Petition for a Writ of Certiorari — Indelicato v. New York State Board of Parole

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IN THE j Mic bi

Supreme Court of the Rnited States

October Term, 1975

No. ......6 5° Lig

ALPHONSE INDELICATO,

Petitioner,

-aprainst

THE NEW YORK STATE BOARD OF PYROLE,

Respondent

VE SPOTTER!

PETITION FOR A WRET OR CERTIOR eb bO

THE UNTPED STATES COURT OF AL FE ALS

FOR THE SECOND CIRCUT!

ARNOLD BE. WALL ACH

Attorney for Petitioner

A Member of the Bar of th

United States Supreme Cow:

11 Park Place

New York, NOY. 10007

(212) 227-0959

Dick Batley Printers, Ine, Tel. (212 558

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TABLE OF CONTENTS

Page

Re Se nick 5 oes ok os dais Ke bea Shas

I Se ros awa Nal ciatag tee Wend eae he arate 2

See TI ain oa vo ee eR ee eee 2

The Principal Constitutional Provisions, Statutes and

Pn ME & deo Se saw OK e Keak ew sehen 3

DABICINOME OF TNE Came ook kk ec ee ea es 4

The Reasons For Granting This Writ ......... ee

CTE ks <a back bi EWS ARE eek ee Pe brea ow kes 26

Peeve eee eT eT Te TES TTT OTe CT eT e Te TE 29

ok re ee ere re ys es ee 31

ok err ee reer Ter eer rrr re Te Tee

PUL TR a's 5 65-655 hawk od cane Uk SON Ce ke 36

CASES CITED

Brady v. Maryland, 373 U.S. 83 (1963) oo ontee

California v. Green, 399. U.S. 149 000 eee 16

Cagney. O.5.. 45 0.8. 1001972) . el. re

il

Henry v. Mississippi. 379 U.S. 443, 447, 449 (1965) ... 22

Jenkins v. McKeithen, 395 U.S. 411 00.0... ee 16

Kaufman v, U.S., 394 U.S. 217 (1969) 2... eee. 23

Moore v. Illinois, 408 U.S. 786 (1972) 2.0... 0.0.0... 21

People v. Washington, 32 N.Y.2d 401 .............. 24

eee Oy EE, Ac RAD a oo v6 oo 6-¥ Ke tesa wees i6

U.S.A. Ex Rel. Leon Washington v. Vincent etc., U.S.

Court of Appeals, Second Circuit, No. 248, Sep-

tember 1975 Term, decided November 5, 1975, slip

agar tig alah! gyal EMR tte I a ER 24

OTHER AUTHORITIES

Amendment 14 tothe U.S. Constitution—Section1 ... 3

aE eS ee ae eee 3

PR a es ere eer eee eee 3

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IN THE

SUPREME COURT OF THE UNITED STATES

ALPHONSE INDELICATO,

Petitioner.

-against-

THE NEW YORK STATE BOARD OF PAROLE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

Petitioner Alphonse Indelicato. requests that a writ of

certiorari issue to review the final order of the United States

Court of Appeals for the Second Circuit, denying the

petitioner's application for a certificate of probable cause

allowing and affording leave to appeal to the order of the

United States District Court, Southern District of New

York, denying reliet in a habeas corpus proceeding in-

stituted in that court. The relief sought was to release the

petitioner or vacate a judgment of conviction rendered in

the then Court of General Sessions of the City of New York.

a New York State Court, or to provide alternative and

appropriate relief applicable to the issuance of a writ of

habeas corpus.

THE OPINION BELOW

The United States Court of Appeals tor the Second

Circuit originally denied the application for a certificate of

probable cause by order dated September 23, 1975. No

opinion was rendered (Appendix A, intra). Thereafter

POLE REE: ema. |

petitioner applied for a reargument, rehearing or recon-

sideration of the application for a certificate of probable

cause and that was denied (Appendix B, infra).

The opinion, decision and final order of the United

States District Court, Southern District of New York,

denying all relief was dated July 28, 197S Judge Thomas P.

Griesa). is reproduced herein (Appendix C, infra).

JURISDICTION

The jurisdiction of this Court ts invoked. made and

conterred under 28 U.S.C. 1254 (1). see also 28 U.S.C.

2253 and Rule 22(3) of the Rules of this Court.*

QUESTIONS PRESENTED

A. Was the petitioner's right to a fair trial violated when

the District Attorney of New York County, who prosecuted

the petitioner in the then Court of General Sessions,

(replaced by the New York State Supreme Court, County of

New York thereafter) for murder and attempted murder

withheld evidence that he knew existed that showed that

the prosecution's only important witness received favorable

treatment from the State agency in regard to his license to

engage in the sale of liquor and that such favorable

treatment was known to the District Attorney, to the

witness, and was rendered prior to the witnesses’ testimony

at the trial of the petitioner and were the Courts below

correct in denying petitioner the right to appeal to the

Circuit Court of Appeals for the Second Circuit from the

order of the District Court denying relief?

