Petition for Writ of Certiorari — Cameron v. New York

Ge. RY

‘a a

“ nn

IN THE \ e

Supreme Court of the United States

OCTOBER 1974

No. 74 S17

EDITH MAY CAMERON, STANLEY

TAYLOR SIMS, KENNETH DAVIS,

ROBERT STUART WILLIAMS,

MARVIN CAMERON, JENNIE SIMS,

Petitioners,

- against -

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS AND

APPELLATE DIVISION OF THE STATE

OF NEW YORK

DILLER & SCHMUKLER

Attorneys for Petitioners

299 Broadway

New York, New York 10007

(212) 349-5554

LAWRENCE STERN

Of Counsel

(4330)

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

CO = > WwW

STATEMENT

REASONS FOR GRANTING

THE WRIT 19

CONCLUSION 56

| APPENDIX

Judgment and opinion of

the Supreme Court of the

State of New York A

Judgments and opinions of

the Appellate Division of

the State of New York B

Certificate of the Court

of Appeals of the State

of New York, denying leave

‘to appeal Cc

Search Warrant and

Affidavit D

“Terns

CITATIONS

CASES:

Aguilar v. Texas, 378 U.S. 108

Alderman v. United States,

394 U.S. 165 (1968)

Alford v. United States, 282

U.S. 687 (1931)

Beck v. Ohio, 379 U.S. 89

Bellis v. United States, 94

S.Ct. 2179 (1974)

Bowles V. United States, 439

F.2d 536 (D.C. Cir., 1970)

cert. den. 401 U.S. 995

Campbell v. United States,

365 U.S. 85 (1968)

Chambers v. Mississippi,

410 U.S. 284 (1973)

Christoffel v. United States,

200 F.2d 734 (D.C. Cir., 1953)

Davis v. Alaska, 94 S.Ct. 1105

(1974)

Dennis v. United States, 384

U.S. 855 (1965)

Draper v. United States, 358

U.S. 307

CITATIONS (cont.)

Page

Edwards v. United States,

312 U.S. 473 (1941) 21

Garner v. Broderick, 392 U.S.

273 (1967) 26

Goldberg v. Kelly, 397 U.S.

254 (1969) 28

Greene v. McElroy, 360 U.S.

474 (1959) 22

People v. Brown, 24 N.Y. 2d

| 421 (1969) 52

|

People v. Corrado, 22 N.Y.

2d 308 (1969) 48

|

i People v. Lawrence, 31 A.D.

2d 713 (3rd Dept., 1968) 49

People v. Malinsky, 15 N.Y.

2d 86 (1965) 53

People v. Merola, 30 A.D.

2d 963 (2d Dept., 1968) . 49

People v. Rainer, 14 N.Y.

2d 35 (1968) 49

People v. Ramistella, 306 N.Y.

379 (1954) 23

ne hin PSE Noa ee

Rochin v. California, 342 U.S.

165 (1952) 34

CITATIONS (cont.)

Page

Rogers v. United States,

340 U.S. 367 (1951) 30

Sibron v. New York, 392 U.S. 40 43

Snyder v. Massachusetts, 291

U.S. 97 (1934) 28

Spinelli v. United States, 393

U.S. 410 43

United States ex. rel. Carthan

v. Sheriff, 330 F.2d 100 (2d

7 Cir., 1964) cert. den. 379 U.S.

929 30

United States v. Andolschek, 142

F.2d 503 (2d Cir., 1944) 23

United States v. Beekman, 155

F.2d 580 (2d Cir., 1946) 22 :

United States v. Cardillo, 316

F.2d 606 (2d Cir., 1963) cert.

) den. 375 U.S. 822 31

United States v. Carmichael, 489

F.2d 983 (7th Cir., 1973) 37

i

; United States v. Clark, 475 F.2d

240 (2d Cir., 1973) 27

United States v. Coplon, 185

F.2d 629 (2d Cir., 1950) cert.

den. 342 U.S. 920 22

United States v. Grayson, 166 F.2d

862 (2d Cir., 1948) 23

CITATIONS (cont.)

Page

United States v. Hayman,

342 U.S. 205 (1952) 28

United States v. Hinton,

219 F.2d 324 49

United States v. Hoggett,

438 F.2d 396 (2d Cir.,

1971) 36a

United States v. Nixon,

Nixon v. United States,

15 Cr. L. 3329 (Nos. 73-

1766, 1834, decided

July 24, 1974) 24

United States v. Seewald,

450 F.2d 1159 (2d Cir.,

1971) cert. den. 405 U.S.

978 30

United States v. Thomas,

489 F.2d 664 (5th Cir.,

1973) 37

CONSTITUTIONAL AMENDMENTS:

Fourteenth Amendment

Fifth Amendment

Fourth Amendment

Sixth Amendment

“ares PEPE POS OT PP PRES

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1974

NO.

EDITH MAY CAMERON, STANLEY TAYLOR SIMS,

KENNETH DAVIS, ROBERT STUART WILLIAMS,

MARVIN CAMERON, JENNIE SIMS,

Petitioners,

- against -

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

TCG: THE HONORABLE, THE CHIEF JUSTICE

AND THE ASSOCIATE JUSTICES OF THE .

SUPREME COURT OF THE UNITED STATES.

Edith May Cameron, Stanley Taylor

Sims, Kenneth Davis, Robert Stewart

Williams, Marvin Cameron, and Jennie

Sims, petiticners herein, respect-

fully pray that a writ of certiorari

issue to review the order of the Court

of Appeals of the State of New York

2.

entered on May 29, 1974, denying leave

to appeal to that Court, and the judg-

ments and orders of the Appellate

Division of the State of New York,

entered on May 6, 1974, and December

29, 1972, affirming judgments of the

Supreme Court of the State of New York,

rendered on May 15, 1972, convicting

petitioners, Robert Williams and

Marvin Cameron on their pleas of guilty

to criminal possession of a dangerous

drug in the second degree and sentencing

them to 15 years imprisonment, convict-

ing petitioners Stanley Sims and Kenneth

Davis on their pleas of guilty to crim-

inal possession of a dangerous drug in

the third degree and sentencing them to

15 years and 12 years imprisonment,

respectively, and convicting petitioners

Jennie Sims and Edith May Cameron on

fai Title dt acl Pa .

Se ae a eT robihest ink ‘

“a A aT RAN Ah nor Nai RI Icicle Rrad ee A sini tal Mien elicanshin " .,

‘ Xs i “EMail adit Nicatney > a

. ‘ oe Pn mel. Satin Scab

rare

their pleas of guilty to criminal

possession of a dangerous drug in the

sixth degree and sentencing them to a

fine of $1000 and a period of probation

not to exceed three years.

OPINIONS BELOW

The Court of Appeals of the State

of New York denied leave to appeal

without opinion. The Certificate

Denying Leave is attached hereto as

Appendix C.

The first judgment of the Appellate

Division was rendered in an opinion

officially reported as People v. Cameron,

et al, 40 A.D. 24 1035 (2d Dept., 1972)

and attached hereto in Appendix B. The

second order and judgment was rendered

in an opinion officially reported as

People v. Cameron, et al, 44 A.D.

2d 355 (2d Dept., 1974) and attached

“500m wah Cancun Sod.

th eeteenenad ke

hereto as Appendix B. -

JURISDICTION

The order of the Court of Appeals

of the State of New York was entered on

May 29, 1974. By order of the Honorable

Thurgood Marshall, Associate Justice of

this Court, entered on July 20, 1974,

time to file the instant petition was

extended to September 23, 1974.

The orders of the Appellate Division

of the State of New York were entered on

December 29, 1972, and May 6, 1974.

The jurisdiction of this Court is

invoked under 28 U.S.C. 81257 (3).

QUESTIONS PRESENTED

1. Whether the State, acting

through its law enforcement officer-

agent, may deprive defendants in a crim-

inal proceeding of the 14th, 5th, 4th,

——_——

j

5.

and 6th Amendment rights to a fair hearing

: and due process of law, freedom from ar-

bitrary and unreasonable police search

| and seizure, effective assistance of

counsel, compulsory process, and confron-

| tation of witnesses, by improperly invoking,

and indicating it would invoke, the 5th

i Amendment privilege against self-incrimin-

; ation, and declining to respond to questions

about theft of seized contraband and the

truthfulness of a search warrant affidavit,

questions relevant to the integrity of

the criminal justice process in the case

and the bias, motives and veracity of

the officer in the performance of his

police duties both as a witness at the

hearing and in his conduct of the

seizure and application for a search

warrant.

2. Whether the facts presented by

the officer in his affidavit contained

——

sufficient probable cause upon which a

search warrant could issue.

STATEMENT

Petitioners Edith Cameron, Stanley

Sims, Kenneth Davis, Robert Williams and

ee ee tn tiene ae

Marvin Cameron were indicted in the

Supreme Court of the State of New York

for the crimes of criminal possession

of a dangerous drug in the first degree,

promoting gambling in the first degree,

and possession of gambling records in

the first degree. Petitioners Edith and

Marvin Cameron were additionally. charged

f with possession of weapons and dangerous

instruments as a misdemeanor. Petitioner

| Jennie Sims was indicted separately for

the crimes of promoting gambling in the

first degree and possession of weapons

and dangerous instruments as a misdemeanor.

Prior to the introduction of their

son aS a: dich oy ae

7.

guilty pleas (Williams and M. Cameron,

2a degree drug possession; S. Sims and

Davis, 3rd degree drug possession; J.

Sims and E. Cameron 6th degree drug pos-

session), petitioners moved ia controvert

the search warrant and have the evidence

suppressed because of police perjury and

fraudulent conduct and the absence of

probable cause for the issuance of the

warrant. The motions were denied in

the trial court; petitioners pleaded

guilty, and, in its first order, the

Appellate Division affirmed the trial

court's finding of probable cause, but

given defense counsel's averment that Knapp

Caeactan ki testimony resulted in a Federal

Grand Jury investigation of the arresting

officers in this case wherein these

officers had pleaded the 5th Amendment,

the court ordered a hearing on

the allegations of police

—————

Sat beatae

efit athe x

perjury and misconduct. (People v.

Cameron, et. al, 40 A.D. 2d 1035, 2d

Dept., 1972; See Appendix). After a

hearing conducted pursuant tc the

Appellate Division remand, the Supreme

Court denied petitioners’ motion to con-

trovert the warrant on grounds of perjured

police testimony and misconduct, and the

Appellate Division affirmed, with opinion

(People v. Cameron, 44 A.D. 2d 355, 2d

Dept, 1974; See Appendix). The Court of

Appeals declined to hear the case.

The following is a summary of the

hearing testimony that forms, along

with the attached search warrant and

affidavit, the factual basis for the

issues to be argued:

Patrolman Lucido Bonino testified

that he was an expert on policy (4-5).*

* Numerical references are to the min-

utes of the suppression hearing.

