Opposition Brief — Vanderhide v. Brown & Sharpe Manufacturing Co.

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. °° SUPREME GOURT, & &

IN THE

Supreme Court of the United uten

October Term, 1975

Fic

JUN 6 1975

No. 74-1368

JOSEPH DENTI,

Petitioner,

against

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

— tt

BRIEF IN OPPOSITION TO PETITION FOR

District Attorney

New York County

Attorney for Respondent

155 Leonard Street

New York, New York 10013

(212) 732-7300

Peres L. Zutnorn

T. James Bayan

Assistant District Attorneys

TABLE OF CONTENTS

PAGE

Preliminary Statement. . ...... 1

1 ˙ A ˙¹ꝛꝛ—¹ !A ̃ ²⁰¹ͤ ⁰̃ ̃ ⁵v;hA 2

Wr ² .. hateiceten baa 3

Point I— The conduct of the police officers which led

to the discovery of the evidence against Denti

was reasonable and did not violate any of his

constitutional right 4

Point II Denti's guilt was adequately proven 10

Ac —TTTVTTTVTVTTTTTTTTT—T—T——V—VV——— 12

TABLE OF AUTHORITIES

Cases:

Chambers v. Maroney, 399 U.S. 42 (1970) .................... 9

Leary v. United States, 395 U.S. 6 (196997 10

Morrison v. California, 291 U.S. 82 (1934) 11

People v. Brinfield, 40 Mise.2d 993 (Nassau Co. 1963) 10

People v. Denti, 44 A.D.2d 44 (Ist Dept. 1974) 2,9

People v. Denti, 47 A.D.2d 513 (Ist Dept. 1975) 1, 3

Peters v. New York, af d sub nom., Sibron v. New

2 / ꝙ————— arene enem 8

Rios v. United States, 364 U.S. 253 (1960), on remand,

192 F. Supp. 888 (8.D. Calif. 196177777 8

Terry v. Ohio, 392 U.S. 1 (1988) . 8

Statutes:

New York Penal Law:

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— ˙ ͤ— ĩð xy. aillogacipes 10

—. ͤ ¼ n b ce 10

New York Criminal Procedure Law 6140.25 8

New York Vehicle and Traffic Law 66401 (18), 509(1)

‘ ‘

‘

October Term, 1975 7

U

N No. 74-1368

Petitioner,

against

ö Tue ProrLx or THE Gran or New ‘York,

Respondent,

— . —

/

BRIEF IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI

. Preliminary Statement

Joseph Denti is seeking a writ of cert‘orari to review

an order of the New York State Appellate Division, First

Department, entered January 21, 1975, which unanimously

affirmed his conviction in the Supreme Court of New York

County for Posszsston or GNA Recorps ix THs Fiest

Deore (N.Y. Penal Law 6225.20). People v. Denti, 47 A. D.

2d 513 (Ist Dept. 1975). Following that conviction, Denti

had been sentenced on July 2, 1974 to an indeterminate

term of imprisonment with a muximum of three years. He

is presently serving this sentence. Leave to appeal the

decision of the Appellate Division to the Court of Appeals

was denied by Judge Fucusszre of the Court of Appeals

on February 3, 1975.

On July 18, 1972, Josapli Denti, and Joseph Sarcinella

' were arraigned on an indictment charging them with hav-

ing possessed gambling records in the first degree on April

24,1972. Indictment No. 2408-72. Both defendants pleaded

not guilty and moved to suppress ‘‘any and all evidence

seized from the physical or constructive possession of the

defendants herein on the 24th day of April, 1974.“ Fol-

lowing an evidentiary hearing the trial court granted the

suppression motion on July 3, 1973.

The People appealed that decision to the Appellate Divi-

sion, First Department, as authorized by Section 450.20 of

the New York Criminal Procedure Law. On March 12,

1974; the Appellate Division unanimously reversed the trial

court’s decision. People v. Denti, 44 A.D.2d 44 (ist Dept.

1974), leave to appeal denied by Wacutizz, J.