*The Distnet Attorney of the County of New York appeared in behalf of

the respondent in all stages of this proceeding and is the proper party to be

served.

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THE PRINCIPAL CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES INVOLVED

1. Amendment 14 to the United States Con-

stitution—Section 1:

- nor shall any State deprive any person of

life, liberty or property, without due process of

a

2. 28 U.S.C.—Section 2241:

‘Power to Grant Writ—(a) Writs of habeas corpus

may be granted by... . the District Courts and

any Circuit Judge within their respective

jurisdictions. . . .”

“(b).

‘“(c) The writ of habeas corpus shall not extend to a

prisoner unless: (a)... (2) ... (3) He is in

custody in violation of the Constitution all laws or

treaties of the United States; or (4). . .(S)...

‘(d) Where an application for a writ of habeas

corpus is made by a person in custody under the

judgment and sentence of a state court of the state

which contains two or more federal judicial

districts. the application may be filed in the

District Court of the district wherein such person 1s

in custody or the District Court for the district

within which the state court was held which

convicted and sentenced him. . .”

3. 28 U.S.C.—Section 2253

‘*Appeals—In a habeas corpus proceeding before a

circuit or district judge, the final order shall be

subject to review, on appeal, by the Court of

Appeals for the circuit where the proceeding is

had.

“An appeal may not be taken to the Court of

Appeals trom the final order in a habeas corpus

proceeding where the detention complained of

arises out of process issued by a State Court, unless

the Justice or Judge who rendered the order or a

Circuit Justice or Judge issues a certificate of

probable cause...”

STATEMENT OF THE CASE

This was an application instituted by the petitioner, for

the tssuance of a writ of habeas corpus to issue to the New

York State Board of Parole, an agency of the State of New

York. The basis for this application was that the State of

New York, namely the then District Attorney of New York

County who prosecuted the petitioner and the State Liquor

Authority or the Alcoholic Beverage Control Board's New

York State agencies, withheld evidence that could have

been utilized by Indelicato at © © trial that resulted in his

conviction hereinafter described.

It is undisputed that the petitioner exhausted all State

remedies and that the basis for the application was never

raised and decided before in any prior applications made

by Indelicato in attacking his conviction.

Nor can it be contended that if relief herein is granted,

Indelicato cannot be tried again. There was only one

eyewitness to the crime involved herein, that witness was

and it is believed, is now alive. As a matter of fact that

witness testified at the evidentiary hearing in the Supreme

Court, New York County, where the issues herein were

originally raised, heard and adversely decided. Therefore,

if relief is granted the State of New York, it is believed, can

try the petitioner.

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The petitioner was originally, together with a co-

detendant named DiBiasi, indicted tor murder in the

appropriate State Court. The petitioner was tried alone but

the trial never reached fruition because the jury was

deadlocked. Therefore a second trial was had and this was

concluded but the petitioner was convicted not on the

charged counts of the indictment but on lesser included

crimes and also attempted murder in the first degree. Thus

under the first count charging first degree murder, the

petitioner was convicted for murder in the second degree.

he was also convicted of attempted murder in the first

degree. The petitioner was sentenced to a term of twenty

(20) vears to life on the charge of murder in the second

degree and a concurrent term of 12'2 to 25 years on the

charge of attempted murder. At present, the petitioner ts

on parole,

The Supreme Court of New York County, to determine

the post-conviction application, ordered an evidentiary

hearing. The two principal witnesses at the hearing was one

Rocco Tisi, who testified against the petitioner at the trial

in chief, and a former assistant prosecutor, one Vincent

Dermody, who prosecuted the case.

At the hearing two principal documents were also

received in evidence. one of which (and which is the most

important) was never known to petitioner or his counsel at

the State trial, culminating in the convictions. That

document was a written record of a statement by the trial

prosecutor that Risi enjoyed a State liquor license to

maintain a bar but that such license was in jeopardy

because Tisi in applying for it originally failed to disclose

his arrest record and that when the State Liquor Authority

was considering a non-renewal of it, at the time of the

second trial, the District Attorney made known to the State

Boers: wR”

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Liquor Authority that the first trial jury was deadlocked

and that Tisi was the State’s most important witness and

that the agency should withhold adverse action in regard to

that renewal. And so the agency did.

Post-conviction relief was sought in the State Court on

the fact that the State prosecutor, Dermody, knew of the

favorable action, arranged it, and persuaded the State

Liquor Authority to withhold adverse action on the renewal

of Tisi’s liquor license and therefore willfully concealed this

trom trial counsel. By agreement with the prosecutor at the

post-conviction hearing, in the Supreme Court. New York

County, an affidavit by petitioner's then trial counsel to the

effect that he was never aware of that important record,

was made part of the record of those proceedings.

Rocco Tisi, called by the petitioner. testified on direct

examination that at the time of the post-conviction ap-

plication he was represented by counsel who was present in

Court (4)*. Tisi, at the time of the application by the

petitioner, was living in Virginia Beach for the past ten to

twelve years. Prior to moving to Virginia Beach Tisi lived at

141 Mulberry Street in Manhattan. He knew the petitioner

(4, 5). In May 1954 Tisi appeared at the second trial of the

petitioner, the first trial never having reached a verdict (S,

6).

