Petition for Writ of Certiorari — Vanderhide v. Brown & Sharpe Manufacturing Co.

Supreme Court brief1975

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In The .

Supreme Court of the United, States,

October Term, 1974 -.

ro.

No. 74-1368

JOSEPH DENTI,

Petitioner,

vs.

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

PETITION FOR CERTIORARI TO THE SUPREME

COURT OF THE STATE OF NEW YORK, APPELLATE

DIVISION, FIRST DEPARTMENT

IRVING ANOLIK

Attorney for Petitioner

225 Broadway

New York, New York 10007

(212) 732-3050

= LUTZ APPELLATE PRINTERS, INC.

Lew ead Financia! Printing

South River, N.J. New York, N.Y. Philadelphia, Pa. Weshington, D.C.

— (201) 257-6880 (212) $65-6377 (215) S63-SSBX (202) 783-7288

TABLE OF CONTENTS

Page

StateMent ....ccccrcrscccvcceccccccscccscssevevessceces I

Opinion Below oi iecicccedccei ce tteccicvessevesvwccces 2

FUTGATIOR: a oin's vic ccbiees cs csaec cece decsenadeddesoeces 2

Questions: Prepanted 00). cccccceeesccccpenccvesccsecoces 2

Constitutional and Statutory Provisions Involved ......... 3

Bosettint Fate ros ca cc ce cencecsvcctcuvecesuseececccs 3

Reasons For Granting the Writ:

Since the police officers observed no crime being

committed in their presence and had received no

bulletins creating suspicion concerning the vehicle in

which petitioner was riding, it was a violation of the

Fourth and Fourteenth Amendments of the United

States Constitution to have stopped petitioner's

vehicle and then conduct a search of his person and

the car. No warrant had been issued and

consequently the evidence thus obtained should have

DOOR OUPRTNNET ooo ccc cncccnceseseccccnesse

Contents

Il. The Trial Court correctly ruled that petitioner could

not be convicted for possession of the single

gambling slip found in the rear of the car, but,

inexplicably and unconstitutionally, charged that the

jurors could nevertheless consider that slip to infer or

presume petitioner’s knowing possession of the other

slips hidden in the front arm-rest of the vehicle.

(A) The presumption of Penal Law Section

225.35(1) is unconstitutional as applied herein.. !7

ae ee :

TABLE OF CITATIONS

Cases Chet

Amador-Gonzalez v. United States, 391 F.2d 208 (5 Cir.

nec ees T

Bailey v. Alabama, 219 U.S. 219 ...........0.ceeeseeeess 18

Baumboy v. United States, 24 F.2d 512 ................-. 12

Seth « Usted hae, 116 U4 66 ................... 15

Bruton v. United States, 391 U.S. 123 ............ceeeeees 20

Bumper v. North Carolina, 391 U.S. 543 ................. 12

Co:

iii

Cor tents Page

Carroll v. United States, 267 U.S. 132 .........- sees eens 10, 11

Chambers v. Maroney, 399 U.S. 42 ........ceceeeeeeeeees |

Chapman v. United States, 365 U.S. 610 ............. vee 14

Chimel v. California, 395 U.S. 752 .........eeeeeeeeeeeees 12

Coolidge v. New Hampshire, 403 U.S. 443 ........ 11, 12, 14, 15

Davis v..United States, 382 U.S. 582 ..........ccceeeeeces 11

Frank v. Maryland, 359 U.S. 360 ..........0ccccccscecees 13

Garner v. Louisiana, 368 U.S. 157 ....... 2. eee eeeeeeeeees 21

Green v. United States, 386 F.2d 954 (10 Cir. 1967) ........ 10

Gustafson v. Florida, 414 U.S. 260 ...........222eeeeeeee 15, 16

Harris v. United States, 390 U.S. 234 ......... ee eee ee eeee 11

Hawkins v. Bleakly, 243 U.S. 210... 2... eee eee eee eee ees pie 5 i

Henry v. United States, 361 U.S. 98 ..........cseeeeeeees 13

Howard v. Fleming, 191 U.S. 126 .........ccecceescceees 17

James-Dickinson Co. v. Harry, 273 U.S. 119 ........+++0+- 17

iv \

Contents

! Page

Johnson v. United States, 333 U.S. 10 .............e eens 14

Katz v. United States, 389 U.S. 347 ...........06. Fibcaes i

Manley v. Georgia, 279 U.S. 1.2.60... .cceceeeeeeeee cn

Mapp v. Ohio, 367 U.S. 643 ae Sasetoesbecsrbsbuees VES

McDonald v. United States, 335 U.S. 451 ...-.ccccccsee. 14

Mobile, J. & K. C. R. R. Co. v. Turnipseed, 219

ai uicyycnns yews an baie okcade ede sn sh 18

Morrison ¥; Califortila, 201 UB/E2 ....6s-.-.seceee s+ see 18

People v. Denti, 44 App. Div. 2444 ............. 0. eens 3

People v. Gazulis, 29 Misc. 2d 939 ........ Kee ct aT ae faa

Poldo v. United States, 55 F.2d 866 ......... siicaie ces ONES» 2

Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d

SD 06 Oe bie Mahe ahi Ue 6k vk Bon gen 5O6.6.0300% cb500 11

Schmerber v. California, 384 U.S. 757 ........0.0seee008 14

Sibron v. New York, 392 US. 40 ..ce.ceccceceeecee ese 10

_ Stanford v. Texas, 379 U.S. 476 ........ cece eect eeeeeeees 13

| . Pape

Terry v. Otio, 392 US.1 .....--06eeecceeeeeeeeee Sere 10

Thompson v. Louisville, 362 U.S. 199 URRY Ah eee 21

Tot v. United States, 319 US. 453 .......20.20.teeeeeeeee 18

United States v. Jeffers, 342 U.S. 48 Mises dacadtesddiccaee’ 14

United States y. Lefkowitz, 285 U.S. 452 .........12----- 10.