LS

Pe e-”-

Pe CON

aM ie AE EE NR ae Pablo 0 ANE

brtcdreuseed. et

WE MS te ob Me so

REE a as) RNS ws

9.

On May 18, 1971, he and a brother

officer were investigating petitioner

Stanley Sims. He did not recall on how

many occasions prior to May 18, he had

seen Sims, nor the approximate dates.

He did not produce any prior reports

made on Sims. He was unable to produce

his memo book for May 18, the only day's

observations detailed in the search war-

rant affidavit (6-9, 46-48, 12). Only

after reading the search warrant was

the Patrolman's recollection refreshed

and was he able to testify to the

circumstances related therein. He

arrived in the vicinity of the Sims'

residence at about 11:00 A,M,, but he

could not remember where his car was

parked (9-12). Sims left his residence,

entered a car, and drove to the petit-

ioners' Camerons residence.

The court interrupted during this

Te ae

10.

line of examination, and, although there

had been no prior suppression hearing,

the court ruled, "You are not going to

go through the whole hearing coe

We are not going to go through the whole

observation until you have something to

indicate that perjury was made here"

(13-18). Counsel objected to the inter-

ruption and argued,

there is testimony to be adduced

at this trial to indicate that

the statements of the officer,

of his observations were indeed

not truthful and indeed never

occurred, and, therefore, a

perjured affidavit was sub-

mitted application [sic] for

a search warrant. This is in

conjunction with other ques-

tions of the credibility of

the officer (16).

At this point defense counsel was

directed to lay a foundation connecting

testimony as to these events with his

allegations that a Knapp Commission

witness had said the officer had com-

1l.

mitted perjury with regard to this case.

The Patrolman admitted being subpoenaed

before a State, Queens County, Grand

Jury in regard to this case, but he

then took the Fifth Amendment when

asked if he had been similarly sub-

poenaed by a Federal Grand Jury.

After recess the hearing was adjourned

to permit the officer to appear with

counsel, pursuant to application of

the District Attorney (15-22).

The officer subsequently appeared

with counsel (27), and he was cautioned

to confer only with his counsel, not

to look for comment from the two new

Assistant District Attorneys who were

brought into the case after the recess.

Defense counsel, arguing, "who are my

adversaries in this case?" stated to

the judge that he had seen the witness

looking to the prosecutor for comment

12.

before answering questions (30).

| Béneting the new District Attorney's

belated objection to the last question

put before the recess, the Court

struck the Patrolman's 5th Amendment

answer and counsel asked again if he

had testified before a Federal Grand

jury. 3

He said he was subpoenaed by a

Federal Grand Jury but "I don't believe

there were any questions asked regard-

ing the Sims case. If there were, I

dia invoke my constitutional privileges"

(31).

Over objection by the District

Attorney that these questions were

immaterial, the officer testified that

when Sims was arrested a large amount

of drugs and currency was seized at

his residence (32-33). Although the

court continued to permit the questions

13.

over DA objection, the Patrolman then

invoked the Fifth Amendment and refused

to answer questions as to whether any

seized drugs, currency or jewelry

pn ee

was not turned over to the Police

Property Clerk (34-37). He refused

j to answer similar questions with

regard to unreported seizures of drugs,

currency, or jewelry from the Cameron

residence (38, 40-41).* Furthermore,

he refused to answer whether he had

seized and kept any drugs not noted

on the inventory made on the return

of the warrant (39-40).

When asked if he had been

questioned on the same subjects in the

* He denied that the real reason he

got a search warrant for the Sims and

Cameron homes was to steal money he

believed was present there (43).

14.

Federal Grand Jury and, if he had

been questioned there about the truth-

fulness of the affidavit he submitted

for a search warrant, he replied,

"As far as my recollection goes,, I.

was not questioned on that. And if

I was, I would have again invoked my

constitutional privileges" (41).

He said he had made notes of the

observations on May 18, 1971* that he

later put in the affidavit but he did

not believe he put these in his memo

book and he probably threw them away

(44-45). His memo book for May 19,

1971 said only "1115 hours to approxi-

* His affidavit for the warrant recited

observations. on May 18, 19 and 20, 1971.

Only for May 18 (the date for which no

memo was avaiiable) were Sims' actions

detailed in the affidavit; for the 19th

and 20th it was mexsly said that the

May 18 actions were repeated "to the

letter."

ee

15.

mately 1545 hours, vicinity of Linden

and 197th and Farmers and New York re-

garding search warrant observation;"

none of his specific observations were

in the memo book and he did not know

if Police Department regulations re-

quired that such observations be

written down (49-50).

Although he could not remember

numerous details, the officer was

able, after looking at his affidavit,

to testify that on May 18, 19, and 20

he saw petitioner Sims receive what

he believed were policy bets at the

front door of his and the Camerons'

house (55-67).

Toward the end of counsel's ex-

amination of the witness the Court

interrupted the examination:

What do you want him to do,

contradict the statements he

made in the affidavit and

16.

everytime you ask him a

question he looks at the

affidavit to answer you?

(69)

Henry Schnitzer testified that

he was an expert on "policy" (72).

He testified that in playing policy

no one takes policy bets after the time

that the third race is finished be-

cause after that race is finished the

first number of the day's policy number

can be ascertained (74-76). Therefore,

no policy banker would take a bet after

2:00 P.M. (76) (and officer Bonino

said he saw Sims allegedly taking policy

slips after 3:00 P.M. [65]).

Edith Cameron testified that con-

trary to officer Bonino's testimony

no one other than Stanley Sims entered

her home between 11:30 A.M. and 2:30

P.M. on May 18, 1971; Sims stayed

through the evening when the rest of the

wea

sti lek S Secale a FON Sade Web SL

ep Oe ee ee Oe fed

et Dn se rae

17.

petitioners also arrived (79-80).

Juanita (Jennie) Sims also test-

ified that, contrary to officer Bonino's

testimony, no one came to her \home on

May 18, 1971 between 2:55 an? 3:30 P.M.

(82).

Both sides then rested, the

District Attorney having declined to

present any evidence (84).

On the basis of the above testimony,

and the lack of it under the Fifth

Amendment, the trial court ruled that

petitioners had not sustained their

burden of proving perjury. The

Appellate Division affirmed this ruling.

While recognizing that,

The remand was predicated on the

allegations of the defense that

the affidavit contained per-

jurous statements and that the

officer had refused to testify

before a Federal Grand Jury inquir-

ing into his official conduct on

18.

the ground that his testimony

might incriminate him,

(emphasis supplied),

the Appellate Division seemed to rest

its decision on the ground that the

police theft of seized contraband in

this case was irrelevant to the ju-

dicial inquiry. Despite the officer's

own testimony that he would take the:

Fifth Amendment if asked whether his

affidavit were truthful, the Appellate

Division stated, "all of the police

officer's refusals to answer dealt

with occurrences which took place

after the seizure under the warrant.”

(See Appendix for full text of the

opinion).

As to the question of probable

cause for the issuance of the warrant

based on the face of the officer's

affidavit, (See copy attached hereto),

the Appellate Division simply affirmed

19.

the trial court's finding of probable

cause.

REASONS FOR GRANTING THE WRIT |

The writ should issue because the

State, acting through it law enforcement

officer-agent, deprived a defendant

in a criminal proceeding of the 14th,

4

4

4

5th, 4th, and 6th Amendment rights

to a fair hearing and due process of

law, freedom from arbitrary and: un-

reasonable police search and seizure,

effective assistance of counsel, com-

pulsory process, and confrontation

of witnesses, by improperly invoking,

and indicating it would invoke, the

5th Amendaent privilege against

self-incrimination, and by declining

to respond to questions about theft

of seized evidence from the defendants"

|

20.

homes and the truthfulness of a search

warrant affidavit, questions relevant

to the integrity of the criminal

justice process in the case and the

bias, motives and veracity of the

officer in the performance of his

police duties both as a witness at

the hearing and in his conduct of the

seizure and application for a search

warrant.

The writ should further issue

because the facts presented by the

officer in his affidavit contained

insufficient probable cause upon which

a search warrant could issue.

In a criminal proceeding, es-

pecially when “the spectre of police

corruption was raised here and justice

21.

required a hearing at which the facts

could be fully aired” (Appellate

Division opinion, 40 A.D. 2d 1035,

See Appendix), the State's refusal to

respond to the judicial inquiry and

Se Ee Ree rote

provide evidence totally within its

custody and control mandated reversal

of the prosecution instituted by that

same government,Edwards v. United States,

312 U.S. 473 (1941) (government refusal

to provide defendant with copy of his

SEC testimony when defendant requested

it to show compelled incrimination,

required reversal of conviction).

As this Court stated in Alderman v.

United States, 394 U.S. 165, 184

(1968):

It may be that the prospect

of disclosure will compel the

Government to dismiss some

prosecutions in deference

to national security or

third party interests. But

22.

this is a choice the

Government concededly

faces with respect to

material which it has

obtained illegally and

which it admits, or which

a judge would fina, is

arguably relevant to the

evidence offered against

the defendant.

A long line of precedent upholds the

obligation of the state to respond

to relevant subpoena in prosecutions

it initiates and to give testimony

and evidence which it controls, or

else forfeit that prosecution:

Dennis v. United States, 384 U.S. 855

(1965); Green v. McElroy, 360 U.S.

474, 496-497 (1959); United States v.

Coplon, 185 F.2d 629 (1950) (L. Hand,

J.) cert. den. 342 U.S. 920; Campbell v.

United States, 365 U.S. 85, 96 (1968);

Christoffel v. United States, 200 F.2d

734 (D.C. Cir., 1953); United States v.

23.

Beekman, 155 F2d 580 (2d Cir., 1946);

United States v. Andolschek, 142 F2d

503 (2d Cir. 1944); People v. Ramistella,

306 N.Y. 379 (1954). As Judge Learned

Hand put it,

a conviction should not stand

when the accused has been denied

access to documents relevant to

' his defense whicn are in the

possession of a department of

the Government, whose regulations

make them unavailable at the

trial.

United States v. Grayson

’ Tees

194).

Recently shis Court has reaffirmed

the paramount necessity for disclosure

of evidence in the control of the

government in two cases where, unlike

the inutant case, the government had,

at least, an arguably legitimate

interest in the withholding of the

evidence. In Davis v. Alaska, 94 S.Ct.

1105 (1974), this Court reversed a

24.

criminal conviction and held that

the Confrontation Clause

requires that a defendant

in a criminal case be allowed

to impeach the credibility of

a prosecution witness by cross-

examination directed at possible

bias deriving from the witness’

probationary status as juvenile

delinquent [even] when such an

impeachment would conflict with

a State's asserted interest

in preserving the confidentiality

of juvenile adjudications of

delinquency.

