# Appendix — Harris v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0234%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1971 - **Citation:** 401 U.S. 222 ## Text q IN THE Supreme Court of the United States i OCTOBER TERM, 1970 t a No. 206 VIVEN HARRIS, Petitioner, ] —V.— NEw YorK t ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF NEW YORK TABLE OF CONTENTS Page , Docket entries, conan 25, 1966 through December 29, Serra WES 1 i Ce, 6 COU : Complete testimony of petitioner rose , as 19 [ I a naan abbaaaduatameomninoabioiens 72 i Charge of the trial court ___. aS tiat Shek c | at Cd hs 79 : The jury finding _ Dee he Pee ROR ONE liar Oe Aa 103 i Judgment of County Court, Westchester County _.. ... 106 ; Opinion of the Appellate Division, Second eisatananania : Supreme Court of the State of New York . 113 . Order of affirmance, Appellate Division, Second Department 114 ‘ Opinion of the New York Court of Appeals _ iat 115 F Remittitur of New York Court of Appeals Na 117 Order dismissing first count of Indictment, 50/66 121 Order granting motion for leave to proceed in forma pau- peris and granting petition for writ of certiorari —.. 122 DOCKET ENTRIES At a Term of the County Court held in and for the County of Westchester in the Court House, in the City of White Plains, N. Y. jon the 25th, day of January, 1966. Court met pursuant to recess PRESENT: HON. ROBERT J. TRAINOR, COUNTY JUDGE, PART I Special Deputy County Clerk F. J. McNulty Stenographer J. W. Reberts Proclamation made and Court opened The Acting Foreman of the January Grand Jury came into Court and handed up the following 29 indictments, 1 Information as his partial report and then continued on to do his work. Indictments = * * = VIVEN HARRIS Fel. selling narcotic drug in Viol. 3305 P.H.L., viol. 1751 subd. 1 Penal Law (2 cts) Indict. #50-66 Beata BEM ROR a RRL RRP TS PRE NS AICS I a » . FT PAR RR Tig PePeRET PER) TE OB I RE a NETTIE baer ae ear ELLOS ORR HE TI THURSDAY, JULY 21st, 1966 At a Term of the County Court held in and for the County of Westchester in the Court House, in the City of White Plains, N.Y. on the 21st, day of July, 1966, Court met pursuant to recess PRESENT: HON: P. RAYMOND SIRIGNANO, COUNTY JUDGE, PART I Special Deputy County Clerk F. J. McNulty Stenographer P. Thompson Proclamation made and Court opened THE PEOPLE vs VIVEN HARRIS 2 cts: Feloniously selling narcotic drug in violation 3305 P.H.L. & 1751 (1) P.L. (2); Indict. #50-66 James J. Duggan A.D.A. L. Martin Court fixes bail in the sum of $25,000.00. Defendant remanded. ~~ SO ee OI BON A ee Wr om Aeras ed “SMe Nt me Oo et WEDNESDAY, NOVEMBER 30th, 1966 PRESENT: HON: ROBERT E. DEMPSEY, COUNTY JUDGE, PART II Deputy County Clerk Irwin S. Bilgre Stenographer Bernard Fabel THE PEOPLE vs VIVEN HARRIS 2 cts: Feloniously selling narcotic drug in violation 3305 P.H.L. & 1751 (1) P.L. (2); Indict. 450-66 AR RT TONER ee Thomas Facelle A.D.A. R. Projansky Defendant present. Mr. Projansky challenges the array of the prospective ; jurors. ‘ Mr. Facelle moves Indict. #50-66 for trial and opposes the Motion. Hearing set for Thursday, December Ist, 1966 at 9:00 A.M. The Panel of Jurors is excused. Defendant remanded. * Se RS, eT Se LLL LEA THURSDAY, DECEMBER Ist, 1966 PRESENT: HON: ROBERT E. DEMPSEY, COUNTY JUDGE, PART II Deputy County Clerk Irwin S. Bilgre Stenographer Bernard Fabel THE PEOPLE vs VIVEN HARRIS 2 cts: Feloniously selling narcotic drug in viol. 3305 P.H.L. & Sec. 1751 subd. 1 Penal Law (2); Indict, #50-66 Thomas Facelle A.D.A. E. McHugh by R. Projansky of counsel Hearing on challenge to the array of prospective jurors, Defendant present. WITNESS SWORN Ralph. T. Mumford Defendant rests. The challenge to the array is denied. Defendant remanded for trial on December 5th, 1966. Piet ‘ . . . nes te RE EY RRA SL CITI GIT SOR NAT RAE SC ORS YC SERB a a MONDAY, DECEMBER 5th, 1966 At a term of the County Court held in and for the County of Westchester in the Court House, in the City of White Plains, N.Y. on the 5th day of December 1966 Court met pursuant to recess PRESENT: HON: ROBERT E. DEMPSEY, COUNTY JUDGE, PART II Deputy County Clerk Irwin S. Bilgre Stenographer Bernard Fabel Proclamation made and Court opened THE PEOPLE vs VIVEN HARRIS 2 cts: Feloniously selling narcotic drug in violation 3305 P.H.L. & 1751 (1) P.L, (2); Indict. #50-66 T. A. Facelle A.D.A. E. McHugh by R. Projansky of counsel Defendant present. Mr. Facelle moves Indictment #50-66 for trial. The Clerk advised the defendant pursuant to Sec. 369 Code of Criminal Procedure of his right to challenge in- dividual jurors. The following jurors were examined, challenged or ex- cused as shown: Dina Ebenstein by consent Anthony Arancio, Jr. by consent Trial recessed at 4:10 P.M. The Court admonished jurors pursuant to Sec. 415 Code of Criminal Procedure. Defendant remanded. ESPNS PINE SIS EEE RES SES Ae tg Se ook Crys stains SERPS MY RANE A — 5 PELL ERASE EN PLEIN AER MSY ITT ee ee TUESDAY, DECEMBER 6th, 1966 PRESENT: HON: ROBERT E. DEMPSEY, COUNTY JUDGE, PaRT II Deputy Clerk Irwin S. Bilgre THE PEOPLE vs VIVEN HARRIS Indict. #50-66 same appearances case continued The selection of jurors continued. Joseph V. Chuea Peremptory defendant Clarance S. Bonney Peremptory defendant Charles W. Johnson Peremptory defendant Edward J. Burrell Peremptory defendant Frederick G. Gylassen Peremptory defendant Lucy K. Mead Peremptory defendant Jurors #+1-3-4-6-9-10 selected and sworn. George White #1 Blanche K. Brill #2 Clarence W. Ostergren #4 Gerd H. Shendler #6 Onita M. Ocasio #9 Gilbert J. Stevens #10 The Court recessed at 4:50 P.M. The Court admonished the Jurors pursuant to sec. 415 C.C.P. Defendant remanded. | WEDNESDAY, DECEMBER 7th, 1966 HON: ROBERT E. DEMPSEY, COUNTY JUDGE, PART II Deputy County Clerk Irwin 8S. Bilgre THE PEOPLE vs VIVEN HARRIS | Indict. #50-66 same appearances case continued Selection of jurors resumed at 11:05 A.M. Defendant present. Frank L. Backus by consent Alfred J. Lalli by consent Thomas H. Lane by consent Prospective juror #11 Thomas H. Lane is absent—an- other juror selected from the drum as prospective Juror #11 George P. Farrell Peremptory David Harris by consent Court recessed for luncheon at 12:30 P.M. Jury admonished pursuant to sec. 415 C.C.P. Defendant remanded. Selection of the jury resumed at 2:00 P.M. John H. Judge peremptory by defendant Katherine H. Gosselina peremptory by defendant Levon K. Nahigian peremptory by defendant Murray Winokor peremptory by defendant Raymond O. Walsh peremptory by defendant Roland B, Forsgth peremptory by defendant Edmund B. Van Hook, Jr. peremptory by defendant Lydia G. Gallagher peremptory by defendant Juror +11 Kenneth B. Heller sworn. ¥ % a 3g WEDNESDAY, DECEMBER 7th, 1966 (Continued ) Juror +2 Edmond P. Donlon Juror +5 Roberta Juror #12 Sherman Turner sworn Juror #7 William F. Holth sworn The Jury selected. Roll called—Jury sworn. JURY SWORN George R. Wyhte William F. Holth Edmond P. Donlon Adolf E. Schlessinger Blanche K. Brett Anita M. Acasio Clarence H. Ostergren Gilbert J. Stevens Roberta J. McCanney Kenneth B. Heller Gerd H. Shindler Sherman Turner The Court directed the Clerk to select and swear in two Alternate Jurors pursuant to Sec. 358-a Code of Crimi- nal Procedure. John D. Fors by consent Walter Freedman by consent Two alternate jurors were selected and sworn. ALTERNATE JURORS SWORN Evelyn P. Nazaruk Victor J. Jenkens Trial recessed at 4:20 P.M. Jury admonished pursuant to Sec. 415 Code of Criminal Procedure. Defendant remanded. — a THURSDAY, DECEMBER 8th, 1966 PRESENT: HON: ROBERT E. DEMPSEY, COUNTY JUDGE, PART II Deputy County Clerk Irwin S. Bilgre THE PEOPLE vs VIVEN HARRIS Indict. #50-66 same appearances ease continued Trial resumed at 9:10 P.M. Defendant present. Roll called—All twelve Jurors and two alternate jurors present. Opening statements by Messr. Facelli and Projansky. Trial recessed at 9:40 A.M. for the call of the calander. Jury admonished pursuant to Sec. 415 C.C.P. Defendant remanded. : Trial resumed at 12:00 P.M. Defendant present. ; WITNESS SWORN Det. George Bernuder Court recessed for luncheon at 12:35 P.M. Jury admonished pursuant to Sec. 415 Code of Criminal Procedure. Defendant remanded. Trial resumed at 2:05 P.M. Defendant present. Roll called. All 12 Jurors and two Alternate Jurors present. WITNESS SWORN Det. George Bernuder (resumed) Court recessed at 4:40 P.M. The Court admonished jurors pursuant to Sec. 415 C.C.P. is Defendant remanded. ‘ ae 10 FRIDAY, DECEMBER 9th, 1966 PRESENT: HON: ROBERT E. DEMPSEY, COUNTY JUDGE, PART II Deputy County Clerk Irwin S. Bilgre THE PEOPLE vs VIVEN HARRIS Indict. #50-66 same appearances case continued Trial resumed at 11:45 A.M. Defendant present, Roll called—All 12 jurors and 2 alternate jurors present, In chambers in the presence of the defendant and the absence of the jury, Mr. Projansky moves to dismiss the indictment on the grounds of the grand jury minutes of the witness George Bernuder. Defendant remanded. Decision reserved. Motion denied. WITNESS SWORN Det. George Bernuder (resumed) Court recessed at 12:25 P.M. for luncheon. Jury admonished pursuant to Sec. 415 C.C.P. Defendant remanded. Trial resumed at 2:25 P.M. Defendant present, Roll called—All 12 jurors and 2 alternate jurors present. WITNESS SWORN Det. George Bernuder (resumed) Court recessed at 3:30 P.M. Court admonished jurors pursuant to Sec. 415 C.C.P. Defendant remanded. —— 11 FRIDAY, DECEMBER 9th, 1966 (Continued ) Trial resumed at 4:25 P.M., Defendant present. Al] 12 jurors and 2 alternate jurors present. . | WITNESSES SWORN Det. George Bernuder