# Appendix — Pobliner v. New York

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1610%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1974
- **Citation:** 416 U.S. 905

## Text

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

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

. ee “ a
2) 5 ee eg OSE SOE RE TI EE
ae tae .

> a

sae Ee TEN teeta co, remem eee REE TS
Se cio

a a

a

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.

" SSa eta ee =

SSS 8; Fae ee ae a = a
er SF PLA. Pree rm aos a aR one

NET TS
ag ee eae
~ len, ee A
SSS ae
ES SaaS

noe lage

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

J ya
Pee a I en pr ACs EE REEL RYN RL TTR TIE NEE A TI OST

ed eee a
> Pet ed Se
tates bP RAE IE ENS ¢
SO OEE

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

es ae ain as ne OE Pixs ‘
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

Colloquy of Court and Counsel

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

ERE IS EER TEP ESET SE

SELES IE FI I EIT EE NE FS

Colloquy of Court and Counsel

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 )
A OF oe ii TOME TEN IM Ge Me EMV roan eee

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)? > Perl PR’ OF Se tS - FO PO Se ee

Testimony of Det. Sgt. Matthew Bonora (in Chambers)
Examination by Asst. Dist. Atty. Lewis

Mr. Lewis: Yes.
The Court: Is he here now?

Mr. Lewis: If you don’t mind, I will.
The Court: Alll right, cheek and see and we will
recess for a short period.

(A recess was thereupon taken.)
(After recess the following ensued :)
Mr. Lewis: Sergeant Bonora.

Detective Serceaxt Matruew Bononra, having been pre-
viously duly Sworn, resumed the stand and testified further
as follows: |

The Clerk: Sergeant Bonora, you are still under
oath.

The Court: Sergeant Bonora is already under
oath.

By Mr. Lewis:

Q. During the course of your investigation did you —
come to know the name of one Edward Gaines? A. Yes, ~

Q. When for the first time did you hear the name of
Edward Gaines?

eC —-

wearer

Testimony of Det. Sgt. Matthew Bonora (in Chambers)

zamination by Defendant’s Counsel

Q What? A. Not that I recall at this time.
- Q At no time did you get any report? Did you ever
see a report from the FBI? A. No, sir.

Mr. Edelbaum: Can we have the report for the
purpose of refreshing his recollection?

Mr. Lewis: Objection, your Honor.

The Court: I wifi sustain it.

Q. You don’t remember a report from the FBI?

Mr. Lewis: Objection, the witness said he never
saw it.

Q. You never saw it? A. I don’t recall seeing one; -no,
sir.
Q. Your only information is that Chief Jarvis called
you up and szid Joe Hall wanted to see you? A. Wanted
to see us, that’s right.

Q. Who did he call, you? A. He called the Chief of the
Homicide Bureau, Mr. Lewis.

Q. That’s all you know abont this case in connection
with Hall and in connection with Gaines? A. Yes, sir.

Mr. Edelbaum: I have tio further questions.
By Mr. Lewis:

Q. On the occasions when you saw Mr. Pobliner come
to the Ashville airport prior to your going there, had you
had a conversation with Mr. and Mrs. Perkins, the parents
of the deceased, Brenda Pobliner? A. Yes, I did. —

Q. And was it from them that you learned that Mr.
Pobliner was coming down to Ashville, North Carolina?
A. Yes, sir, it was.

A 115

a a i a Ra?

«

Colloquy of Court and Counsel in Chambers

‘Q. Did you have a conversation with Lieutenant Well-
born? A. Yes,

Q. And from this conversation with Mr. and Mrs.

Mr. Lewis: I have no further questions,
Mr. Edelbaum: I have no further questions and
I have no further testimony, your Honor.

not I find it tied in in any way with the wire taps.
Be ready to go tomorrow.

(The hearing and the trial were thereupon ad-
journed until 9:30 a.m., Tuesday, September 29,

1970).
Mineola, New York
September 29, 1970
Before:
Hox. Pav Keury, County Court Judge

and a jury.
(Appearances as before noted)

A 116

POLE SAPS eee

pa TE

Colloquy of Court and Counsel in Chambers
Minutes or Hearinc Contixvep

(The following occurred in Court’s chambers in the
absence of the jury but in the presence of the defendant,
Mr. Edelbaum, Mr. Handman, Mr. Lewis and the Clerk of
the Court.)

The Clerk: This conference room is designated as
Part II of County Court for the purpose of these pro-
ceedings.

The Court: This Court finds, after a hearing that was
held yesterday, that the People have proven by clear and
convincing proof that information concerning the two
witnesses in question, Hall and Gaines, was obtained by the
police in a legal manner outside of any wire tap evidence,
and they will, therefore, be permitted to testify.

A written order to this effect will follow.

We will now continue with the trial in the courtroom,

(The following occurred in open court in the presence
of the jury).

The Clerk: The People v. Jay T. Pobliner. J ury please
give your attention to roll call.

(Roll call of jurors)

The Clerk: The jury is all present. Any prospective
witnesses in the courtroom please step outside.

Trial continued.

Mr. Lewis: The People will call Edward Gaines, your
Honor.

A417

PDE MN BOE 8 1

Joe Lyle Hall—for People—Direct

The Court: Let us call him and see if he is out
there.

Mr. Lewis: Your Honor, the People will call Mr.
Joseph Hall.

Joz Lye Hau, 22D Edgewood Knoll Apartments,
Asheville, North Caroli called as a witness by the Peo-
ple, having been first duly sworn, testified as follows:

Direct examination by Mr. Lewis:

Q. Mr. Hall, do you know Jay Pobliner, sir? A. Yes,
sir.

Q. How long have you known Jay Pobliner? A. About
Six years,

Q. When for the first time did you meet him? A.In
Asheville about 1965.

Q. Where in Asheville did you meet him? A. At Jonas
Burbank’s Motor Cycle Shop.

Q. And did yon become friendly with Mr. Pobliner?
A. I did.

Q. Did you socialize with him, sir? -A. Yes.

Q. Do you see Mr. Pobliner in the courtroom? A. Yes,
I do. _

Q. Will you identify him, please, for the record?
‘

re eae ee Ge ea oe eee
Joe Lyle Hall—for People—Direct

Q. During the course of the dinner, sir, was there a
conversation at the table concerning a dog? A. Yes, sir.

Q. Did you have a conversation with Mr. Pobliner.
concerning a dog? A. Yes, sir, I did.

Q. Can you tell us, sir, at this time what Mr. Pobliner
told you or said to you and what you said tohim? A. Mr.
Pobliner said to me that he had a dog that was a real
killer, and he was very vicious and he was trained to attack |
and that he was very ferocious if anyone got around Brenda
or the baby.