94 S.Ct. 1105 at 1107

And, in United States v. Nixon, Nixon

v. United States, 15 Cr. L3329 (Nos.

73-1766, 1834, decided July 24, 1974),

this Court held

To read the Article II powers

of the President as providing

an absolute privilege as against

a subpoena essential to enforcement

of criminal statutes, would upset

the constitutional balance of

‘a workable government’ and gravely

impair the role of the Courts under

Article III ... it is imperative

to the function of courts that

compulsory process be available

for the production of evidence

needed either by the prosecution

or by the defense.

15 Cr.L.3329 at 3337

25.

Thus, if the legitimate govern-

mental interests embodied in the

privileges against disclosure of

juvenile delinquency and confidential

executive communications must give

way to the demand for evidence in

criminal proceedings, then in this

case where the State can offer no

legitimate interest of its own for

withholding the evidence of its

agent's corruption in the performance

of his duties, the prosecution must

fail.

In this case, a policeman, who

this Court has said

is directly, immediately,

and entirely responsible

to the city or State which

is his employer. He owes

his entire loyalty to it.

He has no other ‘client'

or principal. He is a

trustee of the public

interest, bearing the

burden of great and total

26.

responsibility to his public em-

ployer ... the policeman is.

either responsible to the State

or to no one. (Garner v. Broderick,

invoked a 5th Amendment privilege

against giving evidence of his own

corruption in the performance of his

official duties. This claim of pri-

vilege by this policeman, the repre-

sentative of State action in the instant

case, is a claim of 5th Amendment

privilege by the State of New York, and,

as such, may not be recognized by the

Courts to permit the State to. cover-’

up and withhold evidence of its own

wrongdoing. If the violation of an

individual's Constitutional rights

during his investigation and pro-

secution for criminal acts can result

in the exclusion of evidence and’ the

/

voidance of the prosecution, and if

27.

the Courts are not to become party to

cases made by the State on the basis

of corrupt police practices, then the

State cannot avail itself of a privilege

which would effectively precl’ide

judicial scrutiny cf State corruption.

This would apply especially in pre-

trial suppression hearings where the

very issue to be litigated is police

violation of the law, where the search

for truth is just as well served by

full disclosure of the evidence as

in a criminal trial and where, "dis-

position of the motion to suppress is

as important as the trial itself since

granting of the motion may require

entry of a judgment of acquittal for

lack of other proof sufficient to

convict." United States v. Clark,

475 F.2d 240, 247 (2d Cir., 1973);

re

28.

United States v. Haymon, 342 U.S. 205

(1952); Snyder v. Massachusetts, 291

U.S. 97, 106-107 (1934); cf. Goldberg v.

Kelley, 397 U.S. 254 (1969). In

addition, this Court has held that

large corporate entities, among which

° the states are the largest, have no

5th Amendment privilege, and that

their agents and representatives may

not invoke the privilege with respect

to their corporate duties, regardless

of consequent personal incrimination.

‘individuals, when acting as

members of a collective group,

cannot be said to be exercising

their personal rights and duties

nor to be entitled to their pure-

ly personal privileges. Rather

they assume the rights, duties

and privileges of the artificial

entity or association of which

they are agents or officers and

they are bound by it obligations.’ P

Since no artificial organization

may utilize the personal privi-

‘lege against compulsory self-

incrimination, the Court [in

United States v. White, 322 U.S.

694 (1944)] found that it

follows that an individual

acting in his official capacity

on behalf of the organization

may likewise notytake advant-

age of his personal privilege

«+.» The framers of the con-

stitutional guarantee against

compulsory self-disclosure who

were interested primarily in 3

protecting individual civil

liberties, cannot be said

to have intended the privilege

to be available to protect

economic or other interests

of such organizations so.-as

to nullify appropriate govern-

mental regulations.

Bellis v. United States,

Ct. ’ Cr.L.

3111, 3112-3113 (No. 73-

190, decided May 28, 1974).

We submit, then, that the State

of New York, in the person of its

policeman, could not avail itself

of the 5th Amendment privilege because

it had none under the law and Con-

stitution as interpreted by this

Court, and that even if the policeman's

invocation of the privilege was

30.

proper for his personal protection,*

the State has consequently deprived

the defense of necessary and relevant

information in its control and the

conviction must be reversed. Further-

more, the State, by initiating this |

prosecution and presenting to the courts

seized evidence and a search warrant

arguably valid on its face, having, '

in effect, gone forward with a prima

facie attestation to the legitimacy

* On information and belief, the

police officer may already have

testified before the State grand jury

about the events of the search and

seizure, and the items he confiscated,

and he certainly made a return on the

warrant, possibly sworn, which resulted

in a waiver of his privilege. Rogers v.

United States, 340 U.S. 367 (95D;

United States v. Seewald, 450 F.2d 1159,

Toe cert. den. 405 U.S.

978; United States ex rel. Carthan v.

hen ’ ‘ oe )

cert. den. 379 U.S. 929.

——eeE~

. 31.

of its actions, has waived any 5th

Amendment privilege as to the facts

and underlying circumstances of the

search and seizure. Its insistence on

the Sth Amendment, or the insistence

of its agent-witness, requires that

its ain facie attestation be stricken

and the evidence suppressed. Rogers Vv.

United States, 340 U.S. 367 (1951) United

States v. Cardillo, 316 F.2d 606 (2d

Cir., 1963) cert. den. 375 U.S. 822.

Contrary to the opinion of the Courts

of New York State, the officer's

refusal to answer questions about his

seizure of evidence from petitioners’

homes, and. about his disposition of

that evidence, and his clear statement

of intention to refuse to answer

whether the-statements in his affi-

davit were truthful, deprived petition-

32.

ers of the opportunity to adequately

meet their burden of proving the per-

jury and misconduct of this officer,

and of doing it through his bias,

motives and incredibility as a wit-

ness in court at the hearing and in

his affidavit. The defense had gone

forth with the testimony of other

witnesses who happened, as will

usually be the case, to be the de-

fendants in the case and whom the

trial court chose outright and ex-

pressly to disbelieve (See its opinion

after the hearing at Appendix A).

The defense presented an attorney

witness, an expert on gambling activ-

ities, who said the events could not

have happened the way the officer said

they happened, and whom the trial court

disregarded. It was conceded that ened

33.

had been Knapp Commission testimony

_ about this officer and a Federal Grand |

Jury investigation at which he had |

taken the Sth. But, the officer

himself was the chief witness, és-

pecially eincs-the trial court auto- |

matically discounted the evidence from

the defendants. The defense had to

call the chief witness, who was also

their adversary and accuser, in a :

situation where the very issue to be

determined was the veracity cf this

witness. In this sui generis circum-

stance ("In addition to the consideration

that the interest of the United States

in 2 criminal prosecution ... ‘is not

that it shall win a case, but that

justice shall be done ..."* ..+, the

ordinary rule, based on considerations

of fairness, does not place the burden

34.

upon a litigant of establishing facts

peculiarly within the knowledge of his

adversary.” Campbell v. United States,

365 U.S. 85, 96 (1960)), the State

courts held to a narrow conception of

the scope of the examination, to the

extent of ruling irrelevant questions

designed to show misconduct directly

related to the search warrant in

question, misconduct and cheating

which would, by any civilized standard

of police conduct, make the witness

unworthy of the office, let alone be-

lievable as a witness, misconduct that

shocks the conscience by itself and

to the extent that the courts amplify

the miscarriage by ignoring it (cf

Rochin v. California, 342 U.S. 165

(1952)), and misconduct which, if true,

required the officer to lie to his

ee

35.

superiors about what he had seized,

lie to the court on the return of the

warrant, lie to the grand jury, and

obviously lie to the trial court at

the hearing, and misconduct, if true,

that would clearly bear on his motives

to falsify a search warrant to get at

money and drugs which he had intention

to steal. This was a hostile witness

in the true sense of the term, and

counsel, to,be effective, had to be

able to call him and examine and cross-

examine him to give the fact-finder a

true picture of the man who signed

the warrant affidavit and to delve

behind the officer's mere reading of

the affidavit as his testimony.

The availability of the right to

confront and

to cross-examine those who give

damaging testimony against the

i i a

36.

accused has never been held

to depend on whether the

witness was initially put on

the stand by the accused or by

the State.

Chambers v. Mississippi,

410 U.S. 284, 297- 555 (1973);

See proposed Rules of Evidence

607.

And, this Court has held that veracity,

bias and motives are an essential

ingredient of the right of cross-

examination and that the cross-examiner

should be given great. leeway in the ex-

United States, 282 U.S. 687 (1931);

Davis v. Alaska, supra. Surely ques-

ploration of that subject. Alford v.

tions concerning the officer's prior

bad acts connected specifically to the

execution of the warrant ha is alleged

to have perjured, prior bad acts of |

perjury bearing directly on the issue

of his perjury in this proceeding and ;

on his motives to falsify the affidavit

were not outside the scope of the right

eee settee

36a.

of cross-examination. United States v.

Hoggett, 438 F.2d 396 (2d Cir., 1971)

cert. den. 402 U.S. 946. Nor were these

questions irrelevant to the substantive

issue of the suppression of the evidence,

even if one assumes they were immaterial

to the validity of probable cause in

the affidavit. Two Circuit Courts of

Appeal have held recently that in cases

of intentional misstatement of fact

by a police affiant, regardless of the

materiality of that fact to the finding

of probable cause, the warrant will be

invalidated and the evidence seized

suppressed: “if

(cont. on next page)

gree ———O ee

37.

~

deliberate government perjury should

ever be shown, the court need not

inquire as to the materiality of the

perjury. The fullest deterrent sanctions

of the exclusionary rule should be

applied to such serious and deliberate

government wrongdoing.” United States

v. Carmichael, 489 F.2d 983, 989 (7th

Cir., 1973); United States v. Thomas,

489 F.2d 664 (5th Cir., 1973).

This Court said in Davis v.

Alaska, supra,

A more particular attack on

the witness’ credibility is

effected by means of cross-

examination directed toward

revealing possible biases,

prejudices, or ulterior motives

of the witness as they may

relate directly to issues or

personalities in the case at

hand. The partiality of a ~

witness is subject to exploration

at trial, and is ‘always relevant

as discrediting the witness and

affecting the weight of his

stimony.' 3A Wigmore Evidence

940, at 775 (Chadbourn rev. 1970).

‘

38.

We have recognized that the

exposure of a witness’ motivation

in testifying is a proper and

important function of the con-

stitution Greene v., McEl °

360 U.S. 474, .

94 S.Ct. 1105 at 1110

The State Courts, in expressing their

own disinterest in the answers to

which the witness took tne 5th Amend-

ment, totally disregarded the possibility

of "deliberate government wrongdoing;

and petitioners’ right to cross-examin-

ation; the courts substituted their

own prejudgment of the veracity of the

witness before hearing all the facts

that might bear on that judgment.

