. If that’s what he wants and if that’s what he is
looking for, Your Honor, I don’t know. “*
Mr. Lewis: I would also bring to the Court’s at-
tention that during the voir dire i in the selection of
the jury—
The Court: Yes, I am well aware of that.”
Mr. Lewis: —on numerous occasions it was Mr.
Edelbaum that raised this, as a matter‘of fact, and
not me.
The Court: He opened the dese?
Mr. Edelbaum: I didn’t open any door. The only
purpose of that, Your Honor, so that the record will
be clear, is that that’s just like you put a witness on
the stand who has been convicted of a crime, and if
I anticipate that this defendant may take the witness
stand it’s my job to reveal it so it does not come as
A 5]
SESE EES REL RIEL SIO LEP TOLLE SE NIE aT SA a aa
Colloquy of Court and Counsel
a shock to the jury in case he answers that question.
So it has nothing to do with this question.
Mr. Lewis: I am not questioning the reason.
Mr. Edelbaum: I didn’t open any doors.
The Court: I have got your arguments, gentle-
men. I will give you a decision in five minutes.
Mr. Edelbaum: Before you come out, will you
have Mr. Krohn in here so that we can spell out
what he is going to ask for in front of this jury? I
don’t know what he is going to do.
The Court: Well, I can take his request for im-
munity in the courtroom.
Mr. Edelbaum: In the absence of the jury?
The Court: In the absence of the jury.
Mr. Lewis: But, Your Honor, may we have your
ruling back in here?
The Court: Yes..
(Recess taken.)
(After recess in chambers)
The Court: All right. Now, I have before me
two questions, first of all whether or not the prospec-
tive witness should be permitted to testify as to acts
of sexual relationship between herself and the de-
fendant at or near the time of the alleged occurrence
of this murder.
I am going to permit such testimony on the
ground that it shows or tends to show a ques- —
tion of motive. On the question of the witness tes-
tifying as to adultery, her own participation in a
crime, I have indications from looking at the law,
that I have no authority to grant immunity to’ this
Class B misdemeanor,
Now, if this witness continues lo refuse to testify
on the ground that she will tend to incriminate her-
SARE PT RR a et sper LES LTR EP AS
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self, then we have a situation that I will have to meet
at that time, but I do not have the etary to grant
her immunity.
Now, do you have anything to say on that?
Mr. Lewis: Yes, sir, may I have some time to
check with my law department on this and this is a
new one on me and I am cauglit flat-footed.
Mr. Edelbaum: And I might say that I would
like to have her lawyer in here and if she is going to
claim privilege as to that—
’The Court: I am going to bring her lawyer in
now. I have him outside.
Mr. Edelbaum: And the District Attorney knows
this in advance and puts her on the stand, he will be
committing error.
The Court: Yes, no question. Bring Mr. Krohn
in.
(Herbert J. Krohn thereupon entered chambers)
The Court: Please be seated, Mr. Krohn. First
of all, what is your name?
Mr. Krohn: My name is Herbert J. Krohn, 25
Merrick Avenue, Merrick, New York.
The Court: And you represent whom?
Mr. Krohn: I represent Liliane Scudder, who is
called as a witness, subpoenaed by the District Attor-
ney in this case.
The Court: Now, the District Attorney contem.
plates calling your client as a witness.
Mr. Krohn: That is correct, Your Honor.
The Court: And further contemplates asking her
certain questions with reference to acts of adultery.
Mr. Krohn: That is correet, Your Honor.
The Court: What is your client's attitude with
reference to that?
A 53
Colloquy of Cowrt and Counsel
Mr. Krohn: Her attitude—I have spoken to Mr.
Lewis and I have indicated I would like at least him
to request this Court to. grant her immunity in case
ef testimony of that sort. She would have to refuse
te: answer any such question en the ground it might
incriminate her otherwise.
The Court: The Court eannot under the law grant
her immunity in this particular charge of adultery.
Now, whether or not you and the District Attorney
can arrive at some sort of an equilable solution be-
tween the two of you, that is up to you.
Mr. Krohn: Again, I am not quarreling with the
Court. It was my understanding that the prosecutor
would request of the Court that immunity be granted
to my client.
The Court: On certain specific crimes, but not
this charge.
Mr. Krohn: I believe it is an indictable misde-
meanor.
Mr. Edelbaum: This isn’t eovered by. 2447.
The Court: However, as I said, if you have any
agreement with the District Attorney on the issue, it
would have nothing to do with me.
Mr. Lewis: As it is now ten minutes to 4:00,
Your Honor, may I have the rest of the afternoon?
May I have an adjournment at this time until to-
morrow to see if we can straighten this matter out
to everybody's satisfaction? ~
The Court: I am sure that will never happen.
Mr. Edelbaum: That is the understatement of the
year, Judge. Well, I don’t have any great objection
to that request of Mr. Lewis, especially since he is
recovering from an illness of yesterday.
Mr. Lewis: It is most kind of you, Mr. Edethaum,
thank you.
A 34
EE ER ET PET aE Pa,
Colloquy of Court and Counsel
The Court: All right, we will recess until tomor-
row morning at 9:30. In the meanwhile, see what you
can do.
Mr. Krohn: I will try to resolve this with Mr.
Lewis in some way.
The Court: I will bring the jury back, I suppose.
| We will adjourn to the courtroom.
(The following occurred in open court:). -
The Clerk: Case continued.
The Court: Now, Mr. Foreman and gentlemen of
‘the jury, I am going to recess this case until 9:30
tomorrow morning. You are again instructed you
are not to discuss the case amongst yourselves or
with anyone else, you are not to read about it if it
‘appears in the paper and you are not to listen or
watch it if-it appears on the television or radio. |
I might tell you we are recessing at this time at
five minutes of 4:00 because there is one phase of a
legal motion that is before me that has to go over
until tomorrow morning and that is the reason we
are closing down at this time.
9:30 tomorrow morning.
(The trial was thereupon adjourned until 9:30
a.m. Friday, September 25, 1970.)
‘
SREP INES PERIL, BE
PICA PSP ELA Drees
Colloquy of Court and Counsel
Mineola, New York
September 25, 1970
Before:
How. Paut Ke ty, ©
County Court Judge and the jury.
(Appearances as before noted.)
(Mixvures or Tria, ConxtixvED)
(The following occurred in chambers. Present,
the Court, Mr. Edelbaum, Mr. Handman, Mr. Lewis,
the defendant and the Court Clerk.)
The Clerk: People y. Jay T. Pobliner. Let the
record show that this conference room is designated
as County Court, Part II for the purpose of these
proceedings. ° -
Mr. Edelbaum: And that the defendant has asked
that this be done in the absence of the public, and
he waives his right to a public trial as to this pro-
ceeding: Is that correct, Mr. Pobliner?
The Defendant: Yes, sir. ;
Mr. Edelbaum: Your Honor, we started this case
on September 8th and we have been on trial for three
weeks.
Prior to that time we were on trial for about four
weeks back in January and February, when unfor- |
tunately we had a mistrial because of the misconduct
of a person, which misconduct was brought to the
attention of the Court by the defendant and his
father. ;
Now, this has been a very expensive trial for the
defendant and his family. He has been in jeopardy
again. When this question about Mrs. Seudder came
up, Your Honor—it is in the record, you agreed with
a SO HRD
Colloquy of Court and Counsel
me that if the District Attorney knows in advance
‘that any question of privilege is going to be asserted
by the witness, that would be grounds for a mistrial:
I say to Your Honor that I am interested in not
having a mistrial here and there would be a serious
question if, despite the knowledge that he has and the
danger, that the District Attorney proceeds and goes
forward and a mistrial results as to whether or not
jeopardy will attach to the defendant in view of the
District Attorney’s conduct with full know ledge.
That would be another very serious question in my
opinion.
Now, Mr. Lewis told me this morning, about fifteen
- *- minutes ago, after we have waited while he appar-
ently has conferred with this witness and her lawyer
since early this morning, and while the jury was told
to come in at 9:30, I was here at a quarter tp 9:00,
waiting, he said to me, ‘‘I am going to ask a certain
question,’’ and I asked is she going to avail herself of
the privilege, and he said, ‘‘ Well, not to me, es
don’t know what that means, Judge.
I think in view of what has transpired, that in
the interest of caution, for two reasons which I will
spell out now, that we should have an offer of proof
by the witness coming in here outside the presence of
the jury and the District Attor ney asking her the
questions and see what the reaction is and what hap-
pens and give us a complete offer of proof.
I will not cross-examine her in here, of course,
but then we will know, because it may well be that the
answers she will give will not be admissible on any
theory, because from what I have heard, if she is
not asked any questions about adultery or relations
with the defendant, then the other questions may he
innocuous and not be admissible, and yet in this whole
atmosphere for her to be brought on the witness stand
A 57
Hy - ‘ . = 2 oe? PRAM ASF EERE EN fa
Colloquy of Court and Counsel
will be very highly prejudicial and her testimony may
be subject to be stricken and could be very well
prejudicial.