The District Attorney who prosecuted both trials was one

Vincent Dermody (6).

At the time Tisi testified at both trials, he was the owner

of a bar and grill located at 124 Rivington Street in

Manhattan. That bar and grill was licensed by the State

Liquor Authority (New York) (7).

“(This refers to the pagination of the minutes of the hearing on the

post-conviction application

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~]

Betore testifying at the second trial of the petitioner, Tisi

received a notice from the Liquor Authority dated January

27, 1954 (7-10).

This notice was introduced into evidence as the

petitioner's “Exhibit A” in evidence (10). Exhibit A stated

in substance that Tisi’s application tor a renewal of the

license would be disapproved because when Tisi originally

applied tor that license he failed to disclose that he was

previously arrested for the charge described in said notice

(11. 12). However endorsed at the bottom of this notice of

cancellation or non-renewal was the following: ‘‘ce:

Assistant Dis. Attorney Dermody, 155 Leonard Street.

a, aa

Having thus been notified. Tisi told the police who

guarded him in protective custody, to take him to Der-

mody. The police did take him to Dermody’s office (13).

There Tisi displayed this notice to Dermody and the

District Attorney admitted to him that he had a copy of

that. Dermody told Tisi to “‘relax”’ (14). Dermody assured

Tisi that he would find out about the matter (15).

Tisi further related that he saw the Assistant District

Attorney telephone and say to the person on the other end

that he, Tisi, was a witness in a murder case and that

Dermody asked that person to put a hold on the matter

until he. Dermody, called him again because Tisi was a

witness in a murder case (15-17).

When the call was completed Dermody told him that he

spoke to a good friend of his who was previously an

Assistant District Attorney, but that when he left the

District Attorney's office he became associated with the

New York State Liquor Authority (17, 18). Following this

the renewal of the liquor license was not disapproved (18).

»

8

Received in evidence in the Supreme Court and as part of

petitioner's case, was a writing trom the State Liquor

Authority; this was a stipulation entered into between the

State Liquor Authority and Tisi and it was received in

evidence as petitioner's “Exhibit B" (22-26). Tisi testified

that he executed that stipulation (25, 26).

Continuing his testimony Tisi stated that the liquor

license was never revoked or cancelled. Following the trial

of petitioner Tist maintained the bar and grill under that

license to the year 1958. He was dispossessed from the

premises and that was the end of the bar and grill business

and the license was never revoked (26, 27).

Tisi concluded his direct examination by stating that

Dermody interceded with the State Liquor Authority for

him; that Dermody told him that this was to be confidential

and that he, Tisi, should not divulge Dermody’s in-

tercession with the State Liquor Authority (35).

On cross examination Tisi testified that he was not paid

by the petitioner to testify (35, 36). That after he was

dispossessed in 1958, he let his license lapse and that he

never held a liquor license after that (40, 41).

On this phase of the cross examination the State

prosecutor referred to the trial of one DiBiasi. It will be

recalled that DiBiasi was originally joined in the indictment

with the petitioner but was tried separately because he was

not available at the time of the petitioner's trial. DiBiasi, as

a matter of fact, was subsequently tried. The first trial

ended in an acquittal. DiBiasi’s trial commenced February

1, 1961 (42). Tisi testified at DiBiasi's trial.

Tisi further testified that he moved from the premises at

118 Rivington Street where the bar was maintained to

across the street and that he had the license transferred to

that place (46, 47). He attempted to sell the bar and

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9

transfer the license to a buyer who wanted to move it to 111

Second Avenue; Tisi never made an application to transfer

that license (47, 48).

In regard to the notification of non-renewal and can-

cellation, that was dated January 27, 1954, Tisi testified

that before receiving the notice, he testified before a New

York County grand jury and also at the first and second

trials of petitioner. Tisi identified the petitioner in 1952.

This all occurred before the notice of cancellation (1952).

Tisi related that Dermody told him to tell the truth (SS).

However Tisi added that Dermody did coach him to as to

his testimony in both trials (56).

Tisi admitted that he never testified and told what he

called the “ultimate truth” at petitioner's trial. ‘The

ultimate truth” was explained by Tisi as consisting of what

Dermody did about saving his liquor license (58).

Pressed further upon cross examination, Tisi stated that

Dermody told him not to worry about the problem he had

with the Liquor Authority and that as long as he testified

nothing would happen to his license (63, 64).

Atter Dermody made the telephone call to a person

connected with the State Liquor Authority, Dermody said

that nothing would happen to his license but that this was

“confidential” between them and “nobody else” (65).

‘Tisi was shown the stipulation dated February 26, 1954,

Petitioner's Exhibit “B™ at this hearing. This was not

admitted in evidence in trial but was merely marked for

identification on May 20, 1954 (70, 71). The District

Attorney then referred to folio 666 of the trial records (71).