In May of 1974, the trial of Denti and Sarcinella was

commenced before a jury. At the conclusion of the People’s

Denti’s motion for the same relief was denied. Denti

called no witnesses in his defense, The jury found him

_ guilty of criminal possession of gambling records in the

first degree as charged in his indictment. On July 2, 1974,

Denti was sentenced to an indeterminate term of imprison-

‘ment with a minimum of one year and a maxmum of three

The items seized were $ in cash, $3,354 i i

records for $9,095 in wagers and gambling records for $97,000 i

years. His conviction was unanimously affirmed by the

Appellate Division. People v. Denti, 47 A.D.2d 513 (Ist

Dept. 1975), leave to appeal denied by Fucusszne, J.

The Instant Petition

Denti asks this Court to grant a writ of certiorari to

review the decision of the Appellate Division. He claims

that the evidence seized from him at the time of his arrest

should have been suppressed because ‘‘it was a violation

of the Fourth and Fifteenth Amendments of the United

States Constitution to have stopped petitioner’s vehicle and

then conduct a search of his person and car.’’ He also

claims that the ‘‘presumption of Penal Law Section 225.35

(1) is unconstitutional as applied herein.. Neither of

these claims present a substantial constitutional question

which would warrant further review of Denti’s conviction

by this Court.

POINT I

The conduct of the police officers which led to the

discovery of the evidence against Denti was reasonable

and did not violate any of his constitutional rights

{answering Point I of Petitioner’s Brief].

On the night of April 25, 1972, Officers Schachtel, Shana-

han and Mednick of the Narcotics Division of the New York

City Police Department were on plainclothes duty. They

were seated in a parked Volkswagen maintaining a sur-

veillance of a location on 116th Street where narcotics were

reportedly being sold (4-6, 38, 40, 63).* An automobile

driven by two Hispanics passed the officers’ car three times

and Officer Mednick called the other officers’ attention to it

(7, 44). When this car passed the officers a fourth time,

they decided that, if it passed a fifth time, they would fol-

low it (44). It did, and the officers followed behind as ‘‘it

would go down one street, more or less make circles around

the neighborhood, go three blocks, make a right, come up

a block, make another right. It would go two or three

blocks at a time and then make a change of direction, come

up on to St. Nicholas, down Amsterdam, whatever, which-

ever way the street ran’’ (45).

Eventually this car stopped at St. Nicholas Avenue and

166th Street (45). There, a 1969, four-door Buick driven

by Denti, with Sarcinella seated next to him, pulled along-

side the Hispanics’ parked car (7, 45-46). The two His-

panic men left their car and got into the rear of Denti and

* Numerical references are to the pages of the minutes of the sup-

pression hearing.

Sarcinella’s vehicle (7, 45-46). The foursome then drove

away and proceeded ‘‘erratically * * * in circles’’ with ‘‘no

destination with the policemen following them (7, 47).

After approximately ten minutes of driving, Denti and

his companions returned to the first car and double-parked

next to it (4, 47). Officer Schachtel, followed by his part-

ners, got out of the Volkswagen, and Officer Schachtel

walked over to Denti’s window and identified himself as a

police officer (8, 47-48). Officer Schachtel asked Denti for

his license and registration (8, 48). Denti was unable to

produce either a license or registration. He claimed, how-

ever, that the car was owned by his wife (8-9, 48). It

would have been proper for Officer Schachtel to have then

arrested Denti for driving without a license or registration.

However, he did not do so.

From where he was standing outside the car, Officer

Schachtel was able to see a two or three-inch high stack of

money on the front seat between Denti and Sarcinella.

This money was piled up with a piece of [news] paper

around the sides, but the top was exposed. You could see

all the money (9-10, 57, 61, 68). When Officer Schachtel

asked all four occupants of the car whose money this was,

two of them stated that they did not know and the other

two shrugged their shoulders (10).* Officer Schachtel then

pointed to the car from which the men in the back of Den-

ti’s car had come, and asked all four men whose car that

was. All four responded that they did not know (49).

Fr ee

The officers then asked all four men to get out of the

car where the exterior of their clothing was patted down

to see if they had any weapons on them“ (11, 50). No

search was conducted and no items were seized.