Det. Frank Scheur Det. Richard D. Parks People rest. Court recessed at 6:30 P.M. for dinner. Court admonished jurors pursuant to Sec. 415 C.C.P. Mr, Projansky renews motion to have verdict of acquital. Motion denied. Motion to have indictment dismissed on the grounds defendant did not get a preliminary hearing. Motion denied. Mr. Projansky moves to dismiss indict- ment on the grounds that People have failed to prove a prima facie case. Motion denied. Defendant remanded. Trial resumed at 8:05 P.M. Defendant present, Mr. Facelli, A.D.A. present, Mr. Projansky, Attorney for the defendant present. All 12 jurors and 2 alternate jurors present. The Court adjourned until Monday, December 12th, 1966 at 10:30 A.M. a admonished the jurors pursuant to Sec. 415 Defendant remanded. RABBLE LES LEGIT ‘ ST TEE A PO 12 MONDAY, DECEMBER 12th, 1966 PRESENT: HON: ROBERT E. DEMPSEY, COUNTY JUDGE, PART II Deputy County Clerk Irwin S. Bilgre THE PEOPLE vs VIVEN HARRIS Indict. +50-66 Same appearances Case continued Trial resumed at 11:40 A.M. Defendant present. Roll called—All 12 jurors and 2 alternate jurors present, Defendant himself moves for a new lawyer. Motion de nied. WITNESS SWORN Luther Harris In Chambers, defendant present, in jurys absence, court advised the witness of his rights to remain silent to any question which might tend to incriminate him, the wit- ness. Defendant present. Trial recessed for luncheon at 12:25 P.M. The Court admonished the jurors pursuant to See. 415 C.C.P. Defendant remanded. Trial resumed at 2:15 P.M. Defendant present. Roll called—All 12 Jurors and 2 Alternate Jurors present. WITNESS SWORN Viven Harris Mr. Projansky moves for withdrawal of a Juror and a mistrial. Motion denied. WITNESS SWORN Viven Harris (re-direct) Trial recessed at 4:00 P.M. The Court admonished the Jurors pursuant to See, 415 C.C.P. Defendant remanded. ; RNS Ras wz REPRESEN E SPALL ‘ PES ey ony, r SETI RL APES INNES H DIOLS CIT PORE rate gaa eau ara AIP TAIL GEE ODE RRAI IY IT AMA OIE 08 a f y 6 ! 4 hi ST I ee 34 THE COURT: No. MR. PROJANSKY: —he’s entitled to it. THE COURT: No, please. I will sustain an objec. tion. Q Before the 4th of January, had anyone ever told you anything about the man that you knew as Joe? MR. FACELLE: Objection, Your Honor. THE COURT: He may answer yes or no. A Yes. Q And do you remember what that was? A _ I cannot recall the date, no, sir. Q Was it in the month of December? A Yes, sir. Q Was it before or after Christmas? A Before. Q And who told you anything about Joe? THE COURT: I will sustain the objection. MR. PROJANSKY: I didn’t hear an objection, Your Honor. I want to know what the grounds— MR. FACELLE: Objection, Your Honor, THE COURT: On the grounds that the question is irrelevant and immaterial. (fol. 412] Q You stated that you had heard that De- tective Bermudez was a snorter? A Yes, sir. Q And who told you that? MR. FACELLE: Objection, Your Honor. THE COURT: Yes, I will sustain the objection. MR. PROJANSKY: Your Honor, that’s certainly material, it seems to me. THE COURT: No, it isn’t. Q At that time, the 4th of January, did you know then that it was a crime to sell drugs? A Yes, sir. Q But you didn’t know Detective Bermudez, did you? A Not personally. Were you suspicious of Detective Bermudez? THE COURT: I’m sorry, I didn’t hear, Mr. Pro- jansky. (The question was read back by the court reporter.) _——— e eam 8 m/e h PP RITA OP CMymemin t ENT pOiy ey leet eran Dintieae DD tis ny yew : —S— _— 37 A No, sir. Q It was not? A No, sir. (fol. 416] Q Where did you stab him? A In my house. Q Where did you stab Gus Fowler, what part of his ? 4 I did not stab him, I cut him. Q Where did you cut him? A Across the chest. Q Part of the chest? A Part of the chest. And is it not a fact that you broke the blade of the knife in the cutting? MR. PROJANSKY: I’m going to object, Your Honor. The defendant’s already admitted the act. THE WITNESS: Can I ask a question? MR. PROJANSKY: And I believe that since the details of that act certainly are not in issue here, and since the defendant has admitted that the District At- torney— THE COURT: Does the law permit on cross examina- tion interrogation as to the circumstances as to the crime? MR. PROJANSKY: I don’t believe so, Your Honor. He’s already admitted. THE COURT: Well, I think—excuse me, I will over- rule your objection. MR. PROJANSKY: May we have a limiting instruc- tion. (fol.417] THE COURT: You may continue, Mr. Fa- celle, and you may have an exception, Mr. Projansky. MR. PROJANSKY: May we have a limited instruc- tion as to this type of testimony? THE COURT: The cross-examiner is never restricted to the mere admission of the commission of the crime. He may, at his option, go into the details thereon, so I will overrule your objection, sir. MR. PROJANSKY: May we have an instruction to the jury, as for what purposes they may consider this evidence? —_—_—_ PRATER RRR LE NTE cor | Pela) ie SN heii 8 a 8 a ig) PS SOLE OOS LE CELIA LI ELT TS THE COURT: You interrogated the jury, the jury understands that this goes to the credibility of the wit. ness, and not as to evidence of guilt of the commission of this crime. It simply goes to the issue of the witness’ credibility and I am sure the jury understands that nov, CROSS EXAMINATION CONTINUING BY MR. FACELLE: Q Mr. Harris, I believe you said that the first time that you spoke to the Detective Bermudez was on the 4th of January, is that correct? A That’s right. Q In the Three-Fours? A Three-Fours. Q And Charlie Burkes and Ronnie Sykes were pres- ent? {fol.418] A That’s right. Q Did anybody introduce you to Detective Bermudez? A Charlie Burkes. Q He introduced you? A Introduced me. Q Did you not have a conversation with Detective Bermudez at that time about a guitar? A No, sir. Q No conversation whatsoever? A No conversation whatsoever. Q Did you sell a guitar to Detective Bermudez? A No, sir. THE COURT: I’m sorry, I didn’t hear the answer. A No, sir. Q Did you, Mr. Harris, steal a Kent guitar in a carrying case with a blue and white tag with a number WTG, 67066, from Grant’s in the City of New Rochelle? A No, sir. Q Did you sell a guitar for $25.00 to Detective Ber- mudez on the 4th of January? A No, sir. Q At any time, Mr. Harris, was Detective Bermudez ever in your apartment? A No, sir. oot Ay ran s PES as 39 Q At any time did Detective Bermudez ever meet your wife? (fol. 419] A No, sir. At any time did you ever have any conversations with Charlie Burkes and Detective Bermudez about buy- ing a guitar which was hot? A No, sir. Q Do you understand what I mean by hot, Mr. Har- ris? A I understand what you mean by hot. @ What was the first time you had a conversation, discussion with Detective Bermudez about drugs? A Drugs. The 4th of January. Q And what was that discussion, again? A He wanted me to purchase some drugs for him, which I told him that I could not because it was a panic on. Q Well, had you told Detective Bermudez that you were a user of drugs? A Had I ever told him that I used— Q At that point, before he asked you to buy drugs for him, had you ever told Detective Bermudez that you used drugs. A No, sir. Q Did he ever see you use drugs? A No, sir. Q Up to that point? And I believe you testified on Direct that you never discussed drugs with strangers, is that right? A That’s right. Q So that Detective Bermudez, then, not knowing (fol. 420] that you ever were a user of drugs— A That’s right. MR. PROJANSKY: Objection, Your Honor, that’s aot what the witness said. He said that he didn’t tell him that. Q You never told him you used drugs? You never used drugs in his presence? A That’s right. Q Asked you to buy drugs for him? A That’s right. Sea S Ty AERA WEL WINER OTS NAAR ERIE GOP I TR NR MEO, SRR EE 8 We 2 ong pret Pe eee eee ee ee ee ee LSD 10 RRS tr ERD 40 Q And you say there was a panic on? A That’s right. Q That you couldn’t any? A I didn’t say I didn’t use it, I said it was a panic on and that I needed drugs, but it was a panic on, you could not get no drugs. Q Did you tel! him that you couldn’t even get drugs for yourself? A That’s right. Q So that on the 4th day of January, 1966, Mr. Har. ris, did you sell anything to Detective Bermudez? A No, sir. Q On the 4th day of January you didn’t even make up this bag of baking soda or whatever it was that you concocted on the 6th? {fol.421] A No, sir. Q You passed absolutely nothing to this Detective for which you received any money? A Nothing. Q Now Mr. Harris, referring to People’s Exhibit 2, just the little glassine bag, not the brown tapes, did you ever see that before you appeared in court? A_ I have saw bags similar to these. Q That bag? A I’ve saw you all handle this in court. Q Listen to my question. Did you ever see that bag, that one? A Before coming to Court? Q. That’s right. A No, sir. Q And of course you did nct sell that bag to Detective Bermudez? A That’s right. Q You didn’t sell anything to him or you didn’t give anything to him? A That’s right. Q You gave him the narcotics? A That’s right. Q You have him no bag that contained any substance that even looked like narcotics? 