So I earnestly ask Your Honor that she be brought
in here with her lawyer, that Mr. Lewis ask the ques-
tions he proposes to ask of this witness, and then we
will see what her position, her legal position is, be-
cause I really don’t know what it is now.
So in the interest of not wrecking this trial, I
earnestly urge Your Honor to follow my suggestion.
The Court: Well, I might say this to you, Mr.
Edelbaum, that I have given a great deal of consider-
ation to the question that has been raised here with
reference to the witness’ constitutional rights,
A first examination of the statute would seem to
indicate that the Court could not grant immunity to
this witness. However, on further consideration and
on the question of whether or not the alleged crime
of adultery could be looked on as a conspiracy, the
Court has arrived at the conclusion that I can grant
her immunity and I ean grant her immunity from
prosecution and I will so advise her.
Mr. Edelbaum: You mean conspiracy to commit
adultery? :
The Court: That’s right.
Mr. Edelbaum: How’can there be a conspiracy to
commit?
The Court: You can’t commit adultery by your-
self. You have to conspire with somebody, and that
is the conspiracy I am talking about. And I will
grant her immunity.
Mr. Edelbaum: And Your Honor is not going to
have a pre-trial hearing? ©
The Court: I see no need of it.
Mr. Edelbaum: Well, now, Your Honor, I think
the granting of immunity in front of the jury, know-
A 658
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SELES IE FI I EIT EE NE FS
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ing in advance she is going to be asked that, is going
to be very prejudicial to the defendant, and I ask
that if there is any claim of immunity that she be
given immunity in the absence of the jury. I mean,
if Your Honor feels that you should do that, because
I submit to Your Honor—
The Court: Well, if you feel that it would be in
the interest of your client and that he might possibly
be prejudiced by my granting immunity, I can see no
* harm in that. ;
Do you have any objection to that?
Mr. Lewis: I have no objection to that, Your
Honor. : |
Mr. Edelbaum: Therefore, I think we ought to
have an offer of proof and during that time, I mean,
you can see what her position is and satisfy the law-
yer in the absence of that so that there will be no
claim of immunity in front of this jury.
_ The Court: Well, I will let her make her claim
and then I will rule on it outside of the presence of
the jury.
Mr. Edelbaum: Yes.
The Court: That’s as far as I can go.
Mr. Edelbaum: And I make a further request,
You know, Your Honor, the press for some reason
has already had this all leaked out to them, I mean,
about her being: a witness. How that came about, I
don’t know. All I know is that it’s been in the press —
and today’s News had her picture with Mr. Krohn.
The Court: I don’t know anything about it.
Mr. Edelbaum: Well, I say this: I submit to
Your Honor that I am asking that this grant of -im-
munity be done in the absence of the press and the
absence of the public so that there won’t be any
newspaper spread that she had claimed immunity
because what good is it if somcbody in somé juror’s
pein eg oes Be SLL SEL ELIE TLL ND LEN RE RE EGTA
Colloquy of Court and Counsel
home is going to read it and maybe drop a remark to
some juror that she claimed immunity or something,
and I think that’s unfair because the press will surely
pick it up unless it’s done outside. And we are pre-
pared to waive any privilege and to have this applica-
tion done not in front of the press. So I ask that
she be brought in here, into this room, and if she
makes any claim that it all be taken care of here out-
side of the presence of the jury.
The Court: That Mr. Lewis would ask the ques-
tion and then the request for immunity would be
considered and done in here, and then go outside?
Mr. Edelbaum: That’s right.
Mr. Lewis: When Your Honor says ‘‘ask the
question,’’ you mean you want me to request that
immunity be granted, or ask a question?
The Court: Ask the question and then determine
if she is going to request her immunity.
Mr. Lewis: I see.
"Mr. Hughes: Krohn is going to ask for immunity.
The Court: Well, there has to be something asked
first.
Mr. Lewis: And this is with the defendant’s ner-
mission that this be done in the absence of the jury
and of the public? ;
Mr. Edelmaub: Absolutely.
The Court: Is that your request, Mr. Pobliner?
The Defendant: Yes, sir.
Mr. Edelbaum: And I might say that I would
object most strenuously, of course, for you at any-
time to reveal to the jury that she has gotten im-
munity because I have no intention of bringing that
out.
Mr. Lewis: I have no intention and no need to do
it.
A 60
a
Colloquy of Court and Counsel
Now, once she is granted immunity, Your Honor,
there might be a language barrier. There might be
an undstanding problem. I think that to further in-
sure that this doesn’t come up during the course of
her testimony, that perhaps the Court can direct her
through her attorney that once she has been given
this grant of immunity that there is no reason for
her requesting any—refusing to answer any ques-
tions.
The Court: Yes, I will explain it to her.
Mr. Lewis: May I have an opportunity to get Mr.
Krohn and the witness in here?
The Court: Yes. See if you can do it in five min-
utes
Mr. Lewis: Yes, sir. -
(Recess taken.)
(After recess in chambers, the following ensued
with the additional appearance of Mr. Herbert J.
Krohn and the prospeetive witness, Liliane Seud-
der :) ,
The Clerk: Proceedings continued.
Mr. Lewis: Your Honor, may the record indicate
that yesterday the People called Liliane Scudder to
the stand. Some legal argument has ensued since
that time. Mrs. Sendder is now here in chambers,
which has been designated as part of the County
Court of Nassau County, with the consent of the
defendant.
At this time, pursuant to what has previously
been diseussed here, in the presence of the defendant,
I would ask the witness a question or some questions.
The Court: Yes.
Mr. Edelhaum: She hasn’t been sworn.
The Court: All right, swear her,
A 61
Testimony of Liliane Scudder (in Chambers) Examination
by Asst. Dist. Atty. Lewis |
Limuanr Scupper, 2794 Hewlett Avenue, Merrick, New
York, first being duly sworn, testified as follows:
By Mr. Lewis:
Q. Mrs. Scudder, do you know Jay Popliner? A. Yes.
Q. How long have you known him! A. About three
months.
Q. When did you meet him? A. In October, 1968.
Q. And you knew him for three months? A. Yes.
Q. During that course of time, Mrs. Seudder, did you
have occasion to have intercourse with J. ay Pobliner?
Mr. Krohn: Now, Your Honor, my appearance
has not been noted, but I am Mr. Krohn and I appear
as attorney. for this witness. I have advised her that
she need not answer that question under the Fifth
Amendment of the Constitution on the grounds of
self-incrimination. Also under the Ninth Amend-
ment of the Constitution and the Fourteenth Amend- ;
ment ‘of the Constitution of the State of New York,
and I have advised this witness that these questions
need not be answered unless directed to do so by the
Court.
The Court: Allright. At this time, Mrs. Seudder,
this Court will grant immunity to you from any
prosecution that might arise from any answers that
you would give in this case.
Now, you are directed to answer the question.
Mr. Krohn: Very well, Your Honor, I except to
Your Honor’s ruling on behalf of the witness.
The Court: All right, Now we can resume in the
courtroom.
Mr. Edelbaum: Your Honor, in order to conduct
an orderly trial, I have objected to all of: this testi-
mony. May I have a continuing objection to all of
2 ER IAE i err gpg eece =:
AST SATE YE pays are
’
Colloquy of Court and Counsel
this testimony of the witness so I don’t have to rise
and interrupt the trial unless I feel that there is an-
other basis in addition to what I have already stated
and which is already on the record.
The Court: You do have such continuing objec-
tion. I will also say to the witness, there will be no
need for you to attempt to exercise your constitu-
tional privilege because I am continuing this im-
munity to you all during the course of both the ex-
amination and the cross-examination.
Mr. Krohn: Are you continuing, Your Honor, the
direction to the witness to answer these questions?
The Court: And I continue the direction, yes.
Mr. Edelbapm: And it is understood that Mr.
Krohn will not be seated alongside of the witness,
then.
The Court: No, but he may stay in the courtroom.
Mr. Edelbaum: Yes, he could be in the courtroom.
Thank you.
The Court: All right. Let the record indicate that
the witness, through her attorney, and the witness
herself have agreed to answer the questions.
Mr. Krohn: I have excepted, but under the diree-
tion, I have taken exception to Your Honor’s ruling.
The Court: Yes. We will now go to the court-
room. :
(The following occurred in open court :)
The Clerk: People v. Jay T. Pobliner. Jurors
please give your attention to roll eall.
(Roll call of jurors)
The Clerk: The jury is all present, Your Honor.
If there are any prospective witnesses in the
courtroom, please step outside.
KKK *
A 63
Ror PSPS Oe Ee ene pe nates
, Pas Aer ney ae
IE IER EE GE ROLES SEIT
Colloquy of Court and Counsel in Chambers
(Roll call of jurors)
The Clerk: The jury is all present, Your Honor.
Any prospective witnesses in the courtroom,
please step outside. .
Trial continued.
The Court: Mr. Foreman and gentlemen of the
jury, there is going to have to be a delay of about a
half hour to give counsel an opportunity to go
through certain hearing testimony that defense coun-
sel just received at this time. So rather than have
you sit in the courtroom while this is going on, I am
going to permit you to sit in the jury room. It will
be done as expeditiously as possible.