That record disclosed that Tisi at the petitioner's trial

testified that he never showed that to Dermody but did

discuss it with Dermody (72, 73).

SSG PENT OY

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10

Apparently the cross examination of the District) At-

torney had tor its purpose a showing that at trial Tisi

testtied that he did call Dermody but didn’t testifv as to

that at Indelieato’s trial that he went to see Dermody (74).

At the hearing however Tisi testified that he also went to

see Dermody about the threatened cancellation (75). Tisi

was then questioned about his testimony at the trial of

Indehieato found in tolios 670, 674.

‘Tist testified at the hearing that Dermody did not tell

him to lie in Indelicato’s trial but did tell him to keep his,

Dermody’s help confidential (79). Tisit later told) In-

dehieato’s lawyer one Matthew Selko that this was in regard

to the application (81).

‘List turther testified that in 1961 he was a witness at the

trial of DiBiasi. This was the last trial of DiBiasi and ended

iInan acquittal (82). At that time he had no liquor license

(83). The stipulation whereby Tist was allowed to enjoy the

license, was received in evidence and made part of the

record at the second trial of DiBiasi (84). At DiBiast's trial

and on page 420 of the trial record, Tisi testified that

Dermody did not intercede for him (86, 87). He did testify

that Dermody merely told him that he would inquire as to

what it was all about (87).

Tisi at the hearing testified turther that he tried to have

Dermody “to get him off the hook, because what he told

me was in confidence, maybe that’s why | didn’t: ex-

plain... express myself better. Maybe to help get Mr.

Dermody off the hook tor helping me save my license.

That's what | would have told him .. .. (88).

When contronted with his testimony at the DiBiasi trial,

this disclosed that Visi at that trial testified that he didn't

know that Dermody interceded tor him (90).

Tisi was then contronted with Exhibit ‘2° tor iden-

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11

tification which was the cancellation of his license (95).

Phis cancellation was dated February 3, 1958 (96). Tist

testified that it did not refresh his recollection. Fe still

insisted that his license was never cancelled (99).

The District Attorney at this hearing also contronted [isi

with People’s Exhibit 3" in evidence. This was a writing

signed by Tisi (100, 101). It was dated February 14, 1958

(102). Visi testified he never read it (103, 104). Nor did this

refresh Tisi's recollection that his license was cancelled

(108).

After speaking to Dermody about the notice of can-

cellation, Tisi testified that he felt confident that the license

would not be revoked (LO8, 109, 110. 114).

Tist was further shown a letter signed by him and ad-

dressed to the S.L.A. and dated February 1, 1954 (110-

112). Visi testified that his brother may have sent that letter

to the S.L.A. (114). Dermody did not tell him to write that

letter (114). He didn’t remember sending the letter (115).

The notice of cancellation which Tist spoke about to

Dermody was dated January 28, 1954 (117).

There was then put in evidence People’s Exhibit “S”

which was an “internal memorandum of the State Liquor

Authoritv” (118). This was read into the record. It was

dated) January 29, 1984 (119-121). This — internal

memorandum, which was read into” the — record,

acknowledged that on January 29, 1954 Dermody spoke to

the author of the letter in regard to a notice of disapproval

of a renewal of the liquor license held by Tisi. The writer of

the letter acknowledged that Dermody told him that the

licensee, Tisi, was a material “and only witness ina murder

ease which he had tried in October 1953 and in which the

jury disagreed ina seven to five verdict for conviction . .

(119).

12

The memorandum continued, that Dermody stated he

was going to try the case in May 1954, that Tisi was in peril

of his lite because only one of the murderers had been

apprehended and that Tisi, even while operating his

business. was under police surveillance (119, 120).

The writing further continued that “. .. Mr. Dermody

feels that it is essential to his case Mr. Tisi be continued in

business, at least until after his trial has been finished

sometime in May.” (120).

It is respectfully brought to this Court's attention

however, that since the close of this hearing, counsel was

presented with an affidavit made by Peter F. Sabbatino

sworn to April 2, 1973 (Petitioner's trial counsel). Counsel

gave a copy of this affidavit to the District Attorney. It has

been agreed between counsel and the District Attorney that

this affidavit may be part of the record, thus obviating any

application to reopen the hearing to have Mr. Sabbatino

testify.

The substance of the affidavit is that Mr. Sabbatino did

not read this memorandum of Deputy Commissioner Monz

in regard to the liquor license of Tisi.

Mr. Sabbatino alleged that when he was trial counsel for

the petitioner herein, he subpoened the file of the State

Liquor Authority in regard to Tisi. Mr. Sabbatino further

stated that that memorandum was not in the file and was

never produced for his inspection or made available to him.

As a matter of tact Mr. Sabbatino did not know the

existence of that memorandum until he read it verbatim as

it was spread on the minutes of the State post-conviction

hearing at pages 119-121.

Furthermore, Mr. Sabbatino at no time was told by Mr.