Q. Did there come a time when this dinner meeting
ended, sir? A. Yes.

Q. What if anything happened after that? A. We all
left the restaurant and we went down to my club, which
was called Some Place Else, and I- went to work and Jay
and Brenda and my wife sat at a table and had a few
drinks. ;

Q. When you say tliat you went to work, what do you
mean? Was it in the Some Place Else? A. Yes.

Q. And did Jay Pobliner and Brenda Pobliner stay at
the Some Place Else? A. For a period of time, yes.

Q. And then did there come a time when they left?
A. Yes. :

Q. After they left the Some Place Else that night, did
you have occasion to sec Jay Pobliner again? A, Yes, sir,
I did.

Q. When was that, sirt A. The following night at
Some Place Else, at the Some Place Else.

Q. Did you have a conversation with him at this time?
A. Yes, sir, I did.

Q. Was anyone else present at this conversation? A.
This fellow, Butch, he was with him and we had several
conversations. We had a lot—you know, just small talk
and so on. ch

Q. Did you have any conversations with Jay Pobliner
as to his being in Ashville to hunt? A. Yes. Jay told me

A 121

|
TMA EAE GLE STR A SPER RAT AB tf RAEOMTTS BRLPPR Te SESE MIT emer

PRPS TE II UP SOT > anee SNe yr a LTO

—-

*

Joe Lyle Hall—for People—Direct

that he had come down to Ashville to go deer hunting, and
this is what Brenda had thought, that he was deer hunting.

Q. Did he say who he was going deer hunting with?
A. Yes, some of the Ashville policemen.

Q. Pardon me? A. Some of the Ashville policemen.

Q. After that night did you have occasion to see Jay
Pobliner again? A. Yes.

Q. When was that, sir? A. The following night.

Q. Where was this? A. At Some Place Else Club.

Q. Did you have a conversation with Mr. Pobliner at
that time? A. Yes, I did.

Q. And what did he say to you and what did you say
to him, sir? A. Well, he just said he had something very,
very important that he wanted to talk to me about, and he
wanted to know if I could mect‘him at the club on Sunday.

Q. Was the club open on Sunday? A. No, sir. He
wanted me to mect him Sunday afternoon at the club.

Q. And did you meet him Sunday afternoon at the club?
A. Yes, sir, I did.

Q. What time did you meet him Sunday, sir? A. I
would say it was approximately 2:00 o’clock. .

Q. Was anyone else present at this meeting? A. Butch
was with him but Butch left.

Q. Was anyone else Present at the Some Place Else
anytime during the Sunday that you were there with Mr.
Pobliner? A. No, sir.

Q. Were there any police officers there on Sunday? A.
There were some police officers outside in an automobile in
the parking Jot.

Q. Did Jay Pobliner talk to these police officers? A.
He left with them, yes.

Q. Did you have a conversation with Mr. Pobliner on
this Sunday—

Mr. Lewis: I will withdraw that.

A 122

PN ee ts ee ee ee

~~

Joe Lyle Hall—for People—Direet

Q. Can you tell us, sir, when in November this Sunday
was, what day? A. Not exactly. It was the middle of
November, I’d say around the 17th, 18th, somewhere in
there. ~

Q. Did you have a conversation with him on this Sunday
at the Some Place Else? A. Yes, sir, I did.

Q. And what did Mr. Pobliner say to you at this time
and what did you say to him, sir? A. Well, he asked me
if I could get him a pistol and te make sure—that he needed
it very badly—and to make sure that it was unregistered
and could not be traced.

Mr. Lewis: I’m sorry; I didn’t hear that. May
I have it read back?

(Last answer read as above.)

Q. What if anything else did he say and what did you
say? A. Well, I told him I would try to get him a pistol,
but he said he needed it very badly and emphasized the fact
that the gun could not be traced and not be registered.

Q. Do you know of your own knowledge, sir, whether
Jay Pobliner has a New York City pistol permit? A. He
told me he did.

Q. Did there come a time when this meeting on Sunday
came to an end, sir? A. Yes, sir.

Q. Did you see Jay Pobliner after that? A. Yes, sir,
I saw him the next ‘night.

Q. Where? A. At the Some Place Else Club.

Q. And did you have a conversation with him at that
time? A. Yes, sir. He asked me—

Q. Was anyone else with Mr. Pobliner at the Some
Place Else on this occasion? A. Evelyn Rice.

Q. What was the conversation at this time, sir? A. He
just asked me if I had gotten the gun yet.

A’ 123

RESTS ee ee

-
°

Joe Lyle Mall—for People—Direct

Q. What did you say? A. I told him no, I hadn’t a
chance to get it.

Q. What if anything did he say to that, sir?

Mr. Edelbaum: Can we fix the time that night,
your Honor? ©

Mr. Lewis: I will withdraw that last question
and ask him this:

Q. What time that night did this conversation take
place? “ =s

ae e me
eee
—

Oa ad

Joe Lyle Hali—for People—Cross

eight or nine of them out when the place closed, maybe
more; I don’t know.

