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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1976
- **Citation:** 425 U.S. 936

## Text

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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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3

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”

6

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).

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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

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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

LORE TO

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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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FNL TS

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_2129%3A1. Public record. Not legal advice.