Dermody during the trial that he had interceded with the

State Liquor Authority in regard to Tisi.

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13

Tisi further testified that he did not divulge Dermody’s

aid because of an obligation to Dermody (139). He never

told the jury that Dermody interceded tor him (140).

Tisi was further questioned about the affidavit or

deposition he gave to Matthew Selko, Esq., who was an

attorney for Indelicato. That affidavit did not contain any

allegation by Tisi that Dermody told him to keep the

matter in confidence (143). Tisi however explained that a

portion of the affidavit was relative to this (144, 145).

Nor did Tisi ever tell anybody before about Dermody

telling him to keep that matter in confidence (148).

Tisi was interviewed by the District Attorney December

13, 1972 in regard to the said post-conviction hearing

(151). He never told them about Dermody telling him to

keep the matter in confidence (151).

On redirect examination Tisi testified that he attended

elementary school eight years and attended high school for

a year and a half (169). He was shown a document with his

signature on the bottom of it (170). This is put in evidence

as petitioner's Exhibit “C’’ (170, 171). This exhibit was a

letter (171). It was allowed in evidence to show Tisi’s state

of mind as to whether he knew the license was cancelled

(171, 172). The letter was read into the minutes and is on

pages 172-175 of the minutes.

Tisi had a lawyer by the name of Fein whose office was at

2 Lafayette Street. He was retained in regard to Tisi’s

liquor license (175, 176).

Also in evidence was a letter from the S.L.A. dated

March 7, 1959 (176). This was read into evidence and is

found on pages 177-178. This exhibit was a letter sent by

the S.L.A. to Tisi’s lawver Albert Fein. The substance of

the letter was that the petition submitted in Tisi’s behalf for

Sc MSR ALO 9

14

a reconsideration of the cancellation of the license, was

submitted to members of the Authority during the week of

March 1958. The letter continued that after considering

the matter the Authority denied a request for consideration

but without prejudice to any renewal of such request if Tisi

indicated he had specific premises available for the

operation of a restaurant business (177).

In support of petitioner's case at the hearing in the State

Court, Dermody was called as a witness. He testified that

he was the prosecutor in the trial of the petitioner and in

the trial of DiBiasi (198). There were four trials in all (198).

The first trial against Indelicato resulted in a deadlocked

jury. The second trial against Indelicato resulted in the

convictions hereinabove explained (198).

Dermody admitted that Tisi was the only eyewitness to

the events involved (199). Further, Tisi was in protective

custody for ten years (199, 200).

Dermody admitted that he knew that Tisi had a liquor

license (200). Shown detendant’s Exhibit “*A’’, the notice

trom the S.L.A. dated January 27, 1954, Dermody ad-

mitted that he saw that before (200). He admitted he

received a copy of it when he was with the District At-

torney's office (200). Further, Dermody spoke to Tisi about

that (200, 201).

Dermody related that after speaking to Tisi he called the

S.L.A. and spoke to Michael Monz, Deputy Commissioner

of the S.L.A. (201). He asked Monz to hold up the ad-

judication regarding the cancellation or non-renewal of

Tist’s license (201). Dermody further admitted that the

second trial of Indelicato was subsequent to the call (201,

202).

Dermody couldn't recall if Tisi was present when he

called the S.L.A. (202).

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15

Dermody however testified that he never told Tisi to keep

silent about this (202, 203).

On cross examination Dermody testified that Monz

worked in District Attorney Hogan's office (203). Dermody

could not recall whether he told Tisi that he knew Monz

(203).

Dermody had a further lapse of memory as to whether he

asked Monz why a copy of the notice was also sent to the

District Attorney (207). There was a further failure to

remember by Dermody as to whether he told Tisi that he

took care of the matter (208).

However, Dermody did remember that he never told Tisi

to keep the matter in confidence (208).

Questioned further on cross examination Dermody

related that he prepared witnesses for cross examination

(209). He went over questions with Tisi prior to petitioner's

second trial (210). However, he couldn't recall any con-

versation with Tisi about possible cross examination as to

the license (210).

Dermody was then shown a part of a summation made at

the trial of petitioner (212). That aspect of the summation

is found in folios 1878, 1879 of the trial record of petitioner

which was put in evidence after post-conviction ap-

plication. Dermody’s attention was directed to that portion

where he told the jury that:

_well, assuming, without conceding for a

moment, but assuming that that was the reason, or

one of the reasons why Tisi finally did open up—

and you will recall his testimony: he said it had

nothing to do with it that nobody ever threatened

to forfeit his license. But assuming for the

moment, without conceding that is what prompted

Tisi to tell what he claims now is the truth . .

Res

PP Peete

SAS

PLT DIE I TRE

i ale il pNP 29

16

Dermody related that it was not part of his trial strategy

to conceal his help to Tisi in regard to his liquor license

(217). However Dermody also admitted that he never told

Tisi’s trial counsel that he intervened (260).

Dermody explained his summation in regard to that

portion hereinabove shown, as relating to Tisi’s iden-

tification of petitioner prior to the time that Tisi’s license

was subject to a non-renewal or cancellation (218).