Q. Well, before Some Place Else, these other convictions
were over how long, nine or ten years? A. Yes, sir.

Q. You were known to the Ashville police because of
these convictions? A. I was known to the Ashville police?

Q. Yes, because of these convictions, weren’t you? A.
I was known to the Ashville police before that.

Q. Huh? A. I was known to the Ashville police before
that.

Q. Before the convictions? A. Sure.

Q. Tell me, do you know a N ancy Hensley? A. Yes, sir.

Q. How old is she? A. Twenty.

Q. How long do you know her? A. How long have I
known her?

Q. Yes. A. Two and a half years,

Q. And you have had intimate relations with her? A.
Yes, sir.

Q. Did you in March of 1969 beat her up? A. Yes, sir.

Q. And as a result she wound up in the hospital? A.
No, sir.

Q. Didn’t she wind up in the hospital for the injuries
you afflicted on her in March of 1969? A. She might have
went to the emergency room but she didn’t go in the hos-
pital.
Q. And didn’t you at that time pull a gun out? A.
Yes, sir.

Q. This was shortly—ean you fix a time in March of °69
when this was? A. I think it was right after I came from
up here, after I testified in front of the Grand Jury. Iam
not sure.

Q. Wasn’t it before? A. It might have been.

Q. Huh? A. It might have been.

Q. And wasii’t it before you met Mr. Lewis at the Holi- .
day Inn on March 24, 1969, sir; isn’t that a fact? A. I ean’t
remember exactly, sir.

A171

TR 0 tet STEER PE One WAL load —

“ea

Joe Lyle Hall—for People—Cross
Q. You won’t deny that that was the fact, will you?

Mr. Lewis: Objection, your Honor.
The Court: Sustained.

Q. How long have you been here in New York State

before you testified today? A. I came up Sunday a week
ago.

Mr. Edelbaum: Can we have that date, Judge?
Will you help me -with the calendar?

The Court: What’s that?

Mr, Edelbaum: Could you help me with the cal-
endar?
The Clerk: The 27th of September.
The Court: The 25th.
Mr. Edelbaum: The 25th?
The Clerk: The 27th.
The Court: Give the calendar to Mr. Edel>aum.
Mr. Edelbaum: Thank you.

Q. This past Sunday was October 4th. That was yester-
day. Did you arrive the Sunday previous or two weeks
before?
=
&
z
=
=
=
=
=
5
.

1 ONCE DY rentae PRAw

Joe Lyle Hall—for People—Cross

Q. And how long did you attend this mental health
clinic? A. I went one time,

Q. One time? A. Yes, sir, maybe twice. I am not sure.
It is either once or twice,

Q. When? A. Right after I quit secing Dr. Newbold.

Q. Can you fix the time a little more accurately? A.
Late spring of ’69,

Q. What do you mean by the late spring? Would that
be prior to March 24, 19691 A. No, it would be like prob-
ably around May.

Q. May? A. Yes, sir.

Q. How long did you go to him or to that clinic after
you had seen Dr. Newbold? A. I went twice—once or
twice. I am not sure. I think twice. I think the first time
I went for just an interview-and then I went to see the
doctor once. I am not sure he was a psychiatrist. He
might have been a psychologist.

Q. Now, after last Monday, the 28th,—let’s go back to
Monday, the 28th. What time did you leave this building?
A. I guess about closing time, about 5:00 o’clock, maybe
a little after, 5:15, 5:00 something.

Q. Go back to the hotel? A. No, sir.

Q. Where did you go? A. I think we went to a restau-
rant and got something to eat.

Q. Who is we? A. Mr. Lewis and myself and Detective
Andreoli.

Q. Did you have something to drink? A. Sir?

Q. Did you have something to drink? A. Yes, sir.

Q. Ilow long did you spend there? A. Only about an
hour.

Q. Then where did you go? A. I’m not sure. I think
we went to McClusky’s or something. I am not really
familiar with all of the places in the area. i

Q. Well, is that where you went to eat, MeClusky’s?
A. I believe, I am not sure.

A 178

Joe Lyle Hall—for People—Cross
Q. Freeport—rather, not Freeport—on the south shore—

Mr. Lewis: Bellmore, Mr. Edelbaum.
Mr. Edelbaum: Thank you. That’s very kind.
Mr. Lewis: On Sunrise Highway.

Q. Did you only spend an hour there? A. No, we went
to Lorenzo’s, or something, bar or lounge, and then I
believe we went to McClusky’s.

Q. Oh, let me see. Now, let me get this straight. You
went to the lounge, Lorenzo’s Lounge. Where is Lorenzo’s
Lounge? A. It’s out here somewhere. I don’t know
exactly where.

Q. But Mr. Lewis and Detective Andreoli and yourself
went to the lounge for about an hour or so? A. Yes, sir.

Q. And you had a few drinks? A. Yes, sir, I believe
80.

Q. Don’t you remember? A. Well, I think I had a
few beers. .

Q. Beers? A. Yes,
Q. All right. You don’t drink hard liquor? wee we

Joe Lyle Hall—for People—Cross

Q. Yes. Yes or no? A. I can’t remember.

Q. In March of 1969 was there some charge pending
against you in connection with your wife, yes or not A. In
March of 1969 some kind of charge against my wife?

Q. No, against you? A. Against me?

Q. With respect to your wife pending in Ashville? A.
Not that I know of.

Q. Was there a criminal charge of any kind pending
against you in February or March of 1969 in Ashville?
A. (No response.)

Q. Think hard, please. A. In March of 691

Q. February or March of 69? A. To tell you the
honest truth, sir, I can’t remember. J am not actually sure
what month or when or where.

Q. Were you ever asked by Police Chief Jarvis to coop-
erate with the Nassau County Police, yes or no? A. I was
told by them to cooperate.

Q. You were told by him to cooperate? When was this?
A. It was in Ashville. When?

Q. Yes. A. I guess sometime in March.

Q. Before you saw Mr. Lewis? A. Yes, sir.

Q. When did you meet Mr. Lewis for the first time?
A. I guess in March of 69, or—yes, March of ’69, I think,
I believe. :

Q. Now, I show you People’s Exhibit 84, a statement
given by you to John R. Lewis‘at the Holiday Inn in Ash-
ville, North Carolina, on March 25th, commencing at 12:32
p.m. With relation to that time, that date, when had you
seen Mr. Lewis for the first time? A. May I sce the evi-
dence, please, sir?

Q. Why certainly (handing). A. This was the first time
I saw Mr. Lewis. '

Q. Tet me get this straight.. I don’t want to éonfuse
you. Did you first see him at 12:32 pm.? A. At 12:32
p.m.? I don’t know, sir, if it was 12:32.