Although we have argued that admission

by the officer of the misconduct pur-

sued in the unanswered questions would

have required suppression as a matter of

law, the cross-examiner's right to a

reasonable lattitude to explore was

#39,

also denied. Had admissions of the

officer's illegal conduct been extracted

in the examination in this case, there

is no way to know exactly what effect

this would have had on the rest of the

witness' testimony or on the court's

view of him. "To say that prejudice

can be established only by showing that

the cross-examination, if pursued,

would necessarily have brought out

facts tending to discredit the test-

imony in chief, is to deny a substantial

right and withdraw one of the safe-

guards essential to a fair trial.”

Alford v. United States, 282 U.S. 687,

692 (1931).

Nor is it realistic to assume

that the trial court's judg-

ment as to the utility of

material for impeachment or

other legitimate purposes,

however conscientiously made,

would exhaust the possibilities.

In our adversary system, it is

enough for judges to judge.

The determination of what

may be useful to the defense

can properly and effectively

be made only by an advocate.

Dennis v. United States, 384

’ ).

Finally, it must be noted that

the police officer indicated he would

take the 5th Amendment if asked if his

affidavit were truthful.

Q:

Were you questioned in the

federal grand jury concern-

ing the truthfulness of the

affidavit that you submitted

in order to procure a search

warrant in this case.

As far as my recollection

goes, I was not questioned

on that. And if I was, I

would have again invoked my

rehearse privileges

Thus, having once been put on notice

by the witness that he intended to

invoke the 5th Amendment as to that

question before a judicial inguiry,

or agency of a judicial inquiry. the

41.

defense did not, as the State Courts

would Have it, fail in some duty to ask

a which they had every reason

to believe would not be answered.

Indeed, there is an affirmative duty

on a trial examiner not to ask questions

which he knows will elicit the invocation

of the 5th Amendment privilege against

self-incrimination. Bowles v. United

States, 439 F.2d 536 (D.C. Cir., 1970)

cert. den. 401 U.S. 995. In any case,

the defense was entitled to the evi-

dence contained in the answers to the

questions they did pose. Since the

State deprived the defense of that

evidence which, as we have argued,

could have itself required suppression

as a matter of iaw or, at least,

severly damaged the credibility of

the witness and led to other admissions

42.

by him, the State is not absolved of

its due process obligation simply

because the defense did not ask other

questions following the State's

refusal to cooperate. The conviction

should be reversed and the indictment

dismissed, or the case remanded for

a hearing at which the officer would

be directed to answer the questions

related to the search and seizure in

this case, and in the event he con-

tinues to refuse, the conviction

should be reversed and the indictment

dismissed.

II

It is clear and well established.

law that in order for a search warrant

to issue, the underlying affidavit

must provide a sufficient basis for a

sleet crtcasataceiata

43.

finding of probable cause. A lar

v. Texas, 378 U.S. 108. The good faith

of the police officer is not enough when

the information is too subjective or

conclusory. Beck v. Ohio, 379 U.S. 89.

The observations must objectively con-

stitute probable cause before a warrant

may issue, Spinelli v. U.S., 393 U.S.

410, and suspect activity, no matter how

reasonable the officer's belief, does

not amount to probable cause under the

4th Amendment. Sibron v. New York,

392, U.S. 40.

The officer's statements are re-

quired to be of such objective detail

that a magistrate may independently make

a judicial determination of the existence

(or non-existence) of probable cause.

Draper v. U.S., 358 U.S. 307.

Upon an examination of the facts

“ae

44.

as presented to the Court by the officer,

we can conclude no more than the follow-

ing:

a) With regard to the St. Albans

premises, SIMS was seen to leave and

return to his residence on three con-

secutive days. On one of those days,

numerous unknown males were seen to

come to his door and give him brown

envelopes.

b) With regard to the Jamaica

premises, on three consecutive days,

SIMS was seen being driven to this

house and remaining there for a period

of hours. On the first occasion, he

left and returned to his own home

_ (the St. Albans premises) with a brown

paper bag. The unknown callers at

St. Albans were not held out to have

been gamblers, nor was there any hint

concn ec tea acs

45.

of additional facts supplied by an in-

formant.

The officer concluded that the

various brown envelopes delivered to the

PP MEO I PVCS BG TOUTE EE. UD

SIMS home by numerous unknown males

were like those commonly used by policy

collectors, but indicated no identifying

marks, or anything that would charac-

terize or distinguish them from any

other brown envelope. In short, the

factual basis for this conclusion

was not spelled out in the warrant.

He reported no overheard conversations

between SIMS and these other unknown

males and no passing of money or any-

thing other than these equivocal

envelopes.

SIMS was “known" to the officer to

be involved in policy cperations.

This conclusion is buttressed only by

se

46.

the fact that the off.cer reported that

he had been arrested for these charges

in the past. There is no mention made

of any convictions emanating from these

claimed arrests.*

The statement that SIMS was a known

gambler is a "bald and unilluminating

assertion of suspicion (that) is en-

titled to no weight." Spinelli v. 0:3;,

393 U.S. 410, 414 (1969).

The underlying affidavit is vir-

tually barren of any facts from which

the magistrate could independently con-

Clude that there was any form of

* The facts upon which the officer

draws his conclusions that Stanley Sims

has a listing of gambling arrests

are not specified in the affidavit.

a) the affidavit does not state that

he personally made the arrests,

b) the affidavit does not state that

he spoke to any arresting officer.

sii hk a

i Aiba

Phar eee Uh A RS RT

Pete Stl eres Se ee

apes il ant dade ic atte bier se RTE

a a

47.

contraband in the brown paper bag

carried out of the Jamaica premises, or

in the brown envelope allegedly de-

livered to the St. Albans premises.

The sole basis for suspicion of

the Jamaica premises was this innocuous

brown paper bag and SIMS‘ visits for a

few hours on three successive days,

prior to his return home and the coming

of various unknown males to his door

with "brown envelopes”.

It cannot be suggested that these

brown envelopes or paper bags give

rise to sufficient probable cause for

the issuance of a warrant to search

either premises.

In a similar situation, discussing

the common use of brown envelopes to

transport marijuana, the Court of

Appeals, per J. Keating, held that:

eae, TTR en eM eee cee TAL AAS

48.

"The argument is defective

because the envelopes could

have contained any number

of non-contraband items.

This is in sharp contrast to

the translucent glassine

envelope which has come to

be accepted as the tell-

tale sign of heroin. Still

even in the case of the

glassine envelope it has

never been held that mere

passing of such an envelope

establishes probable cause.

We conclude, therefore, that

the testimony concerning the

use of these common envelopes

for marijuana does not raise

the level of inference from

suspicion to probable cause."

* * * *

"Thus, where a layman would

see absolutely nothing sus-

picious about the envelopes

and the events preceding the

arrests, the officer was

surely entitled to use his

expertise to the contrary.

It does not follow, however,

that the officer is entitled

to draw the inference of

criminality when others,

possessed of the same special

knowledge or expertise, would

not.

5gor*e v. Corrado, 22 N.Y.

’ oy 1969)

EE, 65 a

S : 49.

In determining the reasonableness

of a search and seizure, due weight

must be accorded to the specific

reasonable inferences which a police

officer is entitled to draw from the

facts or the lack of them. People v.

Merola, 30 A.D. 2d 963 (2d Dept. 1968).

Even if it were to be assumed

that the affidavit states sufficient

facts to authorize the issuance of a

search warrant for one of the premises

mentioned, if the affidavit is in-

sufficient as to the other, it is

insufficient as to both. People v.

Rainey, 14 N.Y. 2d 35, 37 (1968);

People y. Lawrence, 31 A.D. 2d 712

714 (3rd Dept. 1968); United States v.

Hinton, 219 F.2d 324.

Even if the Court concludes that

these "brown envelopes" gave rise to

| aes |

50.

sufficient probable cause to believe

that SIMS was involved in gambling

activities, there is nothing to

indicate that the automobile or the

CAMERON premises in Jamaica, also men-

tioned in the warrant, were in any

way involved in any illegal activities.

SIMS was never seen to transport

these suspicious "brown envelopes"

in the automobile, or in any way

deliver them to the CAMERON premises.

In fact, according to the police obser-

vations, the brown envelopes were not

in SIMS' possession until after he re-

turned from CAMERON'S home. The only

thing SIMS was seen to transport from

the CAMERON residence was a common

brown paper bag. Certainly, even if

it is held that a "brown envelope"

has some infamous connotation, the

ce, eee ee

51.

transportation of a common ordinary

shopping bag can be held to be nothing

more than total equivocal conduct.

However, since the activity as

observed by the affiant is just as

consistent with innocent conduct as

criminal conduct, the warrant in this

case should have been controverted,

and the evidence seized as a result

suppressed, for as the Court of Appeals

has recently stated:

"Although the observed acts

of the defendant and the sus-

pected narcotic addict were

not inconsistent with a cul-

pable narcotics transaction,

they were also susceptible

of many innocent interpre-

tations, even between persons

with a narcotics background.

The behavior, at most ‘equiv-

ocal and suspicious', was

not supplemented by any

additional behavior raising

‘the level of inference from

suspicion to probable cause.'

(See People v. Corrado, 22

N.Y. e ’ -)

52.

"Thus, for example only,

there was no recurring pattern

of conduct sufficient to negate

inferences of innocent activity

(cf. People v. Smith, 21 N.Y.

2a 698; re le v. Valentine,

17 N.Y. 24 oF 132); no over-

heard conversation between

the suspects that might clarify

the acts observed (cf. People

v. Cohen, 23 N.Y. 2d 674, Ve

no fiight at the approach of

the officer (cf. People v. White,

16 N.Y. 2d 270), and no misstate-

ments when questioned about ob-

served activity (People v. Brady,

16 N.Y. 2d 186).

"The logical and practical

problem is that even accepting

ungrudingly, as one should,

the police officer's expert-

ness in detecting a pattern

of conduct characteristic of

a particular criminal activity,

the detected pattern, being

only the superficial part of

a sequence, does not provide

cause for arrest if the same

sketchy pattern occurs just

as frequently or more fre-

quently in innocent transactions.

The point is that the pattern

is equivocal and is neither

uniquely nor generally associated

with criminal conduct, and

unless it is there is no

probable cause."

(People v. Brown, 24 N.Y.

oe

53.

2d 421, i a aha

Also see People v.

Malinsky, 15 N.Y. 24

).

It goes without saying that any

pattern of conduct observed and noted

by affiant with regard to the St.

Albans premises was equivocal at best,

and nothing at all could possibly

be said to have transpired of a criminal

nature in the automobile or at Jamaica.