Again, don’t discuss the case while you are out-
side of the courtroom.
Let me know as soon as you are ready, Mr. Edel-
baum. -
Mr. Edelbaum: Yes, sir.
(A recess was thereupon taken.)
(The following occurred in chambers during the
recess :)
The Clerk: The conference room of Judge Kelly
is designated as County Court, Part II for the pur-
pose of these proceedings.
Mr. Edelbaum: And I have asked on behalf of
my client that this hearing be held outside the pres-
ence of the press and outside the presence of the
public. We waive the right to a public trial as to
this phase of the trial. Is that correct, Mr. Pob-
liner?
The Defendant: Yes, sir.
Mr. Edelbaum: Now, Your Tionor, as I under-
stand from the District Attorney, he intends to eall
as his next two witnesses one Edward Gaines and
SEP SSE ALOE IE
Colloquy of Court and Counsel in Chambers
the other, Joseph Hall. I make an objection to their
being called as witnesses on the ground that they
became witnesses as a result of extensive wire taps
which were held between January 16th and February
2nd, I believe, of 1969 and on this reel—first, with
respect to the identity of Edward Gaines, there are
conversations between Gaines and the defendant and
members of his family on this reel that went on reel
1, 2, 6, 8, 11, 15, 17, 18 and 25 of extension 1.
On extension 2, on reel 1, 7, 12 and 13. When I
talk about extensions, Your Honor, I talk about the
fact that each of the reels had two sides to it and
one was called extension 1 and the other side exten-
sion 2, and I call Your Honor’s attention to reel 13.
The defendant evidently.made arrangements on this
reel to mect Edward Gaines at the airport on his
return from Ashville, North Carolina, when he went
down with his child and the maid to visit his mother-
in-law and father-in-law. ©
‘Now, with respect to the trip to Ashville, on this
trip there appears on reel 1, 11, reel 20, conversa-
tions on extension 1, conversations with different
people about when he would arrive and where he
would arrive and what day, and on extension 2, reel
8, 11, about the trip, the exact time of arrival was
designated and as a matter of fact, in one conversa-
tion between the father of the defendant to the
father-in-law and mother-in-law of the defendant
down to Ashville, they were told that Jay and his
child would be at their house about 1:30, arriving at
1:00 o’clock, and that Jay would rent a car.
Now, Your Honor remembers the testimony of my
cross-examination of Detective Andreoli, where he
said they were waiting for him or in effect, waiting
at the airport when he arrived on that date, although
they claimed accidently, when they saw him, they
A .€6
Colloquy of Court and Counsel in Chambers
followed him and they saw him go to a hospital
where he visited this Joe Hall, who is going to be a
witness here,
So I say to Your Honor, in view of the fact that
Your Honor gave me the privilege after Your Honor
ruled that none of the tapes could be used directly or
indirectly at this trial, Your Honor reserved the
right to me at any time to come forward and show
Your Honor any evidence that there were any leads
furnished from these tapes, and I might say with
respect to the tapes, I say the tapes on the face are
illegal because—and I am talking about all of them,
regardless of anything else, because on these tapes
Mr. Herbert Handman was the attorney at the be-
ginning of this investigation and then I was retained
as trial counsel.
Now, on these tapes there are conversations with
attorncy Handman, between the defendant and the
attorney, there is one conversation with Mr. Edel-
baum, the present attorney. |
There are one, two, three, four, five, Six, seven,
eight, nine, ten, eleven—about twelve conversations
with attorneys of the defendant on these tapes and
also revelations of what investigator was going to
do, the fact that I had retained some expert to ex-
amine the home with respect to the blood, the fact
that I had an investigator going out to interview
certain witnesses. All this was revealed on the tapes
and I say it is a direct violation of the defendant’s
constitutional rights. But be that as it may, I think
I have shown enough now to make it encumbent upon
the District Attorney to come forward with proof
at this time that no leads to Mr. Gaines. were ob-
tained from the tapes and.no leads to Hall.
Now, I say to Your Ionor this also. If it should
develop that for instance they had interviewed Mr,
6 )
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Colloquy of Court and Counsel in Chambers
Hall prior to these tapes and obtained no informa-
tion from him, and then as a result of the tapes and
the surveillance of the contact with the defendant
and they further got information that they got from
Mr. Hall where they persuaded him to give them in-
formation, I say that is a lead that comes directly
from the tapes.
In other words, Your Honor, if they saw Hall and
he didn’t talk to them and then they saw the de-
fendant come and talk to Hall, that is at the hospital,
and then they got aho!d of Hall and told him certain
things that they learned and then convinced—
The Court: On the tapes?
Mr. Edelbaum: | don’t know what they have
learned—no, no. :
The Court: Is that what you are referring to?
Mr. Edelbaum: No, no, I don’t believe there is
any conversation between Hall and the defendant,
but there is a great deal of conversation between
Gaines and the defendant on the tapes, a great deal
of conversation which could be used in persuading or
talking a witness into.
Now, I think first they ought to produce for Your
Honor all the police reports. There must be reports
concerning their first contact with Hall and Gaines,
and that would give you some basis for knowing
where we are going, and then I think it is encumbent
upon him to call the different detectives, and at that
time, if there are any reports in existence concern-
ing them, I think I am entitled at that time to ex-
amine them.
The Court: Well, based on your objection to the
anticipated witnesses, Gaines’ and Hall’s testimony,
on the ground you have set forth, I feel that at this
time the District Attorney would have to come for-
aw a
. Kt oS
.
Colloquy of Court and Counsel in Chambers
ward and convince the Court that these witnesses
were not obtained through any illegal surveillance.
Now, Mr. Lewis, what do you say about that?
Mr. Lewis: At this time, Your Honor, I would
renew the application as to the legality of the wire
taps and the underlying wire tap order, which has
never been passed upon by the Court. Your Honor
has precluded me from using any evidence derived
from the wire taps based solely on my statement to
the Court that we did not obtain any leads and we
were not going to use the wire taps themselves as
evidence.
The Court: That’s right.
Mr. Lewis: The legality of the underlying wire
tap order has never been tested by the Court, and at
this time, Your Honor, before I say anything, I am
renewing my application to have the Court determine
that they are for all intents and purposes still legal
wire taps. That has never been passed upon.
The Court: Are you still saying no leads or other
evidence was obtained by you which you intend to
use, was obtained through these taps?
Mr. Lewis: Yes, sir, but I would prefer, Your
Honor, to have the legality of the wire taps tested by
the Court and passed upon by the Court in the event
that something is there that I am not aware of, and
I don’t think there is, but should it happen, if once
they are declared to be legal wire taps, it wouldn’t
make any difference whether we got a lead from them
or not.
The Court: I am going to maintain my position
as far as the application for hearings on the wire
taps at this time, and I will take now testimony from
you which would convince me that the leads that
you claim you have or these witnesses that you have
were not obtained through any illegal process.
A 68
My .
a TMi ui) AA cot A Ga ae Cai Dok ile
Colloquy of Court and Counsel in Chambers
Mr. Lewis: I am not trying to be obtuse, Your
Honor, but how can it be an illegal process if the le-
gality of the underlying order permitting us to tap
these telephones has not been tested.
The Court: Well, you have told me that none of
the leads from these taps are being used.
Mr. Lewis: That’s correct.
The Court: Therefore, I can see no point in wast-
ing my time in having a hearing on any of these,
so what I am asking you to do now is to give me evi-
dence, an indication from your side as to where these
leads came from, and at this time I am ready to pro-
ceed with that.
Mr. Lewis: Of course, as to Mr. Edelbaum’s
statement, I disagree entirely, just because a witness’
name appears after we have talked to him, to pre-
elude us from using any information we developed
from that witness afterwards—
_ The Court: I am not say'ng I agree with him.
Mr. Lewis: I will have to call Detective Andreoli
and Sergeant Bonora. I think Sergeant Bonora is
tied up on the witness stand across the hall, if I may
be given a moment to check. ;
Mr. Edelbaum: Judge, may I suggest we excuse
the jury for the day. It is twenty after 11:00 now
and I think it would be a protracted hearing.
The Court: Let me see how we proceed.
Mr. Lewis: I would like time to. talk to my wit-
nesses.
The Court: All right, you let me know when you
are ready. \Ve will recess until you let me know.
Mr. Lewis: All right, sir.
(A recess was thereupon taken.)
The Clerk: Proceedings continued.
A 69
+ SAO SS SS iene A ees OTN Er eee Sy
Testimony of Det. Henry Andreoli (in Chambers)
Examination by Asst. Dist. Atty. Lewis
Mr. Lewis: Do you want the witness to be sworn,
Your Honor?
The Court: Well, the fitness is still under oath.
Detective Andreoli: Yes, sir.
Detective Hexry ANpREOLI, having been previously duly
sworn, testified further as follows:
By Mr. Lewis:
Q. Detective Andreoli, you are the homicide detective
that was assigned to investigate the murder of Brenda Pob-
liner; is that correct? A. Yes, sir.