ES API ED ——

~~

Joe Lyle Hall—for People—Cross

Q. Well, let me see. The first question—read the first
question to yourself and sce if that refreshes your recollec-
tion to what I am talking about.

Now, were you asked this question and did you make
this answer, the first question put to you—Incidentally,
there was a stenograper present, was there not, in this
room? A. Yes, sir.

Q. And Chief Jarvis was there, right? A. Yes, sir.

Q. He was sitting in the room? A. Yes, sir.

Q. And Mr. Lewis, right? A. Right, yes, sir.

Q. Anybody else? A. No, sir.

Q. No detective? A. No, sir.

Q. Just the two of you? A. Right.

Q. Now, the first question put to you by Mr. Lewis was
this:

**Q. All right. Now, Mr. Hall, you and I have previously
met. You know mr te be the Assistant District Attorney,
John Lewis, from Nassau County, State of New York; is
that correct? A. That’s correct.”’

What I am asking you, sir, is how long before Mr. Lewis
asked you that question had you met Mr. Lewis? A. May-
be a half hour.

Q. Half an hour before? A. Before.

Q. During that questioning did you ask, ever ask Chief
Jarvis if it was all right to say something? A. I don’t
actually remember, but—yes, I think I did ask him if it was
all right to mention a guy’s name by the name of Benny.

Q. Benny. And Benny happened to be the son of an
Ashville detective or policeman; isn’t that right? A. He
was a retired police officer—his father Was a retired police
officer, yes, sir.

Q. Now, how long did this questioning take? A. Ques-
tioning or the statement?

Q. Yes. A. I-don’t remember.

Q. Well, see if I can refresh your recollection. Read

the last page. Read from the first Page “‘commencing,”’ |

ok OE eS, OPS NERS

GLE LAE DOREY.

FALE SOL LLOY EEE
g

Joe Lyle Hall—for People—Cross

and read the last page when it terminated. A. 12:32 p.m.
to 1:26 p.m.

Q. Thank you. In this statment at any time did you
tell Mr. Lewis that at the hospital this defendant had
told you that Ilis Jurisson was his alibi and that Illis
Jurisson was standing alongside of him when he shot and
killed his wife?

Did you ever say that in this statement? A. No, sir.
I said Ilis was with him.

Q. You never told him anything about the defendant
saying it was an alibi, right? A. (No response.)

Q. I don’t hear you. A. Without having the statement,
I don’t think I said it at that particular time, no, sir, I don’t
think so.

‘Q. Now, where did you go after 1:26, where did you go
after you finished? A. I have no idea.

Q. No idea? A. No, sir.

Q. You can’t help us and tell us what you did? A. After
this first statement was taken?

Q. Yes, sir. A. No, sir, I don’t remember where we
went. I really don’t. .

Q. Did you meet any detectives from New York? A.
Yes, but we didn’t go anywhere. The detectives were in
the next room.

Q. Where did you-go? Did. they come into the room
or did you go into the next room? A. No, I think they
came in the room after the statement was over.

Q. And after the statement was over, what detectives
came into the room? A. Bonora and Andreoli.

Q. Sergeant Bonora? A. Yes, sir.

Q. And Andreoli? A. Yes, sir.

Q. I’m sorry, Detective Andreoli? A. Yes, sir.

Q. And what happened to Mr. Lewis and Chief Jarvis?
Did they stay there with yon? A. I believe SO; yes, sir.

Q. All the time? A. All of what time, sir?

A 199

PR

Joe Lyle Hall—for People—Cross

Q. Well, Iet me see if I can fix it. How long did you
stay in the room with Andreoli and Bonora? A. And Lewis
and Jarvis?

Q. Yes. A. I don’t know.

Q. Well, give us your best memory. A. I don’t know.

Q. No idea? A. No, sir, I have no idea how long we
stayed in that room.

Q. Was it a long, long time? A. I have no idea.

Q. Did they question you? A. They might have asked
some questions; yes, sir.

Q. Just some questions? J ust some questions? How
many questions would you say they asked you? A. I have
no idea. -

Q. Just afew? A. No, I would say some.

Q. Incidentally, did you g6 to lunch after you were
through with the statement, or. did you have lunch before
you started the statement? A. I don’t remember, sir,

Q. Did you remain in this rooin for the rest of the after-
noon? az - a ee ee ~~ —

Joe Lyle Mall—for People—Cross

Q. When on Monday, March 24,1969? A. After we got
through with the statement, the first statement.

Q. After you got through with the statement? A. I
think so.

Q. Let me understand you. A. I am not really sure
which came first.

Q. You are not really sure which came first? Let me
see if I can help you. Do you remember that same day at
8:10 p.m. the stenographer being called into the hotel room
and Mr. Lewis asking you some more questions?

Look at this and see if it refreshes your recollection at
8:10 p.m. Did that happen? (Handing witness exhibit.)

The Court: Now, the question is, does that re-
fresh your recollection.

A. Well, I remember it taking place sometime. I don’t
remember if it was this particular mecting or not.

Mr. Edelbaum: Will you coneede, Mr. Lewis,
there was a statement taken commencing at §:10 p.m.
on March 24th, the same day the other statement
was taken? :

Mr. Lewis: I will so stipulate, your Honor.

Mr. Edelbaum: Thank you.

Q. Now, you say you don’t know when that handwritten
statement was signed by you, when it was prepared; is that.
right? A. I think it was the same day.

Q. When? In between? A. I don’t know which one was
taken first, sir.

Q. Let me see if I ean help you. Do you remember
being asked these questions by Mr. Lewis on page 2:

“Q. Mr. Hall— A. Yes.

“*Q. You had previously earlier in the day given me a
question and answer statement relative to certain. conversa-

£ :
— — SE ee Ee bs, EE TTL BTL CO

*

o
a te ee Oe

Joe Lyle Hall—for People—Cross

tions you had with Jay Pobliner; is that correct? A. That’s
correct.