In Spinelli v. U.S., 393 U.S. 410,

the affidavit stated that the FBI had

observed the defendant's movements

for five days, and that on four of

these days he had been seen to park

his car at some time between 3:30

and 4:45 P.M. in a parking lot of an

apartment house, and on one particular

day he was seen to enter a particular

apartment. The FBI checked with the

telephone company and established that

aS

4

eee Sou pete

54.

the apartment had two telephones.

The affidavit also stated that Spinelli

was known to the FBI agent and to :

Federal law enforcement agents to be a

bookmaker, an associate of bookmakers,

a gambler, and an associate of gamblers.

These facts alone, this Court said,

signified nothing in the way of pro-

bable cause. |

This Court added that there is

nothing unusual about having two phones

in an apartment and there was no ab-

normal activity observed when Spinelli

went to the apartment. An unusual

number of telephones might have been

of significance as would the appearance

of a number of convicted gamblers

at the premises. Finally, the fact

that Spinelli was "known as a gambler”

was of no help. The undescribed

§

55.

suspicions about a person's reputation

"may (not) be used to give additional

weight to allegations that would

otherwise be insufficient" (393 U.S.

pp. 418-419, supra). It followed,

therefore, that the Magistrate was

not authorized to issue a search

warrant on that affidavit.

STR OR eae

56.

CONCLUSION

FOR THE ABOVE STATED REASONS, A

WRIT OF CERTIORARI SHOULD ISSUE

TO REVIEW THE ORDERS AND JIDG-

MENTS OF THE COURT OF APPEALS AND

APPELLATE DIVISION OF THE ;iTATE

OF NEW YORK.

Respectfully submitted,

DILLER AND SCHMUKLER

Attorneys for Petitioners

299 Broadway

New York, New York 10007

(212) 349-5554

LAWRENCE STERN

Of Counsel

"A"

SUPREME COURT,

QUEENS COUNTY

CRIMINAL TERM, PART XII

THE PEOPLE OF THE STATE: BY WILLIAM C.

OF NEW YORK BRENNAN, J.

- against : DATED August 14,

1973

JENNIE SIMS :

Ind. No:

and : 2116/71

(Sims)

EDITH CAMERON, et al. :

2115/71

Defendants. : (Cameron

et al)

On appeal from six judgments of

this Court all rendered May 15, 1972

(one as to each defendant) convict-

ing them of criminal possession of

a dangerous drug upon guilty pleas,

the Appellate Division rendered its

decision on December 29, 1972

(People v. Cameron et al, 40 AD

2d 1034). With respect to two orders

of this Court denying successive

motions to suppress evidence, the

cases were remanded to this Court for a

APPENDIX "A"

ll at

soriarineaieatatasesiadeieniaieamamaeainais At ATE

"A®

hearing and a new determination on

defendants' motion to suppress

evidence on the grounds that state-

ments contained in the affidavit upon

which the search warrants were issued

were perjurious.

In question were three search

warrants issued and executed on May

21, 1971, upon an affidavit executed

by police officer Lucido Bonino which

described certain activities of

defendant Stanley Sims observed during

three periods of surveillance and

which alleged that a policy operation

was being conducted. On defendants’

motion to controvert the warrants

and to suppress the evidence seized,

the right to a hearing was waived and

the motion was argued solely on the

grounds of legal sufficiency of the

underlying affidavit. The Appellate

Division has upheld the finding of a

"A"

sufficient ‘showing of probeble cause

to justify the issuance of the Yerrents.

A subsequent motion was made to

suppress the seized evidence on the

| grounds that the affidavit contained

perjured testimony and requesting a

hearing on that issue. In support

of such motion, defendants' counsel

in his affirmation stated, upon in-

formation and belief, that as a result

of testimony given before the Knapp

Commission a Vedejel. grand jury had

been convened to inquire into the |

conduct of the arresting officer in

this case, that the officer had re-

fused to testify on the grounds of

self-incrimination and that the

affidavit upon which the warrants had

been issued contained perjured testi-

mony. In opposition, the People

stated that the United States Attor-

ney's office had informed them that

"ae

although the officers involved had

been called before the Grand Jury,

the testimony sought had nothing to

ee ee oe ee

do with their conduct in this case.

The motion was denied in this Court

by order dated January 25, 1972.

In its decision the Appellate

Division stated:

"In our opinion, a hearing

should have been granted

: upon defendants’ allegations

of perjury. A search warrant

may be attacked on the grounds

j of perjury in the underlying

yj affidavit (People v. Alfinito,

“E 16 N Y 24 181). Defendants’

allegations with respect to

the proceedings before the

Knapp Commission and the

subsequent grand jury pro-

ceedings were not conclusively

refuted by the People. However

tenuous the grounds in support

thereof; the specter of police

corruption was raised here

and justice required a hearing

at which the facts could be

fully aired. We note that

upon the hearing ordered

herein the burden of proof

will be or defendants and any

fair doubt arising from the

testimony at the hearing is to

be resolved in favor of the

warrant (People v. Alfinito, supra,

e

p. 186)."

Accordingly, a hearing was held

on June 5th, 6th and 7th, 1973.

Defendants called as their first wit-

ness the police officer who had made

and executed the affidavit, Lucido

Bonino, Shield No. 5714, a member of

the New York Police Department for

10 years, active in plain clothes

investigation of gambling activities

for about three years. The officer

was questioned concerning his ac-

tivities and observations on May 18,

1971. He said that he knew defendant

Stanley Sims from pictures, previous

ebservation and that he had been

pointed out by a fellow officer;

that he had observed the said defendant

go in a Plymouth car to premises

145-50 New York Boulevard, Jamaica,

New York, the residence of defendants

ee a

"A"

Cameron. When asked whether he had

been subpoenaed before a Federal grand

jury to testify in this case the officer

answered "No". (Minutes, p. 19) The

following exchange ensued:

(By defendants’ counsel)

"Q Did you appear before a federal

grand jury in connection with

your investigation and duties

in connection with the Stanley

Sims investigation?

A That's the federal grand jury

you are asking now?

Q I said the federal grand jury.

And this is with my investi-

gation of Stanley Sims?

Q In other words, you work in

connection with your, inves-

tigation of Stanley Sims,

what preceded the arrest,

the arrest and what followed

the arrest.

THE WITNESS: Your Honor, I

request to take

the Fifth Amend-

ment on this

question."

Following a recess, the witness

returned, accompanied by Leon Washor,

ea"

Esq., his own attorney. The Court read

the question and answer (Minutes, p. 28)

and asked:

"THE COURT: Did you want that ques-

tion repeated?

MR. WASHOR: I will let counsel con-

duct his own examination.

MR. MOSLEY: I would object to the

form of the question.

It is three questions

in one.

THE COURT: At this point then the

objection is sustained

and the answer is stricken.

Continue, Mr. Diller.

MR. DILLER: I didn't ask any questions.

THE COURT: He is objecting to the

last question I just read.

MR. DILLER: There was no objection

made at that time, and

an objection would be

untimely if made at the

present time.

THE COURT: I will permit the objec-

tion and I will sustain

the objection. The ans-

wer is stricken. If

you wish to reframe the

question you may. Let

us continue.”

After some colloguy, counsel for

"A"

defendants continued. (Minutes, p.

30).

"Q Were you subpoenaed to testify

d before a federal grand jury in

5 connection with Stanley Sims?”

(Further colloquy)

"A I was subpoenaed before a

federal grand jury. In

reference to the Sims case,

directly.

3

3

q

;

5

j I would have to say no, not

:

:

Q You say ‘not directly.' Were

there questions asked of you

in that grand jury with respect

to your investigation of the

Sims case?

A I don't believe there were any

questions asked regarding the

Sims case. If there were, I

did invoke my constitutional

privileges."

i Di at oe ”

Following testimony about the seizure

of drugs and money the witness was asked:

"Q In the federal grand jury were

you questioned with respect to

the seizure of currency?

I don't believe I was. If I

was, I did invoke my constitu-

tional privileges.

Now I ask you at this time,

Officer Bonino, did you seize

any money on May 21, 1971 that

"A"

was not reported to the

Police Property Clerk?

MR. MOSLEY: I object.

THE COURT: Overruled. I will take

it.

THE WITNESS: At this time, Your

Honor, may I confer

with my counsel?

THE COURT: Yes.

THE WITNESS: Your Honor, after con-

ferring with my attorney,

at this time I wish to

invoke my constitution-

al privilege and not

answer this question.

THE COURT: Next question.

Q Were there any drugs seized in

connection with this investiga-

tion that were not turned into

the Police Property Clerk?

MR. MOSLEY: I object, Your Honor.

THE COURT: Overruled.

THE WITNESS: May I confer with my

counsel?

THE COURT: Yes.

(The witness then conferred in private

\

with Mr. Washor.)

THE WITNESS: Your Honor, after con-

ferring with my attorney,

"A",

at. this time I wish to

invoke my constitutional

privilege and not answer

this question.

THE COURT: Next question.

Q Were there any drugs seized in

connection with this investiga-

tion that were not turned into

the Police Property Clerk?

MR. MOSLEY: I object, your Honor.

THE COURT: Overruled.

‘THE WITNESS: May I confer with my

counsel, your Honor?

THE COURT: Yes.

(The witness then conferred in private

with Mr. Washor.)

"MR. DILLER: Will the record re-

flect that the witness

had an opportunity and

did in fact confer with

counsel, your Honor.

THE COURT: Let the record so indicate.

THE WITNESS: Your Honor, after confer-

ring with counsel, I

again invoke my’ con-

stitutional ‘privileges

and refuse to answer

that question.

Q Officer Bonino, again directing

your attention to May 21, 1971,

was there jewelry seized from the

Sims' home which you did not mepcet

PER —

to the Police Property Clerk?

THE WITNESS: Again, your Honor, after

conferring with my at-

torney, I invoke my con-

stitutional rights and

refuse to answer this

question.

{ Q In connection with monies seized

at the Sims‘ home on May 21, 1971,

were you together with a brother

officer at that time?

A Yes, I was.

Q And who was the brother officer?

A I believe it was Patrolman Henry,

I believe it was.

Q And was he with you present when

the money was taken from the house?

A Yes.

Q And was Patrolman Fratello

present?

A At the Sims' residence?

Q Yes.

A No, he was not.

Q Was Patrolman Fratello with you at

the Cameron residence?

>

Yes, he was.

Q With respect to the Cameron resi-

dence, again on May 21, 1971, was

there any money taken from that

"A"

house that were not reported to

the Police Property Clerk?

THE WITNESS: Again, your Honor,

after conferring wth

counsel, I wish to in-

voke my constitutional

privileges and not

answer this question."

The witness was further questioned

concerning the amount of drugs, cash

and other items seized which he answered

in detail.