Q. During the course of your assignment did yon have
occasion to learn the name of one Edward Gaines? A. Yes,
sir.
Q. When for the first time did you learn of Edward
Gaines? A. When he called the house, the place of occur-
rence, on the 27th of December. _
The Court: What was the date?
The Witness: On the date of occurrence, the 27th
of December, 1968.
Q. Thereafter did you have occasion to have a conver-
sation with Edward Gaines? A. Yes, sir.
Q. Did you take a statement from Mr. Gaines? A. At
that time?
Q. Yes. A. No, sir.
Q. When did you have the conversation with Mr.
Gaines? A. On March 26, 1969.
Q. And subsequent to Mareh 26th, did you see Mr.
Gaines again? A. Yes, sir. ;
Q. When was that? A. (No response)
: a
+O) SS Ta
Testimony of Det. Henry Andreoli (in Chambers)
Examination by Asst. Dist. Atty. Lewis
Q. Do you need anything to refresh your recollection?
A. Yes, sir.
Q. You need reports about Mr. Gaines? A. Yes, sir.
Q. A 262 report? A. Yes, sir.
Q. Do you need that to refresh your recollection (hand-
ing)? <A. Yes.
I don’t recall being present on April 9th when this state-
ment was taken. I do recall being present on May 14th,
1969. P
Q. Where was that? A. In the 7th precinct station
house.
Q. Now, during the course of your investigation, Detec-
tive Andreoli, did you come to learn the name of one Joe
Hall? A. Yes, sir.
Q. When did you first learn the name of Joe Hall? A.
On the date of occurrence, December 27th.
Q. Could you tell us how you came to know that? A. I
only heard part of the name, the name Joe. There was two
officers sent to Dr. Stark, a psychiatrist in Merrick, and one
was Inspector Costello, if I can recall. I don’t recall the
other officer, but when we left the scene that evening after
6:00 o’clock I was talking to Inspector Costello and he in-
formed me that he came from Dr. Stark’s office, and he at
that time told me that Brenda was concerned about a fellow
named Joe down in the south, and at that time I had
Brenda’s address book, and the only Joe under North Car-
olina was Joe Hall and Agnes Hall in Brenda’s addrees_
book but this is on December 27, 1968.
Q. Now did there come a time when you went to Ash-
ville North Carolina? A. Yes, sir.
Q. And when was that? A. January Gth.
Q. And while you were in North Carolina did you have
occasion to see Mr. Hall? A. Yes, sir, on January 10, 1969,
I was present in the Ashville Police Department and Joe
Hall was standing there waiting for us. We were intro-
LS EET TR MEPS SS OTL STINT SS RSA eR ee ena
Testimony of Det. Henry Andreoli (in Chambers)
Examination by Asst. Dist. Atty. Lewis
duced to Joc Hall, and we went into a side room and spoke
to him.
Q. And at that time did he tell you that he heard that you
were looking for him? A. Yes, sir.
Q. And he came to yout A. Yes, sir.
Q. And did there come a time—did you have a conver-
sation with him at that time? A. Yes, sir.
Q. How long did that conversation last? A. About a
half hour, about three-quarters of an hour.
Q. Did there come a time when you saw Mr. Hall again?
A. Yes, sir.
Q. When was that? A. I believe it was either the fol-
lowing day or the day after when I went to WISE, a radio
station in Ashville, North Carolina.
Q. Did you speak to him then? A. I just bid him the
time of day.
Q. Now, subsequent that meeting "id you see Mr. Hall
again? <A. To the best of what I recall now, the next time
would be on Mareh 24th.
Q. Did you have a conversation with Mr. Hall at that
time? A. Yés, sir.
Q. And how did that meeting come about, do you know,
Detective Andreoli? A. We had some information from
the FBI from Ashville, North Carolina through the Wash-
ington office,
The Court: What?
The Witness: Through the W ashington office.
The Court: Yes?
The Witness: And also from Assistant Chief of
Police Jarvis of North Carolina.
Q. And did the assistant police chief tell us that he
wanted to see members of the Nassau County aiainiet At-
torney’s oflice? A. Yes, sir.
A 72
“
Testimony of Det. Henry Andreoli (in Chambers)
Examination by Defendant’s Counsel
Q. And is that how you came to go down to Ashville,
North Carolina on this occasion? A. Yes, sir.
Q. Did anyone else go with yout A. Yes, Sergeant Bo-
nora and yourself, Mr. Lewis, and myself, the three of us.
Q. And was that in response— A. And I believe a re-
porter. ,
Q. During that conversation did the name Edward
Gaines come up? A. Yes, sir.
Q. As a result of that conversation did you then do
anything further in regards to Edward Gaines? A. Yes,
sir, on March 26th.
The Court: When?
The Witness: On March 26, 1969,
Q. And is it as a result of. that conversation that you
went back to Mr. Gaines? A. Yes, we went to his home.
Mr. Lewis: I have no further questions, Your
Honor,
Mr. Edelbaum: May I proceed, Your Honor?
The Court: Yes.
By Mr. Edelbaum:
Q. Are there any reports, first, concerning what hap-
pened on the 27th of -December when Gaines called the
home? A. No, sir. ;
Q. Do you have any memoranda or anything like that?
A. No, sir.
Q. Do you have any 262’s concerning Mr. Gaines at all
that you used just now?
Mr. Lewis: Your IIonor, I am going to object to
them being given to Mr. Edelbaum at this time. I _
will, however, present them to the Court for the |
A 73
PROMI NF MENT TS ai eR aa NRE en san
PO a i re eo er er re ED ORR Oe
Testimony of Det. Henry Andreoli (in Chambers )
Examination by Defendant’s Counsel
Court’s use, but I object to Mr. Edelbaum having
them for the purposes of this hearing. These wit-
nesses haven’t testified yet.
Mr. Edelbaum: Your Honor, I cite you People
vs. Malinsky, Court of Appeals, which enunciates
that at any hearing any notes concerning the testi-
mony of a witness, a detective, any reports should
be made available to defense counsel, and they cite
People vs. Rosario. And if Your Honor will give me
a few minutes, I will find the Malinsky case.
The Court: I have it.
Mr. Edelbaum: The Malinsky case is quite clear
that I am entitled to this.
Mr. Lewis: Both the Rosario and the Malinsky
case, Your Honor, say also that these hearings and
these trials and these rules that are laid down where-
by counsel gets these various reports and statements
are not for the purpose of providing him with a
discovery and inspection.
The Court: That’s right.
Mr. Lewis: This is a hearing to determine
whether or not any leads were obtained from the use
of wiretaps, and I can only repeat that these wit-
nesses have not testified. The one 262 that Detective
Andreoli is referring to, I believe, contains nothing
more than a resume of the statement of Edward
Gaines, and I would be glad to show that to the
Court.
The Court: I will permit you to see this if and
when Mr. Gaines testifies, Mr. Edelbaum.
Q. Did you make any report whatsoever other than that
concerning Edward Gaines?
The Court: I think we ought to mark that for
Identification, the summary of the statement of Ed-
ward Gaines.
ee — | 0
a
SRO Se ae eee
Testimony of Det. Ienry Andreoli (in Chambers)
Examination by Defendant’s Counsel
Mark it for Identification.
(Report referred to above marked People’s Ex-
hibit 67 for Identification, for the hearing only.)
Mr. Lewis: May I also have marked for Identi-
fication one page of typewritten notes of Detective
Andreoli referring to Mr. Gaines? Your Honor,
again, this is for the Court’s perusal. It’s a resume
of what was said by Mr. Gaines at that time.
The Court: Mark it for Identification.
(Report referred to above marked People’s Ex-
hibit 68 for the hearing only.)
The Court: This will be furnished to Mr. Edel-
baum if and when that witness testifies.
Mr. Edelbaum: Your Honor is denying me the
request on both? -
The Court: That’s right.
_ Mr. Edelbaum: Exception.
The Court: Your exception is noted.
Q. What is the first report that is made in—the first re-
port that was madc in this case from the time it was started?
A. (No response)
Q. What was the first report’ filed in the office of the
Police Department from the day it started? What do you
eall that? A. We call it a form 32.
Q. Form 32? A. Yes, sir.
Q. In the form 32 is there any reference—do you have
form 32 here? A. No, sir.
Q. Where is it?’ A. I don’t recall right now.
Q. Is there anything in that report that refers to either
Edward Gaines or Joseph Hall? A. No, sir.
Q. When for the first time in any report whatsoever in
the Police Department’s records does the name Joe Hall—
Mr. Edeclbaum: Question withdrawn.
SPR, SLES oe a
Testimony of Det. Henry Andreoli (in Chambers )
Examination by Defendant’s Counsel
Q. When for the first time in any Police Department
record in the Police Department is there any reference to
Edward Gaines in this case? A. On March 24th, except
for—March 24th.
Q. That’s the first time his name appears in this case?
A. No, sir, except for Brenda’s address book.
Q. Edward Gaines’ name is in Brenda Poblincr’s ad-
dress book? A. Yes, sir.