Vale v. Louisiana, 399 U.S. 30 ............0ceceeeeceeees -

United States v. Robinson, 414 U.S. 218 eS ide csnadnie 15, 16

‘Warden v. Hayden, 387 U.S. 294 caine 14

Western & Atl. R. Co. v. Henderson, 279 U.S. 639 ....... L418

Wong Sun v. United States, 371 ae A 10, 20

New York Penal Law: 3

uate Petey Se he 1; 3, 20

Section 225.35 ........c.eeseeeccececeeees eae 21

Section 225.351) ....------eeeeseeeegeceeees 3, 17, 20, 21

Article 1, §12 of the New York Constitution .............. 13

Lassoz, “The History and Development of the Fourth

Amendment to, the United States Constitution,” 55,

ete University Studies in Historical

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seeeeree eee

In The

Supreme Court of the United States

October Term, 1974

,™

dé

No. 74-

JOSEPH DENTI,

Petitioner,

vs.

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

PETITION FOR CERTIORARI TO THE SUPREME

COURT OF THE STATE OF NEW YORK, APPELLATE

DIVISION, FIRST DEPARTMENT

"STATEMENT

The petitioner, Joseph Denti, respectfully prays that this

Court issue a writ of certiorari to the Supreme Court of the

State of New York, Appellate Division, First Department, to

review its unanimous affirmance of a judgment of the Supreme

Court of the State of New York, County of New York, rendered

the 2nd day of July, 1974, convicting the petitioner of the crime

of possession of gambling records in the first degree (New York

Penal Law, §225.20) and sentencing him up to 3 years

imprisonment after trial before Fraiman, J., and a jury. The

petitioner is presently incarcerated.

OPINION BELOW

The New York Supreme Court, Appellate Division, First

Department, rendered no formal opinion in connection with the

affirmance of the judgment of convici:on, but did render an

opinion located at 44 App. Div. 2d 44, in reversing an order of

the Supreme Court, New York County, (Pecora, J.), which had

suppressed evidence seized without a warrant. A copy of that

opinion is annexed to the petition. In addition, excerpts of the

record containing the informal determinations of Judge Pecora

are annexed to this petition indicating the basis upon which that

jurist suppressed evidence.

JURISDICTION

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

§1257(3). The order of the Appellate Division, First

Department, affirming the judgment of conviction is dated

January 21, 1975. The certificate and order of the Court of

Appeals of the State of New York denying leave to appeal is

dated the 3rd day of February, 1975. Copies of said orders are

annexed to this petition, as is the opinion of the Appellate

Division on suppression (44 App. Div. 2d 44).

QUESTIONS PRESENTED

1. Whether the prosecutor’s use of evidence obtained as a

result of a warrantless search and seizure from the car in which

petitioner was riding, violated Denti’s rights under the Fourth

Amendment and thereby deprived him of a fair trial? (Fourth,

Fifth, and Fourteenth Amendments of the United States

Constitution)

2. Whether petitioner’s rights to a fair trial and due process

of law were violated when the Trial Court instructed the jury

that it could infer possession of other gambling slips predicated

upon the existence of a single slip which it ruled was clearly not

attributable to petitioner? Thus was an _ unconstitutional

presumption or inference used against Denti in violation of the

Fifth and Fourteenth Amendments?

3. Whether Penal Law Section 225.35(1) creating a

presumption of guilty knowledg¢ is constitutional? (Fifth and

Fourteenth Amendments)

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fourth, Fifth and Fourteenth Amendments of the

United States Constitution are involved herein, as are Sections

225.20 and 225.35(1) of the Penal Law of the State of New York.

ESSENTIAL FACTS

There was a suppression hearing and also a trial. As we

have already indicated, the suppression hearing resulted in a

determination by Justice Pecora that the evidence seized should

be suppressed. That determination was overturned in the

Supreme Court, Appellate Division, First Department, in

People v. Denti, 44 App. Div. 2d 44. Subsequently there was a

trial and the trial resulted in a conviction of Denti. ;

That determination was appealed to the Appellate Division

of the Supreme Court, First Department, and by an order dated

the 2ist day of January, 1975, the judgment of conviction for

possession of gambling records in the first degree was affirmed

without opinion.

An application for leave to appeal to the Court of Appeais

of the State of New York was denied by order of Honorable

Jacob D. Fuchsberg on February 3, 1975.

The facts adduced at the suppression hearing and at the

trial are rather similar. We shall therefore review the testimony

at the trial with the submission that the testimony was very

similar on both occasions.

Patrolman or Police Officer William Schactel testified that

on April 24, 1972, he and two other officers (Shanahan and

Mednick) were on a narcotics stakeout when they observed the

same car pass their own parked car several times.

Schactel recalled that he and his fellow officers then

followed this car, noticed that it parked, and saw its two

occupants, both Latins, (Ruiz and Rodriguez), enter the rear of

another vehicle which had pulled alongside. The front seat of the

other vehicle was occupied by petitioner and one Sarcinella.

Petitioner was driving.

It is important for this Court to note that the police officers

observed no traffic violations and perceived no crime being

committed in their presence.