“Q. And since that time, sir, you have had occasion to
discuss this matter with members of the Nassau County
Police Department’s homicide squad? A. That’s correct.

**Q. And you have given them also a handwritten signed
statement by yourself; is that correct? A. Correct.’’

Were you asked those questions and did you make those
answers? A. Yes, sir.

Q. Were they true? A. Yes, sir,

Q. And do you remember now that this statement, this
handwritten statement was drawn between 1:26 p.m. some-
time and at §:10 p.m. sometime, right? A. I guess it could
have been, sir.

Q. Could have been or happened? Which? A. I don’t
really know.

Q. You don’t really know? A. No.

Q. Doesn’t the questions I just asked you that you had
been asked refresh your recollection that this statement was
after the statement taken at 12:32 p.m.? . ~ eet SUPE : al

+1 ae ;

= sory a

Joe Lyle Hall—for People—Cross
Q. This an abortion about some other girl?

The Court: Is that a question, sir?

Mr. Edelbaum: Yes.

The Court: Is there an abortion about another
girl? That is the question.

A. That Nancy knew about?

Q. Yes, had you had an abortion performed on another
girl? A. Had I had an abortion performed on another
girl, no, sir.

Q. Had you arranged for an abortion on another girl?
A. No, sir.

Q. Well, let me ask you this question: Were you asked
this question and did you make this answer: |

““Q. What did he say?

Joe Lyle Hall—for People—Cross

Q. Did you ever cash checks for Jay Pobliner when he
was in Some Place Else? A. Can’t remember if I did or
not. He was never charged.

Q. He was a friend of yours? A, Yes, sir.

Q. Now, you-told him it would be no trouble in getting

Q. He told you that on Sunday? A. Yes, sir.

remember if he was present or not. There are two parts
to Some Place Else. There is a front and a back room.
He might have been in the back room or he might have
been gone. -

Q. Was he present at the time that Jay asked you,
right there? A. No, sir.

Q. What?

Joe Lyle Hall—for People-—Cross

Q. Glen told yon he had an unregistered gun? A. He
thought it was unregistered.

Q. Did you tell that to Mr. Lewis, anything there where
you said that Glen told you that he had a gun that was
unregistered? A. I wanted to get a 397 Magnum, but his
wife wouldn’t let him sell it.

Q. So that is your answer to the last question? A. I

can’t even remember the last question, sir. Please, can T
have it repeated?

Mr. Edelbaum: Why, of course.
The Court: Please read the last question.

(The last question was read by the reporter.)

A. I can’t remember if I told Mr. Lewis that or not, sir.

Q. It is not in the stutement, is it? A. I have told Mr.
Lewis other things that are not in this statement either, sir.

Q. I see. Now, you brought the gun back? A. Back
where, sir?

Q. To Some Place Else. A. Yes, sir.

Q. What did you do with the gun when you brought it
back? A. Took it in the building. a

Q. What did you do with it? A. Played around with it
for a little while.

Q. Were you alone? A. N 0, sir, there were some other
people in the place. ;

Q. When you played xround with it, did you play around
with it in front of all the other people? A. There weren’t
that many people there, sir.

Q. How many people were there? A. T have no idea.

Q. Well, you said there were some other people. Who
were the other people who were there when you played
around with the sum? A. I showed it to the policeman. I

-had an off-duty policeman working for me.

DORAN el 2 et ia a ae

a

A 246

=

Seiceiiiateie

Joe Lyle Hall—for People—Cross

Q. Who else was there when you played around with
it? Where did you play around with the gun?’ A. At the
bar at Some Place Else.

Q. On top of the bar? A. No, sir, in the bar area, in the
bar room. :

Q. Is that unusual down in Ashville for people to play
around with guns in a bar area? A. No, sir.

The Court: You say it is not unusual?
The Witness: No, sir, it is not.

Q. Is this in the United States of America? A. Yes,
sir.

Q. What time of night was this when you came back?
A. 1 don’t know what time of night it was, sir. It was dark.

Q. It was dark? A. Yes,

Q. Approximately what time? A. I can’t say approxi-
mately, sir.

Q. How much later did Jay come in? A. Later, I don’t
know how much later,

Q. How much later? A. I don’t know how much Jater,
sir.

Q. You have told us about this conversation with all
- the details you had about the dog. You exn’t remember—
4. Yes, sir, you ean remember details, but a lot of times
you cannot remember times.

Q. I see. You have no idea of times? A. There was
nothing to remember about times. :

Q. Nothing to remember? Now tel] me this. What did
you do with the gun after you played around with it?
A. Put it in the drawer in the pantry, also with a box of
shells.

Q. Now, this pantry, where does it lead off from the
bar? A. To the left of the bar.

Q. Does it have a door? At An opening, no door, a

doorway, no door.
AR 247

Joe Lyle Hall—for People—Cross

Q. No door? And it is to the left of the bar? A. Well,
_ like if I was standing at the bar right now, behind the bar,
like if I were working, the pantry would be where the
Judge is sitting.

Q. Right by the Judge?

The Court: I would be sitting in the pantry?
A. Yes, sir, he would be sitting in the pantry.

Mr. Edelbaum: That is a very good description.

The Court: On that note we will take a recess
for ten minutes.

The jury are not to discuss the case among your-
selves or with anyone else while you are outside of
the courtroom. of

(A recess: was thereupon taken.)
(After recess.) .
The Clerk: Joe Lyle Hall continued.

Cross-examination by Mr. Edelbaum (Continued) :

Q. Mr. Hall, how big was this pantry? A. It’s not very
big, sir.

Q. Well, give me an idea in dimensions? A. Five by
eight, I would imagine, that would be close.

Q. You put the gun in a drawer you said? Peres

Joe Lyle Hall—for Pcople—Cross

Mineola, New York
October 7, 1970
Before:
: Hon.. Pau Ketiy, County Court Judge,
and the Jury.

(Appearances as before noted.)
(Minutes or Triaz Coxtixvep)

The Clerk: People v. Jay 'f. Pobliner. Jurors
please give your attention to roll call.

(Roll call of jurors.)
‘The Clerk: The jurors are all present, your
Honor. Any prospective witnesses in the courtroom,

please step outside.
Joe Lyle Hall, Jr. continued.