Q. And there is no other report in this case? A. No,
sir.
Q. Well, did you have a wire tap on the phone of the
defendant’s parents and where the defendant lived between
January 16th and February 2nd, did the Police Depart-
ment? A. Yes, sir.
By Mr. Edelbaum:
Q. During that period, were there conversations over-
heard between the defendant and Edward Gaines? A. Yes,
sir.
Q. Was there any memorandum, any memorandum any-
where in the police department records concerning this
conversation between Gaines and the defendant? A. The
transcripts of the recordings.
Q. Other than the transcripts of the recordings, was
there any other place in the police department records? A.
No, sir.
Mr. Lewis: So the record may be clear, Your
Honor, may the record indicate that Mr. Edelbaum
has copies of the transcripts referred to by the wit-
ness. :
Q. No other place? A. No, sir.
Q. Was Edward Gaines ever put under surveillance at
any time during the period of this wire tap? <A. No, sir.
A..26
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“ees
Testimony of Det. Henry Andreoli (in Chambers)
Examination by Defendant’s Counsel
Q. Was he ever put under surveillance after the wire
tap? A. No, sir.
Q. Did you learn about Edward Gaines’ friendship with
the defendant during the wire taps?
Mr. Lewis: I am going to object to that question,
Your Honor—I will withdraw the objection.
A. Yes, sir.
Q. Did you see him on the 27th, did he come to the
house? A. Of my own knowledge, there was someone that
resembled him that came to the house about 6:00 o’clock.
Q. Did you have any talk about it? A. No, sir.
Q. No talk about this case whatsoever? A. No, sir.
Q. Who was the first detective that ever saw Edward
Gaines after that? A. Detective Schoenberger was present
at his house to interview the maid who was also the maid
at the place of occurrence, but I don’t believe there was
any mention of Eddie Gaines being present at that time.
Q. When for the first time did any police officer ever
interview Edward Gaines? A. It would be on the 26th of
March, 1969.
Q. March 26, 1969 did you say? A. Yes, sir.
Q. Did you know that on the defendant’s return from
Ashville, North Curolina, that he was gcing to meet Edward
Gaines at the airport? A. No, sir.
Q. Did you learn that on the tapes? A. I don’t recall
that.
Q. Anybody place him under surveillance? A. No, sir.
Q. Now, you say that there came a time when you got
a report from the FBI concerning Joe Hall; is that. right?
A. Yes, sir. :
Q. Do you have any meniorandum of that report? A. I
haven’t got it here, no, sir.
Mr. Edelbaum: I would like to look at it, Your
Honor.
“A a. ae wt a . .. ae £. RET DE are Ceti Sy ere.
RPE Ree ARETE
Testimony of Det. Henry Andreoli (in Chambers )
Examination by Defendant’s Counsel
The Court: What is the answer?
The Witness: I don’t have it here.
The Court: Can you get it?
The Witness: Yes, sir.
The Court: All right, go ahead.
Q. Was that report in writing from the FBI? A. It was
like a chopped up message.
Q. And after you interviewed Joe Hall, you tell us that
Joe Hall told you something about Ed Gaines? A. Yes,
sir.
Q. It was then after that that you saw Edward Gaines ;
is that right? <A. Yes, sir.
Q. Now, on January 27th, did you know that Jay Pob-
liner was arriving with his child and his maid to visit his
mother-in-law and father-in-law? A. On January 27th?
Q. Right. A. Yes, sir,
Q. How did you know that? A. Lieutenant Wellborn
of the Ashville Police Department and also Mrs. Perkins,
the mother of the deceased person.
Q. You knew it was on the tape, don’t you?
Mr. Lewis: Objection, Your Honor.
The Court: Sustained.
Q. Did you know it from the tapes? A. I don’t recall,
Q. What? A. I don’t recall.
Q. Did you get periodic reports from the daily tapes
that were made at the Pobliner home? A. It did come to
our Office, yes, sir.
Q. Did you inspect them? A. No, sir. .
Q. Who was working with you? <A. Detective Schoen-
berger, Sergeant Bonora.
Q. You don’t know what they did? A, No, sir.
Q. And did you confer with him from time to time? A.
Yes, sir.
IRS So foee | Come?» * baee BEES IE NS PRE CRITE TITEL ‘
Testimony of Det. Ilenry Andrcoli (in Chambers)
Examination by Defendant’s Counsel
Q. And were you at the airport for the purpose of put-
ting the defendant under surveillance? A. No, sir.
Q. What did you go to the airport for? A. To find what
kind of car he left in and what the connection was between
him and Licutenant Wellborn.
The Court: And who?
The Witness: Lieutenant Wellborn.
Q. When you say what kind of a car, was that for the
purpose of putting him under surveillance at a later time!
A. No, sir.
Q. What were you going to do about the car? A. Well,
if we did see it wherever we were, we would know that the
car was there.
Q. There came a time when you saw him in acar? A.
Yes.
Q. And the car you had ascertained he was driving while
you were at the airport? A. Yes, sir.
Q. Did you follow him? A. Yes, sir; actually we both
were going in the same direction, but we did follow him.
Q. Didn’t you say you saw him coming and you turned
around and followed him? A. No, sir.
Q. He passed you? A. Yes, sir.
Q. And you followed him? -A. Yes.
Q. How far did you follow him? A. Roughly, I would
say three miles,
Q. And did you follow him for the purpose of secing
where he was going? A. No, sir.
Q. Just idle curiosity? A. No, we were going in the
same direction.
Q. Where were you going? A. We were going to a
restaurant that was located outside of town.
Q. And was the restaurant past the hosvital?’ A. Yes,
sir.
A....4§
Testimony of Det. Henry Andreoli (in Chambers)
Examination by Defendant’s Counsel
Q. Did you see him go into the hospital? A. I saw him
go into the driveway.
Q. Did you check later to see whom he visited? A. No,
sir. .
Q. Did you know he visited Joe Hall? A. When he
drove into the hospital or before he came to the hospital,
the passenger we had in the car stated that Joe Hall was
in the hospital.
Q. Who was the passenger in the car? A. A fellow
by the name of Charles Reynolds, who is the superior to
Joe Hall in the radio station.
Q. And he told you he was going to visit— A. No, he
said that Joe Hall was in that hospital.
Q. And did you ever go into the hospital at any time
during your investigation? A. Myself, no, sir.
Q. Anybody from your police department? A. At a
later date, yes, sir. 4
Q. When? A. Well, it would be after March 24th.
Q. Well, was Joe Hall in the hospital all this time? A.
No, sir. .
Q. Who did you go to see in the hospital? A. Who did
I go to sec? :
Q. Yes, sir. A. I didn’t go to the hospital.
Q. Who went to the hospital? A. I would believe it to
be Sergeant Bonora and Detective Schoenberger.
Q. They went to the hospital for what purpose, to your
knowledge? A. For the records of Mr. Hall, his hospital -
records.
Q. And to see when he was in the hospital? A. Yes, sir.
Q. And to see the fact that the defendant visited the
hospital? A. Yes, sir. .
Q. And was there any record of the defendant visiting
Joe Hall? A. Not tomy knowledge. .
Q. When was this done? A. I don’t know, sir.
Q. You don’t know anything about that? A. No, sir.
oa |
ET SEERA ae ; ee 8 SPER ES
Testimony of Det. Henry Andreoli (in Chambers)
Ezamination by Defendant’s Counsel
Q. Do you know when the defendant left Ashville, North
Carolina? A. It was late on that same week, because we
left on that following Friday.
Q. And he left before? A. Yes, sir.
Q. Did you see him when he went off? <A. At the air-
port?
Q. Yes, sir. A. No, sir.
Q. When did you see him again after the visit to the
hospital? A. We were driving up to the Perkins residence
and at that time Mr. Pobliner and the maid Jenny and the
baby were leaving the Perkins residence and we passed
them on the road.
Q. Anywhere else you saw him? A. No, sir.
Q. That was the only time you saw him! A. Yes, sir.
Q. How about Sergeant Bonora? A. I doubt it very
much.
Q. Who was down there with you? A. At that time,
Sergeant Bonora.
Q. Just the sergeant, Sergeant Bonora? A. Yes, sir.
Q. You were always together? A. No, sir.
Q. He was making investigations of his own, is that
right? A. At one time there, yes, sir.
Q. Now, you tell us outside of this report that you have
from the FBI, you have no other report concerning Joe
Hall or Eddie Gaines other than what you have given to
the Judge; is that what you tell us? A. Unless you want
to get in the wire taps.
Q. Outside of them? A. No, sir.
Q. Do you have any report about the wire taps other
than the transcripts? A. No, sir.
Q. Do you have them in any forms of any kind? A. No,
sir.
Q. Are you telling us that you have no other reports of
any kind about Gaines and the witness Joe Hall other than
what you have already marked for identification; is that
what you are telling us? A. Yes, sir.
i i
FSS Re Se eee of | eed r
SSE SS Re Re TE = ae
Testimony of Det. Henry Andreoli (in Chambers)
Examination by Defendant’s Counsel
Q. Will you produce after lunch the report from’ the
FBI? A. Yes, sir.