41 (fol. 422] Q Did you have any conversation with him relative to half-loads at that time? A I was—he wanted to buy a half-load. You cannot buy half-loads— Please answer my question. Did you have any con- yersation with him at that time about half-loads? MR. PROJANSKY: He’s answered that, Your Hon- or, He’s given the substance of the conversation. THE COURT: You may answer the question, Mr. Harris. A Hee wanted to buy half-loads. He wanted us to go to New York and buy him half-loads. It was no half- loads, it was no dope, or nothing present. It was a panic on. Q Because of the panic. I see. And you told him you couldn’t do it? A Couldn’t do it. Q Did you have any further conversation with him on that day about narcotics? A No, sir. Q By the way, did you ever personally see Detective Bermudez or Detective Parks snort drugs? A Not I, myself, no, sir. Q Or snorting what would appear to be drugs? A No, sir, I didn’t. Q You do know Al Payne, do you not? (fol.428] A I do. Q What’s his real name, true name? A Alvin Mills, I believe. Q Pardon? A I believe it’s Alvin Mills, I’m not for sure. Q Did you see Al Payne or Alvin Mills on the night of January 4th, 1966? A No, sir. Q Did you stop around to the pool room that night? A No, sir, I was at the Red Rose. Q You were at the Red Rose. But you didn’t see Al Payne at the pool room at all that night? A No, sir. Q You’re quite sure? A Y’m—I’m quite sure. CELE Ti GIR ES OG PAT RG OL MA LORIE SETAE PLOT Be a ee te tent tena Wee Eee Cone nt Oi Dis ae ay 42 How long have you known Al Payne? Oh, about two years. How long have you known Ambrose Rooney? About a year and a half. How long have you known Wayne Baker? Same, about a year and a half, two years maybe. How long have you known Ronnie Sykes? About a year. By the way, this address to which you made refer- ence, 108 Sickles Avenues, about the transaction with | OPO pO pO pO {fol. 424] Ambrose Rooney, et cetera, you say that took place in front of 108 Sickles Avenue? A It did. Q Do you know any people that live at 108 Sickles Avenue? A I didn’t know one personally who lived there. Q Mr. Harris, do you know Benny Lawson? A I know Benny Lawson. Q Yes. Do you know where Benny Lawson lives? A I know he stay on Sickle Avenue, but I don’t know if it’s 108 or not? Q You’ve never been in his apartment? A No, sir. Q Now, after the 4th of January, you say you didn’t have any other conversations with Detective Bermudez until the night of January the 6th, is that right? A That’s right. Q And that was a Thursday night. Where did you meet him? A Three-Fours Bar and Grill. Q Tell us about the conversation again. A Well, it was small talk at first, and—understand? So Charlie Burkes and I was there. He wanted to pur- chase two bags of heroine. Q First he wanted to buy a half-load, right, on the night of the 6th. Isn’t that what you testified to on di- rect? A He wanted two bags of heroine. [fol.425] Q Let me ask you this, Mr. Harris. Didn't he first ask you again on the night of the 6th to purchase a half-load for him and then settle for two bags? 43 A He might have. Q Well, did you tell this Court on direct that you had conversation about a half-a-load on the night of the 6th? A Mostly everytime I saw Mr. Bermudez he wanted gs half-a-load. You only saw him twice? That’s right. Before his arrest? Not twice, correction, three times. You had conversations with him twice? Twice, that’s right. And you say the first time he discussed a half- load with you and on the 6th he discussed a half-a-load also? A That’s right. Q But you say you couldn’t get it, there was a panic on? A Panic on. Q And tell us about the rest of the conversation. A Well, since it was a panic on and everything, we was talking, he was begging for the drugs; he had a way of convincing peoples— Not—please tell us what the conversation ‘vas. (fol.426] A The conversation was relative to drugs. I, was small talk about drugs. That’s when Henry Stan- ley come in. Q By the way, who—where does Henry Stanley live? A At the present, I do not know. Q Well, did you know where he lived on January 7th, 1966? A If you—! mean I know the house, but you get a map I can point out the street to you. Q Well— A But I do not know the street. Q Not te me, Mr. Harris, do you know where he lives? A I know where he lives. Q Do you know where he lives today? A I do not. Q Did you know where he lived on January 7th, 1966? OPO PO PO 2A OTH ERIE Od he POLAT PGT RMT QLD ee A I did. Q Do you know where he works? A Ido not think he was working. Q A Pardon? I do not think that he was working at the time, By the way, do you know the name of the street that he lives on? A No, sir, I do not know the name of the street. (fol. 427] That’s what I say, if you get me a map, I will point out the street; map of New Rochelle, I will show you the street. He lives in the City of New Rochelle? He do. You don’t know where he works? No. Is he married? Yes, he is. How old is he? I say round about 25, 27. How tall is he? Maybe about six, six and a half, six-one. Maybe about six, six and a half or six-one. Q_ All right. And what else can you tell us about him? A Only thing I can tell you about it, that he’s a hustler, he uses drugs, he’s a pool shark, he’s a hustler. Q How long had you known him? A Henry? Q Yes. A Q A FPOPO PL Po PO Mostly ever since I come to New Rochelle. How long is that? I come to New Rochelle in ’62. Q And Henry was present when all these conversa- tions took place on the night of the 6th, is that right? A Not when all the conversations took place, no, he was not present. [fol.428] Q Was he present when you had a conversa- tion about a half-load? A_ No, he was not. Q Did you have a—when he present when you had the conversation with Bermudez about scoring the two bags? ———— — = 2 2 et EPRI ek MTN I we 80e ane BT aE yap SEILER MIELE ER Ee Ee eee —a——_, ooo a RE SE IRIE 45 MR. PROJANSKY: Objection, Your Honor. The wit- ness didn’t say anything about scoring two bags, Your onor. “ By purchasing the two bags? A He come in, at the time that Mr. Bermudez was begging for someone to buy drugs for him. Buy it, I mean purchase drugs for him. He came in and was present when Bermudez— A He was asking this, he comes up to me, he knows me, and he knows Charlie, and he was usually be around she Three-Fours all the time. Well. did he hang out at the Three-Fours, Stanley? A Most of the time. Q Was he around the Three-Fours almost every night? ‘A I wouldn’t say because I was around the Three- Fours every night. Q Well, would you usually see him in the Three- Fours when you were there? MR. PROJANSKY: Objection, Your Honor, what he usually saw is immaterial. (fol. 429] THE COURT: No, I will allow it on cross- examination, but reaching a point of irrelevancy, Mr. Facelle. MR. FACELLE: If Your Honor please, may I be per- mitted to pursue this on the question of relevancy as to the location of this individual? THE COURT: No, you have already explored that. Let’s give him a map. _ He can show you where he lives. MR. FACELLE: Referring to Defendant’s E for identification. Q Mr. Harris, do you recognize that as a map of the City of New Rochelle? A Yes, sir, I do. Q Can you please point out to us the street on which this Henry Stanley lives? A As soon as I can find Guion Place. Q Pardon? A As soon as I ean find Guion Place. THE COURT: While the witness is looking, Mr. Foreman, we will take a recess at this time for five min- br ogthien ea er Se ere —— ee... ae ee ER RE ay 0 oe § & : Fa EEO RET IO I PE II PE SF NY — | 46 utes. Please don’t discuss this case nor form an opinion on it. We will take a recess of five minutes. (Recess declared at 3:15 p.m.) (Resuming at 3:43 p.m. The jury is present in the courtroom. The defendant and both counsel are present. ) [fol.430] THE COURT: You were interrogating the witness to whom the map was given, Mr. Facelle. MR. FACELLE: Yes. (The witness defendant Viven Harris having been previously duly sworn, resumed the witness stand and testified further as follows:) CROSS EXAMINATION CONTINUING BY MR. FACELLE Q Have you been able to locate the street that This Henry Stanley lives on? A I have. Q May we have it please? What’s the name? With- out marking the map, would you just tell us? Prior Street—Prince. Prince Street? Prince Street. Between what avenues, on what streets? That’s between Lincoln and Sickles. And what street? Sickles Avenue. Sickles Avenue? That’s right. And on what side of the street does he live? Can you give us any landmarks, any buildings or places of business on the street that you can identify? [fol.431] A Well, it was a house he was living in, just been freshly moved there, it wasn’t built, it was just moved there. Q Is it a private house or an apartment? A It’s apartment. Q An apartment house? A It is. OPOPoOpOrply 47 How many apartments? A I really couldn’t say. Q Pardon? A I do not know. Well, can you estimate? MR. PROJANSKY: Your Honor, this is all imma- terial, I think. THE COURT: Yes, I will sustain it. I think we have explored it far enough. MR. FACELLE: If Your Honor please, may I ap- proach the bench with counsel? I’d rather not have the argument in the presence of the jury. THE COURT: You don’t even need to come up. I feel that it has gone far enough, Mr. Facelle, I will sus- tain the objection. Q What was the color of the house? A White. Do you know the address? (fol. 482] A No. Q How many stories? A I think it was two. In the middle of the block or near a corner? MR. PROJANSKY: Your Honor, I’ll make the same objection. THE COURT: Yes. I did sustain Mr. Projansky’s objection a bit ago, and you are now pursuing it. MR. FACELLE: If Your Honor please— THE COURT: [I'll sustain— MR. FACELLE: I feel this is most material that we be able to try to locate— THE COURT: I'll sustain—I will sustain the objec- tion. Q Have you seen Henry Stanley since January 7th, 1966? A No, sir. Q Now, after this conversaton you had relative to narcotics, with Detective Bermudez and Henry Stanley and Detective Bermudez said he wanted two bags, is that correct? A That is correct? Q And you had a conversation with Stanley after 48 A I did. Q Where did you go? A Well, we still in the Three-Fours. We just stepped about from Mr.