Jor Lytz Haut, Jn., having been previously sworn, re-
sumed the stand and testified further as follows:

Continued Cross-examination by Mr. Edelbaum:

Mr. Edelbaum: May I proceed, your Honor?
The Court: Yes, Mr. Edelbaum.

Q. Mr. Hall, since yesterday have you spoken to Mr.

Lewis about your testimony? A. No, sir.
Q. Did you sce Detective Andreoli? A. Yes, sir.

A 269

ee Meee ye pee

on

Brits vire cre cccneenipepasatss ALES LIE HME IETS AEN AEY OF

RAS RE 2
es

Joe Lyle Hall—for People—Cross

Q. Did you have dinner with him last night? 3 :

a

Testimony of Dr. Herbert L. Newbold, Jr.—-
Examination by Defendant’s Counsel

Now, this would not be of clinical significance, so the
computer wouldn’t comment on how the patient answered
that statement. But something like, ‘‘I am being plotted
against,’’ it would be something that would be of interest
to the psychiatrist, so the computer reports certain critica]
items for the psychiatrist’s convenience, which he might
want to go into with the patient.

By the Court:

Q. Does the computer come out with a diagnosis then
of the overall picture? A. Well, the computer comes out
with a written comment about the type of makeup of the
patient. a

Now, may I say a few words about the test, more about
the test? rh

By Mr. Edelbaum:

Q. Yes. A. This is an unusual psychological test, and
one that has become more and more in favor as the years
are going by, because it is an impersonal test.

Now, the test, the Rorschach where you look at ink
blots, the personality of the psychologist has a great deal
to do with interpreting. One psychologist will interpret
one way and another psychologist another Way, and we
like the Minnesota Multiphasiec Personality Inventory be-
cause it is relatively impersonal and there is no theory
behind this test. There is no idea that, well, people answer
these questions because they hate their father and mother,
or something like that. It is simply an observation. It is
as if you saw someone walk by your house every day very
fast and you saw this same person at the post office walking

. very fast. Well, you might conclude that there was an

energetic person if you observed one facct of this person
every day in a certain way.

FAS gOS TE NS AES a IOI SE ee Peas Ee toe

Testimony of Dr. Herberi L. Newbold, Jr.—
Examination by Defendant’s Counsel

Well, at the University of Minnesota they have taken
thousands of patients with known diagnoses and observed
how they have answered these particular sets of state-
ments, whether-they are true or false, as applying to them,
and they found that certain persons with depressions an-
swer it in one pattern, just as people with depressions may
walk in a certain pattern, They make walk slow and so
forth, so they tend to answer these statements in certain
patterns, and people with a different personality makeup
will answer it in a different pattern, so people fall into
groups and the computer tries to identify these groups.

By the Court:

Q. When you get all through, does it give you a diag-
nosis then that you have a schizophrenic here or that you
have a perfeetly normal person? A. Well, the computer
hedges some, beeause the psychclogical tests are not exact
enough to give absolute diagnoses, but they indicate which
area should be investigated by the psychiatrist, and we
have a statement here in the front of this test which gives
the computer’s interpretation, und it says either or and so
forth, and its says very likely and so forth, so it doesn’t
come out with a set figure like hemoglobin, for example,
is 15 grams. It doesn’t come out with a set figure like
that, but it is highly valuable.

We find it very valuable, and it is likely to give us a
good deal of information quickly about a patient so that
we can be on the lookout for certain things.

For example, J have a patient that I have been seeing
some time who is schizophrenic, and recently I felt that
she was improved a good deal, and I did an MMPI on her,
and the MMPI didn't look as good as I thought it should

look, and this tells me this patient has some hidden things -°

that I hadn’t seen and was not doing as well as I thought
she was. It requires clinica) judgment,

R..312

PEE atte eke a ha drs tee

conta

Se

Yo PREM Le

nora ns

oat

Testimony of Dr. Herbert L. Newbold, Jr.—
Examination by Defendant’s Counsel

Q. This, in other words, assists you in arriving at a
conclusion? A. Correct.

Q. It doesn’t give the conclusion itself? A. No, sir.
Now, if I may read the note at the bottom of the page, the
note at the bottom the computer says, although not a sub-
stitute for the clinician’s professional judgment and skill,
the MMPI can be a useful adjunct in evaluation and man-
agement of emotional disorder. The report is for pro-
fessional use only and should not be shown or released to
the patient.

Mr. Edelbaum: May I just ask one other ques-
tion?
The Court: Yes.

Q. Is this test in limited use throughout the country or
in wide use throughout the country? A. This is in wide
use. This particular computer, about a third of the psy-
chiatrists in the country use this particular computer.

Q. Now, do you have an opinion— 7

Mr. Edelbaum: Well, I think, Judge, I can re-
serve that. -

The Court: I think that your whole thrust here,
as I understand it, is to be able to have testimony
that this witness should be disbelieved because of
his mental condition.

Mr. Edelbaum: That’s right, Judge.

The Court: Now, the fact that a great many
tests were given would not bring that to the fore.

Mr. Edelbaum: No, but the answers that he
gave—

The Court: The answer that he gave would not
either. It’s only those answers after they have been
evaluated and put through the mind of this psychia-

AL 313

Testimony of Dr. Herbert L. Neuwbeld, Jr.—
Examination by Defendant’s Counsel

trist, who would then be able to say from that ‘I
deduce.’’

By Mr. Edelbaum (Continuing) :

Q. And, Doctor— A. May I make one comment?

Q. Yes. A. This is true, that the text is an interpreta-
tion and requires the interpretation of a psychiatrist. On
the other hand, certain Statements like, ‘‘I often fee] things
were not real,’’ or “I have strange, peculiar thoughts,’’
and, ‘‘I believe I am being plotted against,’’ these are abso-
lute statements.

The Court: Yes, they are statements.

The Witness: Yes,

The Court: Then you would have to interpret
those for me.

The Witness: Correct.