Q. And any other reports you have concerning that?
A. Yes, sir. . .
+Q. Did you make any report when you came back from
Ashville? A. No, sir. .
Q. In writing? A. No, just the statements I took.
-* Q. But no reports of any kind? A. No, sir.
Q. Isn’t it customary in the police department to make
supplementary reports in the progress of an investigation?
A. Each time we came back from any trip, we reported
back into Lieutenant Guido and filled him in,
“#Q. Nothing in writing? A. No,sir.
-f Q. Did you make any notes down in Ashville? A. No.
We tried to keep it all in the Statement form, whatever
people we talked to we took statements from, -_- '
Q. But you did not make any notes? Did you carry
notebook? <A. Yes, bas ye
Q. Anything in your notebook concerning your visit and
what you did down in Ashville, North Carolina? <A. No,
sir.
-! Q. Nothing whatsoever, not a line about what you had
done down there? A. There is a list of names of people
that we interviewed and we took statements.
Q. What? A. I put the statements into the report.
Q. Do you have notes in your handwriting? A. No, sir.
Q. Did you ever have any notes? <A. Yes, sir.
Q. What did you do with them? A. Well, like on the
Joe Hall statement, I condensed these from my notes and
included it in the statement.
Q. What did you do with the notes? A. Destroyed ‘the
notes. ae
Q. Is that the practice in Nassau County?
Mr. Lewis: Objection, Your Honor,
The Court: Sustained.
we SS TERRE
——
Testimony of Det. Henry Andreoli (in Chambers)
Examination by Defendant’s Counsel
Q. You destroyed the notes? A. Yes, sir.
Q. And you have no other reports, no other notes of
any kind? A. No, sir
Mr. Edelbaum: I have no further question of this
witness.
Mr. Lewis: I have no questions.
Mr. Edelbaum: Except I reserve the right to
look at that report at 2:00 o’clock.
The Court: All right.
Mr. Edelbaum: I want to talk to Bonora.
The Court: Yes, you will have an opportunity.
Now, it might be well if we complete the testi-
mony of Bonora, those are the two men who will be
involved in these two witnesses. :
Mr. Lewis: In view of the fact that Detective
Andreoli’s testimony, I think I ought to also, so the
record is perfectly clear, produce Detective Schoen-
berger.
Mr. Edelbaum: Yes.
Mr. Lewis: I myself don’t know what part he has
played in this part of the investigation, but I think
we should put him on.
The Court: Do you think it is possible to go on
with the trial after we get through with these men?
Mr. Lewis: The only thing I can say, before I
came in, Detective Bonora was still on the stand ~
across the way in Judge Tomson’s part, and he was
being—I don’t know whether he was on direct or
not, but I had words with Mr. Joachim—
Mr. Edelbaum: Should this be on the record
about Mr. Joachim?
Mr. Lewis: He is rather lengthy in his cross-
examination, so it might be better if we dismiss the
jury at this time until tomorrow morning. ~
SO AES) ISOS a SETS ~Qhres Sian her ete
SS 8 re <r ee Eee
ws
Py ate
Colloquy of Court and Counsel in Chambers
The Court: In other words, what I am trying to
get at is whether I should hold this jury this after-
noon. Do you feel that your witness will be able to
be finished in time to go ahead?
Mr. Lewis: I would doubt it, Your Honor, and in
addition, may I just mention this again. Mr. Edel-
baum’s statement at the bench the other day to the
contrary, I was informed this morning by Mr. Rob-
bins that Mr. Joachim has reversed his decision and
now has withdrawn his stipulation regarding my
testimony in his trial, and if we are going to have
this hearing go into this afternoon, I would like to
see if I can arrange with Mr. Robbins to get in and
get out in the other trial.
The Court: See that you do that, and if necessary
I will come into the picture.
Mr. Lewis: Thank you, sir. ;
The Court: And I will call the jury at this time
and excuse them until the morning. All right, we
will reassemble here at 2:00 o’clock.
Mr. Edelbaum: Thank you, Judge.
(After recess the following ensued in open
court :) =
The Court:. Mr. Foreman and gentlemen of the
jury, as a result of legal arguinents that were heard
by this Court outside of the presence of the jury, it
is now encumbent upon me to hold a hearing on
certain proposed testimony. That hearing will prob-
ably take the rest of the day, and it must be had
outside of your presence. It relates to law, not to
facts. So, therefore, at this time I am going to ex-
cuse you for the day. -
Again, you are instructed you are not to discuss
the case among yourselves or with anyone else while
ae A — 84
OR EB EL IE SEE LET ane
Kies Sa Salah
Colloquy of Court and Counsel in Chambers
you are outside of the courtroom. You are not to
read about it or listen to it or anyway pay any mind
to it if you see anything outside of the courtroom.
We will recess until tomorrow morning at 9:30.
Counse! 2:00 o’clock.
(Recess taken until 2:00 o’clock p.m.)
Afternoon Session
(The following ensued in the Court’s chambers in
the presence of the Court, Mr. Lewis, Mr. Edelbaum,
the defendant, the clerk, the court reporter and De-
tective Andreoli: :)
The Clerk: Proceedings continued.
Mr. Lewis: I relayed your message to Mr. Rob-
bins, Your Honor. :
The Court: Oh, yes. What did he say?
Mr. Lewis: Sergeant Bonora is still on the wit-
ness stand, and he assures me that as soon as Ser-
geant Bonora is finished, he would call me. Of
course, that presents a problem because while Bo-
nora will be free, then, I would be on the witness
stand over there.
The Court: mow long are you going to be with
him?
Mr. Lewis: Well, we are back on the record. I
don’t know, to be honest with you, Your Honor. I
don’t know how long it would take. Perhaps we can
work something out with Judge Tomson, though, that
after Bonora is released from the stand over here
we can complete our hearing here and then I can
testify.
The Court: That’s a good idea. I will do that.
Mr. Lewis: shank you, sir.
A 85
Colloquy of Court and Counsel in Chambers
Now, so far as the report from the FBI, Your
Honor, I would object to this being turned over to
Mr. Edelbaum on two grounds, One, this is not
Sergeant Andreoli’s report, to which I would ac-
quiesce that he would be entitled to, but this is a
report from the Federal Bureau of Investigation.
In addition to that, it contains some confidential in-
formation. I will show it to the Court at this time
(handing).
As Your Honor will note from the first paragraph,
this report is dated even after we spoke to Mr. Hall.
The Court: Yes.
Now, what is the basis of your claim to this?
Mr. Edelbaum: First of all, Your Honor, Mr.
Andreoli has testified that -he got the information
about Joe Hall and went to Joe Hall after he was
alerted by the FBI that Joe Hall wanted to see him
and everything, and he. got a report. Now, this is
directly in line with the Malinsky case. It goes to
his credibility. He used the report to go into there.
He talked about the report. He just can’t hide the
report now . I am entitled to look at it for the pur-
poses of cross-examination as to his credibility as a
witness on this hearing, on this issue, and just be-
cause he says so—I am entitled to look at the report
and see what’s in there to see whether what he is
saying is an actual fact, some of it is a fact or none
of it is a fact. I am the one to judge, with all due’
respect, not the Court, according to Rosario, but
once he has talked about this and he has this and he
used it, I am entitled to look at it under Malinsky,
and I ask Your Honor to read Malinsky again.
The Court: I have read Malinsky, Mr. Edel-
baum, and.I saw who the lawyers were in it, and I
am very familiar with Malinsky,
OPEN OF F PNR RUT ile sham ean SIT PN PPM et
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Testimony of Det. Henry Andreoli (in Chambers)
Examination by Defendant’s Counsel
Mr. Edelbaum: All right. So I say this is on a
hearing, this is not a trial. Malinsky says it doesn’t
make any difference if it’s a hearing or trial, but in
any kind of reports involved in police—these are on
file in his possession, which he used, and the infor-
mation there brought him down to go to Ashville, and
he so testified, and I am entitled to look at them.
Mr. Lewis: The witness did not testify, Your
Honor, that this report brought him down to Ash-
ville, North Carolina, in the first place, and, in the
second place, both Rosario and Malinsky refer to
statements and reports of the witness, not anybody
else’s report. Now, this is a report from another
agency. It contains confidential information, and I
object to it being given to Mr. Edelbaum.
Mr. Edelbaum: If the information is about this
case, it’s not confidential anymore. It goes to the
direct issues here, and I will refresh Your Honor
about what this witness said. Furthermore, Your
Honor, at page 684, the reports about Mr. Gaines,
he said he needed a 262 report to refresh his recol-
lection and used it. Once a witness uses any kind of
a paper to refresh his recollection, forget Rosario,
forget anything else, I am entitled to look.at it.
The Court: Did the witness say that he used it
to refresh his recollection?
Mr. Edelbaum: Here it is:
**Q. Subsequent to March 26th did you see Mr. Gaines?
“*A. Yes, sir.
“*Q. When was that? Do you need anything to refresh
your recollection? ‘‘A. Yes, sir.