—Detective Bermudez, a few feet away {fol. 483] from Detective Bermudez so he wouldn’t over. hear what we was talking about. Q And how long did you talk privately with Henry Stanley? A Oh, approximately two or three minutes. Q And then where did you go? A Start back to talk to Mr. Bermudez. Q And what conversation did you have with him then? A We told him that we might, you know, be able to come up with something. Q How much? A He wanted two bags. Q So after all this conversation you had about the panic and you couldn’t even get junk yourself, you came back and teld him you might be able to do something for him. What did Bermudez say? A Well, he act like he was kind of skeptical—- Q Now, how did he act, what did he say? A First act like he was kind of skeptical and then he said okay. Q And then what did you and Stanley say and/or do? A We proceeded to Stanley’s house. Q Well, let’s just take it step by step, Mr. Harris. You left the Three-Fours Bar and Grill. A That’s right. Did you turn to the right or to the left? [fol. 484] A We turned to the—come out of Three- Fours, it’s on the corner, you turn to the left. Q You walk to the corner of Sickles? A Walked to the corner of Guion. Q Guion and North, is that right? A Guion and Lincoln, Q All right. Let’s take it from the beginning again, Mr. Harris, please. When you leave the Three-Fours, you were on North Street, is that correct? A When you leave the Three-Fours, you’re on North Avenue. ee ee 2 I IN A EERE Es 49 Q@ You say you went to the left and you walked to the corner? A Come out of the Three-Fours, went to the left, made a right turn, that’s Lincoln Avenue. Q All right. You made a right turn at Lincoln and North, right? A That’s right. Q All right, and then where did you walk to? A Walked down to Guion. Q Which is the block that you live on.? A That was a block that I lived on?. Q And then when you reached Lincoln and Guion, which way did you turn? A We turn up—what’s the name of the street, Ro- chelle Place—Remington. (fol.435] Q Make a left onto Remmington? A Right. Q All right. A Cross the field, just cut across the field, across the field. Q Yes, go ahead. A Open fields. And you right there at his house, where he was standing. Right there at Prince Street, is that right? Prince Street. At his house? At his house. And you went—where did you go when you arrived is house? To his apartment. His apartment. What floor was it on? Second. Was anybody home? Not that I can recall. How many rooms in the apartment? Well, I wouldn’t—kitchen, bedroom and a _ bath, ; three rooms. Q There was nobody home at the time? A No, sir. LEE OE DE RNS LEER IEE NG EINE IED at iE ee FPO PO POF sO ro ro ENR TINT A ERE FT, (fol. 486] Q What did you do in the apartment? A That’s when we proceeded to the—test baby for. mula and the baking powder thing, we tried to fool him, Q You take some baby formula you say?a A Baby formula. Q And you and Stanley snorted some? A That’s right. Q And you found that it didn’t give the sting, is that right? A Didn’t give the sting. Q Then you got some baking soda? A That’s right, powder. Q Baking powder. And you both snorted the baking powder? That’s right. Did that give you the sting? We agreed on that. What did you do with the baking powder? Well, he bagged it up. What do you mean by bagged it up? He put it in two glassine envelopes. Where did he get the glassine envelopes? Which he had previous used the heroine from. What heroine? That he had used from. This heroine that he had gotten before the panic {fol. 487] and you couldn’t get any drugs you had to use robitussin A.C.? A He heroine that he had got before the panic and we using robitussin A. C., then the envelopes that he put it in. Q I see. And tell me, in all the years that you've been using drugs, Mr. Harris, had you ever saved the glassine bags after you used the drugs? A Well, you don’t never— Q Not—have you ever saved, in all the years you've been using drugs, have you ever saved the glassine bags after you’ve used the heroine? A You don’t save them, you just leave them around, they had by laying around. > OPO PO PO PL PO DIT EER AS ET HMI EEL ETOP ST — 51 Q Did you ever save the bags or even have them lay- ing around after you have used them? ‘A Yes, I’ve had them laying around after I’ve used them. Q Just the empty bags? A Just the empty bags laying around. Q Was there anything in these bags that you placed this baking soda, this baking powder? A No, sir. Q Just plain empty bags? A Plain, empty bags. Q Mr. Harris, I ask you to take a look at People’s Exhibit 3, just the two glassine bags, and I ask you, Mr. Harris, are these the glassine bags that you sold to De- (fol. 438] tective Bermudez for twelve dollars? A No, sir. Q They are not? A No, sir. Q Positive? A Positive. Q How long did it take you to test this baby for- mula? The baking powder, bag it, snort, et cetera? A Maybe fifteen, maybe twenty minutes, something : like that? : Q And then what did you do? A As I said, he proceeded to bag it up in two glassine envelopes. Q And then you left? A We left. Q And where did you go? A To the Three-Fours. Q And you met Detective Bermudez again? { A We did. Q Both of you? j A Both of us. f Q You had a conversation with Bermudez? 3 A We did. t Q All right, tell us about the conversation with Ber- mudez A Well, he asked us did we have the stuff? And so 52 (fol. 439] we didn’t want, you know, seems suspicious, let him know thing that we was beating him or nothing, something like that, you know, so we asked him, “Yes, we got what you want. What about buying some beer?” § he bought us a beer. Q That’s both of you, you and Stanley? A Bought both of us a beer. Q Was Stanley present when you had the conversa- tion about, “We have the stuff for you.”? A Stanley present? Q Yes. A He was present, yes. Q He was present? A He was present. Q And where did you hand these glassine bags to him? I did not hand them to him. Who handed it to him? Stanley. Stanley had them all along? Stanley had them all along. Where did Stanley hand them? In the Three-Fours. At the bar? At the bar, you know how you—you make like you’re just shaking hands or something, hand it to him. {fol.440] How many people were in the bar at the time? A Quite a few. Q Quite a few, and this is where the pass took place? A That right. Q Was that where Detective Bermudez gave you the twelve dollars? A It was. Q You didn’t go into the car with Detective Bermudez at that time, did you? A No. Q Where was Detective Parks? A It was—see, it’s two bars, one on one side to eat, another side you drink. Detective Parks was eating. He had Q Did you see him? RPO PO PO PO > REA EHTS ATER cy Ro CREE DEAE ETE ENS A Isawhim. He had on a black Russian—what you call it, cap or hat or something. And at no time did you get in the car with Detective Bermudez this night? A No time. Q At anytime did you ever tell Detective Bermudez that you were out of action for a while but that now— you were back in action? “A No, sir. Q You know what I mean by action, don’t you? A Yes, sir. (fol. 441] Q What do I mean? A By action? Q Yes. A That I’m selling drugs, right? Yes. A Well, I guess that’s what you mean by action. Q At any time did you ever tell Detective Bermudez that you had a partnership with Wayne and with Al Payne, and with—with Wayne and Al] Payne? A No, sir. Q At any time did you ever ask Detective Bermudez to sell drugs to you in New Jersey? A No, sir. Q At any time did you ever teil Detective Parks or Detective Bermudez that you were selling drugs in Con- necticut, New Rochelle, New York? A No, sir. I don’t know nothing about Connecticut, never been in my life. Q By the way, when was it that you testified about go- ing down with Gus Fowler and Rooney to buying the drugs for seven dollars of your own money and seven dollars that Bermudez gave you? A I didn’t testify that I went down with Gus Fowler and Rooney, I said I went down with Ambrose Rooney and Alvin Mills, which they called Al Payne. (fol.442] Q I-see. You went down with Al Payne? A That was on Sickles Avenue. Q To buy drugs? ROE FO ETN ERE EOE EAI BOLE eo eH Oe SOUS BNE AEA NT RT ON a A That was on Sickles—we met him on Sickles Avenue. aay - PPS OR Me hy NY REI MEY OME BRIBE A EPL EF G EIN wnt SOE RONAN EIEN WN A AT a Vt te ab Q And you say that you had seven dollars of your own money? A We had seven dollars which—between us. Q And he gave you seven dollars? A He did not give me seven dollars? Q Well, a member of his group, is that right? A He gave a member of the group, he handed seven dollars to Ronnie Sykes, which Ronnie Sykes handed seven dollars to a member of the group. Q When was this, again? A Approximately in the middle of December. Q About the middle of December, a few weeks before this incident of the 4th and the 6th of January, is that right? A Few weeks before this incident. Q Few weeks before January 4th and 6th? A No, it had to be approximately in the middle of December, because right after that I left and went down south. Q Isee. But went down with Al Payne and Ambrose Rooney to buy drugs on that night, didn’t you? MR. PROJANSKY: Objection, Your Honor, he hasn’t testified that he went down anywhere. [fol. 443] THE COURT: I think you ought to let the witness clear it. Did you, Mr. Harris, are you saying that in the middle of December, 1965, you went down with some friends to buy drugs? THE WITNESS: No. Yes, sir, we went. THE COURT: You went down. And you purchased drugs, didn’t you? Well, for ourselves, we did. Pardon? For ourselves, we did. Was it a panic on then? It was. There was a panic? It was a panic in December and January. But you were able to get drugs that night, weren't PEOPOPOPOrPoO ‘S$ We was. SSR SEAL Co SURG ag cle Sanaa nye aerate era A RS al So~7—Vm7“~>¥>H—""— EE OEE SOMERS TY IEE A oe ee 55 You didn’t have to use robitussin A. C., did you 4 Mr. Harris? 