THE REASONS FOR GRANTING

THE WRIT:

At the first trial of the petitioner a verdict was never

reached because of a jury deadlock. The second trial

resulted in the petitioner being convicted as hereinabove

described. At stake in the petitioner's second trial was the

right of confrontation as guaranteed by the 6th and 14th

Amendments to the Federal Constitution as well as the

right to effective counsel. Taken together or singly, the

issue is one of due process of law under the 14th Amend-

ment to the Federal Constitution. This involved the right to

cross examine witnesses and present evidence to the trial

jury. See Smith v. Illinois, 390 U.S. 129; Jenkins v.

McKeithen, 395 U.S. 411; California v. Green, 399 U.S.

149.

Further, as was held in Dutton v. Evans, 400 U.S. 74, at

page 88:

‘... From the viewpoint of the confrontation

clause a witness under oath, subject to cross

examination and whose demeanor can be observed

by the trier of fact, is a reliable informant not only

to what he has seen... °

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1%

The crucial witness at petitioner's trial was Tisi. Minus

Tisi there would have been no evidence to have tried the

petitioner. It is urged that the petitioner is arguing that

Tisi’s testimony was the only evidence upon which guilt

could be fastened. By withholding the evidence of the State

Liguor Authority's accommodation to Tisi, Indelicato was

deprived of a fair trial and was deprived of due process of

law. Of cardinal importance therefore, was Tisi’s

testimony. To evaluate Tisi’s testimony objectively, the jury

should have been given evidence that would bear on Tisi's

motive to help the prosecutor and color the truth. The issue

is not what Tisi claimed he saw. The issue is how would a

trial jury evaluate Tisi’s testimony in the light of the

positive and affirmative aid given to him by the prosecutor

as well as by the State of New York through the agency.

At the post-conviction hearing in the State Court, and

presented as an exhibit to the Judge in the United States

District Court, Southern District of New York, that

decided this matter, the record of the trial underlying

petitioner's conviction was received in evidence. Part of the

cross examination of Tisi at petitioner's trial as to the

liquor license, disclosed that he was initially questioned as

shown in folios 483, 486 of the record of that trial, an

Exhibit in this proceeding. The testimony of Tisi as to the

falsification of his initial application is found in folios 487-

498 of that Exhibit. The crucial cross examination of Tisi

related to the withholding by Tisi of his arrest record when

he applied for the license. However in so doing, there was

the planned frustration by Tisi joined in by the prosecutor

during his cross examination as to the “ultimate truth”.

‘Tisi was asked about his license renewal at trial and it was

disclosed that he applied tor this January 12, 1952 (628-629

— Folios in the trial record). Tisi admitted that he received

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SIS LOI ATS

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a letter trom the State Liquor Authority, He denied that he

showed this letter to Dermody, the prosecutor, but he did

testify that he called the prosecutor (Dermody) and that

Dermody told him that he would call the authority and find

out about it (Folio 668), Tisi was then questioned as

follows:

"Q, My question is: did he tell you that he was

voing to intercede tor you with the State Liquor

Authority?

A. He said he was going to find out what it was

all about.

"“Q. Will you answer my specific question?

“A. That is the best of my knowledge.

“Q. Did Mr. Dermody tell me that he was going

to intercede for you with the State Liquor

Authority?

“A. He was going to find out means intercede?

Yes, I will say yes.”

“Q. Did Mr. Dermody inform you that he did

intercede for you?

“A. He was going to intercede.

"Q. Did he tell you he did intercede for you with

the State Liquor Authority?

“A. Yes, sir he must have.’ (Folios 671-672 of

the trial record).

Sensing that Indelicato’s trial counsel was approaching

the crux of the matter, the prosecutor then interrupted the

cross examination suggesting that Tisi be asked whether he

knew what the word “intercede” meant. The Court

sugvested that also, However, it is evident that Tisi knew

what the word intercede meant because he detined it. He

clearly stated that if intercede meant to find out he would

say yes. While this is not the full definition of the word, the

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point is that when ‘Tisi was asked whether Dermody did

imtercede List stated:

“A. Yes, sir, he must have.” (At Folio 672),

The vital issue is not merely that Tisi was withholding the

“ultimate truth’, What is vital was that the prosecutor

passively stood by and did not disclose that he actually

interceded, It is suggested that the prosecution interrupted

the cross examination not because he urged a semantic

difficulty but because he wanted to sidetrack the defense.

When Tisi was questioned by the Court he replied that

Dermody told him he was going to find out about the

matter (at Folio 673 of the trial record). When the Court

questioned Tisi in this regard Tisi flatly denied that

Dermody would use his good graces, Tisi merely replying

that Dermody said he would inquire about the matter

(Folio 674 of the trial record).