In view of the earlier suspicious conduct of the occu-

pants of the car and Denti’s inability to produce a license

or a registration, these unresponsive and evasive answers

eoncerning the money and the other car gave the officers

probable cause to believe that the two men on the back

seat of the car were guilty of possessing stolen money and

at least one stolen automobile. Thus, the officers had prob-

able cause to arrest the occupants of the car and search

their person. However, rather than formally arrest the

suspects, the officers asked the men to come with them to

the 34th Precinct (65). This was done so that the officers

could further investigate the ownership of the car and the

money found on the front seat which had been counted and

amounted to $9,095 (11, 13, 64-65, 67).

Officer Schachtel entered the right rear of the Buick

and sat immediately next to Sarcinella, Denti sat to Sarci-

nella’s left, Officer Mednick drove the Buick to the precinct,

and Officer Shanahan drove the other automobile (11-12,

13). Upon arrival, Mednick parked the Buick opposite the

34th Precinct on the fairly well lit’’ street (71-2), Offi-

cer Sehachtel got out and was followed by Sarcinella and

Denti and the two Hispanics, all four of whom Patrolmen

Shanahan and Mednick aceompanied across the street to

the police station (12, 73, 75, 79). Officer Schachtel then

looked at the rear seat and the rear floor area of the car

where he, Denti and Sareinella had been seated and ob-

served a partly folded piece of paper on the right-hand side

7

of the floor. The paper was lying face-up, and from the

lines of numbers written on the paper, the officer recog-

nized it as a pay and collect slip’’—a gambling record

which shows ‘‘the tally for who they’re collecting money

from and paying off (73-4, 77). Officer Schachtel picked

up the piece of paper (12, 74). [This pay and collect’’

slip indicated a total amount to be collected of $9,095, the

same amount as contained in the stack of money which had

been on the seat between Denti and Sarcinella (12, 24-5,

73).

Instead of shout [ing] across“ the street to his part-

ners and the suspects about his discovery, Officer Schachtel

immediately followed them into the precinct house and ar-

rested the foursome for possession of gambling records

(25, 75, 79). They were searched and an additional $3,354

was found in Sarcinella’s right-hand pants pocket (37,

83) which the policemen vouchered on the theory that this

money constituted proceeds from gambling’’ (54).

Immediately after arresting and searching the defend-

ants, Officer Schachtel returned to the Buick and conducted

a further search. He discovered additional pay and collect

slips representing $57,000 in wagers concealed behind an

upright arm-rest which was located in the center of the

car's front seat at a point directly behind where the $9,095

had been lying on that seat (25-6, 28-9).

Based on these slips, Denti was convicted of possessing

gambling records in the first degree.*

* The court charged the jury that Denti could not be found guilty

of possessing the “pay and collect” slip for $9,095 which had been

seen on the rear floor of the car. Minutes of Trial, at 393.

8

At each step of the investigatory process followed by

the police officers in this case, they acted well within the

established guidelines for police conduct. The initial in-

quiry by Officer Schachtel concerning Denti’s license and

registration was fully justified by the highly unusual and

suspicious behavior of Denti and his three companions,

which the officers had observed. Terry v. Ohio, 392 U.S.

1, 32-33 (1968); cf. Rios v. United States, 364 U.S. 253

(1960), om remand, 192 F. Supp. 888 (S. D. Calif. 1961).

Denti’s inability to produce either a driver’s license or a

registration for the vehicle gave the officer probable cause

to arrest him for driving without a license or registration.

N.Y. Vehicle and Traffic Law §§401(18), 509(1) ; N.Y. Crim-

inal Procedure Law §140.25; N.Y. Penal Law §410.00(1) (2),

60.20. However, he did not arrest Denti, but made further

inquiry about the bundle of cash seen on the front seat of

the car and about the ownership of the car parked alongside,

which Denti’s passengers had been seen driving.