4 A Not that night, no, we didn’t. That’s when drugs 5 nt u & vil ask the questions, please. Mr. Harris, did you ever sell drugs to Charlie Burkes? A No, sir. Q Percy Ellis? (fol. 444] A No, sir. Q Gus Fowler? A Benny Lawson? Q Mr. Harris, what cell block are you in in the jail? A 2-A-5. Q Have you ever discussed this case in the jai! with Wayne Baker? MR. PROJANSKY: Objection, Your Honor. That’s completely immaterial. MR. FACELLE: I submit, Your Honor, it’s most material. THE COURT: You may ask him, and he may answer whether he has. The next question I’ll pass on, Mr. Pro- jansky. Q Have you ever discussed this case in the jail with Wayne Baker? A I have. Q Did you ever discuss this case in the jail with Luther Harris? A No, sir, I’ve never been able to get next to him. Q Have you or haven’t you? A No, sir. Q Did you ever discuss this case in the jail with Benny Lawson? MR. PROJANSKY: Your Honor, I’m going to object [fol. 445] to this entire line. THE COURT: Yes. now I will sustain it, Mr. Facelle. A I— THE COURT: I will sustain the objection. I will sustain it. You are not going to answer, Mr. Harris. Q Mr. Harris, do you know what skag is? A It’s used as drug, it’s drug language. SPE NAN PPR PY PTLD T IS Se EY ERLE LYRE LEN IPEDS CTS TI FTI pry ee Se a er eT | 56 THE COURT: I’m sorry, I didn’t hear the question and I didn’t hear the answer. You asked what? Yoy asked what skag— Q Do you know what skag is, Mr. Harris? A It’s used as drug language. THE COURT: It’s what? THE WITNESS: Iv’s used as drug language. They use it instead of saying heroine, they say skag. Q It’s the language or the vernacular or the term that’s used for heroine, is that right? A That’s right. Mr. Harris, what time were you arrested on the night of the 7th? A This time, I really does not know. Q Approximately. [fol. 446] A _ 5, 6:00; 6:00, 5:00, I don’t know. Q Where were you taken, Mr. Harris? A I have it marked on 2 map. Q Where were you taken after you were arrested in the City of New Rochelle, where were you taken? A To—after we was arrested and everything, to your office, we was interrogated. Q You taiked to me, didn’t you? A That’s righi, you interrogated, you didn’t inform us of our rights. MR. PROJANSKY: Objection, Your Honor, I’m go- ing to object to any introduction at this time of any evi- dence for any purpose whatsoever of any interrogation which took place in the District Attorney’s office, any place else by the District Attorney. THE COURT: All the question was, Mr. Projansky was did you talk to me and the answer was yes, he did. So this is proper. Now, I will pass on the next question when it comes. Q Were there other police officers present? A i couldn’t say. You said there was. I couldn’t say whether they police officers or what. Q Do you recall approximately what time it was. A No, because I was rather— {fol.447] Q Do you recall what time? A No, I do not. f TT Rt My > a vA ate ore ee PPR a ERIE UMS ene gt ENS: heey URBAN aE se STE S STRAT? me eae oy Te —__— ee 57 Could you estimate whether it was within une hour or two hours after you were arrested? A I said maybe hour, hour afver I was arrested? Pardon? A Approximately an hour after I was arrested, some- thing like that. Q And do you recall a man sitting next to you with a machine similar to the one that the court reporter has A Ido. @ And do you recall me asking you certain questions? A Yes. Q And you giving me certain answers? A Ido. Q Do you recall me asking you this question, and you giving me this answer? MR. FACELLE: Now I'll pause, Your Honor. I’m sure there will be an objection before I even read it. H MR. PROJANSKY: At this time I’d like to render an Hf objection to this entire line of questioning. Mr. Facelle is referring to an interrogation of the defendant while in } police custody in January of ’66. I think that before Mr. (fol. 448] Facelle makes any reference to any record of : such interrogation or anything that was said by the de- fendant at that time, that he has to lay a foundation and E show that it was voluntarily made, under the law, and in t conformity with the requirements as set up in the case of . Miranda v. Arizona. z THE COURT: Are you going to quote the Kulis Case . tome, Mr. Facelle? ; MR. FACELLE: A copy of which I have. : THE COURT: In our Court of Appeals. x MR. FACELLE: That’s correct, Your Honor, Court of Appeals. THE COURT: You let Mr. Projansky look at it. I will permit the interrogation Mr. Projansky. If you note the Kulis case, permits it in the Court of Appeals, in this November. I will overrule the objection. MR. PROJANSKY: Exception, Your Honor. Q Do you recall me asking you this question and you giving me this answer? sem Sythe AM FATA RRR Ie ORR tra tame: : ee FEW I PON AE EOP NICO LOA EET bt —_—_—— 58 “Question: What did you do Tuesday night with Joe? Answer: He drove me to get a bag for him and] got it for him.” Q (continuing) Do you recall me asking you that question and you giving me that answer? A No, I do not. {fol. 449] Q Do you recall this series of questions and answers: “Question: All right, in his car? Answer: In his car. Question: He wanted a bag of what? Answer: Skag. Question: All right, how much? Answer: A nickel bag.” Q (continuing) Do you recall those questions and those answers? A Ido. Q Were those questions or the answers that you gave to those questions, withdrawn. Do you recall being asked this question and giving these answers: “Question: All right, and he drove you someplace? Answer: He drove me someplace. Question: Did you tell him where to go? Answer: No, he knows where to go. Question: He knows where to go? Answer: He knows where to go. Question: You didn’t tell him where te go. Answer: I didn’t tell him where to go.” Q (continuing) Do you recall those questions and giving me those answers? A No, I do not. [fol. 450] Q Now, those prior questions, when I asked you if you remember the question: “Question: He wanted a bag of what? Answer: Skag. Question: All right, how much? Answer: A nickel bag.” = ———— —— ETT LO EEO LR IM EE ST a OE 59 Q (continuing) You recall those questions and an- swer's? A I think I do. Were they true when you told them to me, within an hour or so after you were arrested? A I couldn’t say whether they were true or not. Q You could not say whether they were true or not? A Because I—, my joints was down and I needed drugs. MR. FACELLE: If Your Honor please, may we have the witness answer? THE COURT: No, the witness answered. He said that I can’t tell you whether they were true or not. He has answered. MR. FACELLE: That was the answer. Q Do you recall being asked this question and giving this answer: “Question: Did he front the bread? Or did you put it out yourself? Answer: He had it, he gave me the money.” [fol.451] A Will you phrase the question, I didn’t understand you. Q Do you recall being asked that question, “Did he front the bread or did you put it out yourself? Answer: He had it, he gave me the money.” A What you mean by front the bread? Q You don’t understand the expression? A Not front the bread. Q Do you recall being asked that question and giving the answer, “He had it, he gave me the money.”? A He had what? THE COURT: All you were asked, Mr. Harris— THE WITNESS: No, I don’t remember the question. THE COURT: That is the answer, he doesn’t know. THE WITNESS: I don’t recall if he asked that ques- tion. Q Do you recall being asked this question and giving these answers: “Question: All right, how much? Answer: Five dollars. Question: How long were you gone? " 1S ATR as, A — 5s Ni oo ae oce S RAN oe ok Blas SS By aaa En eens TRIG ET peeks eg apes OE OL OE PIO LION EG IE LIS ENERO WK EERILY PI en Se RRR OY TBR" SORTS eR aR a TR eR aT BRON ORES ARIS CREME: SUS COE 60 Answer: About two minutes. Question: And you gave back with a nickel bag? Answer: Yes. Question: Where did you give it to him?” [fol. 452] “Answer: In his car.” Q (continuing) Do you recall those questions and those answers? A No, sir, I do not. Q None of them? A None of them. Q Do you recall being asked the question: “Question: That’s all that happened that night?” MR. FACELLE: And giving the answer: “Answer: That’s all that happened that night. Question: Now, when is the next time you saw him? Answer: Last night. Question: Where? Answer: Three-Fours.” Q (continuing) Do you recall those series of questions and giving those answers? A Mr. Facelle, I don’t remember giving too many answers. THE COURT: No, Mr. Harris— MR. FACELLE: [I'll repeat the question. THE COURT: You are being asked whether you recall these questions being asked of you and you giving these answers. A No, sir, I don’t remember giving the answers. Q All right. Do you recall this series of questions and {fol. 453] giving these answers: “Question: Did you talk about skag? Answer: Uh-huh. Question: Did he want you to cop for him? Answer: Yes. Question: Where did you go, same place? Answer: Same place. No, out there. eo7~7~7~X™H AIL OLN RE Ee ea . . nt a 61 Question: Different place? Answer: The boy was standing outside the Three- Fours.” (continuing) Do you recall those questions and giving those answers? A No, I do not. Mr. Harris, do you recall being asked this series of estions and giving these answers: qu “Question: You went outside? Answer: I went outside. Question: And Joe stayed