Q. And did you interpret those statements with respect
to the witness, Joe Hall, Jr.? A. Yes.

Q. And what is your opinion with respect-to his mental
condition in April of 1969? A. Weil, I felt when I saw him
that he was rather disorganized at the time. I felt he was
in touch with reality, that he knew the date, and he knew
what town he lived in, and so forth. I felt that he was
rather disorganized at the time. Ilis business had failed.
He was having personal difficulties. He was having trouble
getting his life into focus. I concluded that he had emo-
tional problems of significance, I agree with the com-
puter’s final statement saying, ‘‘This patient has test fea-
tures which resemble those of psychiatric out-patierts who
later require in-patient care,’? which meant that this is no
passing-—this is no light matter, it’s a matter of weight.

A 314

Praene

VAIN SPAS ERA Ree NA" aCe a

Colloquy of Court and Counsel

Mr. Edelbaum: Your Honor, I don’t think that
the District Attorney is entitled to a preliminary
cross-examination. All that I had to show you on
this phase is that he is a competent witness, and it
is for the jury to determine the value that they
should place upon this doctor’s testimony that I am
calling as an expert.

The Court: That’s true.

Mr. Edelbaum: And, therefore, what I would
like to do is recall Joe Hall, Jr., first and then offer
this doctor as an expert for the defense, but I would
like to conclude my cross-examination with Joe Hall,
Jr. to show on a particular time he was asked those
questions and made those answers so that the jury
can evaluate his testimouy and, therefore, I don’t see
that the District Attorney has any right to ask for
a preliminary hearing to get a preliminary cross-
examination of a doctor. I never had such an experi-
ence, and I don’t think that is proper or right, and
I would object to it.

The Court: Well, I f rankly agree with you, unless
Mr. Lewis—

Mr. Lewis: On the contrary, your Honor. There
has been several things said by the doctor right here
in this courtroom under oath that should permit me
to inquire further, especially into the circumstances
under which this test was taken. This is what we
are talking about. -

The Court: Right, but why couldn’t that be
donce—

Mr. Lewis: Why should the damage first be done
before the jury? ms

The Court: There is no damage because there
is no jury here.

A 315

4

LPM LOT AMIR LE ON

REE te RY Ty SHA a eI Dee a ee ae

.
eo alla Rh Ba BS

Colloguy of Court and Counsel

Mr. Lewis: That’s what 1 would like to do now.
1 would like to ask certain questions relative to the
taking of the test. Perhaps the test was taken under
conditions which the doctor—

The Court: That 1 think you would certainly do
in the presence of this jury to show that the test is
not credible. ©

Mr. Lewis: 1 would ask to do it now, your Honor,
as a matter of fact, because this is still a matter
within your diserction and perhaps after the eross-
examination of this witness on certain matters, per-
haps he woun’t even be permitied to testify in the
first place before the jury.

Mr. Edelbaum: With all due deference to Mr.
Lewis, and with due deference to your Tlonor, I don’t
think this is a question of discretion.

The Court: The defense is eniitled to attempt to
show the condition of the mental—the mental condi-
tion of a Witness, They are entitled to show that if
they ean, and that is Whit he is offering this witness
for, and 1 would Say that the witness has given me
enough prima facie io allow at least his testimony.

Mr. Lewis: May I be pernitted a few moments
fo research this, your Honor? ‘tam almost positive
that 1] read that it was within the diseretion of the
Court. -°
The Court: All right, we will take ten minutes.

(Recess taken.)

——_._.

(After recess the following ensued in the absence
of the jury :)

Mr. Lewis: Your ITonor, Mr, KNdelbaum has indi-
cated to me that he wants Mr. Wall back down here
to testify. T presume he wants to ask him some ques-

ay Ate

Colloquy of Court and Counsel

tions concerning what the doctor has testified to.
Your Honor, without the doctor first testifying, I
strongly object to that. I am being completely pre-
cluded from cross-examining this doctor as to certain
conditions, certain things.

The Court: Well, no, no, you are not going to
be precluded at all in the first place. The only
reason for this hearing was to determine whether
or no in my opinion the evidence that he was going
to offer would be sufficient to raise this question.

Mr. Lewis: Yes, sir.

The Court: And I think on the basis of just
prima facie, it would would.

Mr. Lewis: I have no quarrel with that, your
Honor. I have checked

The Court: Now we come to the question of
his cross-examinaton of Mr. Hall. Now, he reserved
his rights to cross-examine Mr. Hall on the psychi-
atric end of it. Now he has before him certain
questions and answers that Hall gave. He ean ask
him, I would assume, ‘‘Did you give these answers
to these questions,’’ just as though it were any-
thing—

Mr. Lewis: Without the doctor first testifying
as to the conditions under which the test was given?

The Court: Well, then, of course, that’s where
you come in with your cross-examination.

Mr. Lewis: But, your Honor, if Mr. Edelbaum
then calls Mr. Hall and decides he doesn’t want to
call the doctor, I have no cross-examination of the
doctor at all.

Mr. Edelbaum: Well, don’t worry about that.
T ain going to make the representation that the first
Witness that I will call for the defense this afternoon
will be Dr. Newbold. So let’s have no nonsense

about that.
A 317

Colloquy of Court and Counsel

Mr. Lewis: This is part of the People’s ease,
your Honor, and this is exactly the point I am try-
ing to make. If the doctor is going to testify before
this jury first as to this test, that he took it of Mr.
Hall, then I have no objections, but out of the pres-
ence of the jury. To just bring Mr. Hall down here
where I have been precluded from checking into
the methods that were used to take this test, the
type of test that it is, the supervision of the test,
your Honor, it’s imminently unfair to the People
to permit this to happen.

The Court: Well, suppose Mr. Hall had been
questioned by the police, by a Detective A and when

he got on to testify, Mr. Edelbaum said, ‘‘Now I 4
want all of the questions and answers that he gave,”’ .
and he was handed questions and answers asked by &
Detective A. Would you say that Detective A would ©
have to come on bef ore he could cross-examine? E
Mr. Lewis: I would say Detective A would have :
had to have been there when the questions and an- ;
swers were made, your Honor, and I am quite '
certain that you would agree with me. :
The Court: Where? 3
Mr. Lewis: Be present at the— »
The Court: Well, that’s what you would bring &
out. H
Mr. Lewis: But I can’t bring it out, your Honor, :
if he is not going to call this man. - &§
The Court: He is going to call Hall. Hall can 2
tell you, and then, certainly, if he doesn’t eal] the
doctor, you can. :
Mr. Lewis: I can’t cross-examine my own wit- :
hess, sir. 3
The Court: Well, you could cross-examine him, :

I suppose, on the question of a hostile witness.