The issue is not merely the misconduct of Tisi. The

glaring prejudice was that the state prosecutor knew what

he did, namely that he did intercede, that he did use his

office to accommodate Mr. Tisi’s licensing troubles. He

had a duty to disclose this. Even the stipulation entered

into between Tisi and the State Liquor Authority as to the

renewal of the license, was not received in evidence because

the prosecutor objected. The prosecutor's objection of

course was that it contained a record of Tisi’s arrest. The

real issue was not the stipulation at all but the

memorandum from the State Liquor Authority being a

complete record of the intervening by the prosecutor with

the State ageney,

It is therefore put that Tisi never answered the questions

fully and that Tisit and the prosecutor avoided the issues

involved. Tisi’s responses carefully guarded, were more of

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an opinion and comment on really what did happen than

an objective answer disclosing the full facts well within the

knowledge of the prosecutor, And it is again stated Der-

mody the prosecutor, stood by and said nothing about this

suppression by Tisi.

As shown hereinabove the State's exhibit S received in

evidence at the hearing on the post-conviction application

was first disclosed by the State of New York at that

hearing. However the time to have disclosed this was not at

the post-conviction hearing but at the trial itself, The State

of New York should have this delivered to petitioner's trial

attorney for whatever use he could make of it. That exhibit

clearly discloses that Dermody complained to the State

Liquor Authority that at the first trial of the petitioner

there was a deadlocked jury. That the District Attorney

wanted Tisi to be at ease in the second trial because he

wanted to convict the petitioner and that he yet had to try a

co-defendant who ultimately was acquitted.

This is all the more borne out when one examines the re-

direct examination of Tisi by Dermody at the trial.

At the hearing level in the initial stages of this

proceeding, in the state court, the minutes of DiBiasi’s

trial, the co-defendant of the petitioner who was tried

subsequently, was received in evidence. This exhibit: was

also part of the record before the United States District

Court, Southern District. Phe minutes of that trial disclose

that Tisi was asked whether he received a notice of can-

cellation and non-renewal trom the Liquor Authority and

his answer was that he “thought it happened. He then

admitted that he talked it over with the prosecutor, the

same Dermody, but he did not ask Dermody to use his

wood yvraces. He was also asked on cross examination

whether the prosecutor told him he would intercede and he

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answered that the prosecutor stated that he would see

about it, However at the trial of the co-defendant, Tisi was

shown this stipulation as to the renewal of his license and

this was actually admitted at the second trial, But during

the trial of the co-defendant, Dermody, the prosecutor, still

concealed the truth by making an objection to that lve of

questioning. It is respectfully suggested that relief should

be pranted based on the holdings of this Court in Brady vy,

Murvland, 373 U.S, 83 (1963); Giglio v. U.S., 405 U.S, 150

(1972), More recently this Court decided Moore v. Ilinois,

408 U.S. 786 (1972). There the issue was the impact of the

concealment of a certain item of evidence that would have

helped the detense. The defendant or petitioner in this

court held the evidence was suppressed. It was held that the

evidence not disclosed was not material and that there was

no evidence that the prosecution or the State knowingly

allowed false testimony to remain uncorrected.

It is put that the holding in Moore was one of realism

and studied the effect and detriment by the suppression of

evidence. The holding in Moore however points to the relief

in this case. Here there was a knowing concealment by the

prosecutor who was a party to the suppression of the

favorable treatment of the main witness. Furthermore, the

jury it would seem had a right to know this because Tisi was

the only witness who could incriminate the petitioner here.

Furthermore, unlike the situation in Moore, supra, the

prosecutor in this case actually exploited his non-

disclosure. Thus petitioner's trial attorney, doing the best

he could with the meager evidence disclosed to him,

referred in summation to the fact that Tisi asked the

prosecutor to help him out with his licensing troubles, The

prosecutor objected to that stating there was no testimony.

The petitioner's trial attorney then quoted testimony that

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Tisi received a letter trom the licensing agency as to his

license and that he discussed it with the prosecutor. The

trial attorney then tried to use the scanty admissions

hereinabove referred to by Tisi. However the prosecutor

during summation stated as follows:

“.. . Well, assuming, without conceding for a

moment but assuming that that was the reason or

one of the reasons why Tisi finally did open up—

and you will recall his testimony: he said it had

nothing to do with it that nobody ever threatened

to torteit his license. But assuming for the

moment, without conceding that is what prompted

Tisi to tell what he claims now is the truth...”

What the prosecutor told the jury therefore was that they

could speculate in the absence of any knowledge that he

actually participated in helping his sole witness.

The holdings in the Courts below denying relief to the

petitioner are not only against the weight of the evidence,

but it 1s suggested are not warranted in law.

The tactual issue presented was not that petitioner's trial

counsel had some knowledge of Tisi's difficulties. He tried

to utilize the scanty knowledge attorded to him but was

frustrated. The cardinal issue was that Tisi artfully con-

cealed that he was helped and this was corroborated by the

District Attorney's thunderous silence. This it is submitted

was the misconduct of the prosecutor.