Before discussing the testimony of

three additional witnesses produced by

the defendants, comment upon defendants’

argument is deemed appropriate at this

time. The People produced no witnesses.

Guidlines for determination of an

attack upon police affidavits in support

of application for warrants have been

prescribed in People v. Alfinito, supra,

cited by the Appellate Division, in re-

mitting the instant case to this Court

for hearing.

"an

The thrust of defendants argument

is that they have supported the burden,

urging the theory that once a police

officer availed himself of the privilege

4 of exercising the Fifth Amendment, it

: became incumbent upon the People to re-

fute the admission of perjury inherent

therein. This conclusion implies an

inherent admission of perjury with re-

spect to any sworn statements at any

time previously made by any person who

exercises such constitutional privilege.

This Court doubts that the men who

wrote that privilege into the constitu-

tion intended that any person who

availed himself of it thereby automati-

cally conceded an admission of perjury.

On the contrary, it would appear that by

permitting a person to exercise such

privilege, they were recognizing his

right to protect himself without

committing perjury.

La eae me es naw

However, careful examination of the

questions propounded with respect to

which the privilege was exercised is

necessary to help determine whether che

answers thereto, if given, might

significantly aid the Court in deter-

mination of the truth or falsity of

the affidavit made in support of the

warrants. The only such question in

which reference was made to the affidavit

appears on page 41 of the Minutes as

follows:

: "Q Were you questioned in the

federal grand jury concern-

ing the truthfulness of the

affidavit that you submitted

in order to procure a search

warrant in this case.

‘As far as my recollection

goes, I was not questioned on

that. And if I was, I would

have again invoked my con-

stitutional privileges."

The witness was closely questioned

at considerable length concerning the

preparation of the affidavit, the

ee

ee ee

: "an

reasons for it, the observations of the

witness, the facts and circumstances

preceding the execution of it, to all of

which the defendant testified freely

without once asserting his constitutional

rights. From the foregoing, it is

_obvious that the witness invoked his

constitutional rights only when asked

about police conduct in connection with

the execution of the warrants and not

with respect to affidavit preceding

it.

Defendants further pointed out that

the People saw fit not to call any of

Officer Bonino's named partners, one

of whom was present during the alleged

observations and the other at the time

of the arrest, citing People v.

Harrington, 70 Misc 2d 303, tin which a

defendant had accused a named police

officer of coercing his confession.

In that case the Court granted suppression

mae

of the admissions after finding that

the defendant had been held in custody

without counsel for a week between two

interrogations but denied the motion

to suppress the use of the gun in

evidence, holding further that the

owner of the gun was not involved in

the allegations of the crime and was

available equally to the People and to

the defendant, and that in such respect

the defendant had failed to meet his

burden of proof. As pointed out by the

Court with respect to confessions, the

burden is on the People to show their

admissibility beyond a reasonable

doubt (People v. Huntley, 15 N Y 2d 72),

whereas in the instant situation the

burden is on the defendants. It was

the defendants not the People who

produced Officer Bonino as a witness.

The other officers were known and avail-

able equally to both. A further

"a

distinction is that in the instant case

there was no uncontradicted evidence

to refute. The ‘failure of the People to

produce such other witnesses cannot

be viewed in the light that their version

would cuncotest any proof previously

offered as in the cited case.»

Defendants' contention that che

witness was evasive and in fact refusing

to testify is untenable. An examination

of the testimony shows direct answers

to all questions relating to obser-

vations and activities of the officers

and defendants leading up to and in-

cluding the preparation of the affi-

davit in the instant case. True, the

witness refreshed his’ recollection from

the affidavit but the Court cannot

ootistrte that as evasion or reluctance

to answer questions. The defendants‘

counsel is endeavoring to have such

testimony tainted by the witness’

; :

‘

‘

‘

’

‘

‘

‘ .

, ;

‘

s .

i /

‘

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i

;

/

‘

‘

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.

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225 pT Toe

| exercise of his constitutional rights

with respect to questions concerning his

conduct during or after the execution

of the warrants is understandable

but this Court cannot agree with the

principle thus sought to be estab-

lished, to wit, that unlawful conduct

other than perjury of an individual,

whether -or not he be a police officer,

if proven to have been committed sub-

sequent to the execution of an affidavit,

establishes perjury in the affidavit.

As counsel states, it is indeed

a bizarre spectacle for a police

officer appearing in Court to be ex-

ercising his constitutional rights in

response to questions concerning his

activities while engaged in the per-

formance of his official duties.

Such conduct, both with respect to the

proceedings before the Knapp Commission

and in this Court, lend support to the

one

specter of police corruption requiring

full airing of the facts in an effort

to determine whether or not there was

perjury in the affidavit admitted in

support of the warrants. .

Defendants produced three additional

witnesses. The first, Henry Schnitzer,

an attorney of long standing, who had

been a member of the police force and

had worked in the Police Commissioner's

Confidential Squad, conceded to be an

expert in policy cases, testifying in

substance that nobody places policy

bets after the third race and that no

special type envelopes are used in the

policy business. (Minutes, pp.74-76.)

Counsel's argument and conclusions are

that no policy banker would take a bet

after 2 P.M., as bearing upon Officer

Bonino's testimony that he had ob-

served envelopes being handed to de-

fendant Sims after 2 P.M. on May 19, 1971

Ae

(p.66). The Court finds the testimony of,,

this witness and the aforesaid argument

Me

not persuasive. |

The remaining two witnesses were

defendants Edith Cameron and Juanita

Sims. Mrs. Cameron testified on direct

examination that defendant Stanley Sims

was the only person who entered her home

between 11:30 A.M. and 2:30 P.M. on

May 18, 1971 (Minutes, p. 78), that he

remained until the evening (p.79), that

from the time he entered until the

evening, the rest of the defendants came

in (pp.79-80). While still on direct

examination she testified as follows:

"Q Now, directing your attention

to the 19th, the following

day, did you hear Patrolman

Bonino testify that approxi-

mately five or six men came

to your home during that

period of time?

Yes.

Q And did anyone come to to your

home on the 19th?

"A"

Yes, they did.

Who came?

Mr. Williams and Mr. Davis.

or OO

Did anyone ring the bell during

that period of time other than

those persons?

No.

Who answers the door in your

house?

MR. LEARY: Objection.

A I do.

THE COURT: Overruled. I will

take it.

Q And did Oscar Thomas stay at

any time in your home on the

19th of May?

A No."

The equivocal response to the

second question was not further explored

but in any event her testimony, un-

supported by more credible evidence,

cannot be accepted at face value in

the light of her obvious interest in

the outcome of her plea of guilty

in this very case to criminal possession

\

of gambling records, second degree.

Witness, Juanita Sims, also a

defendant who pleaded guilty to the

same crime, denied that any people

knocked on her door on May 18, 1971

before 2:55 and 3:30 in the afternoon

and that anybody came to her house on

May 19th (p.82). She further testi-

fied on direct examination that her

husband was “probably” home and that

she usually answers the door herself.

The Court was unimpressed with her

testimony.

There remains now the weighing of

the evidence produced by Sofendtints to

determine whether or not it was >

sufficient to cast doubt upon the truth

of the affidavit submitted in support

of the warrants. Though it ib ob

doubt true that in the normal course of

our everyday experience the automatic

reaction to the assertions of the

constitutional right of refusal to

answer is the mental question: "I

wonder what he had to hide?"--it does

not simultaneously brand the witness

as a perjuror or as a person who has

committed any crime. Nevertheless, as

the Appellate Division pointed out in

that portion of its opinion previously

quoted: "However tenuous the grounds

in support thereof, the specter of

police corruption was raised here and

justice required a hearing at which

the facts could be fully aired."

This Court cannot agree with

‘defendants’ basic argument, to the

effect that a police officer having .

asserted his said constitutional rights

with respect to conduct involved in the

execution of the warrants, all of which

were subsequent to the execution of

the challenged affidavit thereby

impugns the truth of the contents

, "A".

of the affidavit. Even assuming, 3

arguendo, that proof had:been ddduced of

criminal acts of the police officer

during or subsequent to the making of

the affidavit, the conclusion that the

affidavit was perjurious would be ,

without foundation. carrying the as-

sumption to a step further, the Court

cannot assume or conclude that because

a police officer asserts his constitu-

tional rights to avoid a forced dis-

closure of his possible participation

in criminal conduct that he was neces-

sarily guilty of perjury in the execution

of the said affidavit. The Court's

previous comment with respect to the

limits of the area in which the rolice

officer witness availed himself of the

privilege, and the fact that he test-

ified freely with respect to his

conduct prior to and in connection with

the execution of the affidavit, are

mae.

here pertinent.

The Court finds that the proof

offered by the defendants falls far

short of the standards prescribed in

People v. Alfinito, supra, by which

even a fair doubt arising from the

testimony would have to be resolved in

favor of the warrant. The Court holds

that no doubt has been cast upon the

truth of the contents of the affidavit

submitted in support of the warrants.

The defendants have failed to sustain

the burden of proof. The findings of

this Court are as set forth in the fore-

going.

Order entered accordingly.

The clerk of the court is directed

to mail a copy of this decision and the

order entered thereon to the attorney

for the defendants.

-+++WILLIAM.C..BREWUAN....

J. & C.

"Be

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent, v. EDITH M. CAMERON, STANLEY

T. SIMS, KENNETH DAVIS, ROBERT S. WIL-

LIAMS, MARVIN CAMERON, and JENNIE SIMS,

Appellants.-- Appeal from six judgments

of the Supreme Court, Queens County, all

rendered May 15, 1972 (one as to each

defendant), convicting them of criminal

posssséion of a dangerous drug (in vary-

ing degrees) etc., upon guilty pleas and

imposing sentences. The appeal brings

up for review two orders of the same

court, dated November 30, 1971 and Janu-

ary 25, 1972, which, respectively, denied

their two successive motions to suppress

evidence. Cases of the six defendants

remitted to the Criminal Term for a hear-

ing and a new determination on defendants’

motion to suppress evidence on the ground

that statements contained in the affidavit

APPENDIX "B"

"Bp"

upon which the search warrants were

issued were perjurious. In the interim,

the appeals will be held in abeyance.

On May 21, 1971 three search warrants

were issued and executed upon an affidavit

by a police officer which described cer-

tain activities of defendant Stanley Sims

observed during three periods of surveil-

lance and which alleged that a policy

operation was being conducted. Defendants

moved to controvert the warrants and to

suppress the evidence seized. The right

to a hearing was waived and the motion

was argued solely on the ground of the

legal sufficiency of the underlying affi-

davit. The motion was denied by order of

November 30, 1971. In our opinion, the

Criminal Term properly found that the

statements contained in the affidavit

made a sufficient showing of probable

cause to justify the issuance of the

"B*

warrant (People v. Smith, 21 NY 2d 698;

People v. Valentine, 17 NY 2d 128; Peo-

ple v. Meyers, 38 A.D. 2d 484; People v.