The evasive and incredible answers given by Denti and

his companions to the officers’ questions about the $9,097

and the ownership of the parked car gave the officers prob-

able cause to arrest Denti and his companions for the crim-

inal possession of stolen property. Cf. Peters v. New York,

aff’d sub nom., Sibron v. New York, 392 U.S. 40, 48-49,

66-67 (1968) (An off-duty police officer heard a noise at

the door of his apartment and saw the defendant and an-

other man tiptoeing away. When the officer slammed the

door of his apartment, the defendant and his companion

fled down the stairs. This flight, coupled with the defend-

ant’s refusal to identify a girl he claimed he had been

9

visiting in the building, gave the officer probable cause to

arrest him for attempted burglary.) Although the officers

could have arrested Denti and his companions at this point,

they chose instead to detain them while they further inves-

tigated the matter at the station house. The frisk of Denti,

which produced no evidence, was a reasonable self-protec-

tive measure under the circumstances, since the officers were

going to be riding with Denti and his companions in the

ear as they returned to the station house.

Since Officer Schachtel was legitimately inside the auto-

mobile when he saw the gambling record in plain view on

the floor in front of the back seat, his seizure of that item

of contraband was proper. Moreover, discovery of that

gambling record, which reflected $9,097 in wagers, precisely

the amount of money which had been on the front seat of

the car, gave the officer probable cause to believe that the

car contained additional evidence of gambling law viola-

tions. Therefore, the search of the car immediately after

the arrest of Denti and his companions in the station house

was proper. Chambers v. Maroney, 399 U.S. 42 (1970).

Therefore, the Appellate Division correctly held that peti-

tioner’s motion to suppress that evidence should have been

denied. As the Appellate Division said, Analysis of the

police activity in the case at bar exemplifies legal and

proper police work resulting in an arrest based upon prob-

able cause. People v. Denti, 44 A.D. 2d 44 (1st Dept.

1974).

~

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10

POINT II

Denti’s guilt was adequately proven.

Denti claims that the discovery of the pay and collect

slips for the amount of $57,000 under the arm-rest in the

middle of the front seat of the car he had been driving

did not suffice to establish that he had knowingly possessed

those slips, as found by the jury.* In support of that claim

he argues that the statutory presumption of New York

Penal Law Section 225.35(1) is unconstitutional. This sec-

tion provides that ‘‘Proof of possession of any gambling

device or of any gambling record specified in sections 225.15

and 225.20, is presumptive evidence of possession thereof

with knowledge of its character or contents.’’ This pre-

sumption is rebuttable. People v. Brimfield, 40 Misc. 2d

993 (Nassau Co. 1963) (dealing with the predecessor to

~ this section).

A presumption is constitutional, if ‘‘it can be said with

substantial assurance that the presumed fact is more likely

than not to flow from the proved fact on which it is made

to depend. Leary v. United States, 395 U.S. 6, 36 (1969).

It cannot be doubted that one who possesses — that is,

The jury had been instructed that Denti could not be found

of possessing the record found in the rear of the car.

pat top) cag) tire Penal Law §225.20, of which Denti was

states that

= sec Pan tity of pong gambling records in the first

8 he pos-

K

Be Of a kind commonly used in the operation or promotion

of. a bookmaking scheme or enterprise, and constituting, reflect-

ing or representing more than five thousand plays or chances

11

one who ‘‘exercises dominion or control“ over contraband

usually knows what it is he possesses. Moreover, it is not

unreasonable to quire the defendant to come forward

with evidence to rebut this presumption, since whether a

defendant actually knows the nature of what he possesses

is peculiarly within his knowledge. As this Court said in

Morrison v. California, 291 U.S. 82, 88-89 (1934) :

The limits are in substance these, that the State

shall have proved enough to make it just for the de-

fendant to be required to repel what has been proved

or at least that upon a balancing of convenience

or of the opportunities for knowledge the shifting bur-

den will be found to be an aid to the accuser without

subjecting the accused to hardship or oppression.

In any event, the jury did not have to rely upon the

statutory presumption to find that Denti possessed the slips

with knowledge of their contents. The suspicious conduct

of Denti and his companion and his patently false denial

of knowledge about why more than $9,000 in cash was on

the front seat of his car made it clear that he knowingly

possessed the gambling records found almost directly under

that money.

The petitioner’s claim that there was insufficient evi-

dence that he physically possessed the gambling slips, found

next to where he was seated in the car he was driving, is

frivolous and hardly presents a constitutional question.

* “Possess” is defined in the New York Penal Law as “to have

physical possession or otherwise to exercise dominion or control over

— seupetiy.” N.Y. Penal Son §10.00(8).