inside? Answer: Joe stayed inside? Question: Who was sitting with Joe? Answer: Eddie. Question: Anybody else? Answer: No, Sal was around, Ronnie was around.” Q (continuing) Do you recall those questions and giving those answers? (fol. 454] A No, sir. I would like to know, who is Sal. I asked you if you recall you giving the answer, “No, Sal was around, Ronnie was around”? A No, sir. Q Do you recall that answer? A No, sir. Q Do you recall this series of questions and giving these answers: “Question: What else—or withdrawn. Question: What did Joe tell you he wanted? Answer: He said he wanted some skag. Question: Well, did he tell you, one, two, three half loads, bundle? Answer: He wanted two.” Q (continuing) Do you recall being asked those questions and giving those answers? A Ido not. Q Do you recall being asked the following questions and giving the following answers: NAEP SERS LEAS AEE f a ¥ ¥ . : & & E 4 aie bitin ob 2. = & x All right, in his car? In his car. He wanted a bag of what? “Skag”’. All right, how much? A nickel bag. All right. And he drove you some place? He drove me some place. Did you tell him where to go? No. He knows where to go. 1.8] Q He knows where to go? A He knows where to go. Q You didn’t tell him where to go? A I didn’t tell him where to go. Q The two of you got in the car and he just drove there? A Yes. Q He parked the car? A Uh huh. Q Did you drive or did he drive? A He drove. Q All right, he drove and he parked the car, and then you got out? A Uh huh. Q And you went inside? A Uh huh. i: S ee LO RRB SES DEALT TX qe et 76 Q_ Right? A (Witness shakes head yes.) > Did he front the bread, or did you put it out your. se A He had it. He gave me the money. Q_ All right, how much? {fol.9] A Five dollars. How long were you gone? About two minutes. And you came back with a nickel bag? Yes. Where did you give it to him? In his car. And then what did you do? He drove me home. I got out. He drove you home to Guion Avenue? Uh huh. That’s ail that happened that night? That’s all that happened that night. Now when is the next time you saw him? Last night. Where? Three Fours. Did you talk about “skag’’? Uh huh. Did he want you to “cop” for him? Yes. Where did you go, same place? 10] A Same place. No, out there. Different place? No, the boy was standing outside the Three Fours You went outside? I went outside. And Joe stayed inside? Joe stayed inside. Who was sitting with Joe? Eddie. Anybody else? No. Sal was around, Ronnie was around. What did Joe tell vou he wanted? He said he wanted some “skag”’. ————*ant. You may take into consid- eration, too, the fact thai { have isolated this as far as the People. You of course will consider, as I have said to you before, all of the evidence in this particular case. Please note, too, if you will, the use of the word rea- sonable. We all know there are sceptics; they believe nothing. We all know there are credulous people who believe everything. The world is made up of this. What the Law operates in is a standard of a reasonable person and this is why in a jury of 12 people you seek to get a consensus. This doesn’t mean that you must adopt your AOS AE MNT ER OT ELE RO EOE HOE EINE RELI ERIE LLLP GAEL IMAL IE Le EE oleh ate Tass AY ee EEE ELSI FTE EET TREN BER 8 ea — neighbor’s standard. But it means that in your delibera- tions in the jury room, you must not go into that jury room with a pre-conceived idea of the guilt of this de fendant, or his innocence. You must be prepared to listen to arguments and discussions of your neighbors. This doesn’t mean that you must change, but that as reason. _ able people, we entertain the views of other people. That — {fol. 581] doesn’t mean that we change, does it? That simply means that we are willing, in the performance of arriving at a fair and just conclusion, to give credence and respect to the citizens, the other people, on your talk- ing of a reasonable area of doubt. I said to you before, what is evidence? We have all talked about it here for several days. Everybody has talked about evidence. Facts, testimony, exhibits, they are all interchangeable, really. There are two types of evidence, Ladies and Gentlemen. One is direct evidence. That is what you see. You look across at the window, you are looking at it but if you were downstairs, and you didn’t see a window, but you saw a light coming through, you could presume, couldn’t you not, there would be a window on a certain given site, so there is circum- stantial evidence, too. Circumstances that surround proof, and sometimes it is considered in the legal end of it, that circumstantial evidence is better than direct evi- dence, because the little small pieces of evidence, when you, if they exist, when you put them together in a (fol. 582] mosaic, make a much better and clearer picture than does direct evidence. So you have circumstances in this case of evidence surrounding this transaction, pass upon it. There is a rule of circumstantial evidence and that is this, that if the evidence is capable of two con- structions, one is a construction of innocence or guilt, and ambivalent position, then you must resolve that in favor of the defendant. But if the circumstances point in but one direction and that is the guilt of the defendant, then under those circumstances, Ladies and Gentlemen, you must accept it. You must view it from this view- point and you must, so if upon arranging the facts in a case two constructions appear, the one that is most favor- able to the defendant you have to take, under our system 98 Sint OPEL EY a oe SANE LIE EE SI 99 of jurisprudence. But if it points in one direction only and that is the guilt of the defendant, if it is inconsistent with every reasonable hypothesis of innocence of the defendant, you are bound as jurors to accept this. This is what you are to take. So do not regard circumstantial (fol. 583] evidence circumspect, weigh it and test it in the light of all of the facts and circumstances in this case. So I must point out to you that circumstantial evidence must not be disregarded unless it fails to meet the test that I have given to you; and if it does, then you disre- g.d it completely. Let me say this to you, if you will, please. We have talked about evidence, rules of law. Now we will talk about witnesses. How does one weigh testimony? How does one view witnesses? You do not, Ladies and Gentle- men, substitute your judgment for theirs. You most as- suredly do not substitute a version that you may set up in your own mind of events as you think they ought to be. You weigh the testimony. Number of witnesses has nothing to do with it, Ladies and Gentlemen. Quality of the testimony is what you are looking for. How does a person appear when they are testifying before you? Are you impressed with their candor? Are you impressed with their ability to speak the truth? Was there hesitancy? Is there a lack of [fol. 584] candor? Are they evasive? These would be things that you would immediately pass upon in talking to people every day in the week, wouldn’t you? The wit- nesses that sit before you, and I must say this to you that as we all sit here, People and the Defendant, we are all on an even par, there is no advantage, Ladies and Gentlemen, to this defendant or this People, to the Dis- trict Attorney or to the Attorney for the Defendant. Fundamental fairness requires that everyone start off at an equal in a Courtroom. Now, you have a right, of course, to consider motive. You have a right to consider interest, you have a right to consider what interest does a person have in the outcome of the litigation. I say to you that in any criminal case, a defendant is an inter- ested witness, as a matter of law. This doesn’t brand him as a perjuror, Ladies and Gentlemen; this doesn’t 100 brand him as a liar. It is merely an element that you may take into consideration in your deliberations in the jury room in weighing evidence that you have before you, Have J made this clear now in the long period of time [fol. 585] that we have been talking, that what you do is weigh the evidence. You don’t weigh it with sympathy, You might love to do it; you don’t love to do it with fear, you don’t weigh it with prejudice. You weigh it as rea. sonable men and women in the performances of an im- portant duty to the People of the State of New York and to this defendant who is on trial here. That is the way you weigh it. But, Ladies and Gentlemen, you don’t leave your common sense, either, and go into limbo when you go into a jury room. You take in with you your every-day knowledge, you take in with you your dealings with other persons as standards that you utilize in test- ing this evidence. If you were to find that a witness lied or that a wit- ness had misrepresented a material fact, of course, Ladies and Gentlemen, under those circumstances you may dis- regard that portion that you consider to have been mis- represented. You most assuredly disregard all of the testimony of a witness if you find that they had lied. This is what you will do in every-day life. There is no great mystery about what I have just told to you. I [fol. 586] again must repeat, that you must not have any concern with an element of punishment. This is a fune- tion for the Court. If the defendant committed any of the acts that were complained of in this information, Ladies and Gentlemen, the consequences are his, not yours or mine. Each juror, Ladies and Gentlemen, is entitled to his own opinion and I think I indicated to you before that you must not yield to the opinion of other jurors unless you are convinced that the reasoning that