White, 16 NY 2d 270; United States v.

Ventresca, 380 US 102, 108-112). Defend-

ants subsequently moved to suppress the

evidence seized on the ground that the

affidavit contained perjured testimony

and requested a hearing on that issue.

The motion was supported by an affirma-

tion by defense counsel stating, upon

information and belief, that as a result

of testimony given before the Knapp Com-

mission a Federal Grand Jury had been

convened to inquire into the conduct of

the arresting officers in this case;

that the officers had refused to testify

on the ground of self-incrimination; and —

that the affidavit upon which the warrant

had been issued contained perjured testi-

mony. In opposition, the People stated

"pe

that the United States Attorney's office

had informed them that although officers *

involved in this case had been called

before a Grand Jury, the testimony sought

had nothing to do with their conduct in|

this case. The motion was denied by |

order of January 25, 1972. In our opin-

ion, a hearing should have been granted

upon defendants’ allegations of perjury.

A search warrant may be attacked on the

ground of perjury in the underlying affi-

davit (People v. Alfinito, 16 NY 2d 181).

Defendants’ allegations with respect to

the proceedings before the Knapp Commis-

sion and the subsequent Grand Jury pro-

ceedings were not conclusively refuted by

the People. However tenuous the grounds

in support thereof, the, specter of police

corruption was raised and justice required

a hearing at which the facts could be

fully aired. We note that upon the hearing

"B*

ordered herein the burden of proof will

be on defendants and any fair doubt aris-

ing from the testimony at the hearing is

to be resolved in favor of the warrant

(People v. Alfinito, supra, p.186).

Shapiro, Acting P.J., Gulotta, Christ,

Brennan, and Benjamin, JJ., concur.

At a Term of the Appellate

Division of the Supreme

Court of the State of New

York, Second Judicial

Department, held in Kings

County on December 29,

1972

HON. J. IRWIN SHAPIRO, Acting Presiding

Justice

HON. FRANK A. GULOTTA

HON. MARCUS G. CHRIST Associate

HON. ARTHUR D. BRENNAN Justices

HON. A. DAVID BENJAMIN

“8 —-e© ee we we www www wn X

The People, etc.,

:

Respondent,

Vv. : Order on

appeals

Edith May Cameron, Stanley from

Taylor Sims, Kenneth Davis, : judgments

Robert Stewart Williams,

Marvin Cameron and Jennie

Sims, $

In the above entitled cause, the

above named Edith May Cameron, Stanley

“Taylor Sims, Kenneth Davis, Robert Stewart

Williams, Marvin Cameron and Jennie Sims,

"Be

defendants, having appealed to this court

from six 4udgnents of the Supreme Court,

Queens County, all rendered May 15, 1972

(one as to each defendant), convicting

them of criminal possession of a danger-

ous drug (in varying degrees) etc., upon

guilty pleas, and imposing sentences; and

upon said appeals, this court having re-

viewed two orders of the same court, dated

November 30, 1971 and January 25, 1972,

which, respectively, denied their two suc-

cessive motions to suppress evidence; the

appeals having been submitted by Howard

J. Diller, Esq., of counsel for appellants

and by Cornelius J. O'Brien, Esq., of

counsel for respondent; due deliberation

having been had thereon; and upon this

court's opinion slip heretofore filed and

made part hereof; it is unanimously:

ORDERED that the cases of the six

defendants are hereby remitted to the

i

4

baa PR LOLA RD REATARD SAA ED wealth td piRta dt Oi WSDL

Criminal Term for a hearing and a new

determination on defendants’ motion to

suppress evidence on the ground that state-

ments contained in the affidavit upon

which the search warrants were issued were

perjurious; and it is further

ORDERED that in the interim, the

appeals will be held in abeyance.

Enter:

/s/ Irving N. Selkin

Clerk of the Appellate Division

pe

* Ee ee aad

BANAL: Showde ak. Soccer Pia io»

a

CS aE Tee ees ee

*B*

SUPREME COURT: APPELLATE DIVISION

SECOND JUDICIAL DEPARTMENT.

GULOTTA, P.J., SHAPIRO, CHRIST, BRENNAN

and BENJAMIN, JJ.

-_-—na eo fF ese Ss se. —lcrelhlUcrlhlhC ElhlhlC -7- we we woe wece ee = «=

THE PEOPLE, etc.,

Respondent,

Ve

EDITH MAY CAMERON, STANLEY TAYLOR SIMS,

KENNETH DAVIS, ROBERT STEWART WILLIAMS,

MARVIN CAMERON, JENNIE SIMS,

Appellants.

- eae ae ese oe =F ese SF ese —lhlUchOlUlcrOrlUlClUCcrOlUlUlClCrOOUlUlUlCUC OCU UEC lel OSE lle lll

Appeals from six judgments of the

Supreme Court, at Criminal Term in Queens

County, all rendered May 15, 1972 (one as

to each defendant), convicting them of

criminal possession of a dangerous drug

(in varying degrees) and other crimes,

upon guilty pleas, and imposing sentences

(WILLIAM C. BRENNAN, J.). The appeal

"pe

brings up for review three orders of the

same court, two of which denied their two

successive motions to suppress evidence,

prior to the guilty pleas (dated November

30, 1971 [FRANK D. O'CONNOR, J.] and Janu-

ary 26, 1972 [WILLIAM C. BRENNAN, J.]),

and the third again denied said motion,

after rendition of the judgments and after

a hearing held pursuant to a remand during

the wandenin of the appeals (dated August

14, 1973 [WILLIAM C. BRENNAN, J.]). |

Diller & Schmukler (Joel A. Brenner

of counsel), for Appellants.

.

Nicholas Ferraro, District Attorney

of Queens County (Charles M. Newell

of counsel), for respondent.

SHAPIRO, J. The question

here is whether evidence seized pursuant

to a search warrant should be suppressed

because the police officer upon whose affi-

davit the warrant issued refused,-on con-

stitutional grounds, to answer questions

"Be

at the suppression hearing with regard to

his conduct following the seizure (includ-

ing what he had done with the seized items).

The appeals are from six respective judg-

ments convicting the six defendants of

various crimes, upon guiity pleas, and

the appeals bring up for review three

orders denying motions by the defendants

to suppress evidence. One of the orders

was made after a hearing held pursuant to

a remand during the pendency of the appeals,

as appears below.

When these appeals were originally

before us we held that the statements con-

‘tained in the police officer's affidavit

made a sufficient showing of probable

cause to support the issuance of the war-

rant, but we remanded the case to the

Criminal Term solely to determine, after

a hearing, whether those statements were

perjurious (People v. Cameron, 40 A.D. 2d

i

oa gpm '

3

"Be

1034). The remand was predicated on the

allegations of the defense that the affi-

davit contained perjurious statements and

that the officer had refused to testify

before a Federal Grand Jury inquiring

into his official conduct on the ground

that his testimony might incriminate him.

Noting that a search warrant may be set

aside if the affidavit upon which it was

issued is shown to be perjurious, we held

the appeals from the judgments of convic-

tion in abeyance pending the hearing

ordered to determine that issue. That

hearing has now been had and Mr. gastice

BRENNAN has determined that the defendants

did not sustain the burden which the law

places upon them of demonstrating the per-

jurious nature of the affidavit.

The issue presented is a trouble-

some one, since the police officer whose

veracity is at issue did refuse, on

"B®

constitutional grounds, to answer ques-

tions before Mr. Justice BRENNAN with

regard to the execution of the warrant or

his disposition of the items seized.

No one can hold a brief for a

police officer who, in a judicial inquiry,

refuses to answer questions about the per-

formance of his duties on the ground tnat

his answers might be incriminating. How-

ever, as Mr. Justice BRENNAN pointed out,

all of the police officer's refusals to

answer dealt with occurrences which took

place after the seizure under the warrant;

none of them dealt with the truthfulness

of the affidavit upon which the warrant

was obtained. The record is crystal clear

that he was examined in great detail about

the contents of his affidavit and answered

every question asked him with respect to

that.

The police officer at the hearing

npBe

before Mr. Justice BRENNAN denied he had

been questioned before the Federal Grand

Jury about the truthfulness of his affi-

davit in this case, but he then volunteered

the information that if he had been so

questioned he would have invoked his con-

stitutional privileges. Mr. Justice

BRENNAN thereupon, in effect, suggested

that the officer be directly asked whether

his affidavit was truthful. That sugges-

tion was not accepted. If that had been

done and if the officer had then invoked

his constitutional privilege against

incrimination, we would be presented with

a different picture. Here, however, we

have a situation in which the ultimate bur-

den of proof to establish perjury was upon

the moving defendants (People v. Alfinito,

16 N Y 2d 181, 186) and I cannot quarrel

with the court's findings that they failed

to sustain that burden, particularly as

"B®

another police officer was present at the

time the observations underlying the affi-

davit were made and was not called as a

witness, despite the court's pointed sug-

gestion that this be done.

Accordingly, the judgments of con-

viction and the three orders should be

affirmed.

er, Pe a RT

GULOTTA, P.J., CHRIST, BRENNAN, and

BENJAMIN, JJ., concur.

eee Se

At a Term of the Appellate

Division of the Supreme

Court of the State of New

York, Second Judicial

Department, held in Kings

County on May 6, 1974.

HON. FRANK GULOTTA, Presiding Justice

HON. J. IRWIN SHAPIRO

HON. MARCUS G. CHRIST Associate

HON. ARTHUR D. BRENNAN Justices

HON. A. DAVID BENJAMIN

The People of the State of

New York, 3

Respondent, :

Ve :

ORDER

Edith May Cameron, Stanley :

Taylor Sims, Kenneth Davis,

Robert Stewart Williams, $

Marvin Cameron and Jennie

Sims, &

Appellants. :

In the above entitled cause, the

above named Edith May Cameron, Stanley

Taylor Sims, Kenneth Davis, Robert Stewart

Williams, Marvin Cameron and Jennie Sims,

"BP

defendants, having appealed to this court

from six judgments of the Supreme Court,

Queens County, all rendered May 15, 1972

(one as to each defendant), convicting

them of criminal possession of a dangerous

drug (in varying degrees) etc., upon guilty

pleas, and imposing sentences; and upon

said appeals, this court having reviewed

two orders of the same court, dated Novem-

ber 30, 1971 and January 26, 1972, which

respectively, denied.their two successive

motions to suppress ottteieti the appeals

having been submitted by Howard J. Diller,

Esq., Of counsel for appellants and by

Cornelius J. O'Brien, Esq., of counsel

for respondent; this court, by order dated

December 29, 1972, having (1) remitted the

cases of the six defendants to the Criminal

Term for a hearing and Pee determination

on defendants’ motion to suppress evidence

on the ground that statements contained in

\

\

"Be

the affidavit upon which the search war-

rants were issued were perjurious and (2)

ordered the appeals held in abeyance; and

said Criminal Term, by order dated August

14, 1973, after a hearing held pursuant to

said remand, having denied said motions;

and the said appeals, on February 6, 1974,

having been argued by Joel A. Brenner, Esq.,

of counsel for the appellants, and argued

by Charles M. Newell, Esq., of counsel for

the respondent, and due deliberation hav-

ing been had thereon; and upon this court's

decision slip heretofore filed and made a

part hereof, it is

ORDERED that the six judgments, all

rendered May 15, 1972 (one as to each

defendant), and the three orders, dated

November 30, 1971, January 26, 1972 and

August 14, 1973, respectively, are hereby

unanimously affirmed, and it is further

ORDERED that the case is hereby

"B*

remitted to the Criminal Term for proceed-

ings to direct appellants to surrender

themselves to said court in order that

execution of the judgments be commenced

or resumed (CPL 450.60, subd. 5).