Apparently, just on the basis of general suspicion, the

officers approached Denti’s car and requested his license and

registration, neither of which petitioner had in his possession.

He informed the officers, however, that the car belonged to his

wife, and this fact was later established to be true. No bulletin,

no police communication, or other information was ever

transferred to the officers to cause them to be suspicious of this

car, that is, the car in which the foursome were now driving.

While requesting the license and registration, however,

Police Officer Schactel declared that he spied a “pile” of money

($9,095, People’s Exhibit 1) on the front seat between Sarcinella

and Denti.

The officer later conducted a thorough search of the vehicle.

It is uncontested that there was no search warrant for this

search. The occupants of the vehicle denied knowledge of or

possession of the money.

The occupants were then taken into police custody and were

driven to the stationhouse. Ruiz and Rodriguez were now put in

the front seat with Patrolman Mednick while Sarcinella and

Denti were put in the back seat, that having been the former

location of Ruiz and Rodriguez.

At the police station, one of the officers found a “gambling”

slip on the rear floor (People’s Exhibit 3). A search was then

conducted under the front seat arm-rest and 30 more slips, that

is gambling slips, were discovered, consisting of a group of 12

and a group of 18, marked respectively People’s Exhibits 2A and

2B.

The officers placed all four men under arrest (TT68-79, 85,

93, 97).!

dt is important to note that the petitioner was never found

in possession of anv gambling slips or money (TT116).

There was no test for fingerprints (TT146, 151).

On instructions of Assistant District Attorney Goldstock,

the charges against Ruiz and Rodriguez were dropped (TT125-

126).

Patrolmen Shanahan and Mednick testified substantially

the same as Police Officer Schactel. Shanahan and Mednick,

however, both testified that Denti was outside the car while the

money was being counted whereas the other three occupants

were stil] inside the vehicle at this time (TT201, 216-217)

The officers stated that they just glanced periodically at the

occupants of the car at this time (TT239).

Thirty-five hundred dollars ($3,500) was found in the

possession of Sarcinella (TT102).

No handwriting analyses were made of the slips in question

(TT298).

The Trial Court granted Sarcinella’s motion to dismiss and

only Denti was convicted (TT203-233).

1. Numerals in parentheses preceded by the prefix “TT” refer to the trial transcript.

It is interesting to note that both Sarcinella and Denti were

in the same /ocus standi except for the fact that petitioner was

the driver and husband of the owner of the vehicle (TT326-329,

330-333).

It is also the law of the case, since it was so charged by the

Trial Court, that as a matter of law the jury could not find

appellant guilty of possession of People’s Exhibit 3 (the slip

found on the floor of the back seat of the car), but that it could

use People’s Exhibit 3 to infer Denti’s possession of the 30 other

slips found in the car (TT393-397).

It is submitted that this is a very inconsistent and incorrect

instruction since if the single slip in question, that is, People’s

Exhibit 3, could not be attributed to Denti, how then could a

presumption or inference be drawn that because of the existence

of that single slip, the trial jurors could infer that he possessed

People’s Exhibits 2A and 2B. We submit that this violated

Denti’s rights under the due process clause by depriving him of a

fair trial and by permitting an unconstitutional inference to be

drawn against him.

A proper objection was preserved to the charge (TT406-

407).

REASONS FOR GRANTING THE WRIT

Since the police officers observed no crime being committed

in their presence and had received no bulletins creating suspicion

concerning the vehicle in which petitioner was riding, it was a

violation of the Fourth and Fourteenth Amendments of the

United States Constitution to have stopped petitioner's vehicle

and then conduct a search of his person and the car. No warrant

had been issued and consequently the evidence thus obtained

should have been suppressed.

The facts are substantially conceded. Police officers who

were on a narcotics stakeout noticed two Latins in an

automobile driving around the block several times. The officers

followed it and after a while, another car being driven by

petitioner, pulled up, alongside of the vehicle in which Ruiz and

Rodriguez (the Latins) had been riding, and the Latins then

entered the rear of petitioner’s vehicle. Petitioner’s vehicle had

not done anything suspicious.

The officers saw no violations of law being committed in

their presence and had received no bulletins whatsoever from the

Police Department or anywhere else that would have aroused

their suspicions.

Launching an exploratory investigation based upon a hunch

or otherwise, the police officers arrogated to themselves the right

to stop petitioner’s vehicle and demand that he produce his

license and. registration. The petitioner was unable to

accommodate the officers, as a result of which he was searched

but no gambling slips or other incriminating evidence was found

on his person. The vehicle was impounded for all intents and

purposes, and the petitioner and the occupants thereof were

taken to the local police station.

After alighting from the car, another search of the vehicle

itself was conducted, at which time an alleged gambling slip

(People’s Exhibit 3) was found on the floor of the back of the

automobile. A search was then conducted under the front seat

arm-rest where 30 additional gambling slips were also

discovered.

We emphasize that nothing whatsoever incriminating was

found on the person of Denti.

All four individuals were placed under arrest predicated

upon this evidence. The prosecutor subsequently, on his own

motion, dismissed the charges against Ruiz and Rodriguez. The

Trial Judge dismissed the charges against Sarcinella.

Only Denti remained in the case since he was the husband

of the registered owner of the vehicle and had been driving it.

Predicated upon the search and seizure, Denti was

convicted.

A Court is required to assess the reasonableness of any

officer’s conduct in connection with a warrantless search and

must rule upon the governmental interest to justify official

intrustion upon any constitutionally protected interests of the

individual.