“*Q. You need reports about Mr. Gaines? ‘A. Yes, sir.
“*Q. A 262 report? ‘A. Yes, sir.
**Q. Do you need that to refresh your recollection
(handing)? ‘‘A. Yes.’ , ;
eR 1 SRE
“—
Testimony of Det. Henry Andreoli (in Chambers)
Examination by Defendant’s Counsel
Now, I am entitled to that.
The Court: Detective Andreoli, did you use this
report to refresh your recollection and testify?
' * Detective Andreoli: Which report is that, sir?
(FBI report referred to sbove marked People’s
Exhibit 69 for Identification for the purposes of the
hearing only.)
Mr. Edelbaum: Now, with respect to this, he tes-
tified : a
*. “Q. Did you have a conversation with Mr. Hall at that
time? ‘A. Yes, sir.
“*Q. How did that meeting come about? Do you know,
Detective Andreoli? ‘‘A. We had some information from
the FBI from Ashville, North Carolina through the Wash-
ington office.’?- :
Mr. Lewis: What page is this, Mr. Edelbaum?
Mr. Edelbaum: Page 787 of the record. That’s
part of the way he brought him to Ashville, North
Mr. Lewis: There is nothing in there that he used
it to refresh his recollection.
The Court: You see, we are dealing here, Mr.
Edelbaum, with this hearing as to whether or not the
wire taps were used.
Mr. Edelbaum: That’s right. ’ =
The Court: —as either leads of for any other
purpose,
Mr. Edelbaum: That’s right.
A a 8
Testimony of Det. Henry Andreoli (in Chambers)
Examination by Defendant’s Counsel
The Court: Now, I have examined this. There
is nothing in here that concerns anything to do with
the wire taps. ;
Mr. Edelbaum: I know that, Your Honor, but it
goes to the credibility of the witness as to whether
he went down on this or he went down on the wire
taps.
The Court: I am going to deny your application
at this time, Mr. Edelbaum.
Mr. Edelbaum: Well, I don’t know what time
I will be entitled to it.
The Court: Well, I say I am going to deny your
application, period.
Mr. Edelbaum: Well, I would like to have that
sealed as a court exhibit for possible review. |
The Court: Well, it’s now identified as People’s
Exhibit 69 for the hearing. is
. Mr. Edelbaum: Well, what about the request
about the 262? I renew that since he used that to
refresh his recollection, J udge.
The Court: I will ask the witness: _ Did you use
this for the purpose of refreshing your recollection
in this hearing? . ,
Detective Andreoli: The 262 is a resume of the
statement of Edward Gaines and Joe Hall.
The Court: Yes. And did you use the statement
of Joe Hall and Eddie Gaines? =
Mr. Lewis: If I may, Judge, this is on page 785:
“Do you need that to refresh your recollection (handing) ?
“A. Yes. I don’t reeall being present on April 9th when
this statement was taken. I do recall being present on May
14th.’’ |
Now, what he is referring to, I believe here, was
the resume of the statement of—is that correct, or
was it the statement itself?
PEPER SEE SET —
Seay se ee :
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Testimony of Det. Henry Andreoli (in Chambers)
Examination by Defendani’s Counsel
“Detective Andreoli: No, the resume of the inter-
view with Eddie Gaines at the 7th precinct.
Mr. Lewis: Which would be a resume of the state-
ment. ..
Detective Andreoli: Yes, sir. .
Mr. Edelbaum: It was marked for Identification?
Mr. Lewis: I think it was.
Detective Andreoli: Can I step outside for a
minute? =
The Court: Yes.
(Thereupon, Detective Andreoli withdrew from
the Court’s chambers.) |
Mr. Lewis: Your Honor, now this is the exhibit,
People’s Exhibit 68 that has been referred to. I
believe Your Honor has seen this and has already
ruled on it. This is People’s Exhibit 68 for Identi.
fication.
The Court: Is this the document, People’s Ex-
hibit 68 for Identification?
Mr. Edelbaum: There was a 262,
Mr. Lewis: No.
Mr. Edelbaum: He referred to a 262.
Mr. Lewis: There were numerous papers handed
back to the detective and this is the one that he
selected and not a 262.
Mr. Edelbaum: On page 784, this is a question.
by Mr. Lewis:
**Q. Do you need anything to refresh your recollection ?
“A. Yes, sir. .
“*Q. Do you need reports about Mr. Gaines? ‘‘A. Yes,
sir.
“Q. A 262 report? ‘A. Yes, sir,
““Q. Do you need that to refresh your recollection
(handing)? ‘A. Yes.” --
Testimony of Det. Henry Andreoli (in Chambers)
Examination by Defendant’s Counsel
Mr. Lewis: That was before they were marked
for identification, Your Honor. That was attached
to the 262 by staple, as you can sce in the corner, and
removed by Detective Andreoli.
Mr. Edelbaum: Then he said he used that 262.
By the Court:
Q. Did you use this to refresh your recollection, People’s
Exhibit 68 for Identification? A. Yes, sir.
The Court: Then he should be entitled to look
at it.
Mr. Edelbaum: What about the 262; did you use
that to refresh your recollection?
The Witness: No, sir.
Mr. Lewis: He refreshed his recollection as to the
date, Your Honor. This contains matters to a wit-
ness who hasn’t testified before this Court yet. He
is the next witness. _
The Court: I understand that.
Now, what did you use to refresh your recol-
lection about? ;
The Witness:. The date that I next saw Eddie
Gaines, and this is-when I saw him at the Seventh
Precinct. :
Mr. Edelbaum: Judge, if he used the table to re-
fresh his recollection, I would be entitled to look at
the table. He just can’t say, handing a paper and
use it and just to say he used a portion of it. I am
entitled to read the whole thing.
The Court: I am inclined to agree that you are
unless you can show me where he isn’t.
Mr. Lewis: I can only recite Rosario ease and
the Malinsky case, that counsel is not to -use the
rulings in the cases.
a ‘ ; '
EP SI IO ELI ID
SS ELT: TEMG
a pe a a
Testimony of Det. Henry Andreoli (in Chambers)
Examination by Defendant’s Counsel
The Court: This has nothing to do with Rosario
or Malinsky. This is a question of a witness using
anything. ze
Mr. Lewis: Ag to that portion of the report that
he used to refresh his recollection, I have no objec-
tion, Your Honor. To the rest of it I would request
that it be redacted.
Mr. Edelbaum: That is the very purpose of look-
ing at a paper that the witness has used to refresh
his recollection to see what it is in there to refresh
his recollection. I think we are getting into seman-
tics on Mr. Lewis’ part now. He looked at this paper
and I am entitled to look at it, not what Mr. Lewis
said that he looked at the date. ;
Mr. Lewis: I didn’t say it, the witness said it.
The Court: But you said it first, 7
Mr, Edelbaum: The building is not going to come
down if I look at something that is going to come out
in ten minutes or the next day.
The Court: Well, I am going to permit counsel to
see it on the basis of the witness testifying that he
used it to refresh his recollection.
Mr. Edelbaum: Thank you, Judge. May I have a
minute to read it?
The Court: Yes,
Mr. Edelbaum: Thank you, Your Honor.
Now, were there any other reports other than
the one you showed the J udge?
The Witness: No, sir,
Mr. Edelbaum: I have no further questions.
Mr. Lewis: No questions, Your Honor, #7:
The Court: All right. Who is the next witness,
Bonora?:
Mr, Edelbaum: One other question, if I may.
You told us that you had gotten certain informa-
tion from the FBI which brought you to Joe Hall; .
is that right, or back to Joc Hall? ,
I AIT GEO GETS
Testimony of Det. Menry Andreoli (in Chambers)
Examination by Defendant’s Counsel
The Witness: And also Chief Jarvis.
Mr. Edelbaum: What information did you get
from the FBI?
Mr. Lewis: Objection, Your Honor.
The Court: Just a minute.
Mr. Edelbaum: I am entitled to know that.
Mr. Lewis: Objection.
The Court: What is the question? What infor-
mation he got from the FBI?
Mr. Edelbaum: Which brought him back to Joe
Hall.
The Court: Now, the purpose of this hearing is
to determine whether or not any of the leads that
this witness had were derived from the wire taps or
were derived from independent sources.
Now, he has testified that the information that
led him to this particular witness—is it Gaines?
Mr. Edelbaum: Joe Hall.
The Court: Or Joe Hall, that he received this
information from the FBI and not from the wire
taps.
Mr. Edelbaum: Therefore, his testimony be-
comes a question of credibility and just his flat state-
ment, I cannot be foreclosed just on his flat state-
ment. I can pursue it and find out what information
and see whether or not it is correct, because I should
have an opportunity if I sen fit, if I discover and .
verify whether or not the information he is giving
me is true or not.