“A 318

PR RAI Ca

Colloquy of Court and Counsel

Mr. Edelbaum: I am going to call him, Judge.
I don’t make representations lightly.

Mr. Lewis: I don’t want it on the defendant's
case. Your Honor, this is something that’s being
done on the People’s case.

Mr. Edelbaum: I am not required to call a
witness on the People’s case when I reserve the
right to cross-examine,

The Court: I will rule at this time that Mr.
Edelbaum will be able to question Hall on any state-
ments, questions and answers that he made.

_ Mr. Lewis: Your Honor, wouldn’t it have to be
first shown that this witness knew that Mr. Hall
made the answers to those questions?

The Court: He can ask Hall whether he made
the answers to the questions. If he didn’t, then,
that is the end of it. I mean, it’s A, B, C here.

Mr. Lewis: No, sir; I am sorry, I have to dis-
agree with the Court, but I respectfully execpt to
the Court’s ruling. :

Mr. Edelbaum: May we have Mr. Hall brought
down? . |

Mr. Lewis: May we break for lunch?

Mr. Edelbaum: Judge, no, I would like to have
this done now.. It will take me seven minutes to
ask him these questions, and then if they rest, I
would like to then proceed. Now, I made a commnit-

ment to this dovtor, who suffered a coronary last
year, that I would get him back tonight on a 6:30
plane, which is the only plane going back.

The Court: It’s going to mean that if you go
into that, we are not going to have lunch. :

Mr, Edelbanm: T will be very short with Mr.
Hall, and then T will call the doctor after lunch.

Mr. Lewis: May I ask this, your TIonor: When.
I went upstairs before I checked one particular

A 319

PONE SIN

RS Pe

PLOT RTL DARL OO, EEE GIO

See an aa ee

Colloquy of Court and Counsel

point. I did not research this in the short time
Thad thoroughly. I would like to be able to be given
some time, your Honor, to research this matter.
I don’t believe that Mr. Edelbaum has the right to
do what he is trying to do here without giving the
People a right to cross-examine this particular wit-
ness. Now, he is doing it on my case. I have no
way of knowing that, despite the fact that he is
making that representation now, and I certainly
respect Mr. Edelbaum’s integrity and I think that he
believes or he is stating right now that that is
what he intends to do, but I don’t know what his
ideas might be after Mr. Hall testifies. He might
change his mind. I have a right to cross-examine
this witness, ang I would like to be able to show
the Court some law on this before it is permitted
to go to the jury. There is nothing unreasonable
about that. -

_ Mr. Edelbaum: Now, Judge, they had since last
Thursday. I turned over a copy of the questions
and answers. They could have looked up since last
Thursday all the law in the books. Now, this is
a deliberate attempt to embarrass: this doctor,
embarrass me on my representation. Now, there
is no reason why any law should be looked up on
a simple Rosario proposition that J can ask this
witness. He will have two hours to look up the
law afterwards with respect to the doctor.

Mr. Lewis: And I have a right, your Honor, in
the interests of justice and fair play to the People
of the State of New York to look up the law.

The Court: What is your request?

Mr. Lewis: I would like to adjourn for Junch.

The Court: We will recess until 1:30.

The jury has already been instructed.

(Luncheon recess was thereupon taken.)

A 320

Wiens)

AAAS OAC rT TODD

Prorveninenss DAM ARNT

Colloguy of Court and Counsel
AFTERNoon Session

(The following ensued in the absence of the
jury :)

The Clerk: People v. Jay T. Pobliner.

The Court: You have checked.

Mr. Lewis: I have found nothing that does not
indicate that this entire thing is a matter of the
Court’s discretion, and J, therefore, have Mr. Hall
outside of the courtroom, waiting.

The Court: Well, I can see no reason either for
or against. I can’t see how it’s going to do you
any good, and I can’t see how it’s going to do Mr.
Edelbaum any good.

You will have an ample time to do all of the
cross-examining you wish.

All right; bring the jury in.

Who is the witness on now?

. Mr. Edelbaum: Well, the witness we want now is
Mr. Hall.

The Clerk: Any prospective witnesses in the
courtroom, please step outside. ;

Mr. Lewis: I assume, your Honor, there will
be a proper foundation laid in the presence of the
jury for asking these questions,

Mr. Edelhaum: Yon don *t have any confidence
in me. ;

(The jury thereupon entered the courtroom.)

The Court: Good afternoon.

The Clerk: People v. Jay 'T. Pobliner.
Jury, please give your attention to roll eall.

(Jury roll call taken.)

The Clerk: Jurors all present.
Any prospective Witnesses in the courtroom,
please step outside. -

A 321

PSDP LET SED ES EEE ST

—— = AS Se ors

Joseph L. Hall—for People—Recalled—Recross

Mr. Edelbaum: Your Honor, I recall Joseph
Lyle Hall, Jr. for further cross-cxamination pur-
suant to the reservation that I made at the time I
concluded my cross-examination of the witness.

Josrrn Lyte Haw, Jr, having been previously duly
sworn, resumed the stand and testified further as follows:

The Clerk: Mr. Hall, you are still under oath.
The Witness: Yes, sir.

Further recross-examination by Mr. Edelbaum:

Q. Mr. Hall, on cross-examination you were asked these
questions and you made these answers:

“*Q. Do you know a Dr. Newbold? A. Yes, sir.

“*Q. Does he have a particular speciality? A. Yes, sir,
he is a psychiatrist.

““Q. Did you ever go to him, consult him? A. Yes, sir.

“*Q. How many times did you see Dr. Newbold and

dur

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1610%3A2. Public record. Not legal advice.