Since there is no rule of thumb or test to determine

reasonableness, other than by balancing the need to search,

against the invasion of constitutional rights which ensues, the

Court must then weigh the motives of police officers and the

rights of the private citizen. When any challenge is made to the

motive or justification, a police officer is then required to

establish with specificity, the facts, inferences, and rationale

which may reasonably justify his action.

Simple good faith on the part of the arresting officer is

never enough, and it is an imperative that in making the

assessment of reasonableness, the facts available to the police

officer at the precise moment of the arrest and seizure, actually

establish that probable cause in fact existed. (Terry v. Ohio, 392

U.S. 1; Sibron v. New York, 392 U.S. 40; United States v.

Lefkowitz, 285 U.S. 452; and, Wong Sun v. United States, 371

U.S. 471.)

The defendants at the trial ene were

lawfully using the highways and wereSnot committing any

crimes. (Carroll v. United States, 267 U.S. 132, 153.)

It has also been held that where officers stop a vehicle upon

a pretext merely to conduct a search, the evidence thus obtained

by such improper motivations require suppression. For example,

detaining a defendant on a vagrancy charge as a ruse to later

arrest him on a more serious charge, following a warrantless

search and seizure, resulted in a suppression of that evidence.

(Green v. United States, 386 F.2d 954 (10 Cir. 1967).)

Man,

et the

Wherever an arrest is a mere pretext for an otherwise

legitimate search, the evidence still must be suppressed.

(Amador-Gonzalez v. United States, 391 F.2d 208 (5 Cir. 1968).)

We must bear in mind that in the case at bar, there was no

probable cause to stop the vehicle or to make an arrest.

Moreover, there was no probable cause to believe that the

vehicle contained contraband. (Chambers v. Maroney, 399 U.S.

42, and Carroll v. United States, 267 U.S. 132.)

It must be recognized further that it was only after the

vehicle in question was unlawfully halted and the occupants

taken to a police station that the alleged single gambling slip on

the back floor of the car was found. Had the car not been

stopped at all, obviously the officers would never have found the

slips. (Harris v. United States, 390 U.S. 234.)

It is elementary that all searches are presumptively invalid

without a search warrant unless the search comes within one of

the recognized exceptions to the Fourth Amendment. (Kaziz v.

United States, 389 U.S. 347, 357; Coolidge v. New Hampshire,

403 U.S. 443, 454-455; and Chambers v. Maroney, 399 U.S. at

* $l, supra.)

Moreover, there is no allegation in this case that any

consent was obtained from the victims of the search, namely

petitioner Denti, or anyone else. (Schneckloth v. Bustamonte,

412 U.S. 218, 36 L. Ed. 2d 854; Davis v. United States, 382 U.S.

582, 593-594.)

’

It has also been held that an arrest or search can never be

validated retrospectiveiy by what a warrantless search discloses.

(Bumper v. North Carolina, 39\ U.S. 543, 548, n. 10.) —

Neither the doctrine of Chimel v. California, 395 U.S. 752,

nor that of Coolidge v. New Hampshire, supra, are of any help

to the prosecution in the case at bar since there was no basis for

stopping the vehicle in the first place. The most that could have '

been done was to search the people for a weapon. The

occupants, however, were already out of the car = the

evidence was discovered.

Suspicion alone is never enough to warrant an arrest.

(Baumboy v. United States, 24 F.2d 512 and Poldo v. United

States, 5S F.2d 866, 869.)

In Vale v. Louisiana, 399 U.S. 30, this Court held that

where a warrantless search is conducted, the burden rests on the

Government or prosecution to prove. that exceptional

circumstances permitted the search and seizure under an

exception to the rigid requirements of the Fourth Amendment.

In the case at bar, there was no proof whatsoever that the police

officers had any probable cause at all to stop the vehicle in

question or to make an arrest.

We submit that the opinion of the Supreme Court,

Appellate Division, First Department, at 44 App. Div. 2d 44, is

not cogent and does not justify the activities of the police

officers herein. We commend a reading of that decision to this

Court for analysis which we believe will substantiate the position

tahoe: by the: petitioner herein: (annened'is:a:copy of the-opinion).

In Henry v. United States, 361 U.S. 98, which also involved

a car, this Court declared that the evidence was insufficient to

_ have warranted an arrest because the officers had no more than

mere suspicion. (This Court has discussed the important history

of the Fourth Amendment in such cases as Stanford v. Texas,

379 U.S. 476, 481-485; and Frank v. Maryland, 359 U.S. 360,

363-365. Generally, Lasson, “The History and Development of

the Fourth Amendment to the United States Constitution,” 55,

the John Hopkins University Studies in Historical and Political

Science, 35, 36, also contain ample background ee

the petitioner’s position herein.)

The Fourth Amendment's protections are enforceable

against the states by virtue of the due process clause of the

Fourteenth Amendment. (Mapp v. Ohio, 367 U.S. 643, 655.)

Article I, §12 of the New York Constitution, similar to the

Fourth Amendment, provides: .