OPINION by SHAPIRO, J.

GULOTTA, P.J., CHRIST, BRENNAN

and BENJAMIN, JJ., concur.

Enter:

/s/ Irving N. Selkin

Clerk of the Appellate Div<sion

bad Shad

STATE OF NEW YORK

COURT OF APPEALS

BEFORE: HON. SOL WACHTLER

Associate Judge

THE PEOPLE OF THE STATE OF

NEW YORK

CERTIFICATE

against DENYING

LEAVE

EDITH MAY CAMERON

I, SOL WACHTLER, Associate Judge

of the Court of Appeals of the State of

New York, do hereby certify that, upon

application timely made by the above-

named appellant for a certificate pursu-

ant to CPL 460.20 and upon the record and

proceedings herein*, there is no question

of law presented which ought to be re-

viewed by the Court of Appeals and per-

mission to appeal is hereby denied.

APPENDIX "C*

Dated at Mineola, New York

May 29, 1973

/s/ SOL WACHTLER

Associate Judge

*Description of Order: Judgment of

Supreme Court, Queens County, dated May

15, 1972, affirmed by Appellate Division,

Second Department, May 6, 1974.

"p*

CRIMINAL COURT OF THE CITY OF NEW YORK

Part One A, County of Queens

State of New York )

County of Queens ) ss.:

Patrolman Lucido Bonino,

Shield 7541, 16th Division

being duly sworn, deposes and says:

1. I ama Police Officer assigned to

Plainclothes Duty in the 16th Division

New York City Police Department.

2. I have information based upon the fol-

lowing: Based on my knowledge and experi-

ence as a plainclothes officer assigned to

gambling investigations, I made the follow-

ing investigation and observations: On

Tuesday, May 18, 1971, at about 1110 hours,

while on patrol and in the area of my

assigned Location Prone to Public Morals

Violations, I did observe said Stanley

Sims, A Known Gambler, known to me to be

involved in illegal Policy operations,

leave his residence 197-01 116th Avenue,

St. Albans, New York, and enter a 1970

Plymouth, license PZ6368(NY). Seated

behind the wheel of the Plymouth was an

unknown Male Negro. After Stanley Sims

entered, the driver pulled out from the

curb and drove said vehicle towards Jam-

aica, New York. I followed said vehicle

to 145-40 New York Boulevard, Jamaica,

New York. Unknown Male Negro parked said

vehicle in front of 145-40 New York Boule-

APPENDIX "D" -

bad P hed

vard and both he and Stanley Sims departed

from said vehicle and entered said prem-

ises. I kept 145-40 New York Boulevard

under observation from approximately 1130

hours to 1430 hours. During this period

of time approximately six unknown male

negroes entered premises and remained

therein. At approximately 1430 hours,

Stanley Sims and the unknown male driver

of above vehicle departed from premises,

proceeded to vehicle entered same and

they drove away. I followed said vehicle

to Stanley Sims' residence. Driver of

vehicle parked said vehicle and both he

and Sims got out of vehicle and entered

Sims' residence. I observed that Sims

was carrying a large paper bag when he

departed from the premises 145-40 New York

Blvd., and when he entered his residence,

he was carrying the same paper bag. I

kept Sims’ residence under observation

from 1455 to 1530 hours, and during this

period of time, I observed numerous un-

known males approach premises, knock on

the front door and door was answered by

Stanley Sims. After a short conversation

with Sims, each of these unknown Males

handed him brown envelopes (envelopes of

the kind which are used by policy collec-

tors), and departed from the area.

On Wednesday, May 19, 1971, at 1115 hours,

I went to Stanly Sims residence walked to

the curb where the above 1970 Plymouth,

PZ6368 (NY) was parked.

The same unknown Male Negro was seated

behind the wheel of said vehicle,

[Page 2]

Sims entered said vehicle and both he and

the unknown Male negro drove towards Jam-

aica. I kept said unknown Male and Stan-

ley Sims under observation from 1125 to

. euennmaurses eT <a oS aba Nia alias

Soo RY ey ae PRIN LE ENS ae Bw pi tae 8

"pD*

1545 hours on this date and they both re-

peated the operation of the first day to

the letter.

On Thursday, May 20, 1971, at 1130 hours,

I again went to Stanley Sims residence and

at approximately 1145 hours, Stanley Sims

departed from his residence, walked to the

curb where the same 1970 Plymouth was

parked, with the same unknown Male Negro

seated behind the wheel of said vehicle.

Again Sims entered vehicle and both he and

the unknown Male drove towards Jamaica,

New York. I kept said unknown Male and

Stanley Sims under observation from 1145

to 1500 hours and again they repeated the

operation of the first day to the letter.

A check with the Motor Vehicle Bureau,

discloses that said vehicle is registered

to Oscar Thomas at 18-27 20lst Street,

Queens, New York and calls for a 1970

Green Plymouth, License PZ6368. Stanley

Sims is known to the New York City Police

Department under Known Gambler Serial Num-

ber 4993, B224458 and has a record of 15

arrests for Policy Violations most of

which are for Controller of a Policy Oper-

ation. In my opinion as an expert quali-

fied by the Courts on Policy, my investi-

gation and observations lead me to believe

that the above described Stanley Sims and

the "John Doe" Male Negro (driver of 1970

Plymouth), are receiving and accepting

wagers on Policy inside the aforementioned

Premises.

3. Based upon the foregoing reliable in-

formation and upon my personal knowledde.

there is probable cause to believe that

such property Namely: written records of

wagers on Mutual Race Horse Policy numbers

and other paraphernalia commonly used in =

~

"pD*

iliegal Policy, are possessed and/or con-

cealed in violation of 225.05 of the Penal

Law, and may be found in the possession of

Stanley Sims and or "John Doe” (Male,

Negro) driver of 1970 Plymouth, or at

premises 197-01 116th Avenue, 145-40 New

York Boulevard and/or 1970 Green Plymouth, .

License PZ6368 (NY).

WHEREFORE, I respectfully request

that the court issue a warrant and order

of seizure, in the form annexed, author-

izing the search of persons, premises and

vehicle above, and directing that if such

property or evidence or any part thereof

be found that it be seized and brought

before the court; together with such other

and further relief that the court may deem

proper.

No previous application in this

matter has been made in this or any other

court or to any other judge, justice or

magistrate.

Lucido Bonino, Shield 7514, Ptl., 16th Div.

Police Officer Shield Rank Co

Sworn to before me

May 21, 1971 , 19

Juage

Search Warrant 3 #308

Sec. 797 C.C.P. :

Criminal Court of the

City of New York

Part One A, County of Queens .

In the name of the People of the

State of New York:

‘To any peace officer in the City of

New York.

Proof by affidavit (or deposition)

having been made this day before me by

Patrolman Lucido Bonino, Shield 7514,

16th Division. that there is probable

cause for believing that certain

property is possessed and/or concealed

in violation of 225.05 of the Penal

Law.

You are therefore commanded, be-

tween 6:00 A.M. and 9:00 P.M. to make

an immediate search of 1970 Plymouth,

Green, License PZ6368 NY occupied by

"John Doe” Male Negro and Stanley Sims

and of the person of "John Doe Male

Negro and Stanley Sims and of any other

person who may be found to have such

property in his possession or ‘under his

control or to whom such property may |

have been delivered, for namely:

written records of wagers on Mutual

Race Horse Policy numbers and other

paraphernalia, commonly used in illegal .

Policy. and if you find any such

property or any part thereof to bring

it before me at Part One’A at 125-01

Queens Boulevard, Kew Gargens, N.Y.C.

‘Dated at New York City,

May 21 , 19 71 '

~~ Judge

*p"

Search Warrant ; #308

Sec. 797 C.C.P.

; Criminal Court of the

City of New York

Part One A, County of Queens

In the name of the People of the

State of New York:

To any peace officer in the City of

New York.

Proof by affidavit (or deposition)

having been made this day before me by

Patrolman Lucido Bonino, Shield 7514,

16th Division that there is probable

cause for believing that certain

property is possessed and/or concealed

in violation of 225.05 of the Penal Law.

You are therefore commanded,

between 6:00 A.M. and 9:00 P.M. to

make an immediate search of 197-01 116th

Avenue, St. Albans, New York occupied by

Stanley Sims and of the person of

Stanley Sims and of any other person

who may be found to have such property

in his possession or under his control

or to whom such property may have. been

delivered for namely: written records

of wagers on Mutual Race Horse Policy

numbers and other paraphernalia commonly

used in illegal Policy. and if you find

any such property or any part thereof to

bring it before me at Part One A at

125-01 Cueens Blvd., Kew Gardens, N.Y.C.

Dated at New York City,

May 21 , 19 71

“Judge

"Dp"

Search Warrant #308

Sec. 797 C.C.P.

Criminal Court of the 2

City of New York

Part One A, County of Queens

In the name of the People of the State

of New York:

To any peace officer in the City of

New York.

Proof by affidavit (or deposition)

having been made this day before me by

Patrolman Lucido Bonino, Shield 7514,

16th Division. that there is probable

cause for believing that certain

property is possessed and/or concealed

in violation of 225.05 of the Penal

Law.

You are therefore commanded, between

6:00 A.M. and 9:00 P.M. to make an

immediate search of 145-40 New York

Boulevard, Jamaica, New York occupied by

Stanley Sims and of the person of

Stanley Sims and of any other person

who may be found to have such property

in his possession or under his control

or to whom such property may have been

delivered, for namely: written records

of wagers on Mutual Race Horse Policy

numbers and other paraphernalia

commonly used in illegal Policy and

if you find any such property or any

part thereof to bring it before me at

Part One A at 125-01 Queens Blvd., Kew

Garden3, New York City.

Dated at New York City,

May 21 » 19 71

~~ Juage