is utilized in your discussion persuades you that the People met the burden of proof. You will have to decide, each one of you for yourselves, and as I indicated to you, you must not permit any previous impression gathered in this case or from some other suit, of course, to in any way in- fluence you in a fair or reasonable determination. os po pty EER FOLD x te Lad aa a Ronee te Nee a mln a a Be Se CEG eT Re, Gee ee my) 101 No other body, Ladies and Gentlemen, in our system has the task that you have. You have a responsibility under your oaths to fulfill. Most assuredly you do know this, if this defendant is innocent of crime for which he (fol. 587] is on trial here, he should not be corivicted. He should be acquited. But most assuredly if he is guilty of the crime, he should be convicted. It is your function to determine the guilt or innocence of this defendant within the area that I have just mentioned to you, and this function shouid be discharged with courage, intelligence, loyalty and with the fullest responsibility to your obliga- tions as jurors. Mr. Foreman, it has been stated to you before that your function in this case will be to try and arrive at a unanimous verdict. This constitutes, under criminal law, all 12. Are there any exceptions, Gentlemen? MR. PROJANSKY: I have one request to charge. THE COURT: We will take any exceptions to what I have, sir. MR. FACELLE: No exceptions. MR. PROJANSKY: No exceptions. THE COURT: Your request, Mr. Projansky, is what? MR. PROJANSKY: Your Honor, I would like to re- quest under Section 445 of the Code of Criminal Pro- [fol. 588] cedure, charge the jury as to necessarily in- cluded lessor crimes, that if the jury find that the People have not proven all of the elements of the crime beyond a reasonable doubt, they may nevertheless convict the defendant of lesser crimes necessarily included within the crimes charged in the indictment, and that if the jury find that the defendant did not make a sale on the dates in question, but that he did then and there unlaw- fully possess heroin, they may convict him of that mis- demeanor. THE COURT: No, you may have an exception. You may have an exception. He is not charged with posses- sion nor is there, under the facts and circumstances in this case, an issue which permits of the submission of the lesser charge in here. I will grant you an exception to it. Now, may I ask, in the presence of the defendant— LOPLI RE MRA 102 MR. FACELLE: Would Your Honor piease? THE COTIRT: I am sorry. MR. FACELLE: I have a request. If Your Honor please, I will ask the Court charge the jury that they must render a verdict and make a finding on each of the fol. 589] two counts independently and separately. THE COURT: Yes, I will. MR. FACELLE: Thank you. THE COURT: I am sure that you recognize, ag | specified, that there are two charges and you must pass upon both of these charges. This is what the request was. MR. PROJANSKY: Your Honor, will you please charge the jury that there is no necessity that their find- ings, their verdicts as to the two counts be the same. THE COURT: Yes, surely they may find. You may find the man not guilty of the count charging the sale on January 4th, and guilty of the count of January 6th. You may have any one of four combinations within the evidence. You recognize that, do you not? That there could be any one. You could acquit on both counts, you could find him guilty on both counts, then you may cross one to the other, this depends upon the results of your determination; and forgive me for not having explored it with you, but it seemed that as an intelligent jury I was {fol. 590] so sure that vou recognized it. I didn’t feel that I had to press it. May I ask from the defendant, at this time, is he prepared to permit, if the jury so calls for them, the submission to the jury of the exhibits? MR. PROJANSKY: I have no objection, Your Honor, to the submission. THE COURT: Mr. Foreman, in the event that you, in the course of the deliberations, want the exhibits, feel perfectly free to call for them and we will send them to you. Secondly, if you would find it desirable and neces- sary to have some portion of the testimony read or por- tion of the Law read, you do know that you could com- municate this fact to the deputy sheriff who will be with you and we will be here for the purpose of supplying you with this information. Yes, Mr. Facelle? OO —a———_ 103 MR. FACELLE: May I be presumptuous, Your Honor; may I ask that the Court advise that the jury— that the exhibits that they may call for are the exhibits in evidence. There have been references to exhibits for identification and reference to exhibits in evidence. THE COURT: Yes, they may call for them, but (fol. 591] they won’t get them unless they are in evi- dence. * * (Recess at 5:32 p.m..) (Request from jury marked Court’s exhibit 8.) (Jury returns to the Courtroom at 9:05 p.m. The defendant and both counsel are present.) THE COURT: Mr. Foreman, I have the note which you have just sent to me to the effect that the jury as (fol. 596] arrived at a verdict on one count in the indict- ment, and that at the present time there is a disagree- ment in the jury on the second count. May I ask you now, and I shall ask you as to the first count in the in- dictment, and I think if you will recall I indicated to you that it was possible for you to arrive at a combination of verdicts in reference to the various counts in the indict- ment. May I ask you, without at this moment indicating as to the first count of the indictment, which charges the defendant Viven Harris with the sale of a narcotic on January 4, 1966, have you been able to arrive at a ver- dict on that count? JURY FOREMAN: No, Your Honor. THE COURT: May I ask you, have you been able, as to the second count of the indictment, which charges that the defendant on the 6th day of January, 1966, unlaw- fully bartered and sold a quantity of heroin, have you arrived at a verdict on that count? JURY FOREMAN: Yes, Your Honor. THE COURT: May I ask you, sir, is this a unani- (fol. 597] mous verdict? JURY FOREMAN: It is, Your Honor. THE COURT: May I ask you, sir, how do you find the defendant on the second count in the indictment? JURY FOREMAN: Should I stand? i ——_ | 104 THE COURT: Y* you may. JURY FOREMAN: The jury finds the defendant ilty. THE COURT: As charged in the indictment? JURY FOREMAN: As charged. THE COURT: Now at this time, on behalf of the de fendant,—you may be seated, Mr. Foreman. On behalf of the defendant, I am going to poll the jury and this simply means to ask each and every member of the jury, as your name is read, would you please indicate whether or not you agree with the statement which has been made by your foreman as to the second count in the indictment, (Whereupon the jurors were individually polled and their verdict was the same as that announced by the foreman. ) THE COURT: Mr. Foreman, may I ask you please, (fol. 598] would you indicate, do you feel after the long hours which you have spent that it would be impossible for you to arrive at a verdict or consensus of opinion in your jury on the first count? JURY FOREMAN: I do not feel we could arrive at one. THE COURT: And you do not feel that under the circumstances any longer deliberation may blend to a re sult in connection with the verdict? JURY FOREMAN: I do not feel. THE COURT. Of course you folks do know that no other jury would know any more about this case than you would, that all of the evidence that is available in the case is here before you, and undoubtedly it would be im- possible to get a better jury than you Ladies and Gentle men represent. But under the circumstances, I will find that there is a disagreement in the jury, with the consent of the defendant, on the first count. MR. PROJANSKY: Yes, Your Honor, we’ll consent to that. THE COURT: And is that agreeable to the People? [fol. 599] MR. FACELLE: Yes, Your Honor. THE COURT: Then I will accordingly discharge the jury after having rendered a verdict of guilty on the sec- ond count. * * * 105 VoLUME III COUNTY COURT : WESTCHESTER COUNTY Indictment #50-66 THE PEOPLE OF THE STATE OF NEW YORK —against— VIVEN HARRIS, DEFENDANT SENTENCE MINUTES December 20, 1966 White Plains, New York . Before: Hon. RopeRT E. DEMPSEY, County Judge. Appearances : LEONARD RUBENFELD, District Attorney, Attorney for the People, County Courthouse, White Plains, New York By: JAMES R. COWHEY, Esq., Of Counsel, Assistant District Attorney. Ear. J. McHuGH, Esq., Attorney for the Defendant, 120 Grand Street, White Plains, New York (fol. 9] * * * I feel that in the past record, in his con- duct, that he has time to serve. It is the Judgment of the Court that he will be sentenced to the Sing Sing State’s Prison for a term the minimum of which will be not less than 6 years and the maximum of which will not be more than 8 years. MR. McHUGH: Eight years, Your Honor? THE COURT: Yes. CO ee ie eae) ae eae ee Se Le eee Se ae ll eee 106 SECOND JUDICIAL DEPARTMENT APPELLATE DIVISION By BELDOCK, P.J.; CHRIST, BRENNAN, SAMUEL Rapin and MUNDER, JJ. PEOPLE, &C., res, v. VIVEN HARRIS, ap—Judg. ment of the County Court, Westchester County, rendered Dec. 20, 1966, affirmed, Beldock, P.J., Brennan and Munder, JJ., concur, with the following separate memo randa: Brennan, J.: The indictment, containing two counts, alleged that defendant committed the crime of selling a narcotic drug, by selling heroin on Jan. 4 and 6, 1966, The sales were to an undercover agent. On Jan. 7, 1966, defendant was arrested and within one hour he made a statement in the assistant district attorney’s office. He