‘

. the right-of the people to be secure in their

persons, houses, papers, and effects against

unreasonable searches and seizures shall not be

violated, and no warrants shall issue, but upon

probable cause; supported by oath or

affirmation, and particularly describing the place

to be searched, and the ages or _—— to sad

seized.” '

We. submit that the’ dissenting opinion of Justice

Frankfurter in United States v. Rabinowitz, 399 U.S. 56, 83,

cogently sums up the activities ‘of the officers herein and

demonstrates that they. acted unreasonably. sorianetrsteardancssdhe

supra, Justice Frankfurter explained: :

“To say that the search must be reasonable is to

require some criterion of reason. It is no guide at

all either for a jury or for district judges or the

police [for a court] to say that an ‘unreasonable

search’ is forbidden — that the search must be

reasonable. What is the test of reason which

makes a search reasonable? The test is the reason

underlying and expressed by the Fourth

which it embodies and the saieguards afforded by

it against the evils to which it was a response.”

To demonstrate that the officers were not justified in

stopping the vehicle or conducting a search, we need only look

at the cases decided in this Court for substantiation. They were

not responding to an emergency. (United States v. Jeffers, 342

U.S. 48, $1, 52; McDonald v. United States, 335 U.S. 451, 454.)

They certainly were not in hot pursuit of a fleeing felon (Warden

v. Hayden, 387 U.S. 294, 298-299; Chapman v. United States,

365 U.S. 610, 615; Johnson v. United States, 333 U.S. 10). The

gambling slips which were ultimately seized were not in the

process of being destroyed (Schmerber v. California, 384 U.S.

757, 770-771); United States v. Jeffers, supra). Nor were they

about to be removed from the jurisdiction (Chapman v. United

_ States, supra; Johnson v. United States, supra). The existence of

The “plain view doctrine” of Coolidge v. New Hampshire,

‘supra, is no justification since it was only after the vehicle was

improperly stopped and the occupants placed under arrest an<|

removed from the car, that the gambling slip in question was

finally noticed on the floor of the back of the car. Until the slip

itself was examined, moreover, there was no evidence that the

police even knew it was a gambling slip.

We must bear in mind that this was not a situation where

there was some gun or some other obvious type of contraband.

A piece of paper per se is not contraband and is not

incriminating until it is thoroughly examined.

As a matter of fact, in Coolidge v. New Hampshire, this

Court aptly explained, quoting with approval the language of

Boyd v. United States, 116 U.S. 616, 635:

“It may be that it is the obnoxious thing in its

mildest and least repulsive form; but illegitimate

and unconstitutional practices get their first

footing in that way, namely by silent approaches,

and slight deviations from legal modes of

procedure. This can only be obviated by adhering

to the rule that constitutional provisions for the

security of person and property should be

liberally construed. A close and literal

construction deprives them of half their efficacy,

and leads to gradual depreciation of the right, as

if it consisted more in sound than in substance. It

is the duty of the courts to be watchful for the

constitutional rights of the citizen, and against

any stealthy encroachments thereon.”

y We turn now to a brief discussion of United States v.

Robinson, 414 U.S. 218, and Gustafson v. Florida, 414 U.S. 260.

In both of those cases, the police had a lawful right to stop

the vehicle in question. In Robinson, 414 U.S. at 221, this Court

observed, in footnote 1:

“We think it is sufficient for purposes of our

decision that respondent was lawfully arrested for

an offense and that Jenks’ placing him in custody

following that arrest was not a departure from

established police department practice... .We

leave for another day questions which would

arise on facts different from these.”

We interpret that footnote to mean that any departure from

the particular fact pattern of Robinson might not be decided the

same way by this Court. Indeed, if the arrest were a pretext

rather than a lawful one; we submit that it is implicit in both

Robinson and Gustafson that this Court would not have

tolerated the activities of the police.

Moreover, it must be borne in mind that both -Robinson

and Gustafson, even upon the limited facts upon which they

rested, tolerated only a search of the person and not of the

vehicle itself.

To uphold the conviction and the activities of the police in

the case at bar is to make a mockery of the Fourth Amendment

completely. We think the reliance of the prosecution in the

courts below placed upon Gustafson and Robinson, are

incorrect. We think this Court should clarify this Shae so that

similar vappaeee will not occur.

Sitter aactain wtienrerets LB mum .Poaee nine

Again we remind this Court that nothing incriminating

whatsoever was found on the person of the petitioner herein.

Thus, the petition for certiorari herein should be granted

and the judgment of the New York courts vacated. The evidence

should be ordered suppressed and the petitioner discharged from

custody.?

The Trial Court correctly ruled that petitioner could not be

convicted for possession of the single gambling slip found in the

rear of the car, but, inexplicably and unconstitutionally, charged

that the jurors could nevertheless consider thet slip to infer or

presume petitioner's knowing possession of the other slips

hidden in the front arm-rest of the vehicle. —

(A) The presumption of Penal Law Section 225.35(1) is

unconstitutional as applied herein.

We recognize that the establishment of presumptions and

rules respecting the burden of proof is clearly within the domain

of state governments. (Hawkins v. Bleakly, 243 U.S. 210, 214;

James-Dickinson Co. v. Harry, 273 U.S. 119, 124; and, Howard

v. Fleming, 191 U.S. 126, 136.)

As long as a presumption is not unreasonable and is not

conclusive of the rights of the person against whom raised, it

does not violate the due process clause. Legislative fiat may not

2. We ask this Court to note that there is no statutory presumption in New York

that money or slips of paper found in a car are presumed to be the property of the

person driving the car.

take the place of fact however, in the determination of issues

involving life, liberty, or property, and a statute creating a

presumption which is entirely arbitrary and which operates to

deny a fair opportunity to repel it or to present facts pertinent to

one’s defense, is void. (Manley v. Georgia, 279 U.S. 1, 5;

Western & Atl. R. Co. v. Henderson, 279 U.S. 639, 642; Bailey

v. Alabama, 219 U.S. 219, 233; and, Mobile, J. & K. C. R. R.