Suppose he testified that Joe Doaks, an FBI
agent, told him so and so, and I checked with Joe
Doaks and find out it is not so and so. Can I be
foreclosed from finding out who told him what and
when it was told and how it was told? That is the
purpose of this hearing, Your Honor. You must
determine credibility hére, because we have the fact
_ a oe POS LT IONE rm MTR ae regen cesete
Testimony of Det. Henry Andreoli (in Chambers)
Examination by Defendant’s Counsel
that there was information where he went down—
that he was going down to North Carolina, that he
*- ‘was at the airport and they watched him there and
bis saw him go to Joe Hall. We have laid a basis for
-this thing for them to refute, but we ean’t be fore-
closed by a flat ‘statement that ‘We got information
from the FBI.”
Mr. Lewis: This is exactly why I asked you to
have a determination on the legality of the wire taps,
about my case before the witnesses testify,
The detective testified that he saw Joe Hall in
January of 1968 in the Ashville Police Department,
where he was either approached by Mr. Hall or Mr.
Hall was already in the precinct in the station house.
This report, as Your Honor has noted, is dated
in February. This report did not lead Detective
Andreoli to Joe Hall. Ie had already met Joe Hall
and the testimony of Detective Andreoli is that: he
did not see Joe Hall until Sometime in March, when
Mr. Hall, through Chief Jarvis, requested our pres-
ence down there.
There is no testimony whatsoever that would lead
this Court to believe that we relied on this report
from the FBI, although we did have it, I admit that,
and I would object Strongly because of the nature
of the report itself.
In addition to the fact I can only repeat, my
objection is both based on Malinsky and thé Rosario
cases referring to reports and Statements of the
witness. This is not a report or a statement of this
witness. This is a report, and I don’t even know
whose report it is. It doesn’t have a Signature on
it that I can see. It is just a typewritten piece of
paper and the original is a chopped up sort of an
affair, as Your Honor can see, and I object very
ek A
Boe oa eee ne ninmemtnamenconcaerreonante
Testimony of Det. Henry Andreoli (in Chambers)
Examination by Defendant's Counsel
strongly that this be given to Mr. Edelbaum at this
time.
Mr. Edelbaum: Let me point out, it is testimony
from this witness that in January, January 8th, he
met Joe Hall at the police station, but he got no in-
formation from him.
Between January 16th and February 2nd there
are wire taps where the police learned that the de-
fendant is going to Ashville, North Carolina. They
meet his plane. Then we have an FBI report in
February that they claim that they got some infor-
mation, which brings them back to Joe Hall after,
and then for the first time they get information.
Mr. Lewis: That is an inaccurate statement.
There is no testimony like that in this record.
Mr. Edelbaum: May I inquire?
The Court: Yes,
By Mr. Edelbaum:
Q. When was the first time that you got any statement
from Joe Hall involving this defendant? A. The first time
Q. Did you make any report about this verbal state-
ment on January 10th which is on file here, anywhere? A.
Yes, sir.
Q. Where is that report? A. Here it is.- It isa report
or statement. It is in addition io a statement that I got
later.
Q. What is the date of that statement? When was that
prepared? A. It is as a result of the investigation I had
while I was down there, between the 6th and the 13th of
January.
Mr. Edelbaum: Judge, I am surely entitled to
that. That bears directly on the question of whether
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Testimony of Det. Henry Andreoli (in Chambers)
Examination by Defendant’s Counsel
or not this information came at that time.
re Mr. Lewis: I would have no objection to counsel
~ seeing that, Your Honor. May I have it marked for
identification? With the exception of the seco
"page which refers to other matters, rR,
The Court: Mark this for Identification.
Mr. Lewis: I have no objection to Mr. Edelbaum
having the first page because it bears directly on
connected with Mr. Hall at all.
The Court:. That’s true. Mark only the first page
(handing). “
(Report referred to above marked People’s Ex-
hibit 70 for Identification.)
Mr. Edelbaum: Trank you. |
May I have a few minutes to read this, Your
Honor? :
The Court: Yes,
(Pause) .
Mr, Edelbaum: May I inquire?
The Court: Yes,
Detective Hexry ANDREOLI, resumed the witness stand
and testified further as follows:
By Mr. Edelbaum:
Q. Well, it is a fact that on January 10th at no time did
Joe Hall make any statement involving the defendant; isn’t
that right? A. (No response)
Q. Look at it. Iam not trying—just look at the report
that you made. A. The next to the last paragraph—
mat Or aay.
‘| PORE OLE PEN EN Of CELE EI ha
2 2
-s
Testimony of Det. Henry Andreoli (in Chambers)
Examination by Defendant’s Counsel
Q. Yes, what is there in the next to the last paragraph?
A. It states that—well, when we originally asked him if
he had any information that would be of value to us—
Q. Yes? A. —would he turn it over to us and he said
he would turn it over to Jay Pobliner before he turned it
over—
Q. Where is that in there?
Mr. Lewis: Objection, Your Honor. Just because
it’s not in there— ;
Mr. Edelbaum: Where is that in that report? I
am entitled to cross-examine as to that.
The Court: Go ahead.
A. The last sentence of that paragraph.
Q. Read the last sentence. A. He stated that he would
not turn over evidence on a friend.
. Q. Did he say who the friend was? Is that in the
report? A. It doesn’t mention it in the report.
Q. Any other paper where he said that? A. No, sir.
Q. Now, tell me, when did he involve the defendant?
Mr. Lewis: Objection, Your Honor.
Q. What was the date?
Mr. Lewis: Objection, Your Honor. There has
been no testimony that he did involve the defendant.
Q. Did he ever involve the defendant?
Mr. Lewis: Objection, Your Honor. We are not
here to get into the substantive—
The Court: No, but I do want to know whether
or not wasn’t he supposed to have been one of the
leads?
re
Testimony of Det. Henry Andreoli (in Chambers)
Examination by Defendant’s Counsel
-~. “My. Edelbaum: That's right.
3. «+ .- “Mr. Lewis: He is one of my witnesses, Your
Honor, yes.
t6 . Dhe.Court: And we are interested in how you got
to him. ee ee
‘. .° + Mr. Lewis: Well, the officer has testified that he
received a telephone call from Chief Jarvis. At the
: proper time, Your Honor—and I would ask the Court
to rule on the propriety of it because I am not sure,
“++ abut I was the one that received the telephone call,
and I will so testify under oath. Se ae
Mr. Edelbaum: Wait a minute, wait a minute.
“The Court: In this hearing I am not interested in
what he might have said. I am interested in what
possible lead the People might have had in going to
Mr. Edelbaum: I am coming to that. Now I am
coming to that. igh
_. Q. You told us you met him on January 8th, right? A.
January 10th. é
Q. 10th? A. Yes,
.Q. Then you saw him for about a half hour or three-
quarters—the conversation at that time lasted about a half
hour to three-quarters of an hour; is that right? A. Yes,
sir. ase 7
Q. And you saw him again the following day and you
just said hello to him? You didn’t Say anything else to
him; is that right? A. That’s right.
Q. At the radio Station? <A, Yes, sir,
Q. Now, were you asked these questions by Mr. Lewis
this morning— | ;
Mr. Lewis: Page, please?
Mr. Edelbaum: Page 787:
A 98
PEER ENE PETE LS IIE ELT OT TR NS TS Gp
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Testimony of Det. Henry Andreoli (in Chambers)
Examination by Defendant’s Counsel
**Q. Now, subsequent to that meeting did you see Mr.
- Hall again? ‘A. To the best of what I recall now, the next
time would be on March 24th.
**Q. Did you have a conversation with Mr. Hall at that
time? ‘A. Yes, sir,
““Q. How did that meeting come about; do you know?
“6 ¥e had some information from the FBI from Ashville,
North Carolina through the Washington office and also from
Assistant Chief of Police of North Carolina.’’
Do you remember being asked that question and giving
that answer? }
A. Yes, sir.
Q. Now, what information did you have from the FBI?
Mr. Lewis: Objection, Your Honor.
The Court: I will sustain,
Q. What information did you have from Police Chief
Jarvis? ©
The Court: Does this have to do with leading him
to Hall? ;
Mr. Edelbaum: That’s right.
Mr. Lewis: I have no objection to that question.
A. Chief Jarvis informed us that Joe Hall wanted to
talk to—not necessarily the Police Department, but some-
body in the District Attorney’s office,
Q. And, coming back, was that as a result of the infor-
mation that you got from the FBI? A. No, sir.
Q. That call? A. That was separate.
Q. Well, when did you get the information from the
FBI? A. Just about the same time. ;
Q. Well, what did you do about the information from
' the FBI? A, Nothing at that time.
Q. Well, when you talked to Hall, did you use that in-
formation in interrogating him?
A 99
.—
Colloquy of Court and Counsel in Chambers
Mr. Lewis: Objection, Your Honor.
The Court: I will sustain.
Mr. Edelbaum: Well, I am up a blind alley,
Judge. I would like to know what the information
is because I would like to check on it to see whether
it’s soornot.
The Court: The information you are looking for
now is information he got from Hall. I am not in-
terested in that at this point of the case,
Mr. Edelbaum: No, Your Honor, I am not look-
ing for the information from Hall. He claims that
he didn’t get any leads through the wire taps, that he
next went to see Hall because of what the FBI told
him. Now I want to kno
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