There was no showing in this case that petitioner's trial

attorney devised a trial strategy where the above designated

tacts would not be brought to the attention of the jury.

lt was the prosecutor that frustrated the petitioner's

right to have effective counsel. In other words, the

prosecutor by the artful non-disclosure impeded the

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petitioner's trial counsel from a more effective cross

examination and a more effective summation to the jury.

There is nothing in this record to show that the

memorandum of the state agency was part of any papers

subpoened by petitioner's trial counsel. There was no

showing that the petitioner's trial counsel devised a

“strategy” at trial so that this artful non-disclosure by the

prosecutor could have been exploited after the trial. See

Henry v. Mississippi, 379 U.S. 443, 447, 449 (1965). In

Kaufman v, U.S., 394 U.S. 217 (1969) a federal prisoner

instituted a post-conviction application seeking relief from

his conviction in a federal court. The issue was an illegal

search and seizure which trial counsel did raise. Appellant

counsel did not raise that issue on appeal. The prosecutor

argued that the interests of finality justified denial of the

application for post-conviction relief. Yet this Court held to

the contrary, reasoning that there was “‘no deliberate by-

pass” of procedural requirements, see Kaufman v. U.S..

supra, 394 U.S. 217 at page 220.

In short, there was no waiver of this facet of evidence in

this case by either the petitioner or his trial counsel.

In regard to the issue raised by the respondent that the

stipulation that was never received in evidence could have

been received in evidence if the arrest of the prosecution's

main witness were omitted from the stipulation by

redaction, it is respectuflly submitted that that is not the

issue at all. The stipulation by itself if in evidence may have

been helpful to petitioner. But what was more important

and which didn't require redaction was the prosecutor's

deliberate silence as to his participation in helping his main

witness. In short if there was any redaction in this case, it

was redaction by the prosecutor of a vital piece of evidence,

the disclosure of which may have resulted in an acquittal of

the petitioner.

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It is difficult to understand why the Court below closed

access tor review. The decision of the District Court was

based on the decision of Judge Martinis, a Judge of the

Supreme Court, New York County, who denied relief in the

state court. However, that decision in part rested on a state

case reported in People v. Washington, 32 N.Y. 2d 401.

The detendant in that case claimed he was deprived of a

fair trial because the prosecution's witness concealed the

tact that he was promised favorable treatment by the

prosecutor in exchange for his testimony. Of course the

state prosecutor was silent when the prosecutor's witness so

testified. However this was not the case and the prosecutor

knew it. Having been unsuccessful in the state courts,

Washington then sought relief in the United States District

Court for the Eastern District of New York, applying for

habeas corpus. That application was denied and

Washington was allowed to appeal to the Circuit Court of

Appeals for the Second Circuit. He was given relief there.

See U.S.A. Ex Rel. Leon Washington v. Vincent etc., U.S.

Court of Appeals, Second Circuit, No. 248, September

1975 Term, decided November 5, 1975, slip opinion 373. It

was noted on that appeal that Washington and his lawyer

had reason to be skeptical of the witnesses’ denial of a

bargain with the prosecutor. On pages 383-384 of the slip

opinion it was stated in part that:

‘... the knowing use by a state prosecutor of

perjured testimony ordinarily results in a

deprivation of fundamental due process, violating

the 14th Amendment and requiring a new

trial... Whether the State solicits the false

testimony or merely allows it to stand uncorrected

when it appears does not diminish the viability of

this principle... ; nor does the rule lose force

because the perjury reflects only upon the

credibility of the witness...A conviction ob-

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tained through the use of testimony known by the

State to be untrue must fall...”

It was further held that the appellate court would ap-

praise the effect of the prosecutorial misbehavior in regard

to the result of the trial and that the said court would make

an “independent examination of the record”.

An independent appraisal of the complete record in this

case namely the trial record, and the minutes of the post-

conviction application in the state court would reveal that

the prosecutor's intervention with the state agency on

behalf of his witness was not so “well known to petitioner's

trial counsel’. See decision of Judge Thomas P. Griesa,

below. Thus, on pages 385 and 386 footnote 8 and 9, in

Washington it was recognized by the Court of Appeals that

there may have been alternative methods at trial for

discovering the misconduct and the court held that that

may be considered in regard to whether there should be an

automatic reversal. However, it was noted in footnote 9 in

part that:

‘|. The harm in the present case was caused not

so much by unawareness that Anderson's

testimony may have been perjured as by inability to

respond effectively in view of Levine's silence . . .”

It is difficult to understand how the petitioner here was

denied all review by the Court below where the facts in-

terlock with the facts and ruling in Washington, supra.

Washington in making the post-conviction application had

the review by a Supreme Court Judge, the Appellate

Division of the Supreme Court consisting of five judges and

the Court of Appeals of the State of New York consisting of

seven judges.

Indelicato merely seeks some appellate review of this

case within the factual context presented.

Yee

26

CONCLUSION

It is respectfully submitted that this petition for cer-

tiorari be granted.

Respectfully submitted,

ARNOLD E. WALLACH

Attorney for Petitioner

A Member of the Bar of the

United States Supreme Court

ce an wd = we. of Oh oe woe eT