Co. v. Turnipseed, 219 U.S. 35, 42.)

For example, a presumption that a firearm or ammunition

in the possession of a person convicted of a crime of violence

was automatically transported or received in violation of the

law, was held invalid because there was ro rational connection

between the facts proved and that presumed. (Tot v. United

States, 319 U.S. 463.)

Where the connection between the fact proven and that

presumed is not sufficient and the reasoning does not tead from

one to the other, statutory presumptions will be deemed void.

(Manley v. Georgia, 279 U.S. 1, 5; Western & Ail. R. Co. v.

Henderson, supra; Mobile, J. & K. C. R. R. Co. v. Turnipseed,

supra; Bailey v. Alabama, supra.)

As was said in Morrison v. California, 291 U.S. 82, at 88-

89:

“The limits are in substance these, that the State

shall have proved enough to make it just for the

defendant to be required to repel what has been

proved ... or at least that upon a balancing of

convenience or of the opportunites for knowledge

the shifting of the burden will be found to be an

aid to the accuser without subjecting the accused

to hardship or oppression.”

In the case at bar, the petitioner was conclusively declared

to be innocent of possession of the single slip found on the floor

of the rear of the car. In other words, the Trial Court correctly

instructed the jury that they could not possibly consider

convicting Denti of possession of that gambling slip.

Denti was not found in possession of anything

incriminating whatsoever. There was no evidence whatsoever

that he knew, or was aware of the existence of any policy slips

inside the arm-rest of the front seat of the car. The fact that the

car belonged to his wife and that he was driving it, does not raise

a presumption under the New York Penal Law or any other New

York statute, that Denti knowlingly possessed the gambling

slips. They could have belonged to the others in the car, or even

to his wife. .

Sarcinella, who received a dismissal of the charges against

him by the Trial Judge, and Ruiz and Rodriguez, whose cases

were dismissed on motion of the District Attorney, had as much

to do with the alleged offense as the petitioner. There was just

no rational basis to infer, or to permit the jury to infer, that

Denti knew of the existence of the slips hidden in the front

seat of the car merely because of the fact that a policy slip was

found on the floor of the rear of the automobile.

It was wholly inconsistent for the Court to declare to the

jury that while it could not consider the single slip, it could

nevertheless use that slip for the purpose of inferring that Denti

in fact knew of the existence of the other slips. We are hard-

pressed to understand what the Court was talking about and we

are sure that the jury was completely confused. This was

something in the nature of a “Chinese jigsaw puzzle” (Wong Sun

v. United States, supra). The Court, in effect, was asking the

jury to perform a mental gymnastic which no one could be

expected to perform. (Bruton v. United States, 391 U.S. 123.)

Penal Law Section 225.35(1) reads as follows in pertinent

part:

“Proof of possession of any gambling . . . record

specified in Section . . . 225.20, is presumptive

evidence of possession thereof with knowledge of

its character.”

In the first place, it is obvious that Denti was not proved to

have possessed any gambling record.

At page 399 of the trial transcript, the Trial Court told the

jury it had a right to consider whether or not petitioner

“possessed” Exhibits 2A and 2B on the date in question. Those

were the other slips that were found following the discovery of

the single slip in the back of the car. There was absolutely no

evidence upon which the jury could make such an inference. The

other three occupants of the car were acquitted or dismissed,

either on motion of the District Attorney or by ruling of the

Trial Court. There was a complete dearth of evidence connecting

the petitioner with the possession of any slips in the car

whatsoever. Certainly no more connection than any of the other

occupants thereof.

;

If the petitioner had possessed one of the slips in his pocket,

then of course we could understand the Court seeking to relate

that to other slips. But the Court itself recognized that the

petitioner possessed nothing incriminating whatsoever. The

single slip could not be imputed to Denti.

Under the circumstances, it was highly improper and

- unconstitutional in violation of the due process clause to permit

the jury to speculate, on no evidence whatsover, that the

petitioner possessed any of the slips found on the front seat of

the car (Exhibits 2A and 2B).

The statutory presumption, Section 225.35(1), should not

have been invoked at all since there was no evidence that

petitioner ever possessed any gambling records. Nonetheless the

jury was told that “proof of possession” gave the jury the right

to presume that the possession thereof was with knowledge of its

character. What proof of possession? It was non-existent

(Thompson v. Louisville, 362 U.S. 199; Garner v. Louisiana, 368

U.S. 157).

The presumption created by the statute itself, we maintain is

unconstitutional. We refer this Court to the rather well-reasoned

opinion in People v. Gazulis, 29 Misc. 2d 939, which interpreted

the predecessor Section 986-b. Since the source of Section

225.35 is Section 986-b, the opinion is very apt.

But, irrespective of any other consideration, we maintain

that as applied in the case at bar, the presumption was wholly

unwarranted since there was no evidence that petitioner ever

possessed anything incriminating. Moreover, if he could not be

charged with knowledge or possession of the single policy slip

found in the back of the car, and that policy slip was the

incentive to search the rest of the car, it appears obvious that it

was wholly improper for the Trial Judge to instruct that despite

Denti’s complete innocence of possession of the single slip found

in the back of the vehicle, the jury could still use that slip to

infer his guilty possession of the slips hidden in the front seat of

the vehicle. The rationale of the Court seems to be a clearly

unconstitutional and improper inference based upon an

unfounded inference. The charge of the Court therefore deprived

the petitioner of a fair trial and thus violated the due process

clauses of the Fifth and Fourteenth Amendments.

Accordingly, for this reason, too, the petition for certiorari

should be granted and the judgments of the state court reversed,

and the indictment dismissed.

CONCLUSION

The petition for certiorari should be granted, and upon

granting said petition the judgment of the state court convicting

petitioner of possession of gambling records should be reversed

and the indictment ordered dismissed.

Respectfully submitted,

s/ Irving Anolik

Attorney for Petitioner

APPENDIX

OPINION OF APPELLATE DIVISION

44 APPELLATE DIVISION REPORTS, 2d SERIES

THE PEOPLE OF THE STATE OF NEW YORK,

Appellant

Vv.

POM AVRIL D HO Hen, Rt le NE HOE TM ne

JOSEPH DENTI and JOSEPH SARCINELLA,

alee be

Respondents.

First Department, March 12, 1974; resettled April 11, 1974.

* * *

; LANE, J. The defendants were indicted for the crime of

possession of gambling records in the first degree. The

defendants moved prior to trial to suppress gambling records

and a quantity of United States currency. This appeal is being

prosecuted by the People after the Trial Justice granted the

motion to suppress.

A ie ION AN le ee SIA

Patrolmen Schachtel, Shanahan and Mednick were in an

unmarked car, maintaining surveillance on 166th Street in -

Manhattan in connection with possible narcotics offenses. They

observed a car with two occupants (later identified as Messrs.

Opinion of Appellate Division

Ruiz and Rodriguez) driving past their location at frequent

intervals. They decided to follow it and ended up driving in

circles always passing the initial 166th Street location. The car

finally parked and another car occupied by the two defendants

pulled up alongside. Ruiz and Rodriguez entered the defendants’

car. All four then drove away, followed by the police. The

defendants’ car was driven “erratically,” with no real destination.

They just drove around “in circles” until after approximately 10

minutes of driving they returned to 166th Street. The three

officers then approact.d the car which was being driven by

defendant Denti, and Patrolman Schachtel asked for Denti’s

license and registration. Denti did not have either and he

explained that the car was owned by his wife. At this point

Schachtel observed a three-inch stack of money on the front seat

with newspaper around the sides. The money which was counted

at the scene amounted to $9,095 in various denominations. The

occupants denied any knowledge of ownership of this money.

All four denied knowledge of who the owner of the first car was,

as well.

At this point all four car occupants were directed to leave

the car and subjected to a superficial weapons search. The four

consented to go to the stationhouse for questioning and were

driven in Denti’s wife’s car by the police to the stationhouse. As

they left the car to enter the stationhouse, Patrolman Schachtel,

who was sitting in the back seat during the trip to the

stationhouse, noticed a piece of paper lying face up and from the

visible writing recognized it to be a gambling record known as a

“pay and collect slip.” The dollar amount recorded on the slip

added up to a total of $9,095, which corresponded exactly to the

Opinion of Appellate Division

amount of money found on the front seat. All four men were

then placed under arrest for possession of gambling records. The

charges against Ruiz and Rodriguez were subsequently dropped.

A further search of the vehicle revealed additional slips

representing another $57,000 in wagers. Subsequent to the

arrest, additional money was found on the person of defendant

Sarcinella.

The only testimony at the hearing was that of Pairolman

Schachtel. Though the Trial Justice gave full credence: to the

narrative of the patrolman, he nevertheless granted the motion

to suppress stating that the arrest was based on “pure suspicion.”

A step-by-step reconstruction of the occurrence reveals that

the ultimate arrest was not based on a mere suspicion or

conjecture but on probable cause.

The police officers, trained to detect and, if possible,

anticipate criminal activity, observed the unusual habits of the

defendants and determined that they warranted scrutiny. The

activities of the defendants Denti and Sarcinella cruising in

circles in a high-crime area indicated a possibility that a crime

was being or about to be committed. Of course, at that time they

had only a mere suspicion or hunch that any wrongdoing was

involved and thus had no right to make any arrest. (cf. People v.

Arthurs, 24 NY 2d 688, 692).

However, the next step taken by the police was perfectly

legitimate, and in conformity with the norma! police duty to

know what is going on in the streets; namely, checking for the

Opinion of Appellate Division

registration of the vehicle and the license of the driver of that

vehicle (Vehicle and Traffic Law, §401, subd. 4; §501, subd. 4;

People v. Rowell, 27 NY 2d 691; People v. Battle, 12 NY 2d 866;

cf. People v. Amanatides, 39 AD 2d 1010).

Once it was established that the driver had neither license

nor registration, the police had a right to take them to the

stationhouse for questioning (Vehicle and Traffic Law, §423,

subd. 1), especially when coupled with the “highly suggestive”

answers given by the defendants in disclaiming ownership of the

pile of money (cf. People v. Rosemond, 26 NY 2d 101, 105).

Until this point, no arrest had taken place. Defendants had

freely consented to go to the stationhouse. ‘

The next significant occurrence was when Patrolman

Schachtel, while getting out of the car at the stationhouse, saw

the “pay and collect slip” on the floor in the back of the car. It

appeared to him to be a gambling paper and his taking it was

not a wrongful seizure since this contraband was in piain view of

the police officer (Harris v. United States, 390 U.S. 234; People

v. Battle, 12 NY 2d 866; cf. People v. Gallmon, 19 NY 2d 389).

The subsequent search of the automobile and recovery of

additional policy slips, made in a timely, undelayed fashion,

immediately after and related to the arrest, rendered seizure of

those items of contraband proper (Cooper v. California, 386

U.S. 58; People v. Brosnan, 32 NY 2d 254, 260-261; People v.

Montgomery, 15 NY 2d 732, cert. den. 382 U.S. 853; cf. Preston

v. United States, 376 U.S. 364; People v. Lewis, 26 NY 2d 547,

$52).

Opinion of Appellate Division — 7

The search of the person of Sarcinella after the arrest was

made was a reasonable incident to the arrest itself.

Analysis of the police activity in the case at bar exemplifies

legal and proper police work resulting in an arrest based on

probable ‘cause.

In sum, determination of probable cause deals not with

technicalities: but with probabilities which must perforce include

the practical and factual considerations of everyday life acted

; upon by reasonable and prudent men under the totality of the

‘circumstances presented (Brinegar v. United States, 338 U. z:.

160, 175).

It' must further be noted that the determination at the.

hearing omitted any findings of fact and, upon request for such

' findings, the court merely stated that “the entire transcript is

clear as to exactly why I made my decision.” Such a statement is

not in compliance with the mandate of subdivision 6 of CPL

710.60. However, since the defendants had a full and fair

hearing, the findings of fact and conclusions of law as made by

this court’ shall constitute the findings and conclusions which

' should have been made by the hearing Justice (cf. People v.

Brady, is NY 2d 186, 189).

Accordingly, the order, Supreme Court, New York iat

_ (PECORA, J.), dated july 27, 1973, granting defendants’ motion:

to suppress should be reversed, on the law, and the motion

denied.

Opinion of Appellate Division

NUNEZ, B P., KUPFERMAN, MURPHY and TILZER,

JJ., concur. :

Order, Supreme Court, New York County, entered on July

27, 11973, pennenawely reversed, on the law, and the motion

denied,

INFORMAL OPINION

SUPPRESSION

During colloquy with counsel, the Court did express the

following informal opinions (Francis Pecora, J.):

“They had no information, the police, this

case is silent as to whether or not they had any

reason to believe this was a stolen car. The very

worst, the very worst they could think about this

driver is that this was a perhaps improperly

registered car, and in the normal course of

events, the driver of such a car is given a ticket

and a presumption is created that it is such a type

of car, and when he goes imto court with his

registration, the case is thrown out . . . [97]

All they do is cail back to the police station and

in five minutes they get an answer to ascertain

whether or not a car has been stolen. [101]

They were looking for a parking spot. [95]

When these police officers walked over to this car

and they asked the driver for his license and

registration, and once that was produced, that —

I refuse even to characterize it as a crime, that

failure to produce that item whatever it was,

whatever kind of violation it was, the fruits of

OF PECORA J. GRANTING

Informal Opinion of Pecora J. Granting Suppression

that crime lay right there and a search would not

have helped in any way to convict them or make

them more guilty of that crime. [108]

Now, the only thing you have here is a police

officer who claims that he looks down and he

sees a pile of money lying in newspaper . . . And

this is the reason why now he makes people get

out of the car because he claims that nobody

would say this money belongs to me; isn’t that

what you have here? [109]

People going around a block, does that

mean that you should have a suspicion that these

people are necessarily committing a crime? Here

you have police officers staked out on narcotics,

on narcotics, and the charge in this case is

gambling, or the proceeds of gambling, is it so?”

[110]

CERTIFICATE DENYING LEAVE

STATE OF NEW YORK

COURT OF APPEALS

BEFORE: HON. JACOB D. FUCHSBERG, Associate Judge

THE PEOPLE OF THE STATE OF NEW YORK

against

JOSEPH DENTI

1, JACOB D. FUCHSBERG, 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 pursuant to CPL 460.20 and upon the record and

proceedings herein,* there is no question of law presented which

ought to be reviewed by the Court of Appeals and permission to

appeal is hereby denied.

Dated at New York, New York

February 3, 1975

s/ Jacob D. Fuchsberg

Associate Judge

* Description of Order:

Order of Appellate Division, First Department, appearing in the

New York Law Journai on January 22, 1975, affirming without

opinion, conviction of possession of gambling records in the first

degree.

10a

ORDER OF AFFIRMANCE ON APPEAL FROM

JUDGMENT

1634

At a term of the Appellate Division of the )

Supreme Court held in and for the First

Judicial Department in the County of

New York, on January 21, 1975.

Present—Hon. Theodore R. Kupferman, Justice Presiding

Francis T. Murphy, Jr.

George Tilzer

Myles J. Lane, Justices.

The People of the State of New York,

Respondent,

-~against-

Joseph Denti,

Defendant-Appellant.

- An appeal having been taken to this Court by the

defendant-appellant from the judgment of the Supreme Court,

New York County (Fraiman, J.) rendered on July 2, 1974,

convicting him of the crime of possession of gambling records,

and said appeal having been argued by Mr. Gilbert S. Rosenthal

of counsel for the appellant, and by Mr. Jonathan Lovett of

Order of Affirmance On Appeal from Judgment

counsel for the respondent; and due deliberation having been

had thereon,

It is unanimously ordered and adjudged that the judgment

so appealed from be and the same is hereby, in all things,

affirmed. The case is remitted to the Criminal Term, Supreme

Court, New York County, for proceedings to direct defendant to

surrender himself to said Court in order that execution of the

judgment be commenced or resumed (CPL §460.50, subd. 5).

Counsel for appellant is referred to $606.5(2), Rules of the

Appellate Division, First Department.

ENTER:

HYMAN W. GAMSO

Clerk.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.