was apprised of his privilege to remain silent and that anything he said might be used against him. He was then questioned, but prior to making any admissions said he would like to speak to an attorney. The assistant district attorney brought the questioning to a close, told defendant he had a right to counsel and asked him if he desired to speak to an attorney then. Defendant re plied that he would “call tomorrow.” He asked what the charges against him were and, upon being informed, volunteered the information that everybody in his area was selling narcotics. After this statement the assistant district attorney posed a few questions which defendant answered. Defendant said his answers were voluntary and it was his decision to talk after requesting counsel. No notice of an intention to use the statement as evi- dence was given by the People (Code Crim. Pro., 813-f). At the trial the undercover agent testified as to the trans- actions of Jan. 4 and 6. His testimony was corroborated in minor respects by another undercover agent. Defend- ant (who admitted at the trial to three prior convictions) testified on direct examination that he did not give the undercover agent drugs on Jan. 4, 1966; but on Jan. 6, 1966, he did go to a friend’s home where he put baking ane SAE SON A CSTR ON RR 8 deh 107 powder in two glassine envelopes and sold the latter as heroin to the agent. On cross-examination the assistant district attorney read into evidence portions of defendant’s statement of Jan. 7, 1966, solely to impeach defendant’s credibility. Defense counsel objected on the ground that no pre-trial notice had been received and that the statement had been taken in violation of Miranda v. Arizona (384 U. S. 436). The court determined, after hearing argument, that the statement had been elicited without the full Miranda warnings and, therefore, could only be used as an instru- ment of impeachment. The gist of the portions read in the presence of the jury is twofold: (1) on Jan. 4, 1966, defendant acted as the undercover police officer’s agent in obtaining narcotics and (2) on Jan. 6, 1966, defend- ant obtained narcotics from an unknown person outside a bar and then sold the drugs to the undercover agent ; ina bar. The court charged the jury that this statement went to the credibility of the witness and was “not proof of the defendant’s guilt.” Defense counsel in his sum- mation uttered a similar admonition. The jury disagreed as to the count relating to Jan. 4, 1966, but found de : fendant guilty of the second count. Section 813-f of the Code of Criminal Procedure pro- vides that the People must give notice to the defendant f before trial where they “intend to offer a confession or admission in evidence” (emphasis supplied); and section 813-g provides that “[i]f the motion {to suppress the statement! is granted, the confession or admission shall not be admissible in evidence” (emphasis supplied). It has been held that the failure to give the prescribed no- tice deprives the People of the evidentiary use of the statement when it is offered in evidence (People v. Schwartz, 30 A. D. 2d 385, 388). The purpose of the statute is to enable the defendant to prove before trial that the statement was obtained involuntarily (People v. Schwartz, supra; People v. Huntley, 15 N. Y. 2d 72). At bar the statement was marked in evidence at the suggestion of the trial judge and upon consent of respec- tive counsel, but only to enable defense counsel to peruse it, and it was not made available to the jury. Conse- R27 POM NOLAN IED 108 quently, it is readily apparent that the statement was not put in evidence in the truest sense of that word, Accordingly, since the aforementioned statutes are di- rected at evidence in its conventional form, we have con- cluded that no pre-trial notice is required as to state ments used solely for impeachment. On this appeal the district attorney has conceded that the statement was obtained in violation of Miranda and would have been suppressed had he attempted to use it as evidence-in-chief. We adopt his concession but point out that, under the circumstances herein, the Miranda warnings given herein might have been found sufficient by the trial judge after a Huntley (People v. Huntley, supra) hearing (see People v. Post, 23 N. Y. 2d 157; United States v. Fisher, 387 F. 2d 165, cert. den, 390 U. S. 953; United States v. Messina, 388 F. 2d 398, cert. den. 390 U. S. 1026). Nevertheless, the district attorney argues that People v. Kulis (18 N. Y. 2d 318) sustains the use of such an illegal statement for the purpose of impeachment. In that case the Court of Appeals held that a statement obtained in violation of Escobedo v. Illinois (378 U. S. 478) can be used to impeach a defendant’s testimony given on di- rect examination. The rule of the Kulis case, and of Walder v. United States (347 U. S. 62) which it pur- ported to follow, is that a tainted statement (or the fruits thereof) is admissible solely to impeach a defend- ant’s direct testimony on collateral matters not directly related to the crime for which he was indicted (see Peo- ple v. Schwartz, 30 A. D. 2d 385, supra; People v. John- son, 30 A. D. 2d 575; People v. Quick, 30 A. D. 2d 561; People v. Dixon, 27 A. D. 2d 740; United States v. Curry, 358 F. 2d 904, cert. den. 385 U. S. 873; Bailey v. United States, 328 F. 2d 542; Tate v. United States, 283 F. 2d 377). At Bar it is apparent that the statement pertaining to the events of Jan. 6, 1966, when read before the jury, violated the holdings in Kulis-Walder. However, it is now well settled that the “harmless-constitutional-error rule” does not mandate reversal where the appellate court concludes that the error was harmless beyond a reason- 109 able doubt (Chapman v. Calif., 386 U. S. 18, 22). This means that the error is harmless if it could not in any event affect the outcome and did not play a “meaningful yole’ in the case (People v. Savino, 22 N. Y. 2d 732, 733; People v. Ross, 429 P. 2d 606). In an analogous factual context our Court of Appeals has recently said “it jg difficult to conclude that the errors were of suffi- cient consequence to merit a new trial” (People v. Miles, 93 N. Y. 2d 527 [dec. Jan. 16, 1969]). The court there- in further observed that “the impropriety is confined to an incidental part of the case and on a trial in which the proof was overwhelming in establishing the guilt of defendants, Indeed, the very use and introduction of the pre-trial statement was the result of the able prosecutor ‘overtrying’ his case.” These observations are appropri- ately applicable to the case at Bar and we have con- cluded that, beyond a reasonable doubt, the jury could ne . ; minus the error, have determined the case otherwise ane. : therefore, the error was harmless. Defendant argues that the Miranda decision overrules : Kulis or, as in the case at Bar, where Miranda violations : occur, Kulis does not apply (see cases collated in 13 New ‘ York Law Forum 146, 158-162; Pitler, “The Fruit of the Poisonous Tree,” 56 Calif. L. Rev. 579, 630-636). : The United States Supreme Court has not yet passed upon the question (ef. Harrison v. United States, 392 U. S. 219, dissenting op. at p. 234) and in Kulis itself the dissenters observed that Miranda governed (see Peo- ple v. Johnson, 30 A. D. 2d 575, supra, dissenting memo., ; pp. 575-576; cf. People v, Shivers, 21 N. Y. 2d 118, 122). Until the question has been passed upon by our Court of Appeals we decline to adopt defendant’s argument and f depart from the rationale of Kulis. Accordingly, we are : & er ial of the opinion that a statement obtained in violation of a defendant’s Miranda rights is admissible solely for im- peachment purposes (see People v. Miles, 23 N. Y. 2a —, supra, [dec. Jan. 16, 1969]). Beldock, P.J., and Munder, J.—Because of our opinion ir People v. Schwartz (30 A. D. 2d 385) we consider ourselves constrained to agree with the theory that an illegally obtained statement may be used to impeach a SRE SLE ATOR IAIN aR ABT IIOP ALLO in SPA NEL em, OF 110 defendant’s direct testimony only on collateral matteis not directly related to the crime charged against him. We agree that section 813-f of the Code of Criming] Procedure, regarding the notice that must be given by the People if it is intended to offer such a statement in evidence as a part of the People’s case, has no applica- tion if the statement is to be used solely for impeachment purposes. If a crime has not been otherwise proved, how- ever, such a statement may not form the basis for a conviction (People v. Mareano, N. Y. L. J., June 20, i968, p. 2, col. 2 [App. Term, First Dept.]). But where it is used only to challenge credibility, and a proper charge by the court keeps it in true perspectives, we do not believe the familiar evidentiary rule should be so diluted. We think that any testimony given by a defend- ant as a witness in his own behalf, directly related or collateral to the crime charged, is subject to contradic. tion through his prior inconsistent statements, not to establish the truth of the prior statements but to impeach his credibility and thereby discredit his testimony (cf. Richardson on Evidence {9th ed.], sec. 513). Christ, J., dissents and votes to reverse the judgment and grant a new trial, with the following memorandum in which Rabin, J. concurs: Defendant was charged in two counts with selling heroin to an undercover police officer on Jan. 4, and Jan. 6, 1966. The trial essentially involved a test of credibility between the undercover agent and defendant. The jury was unable to agree as to the alleged sale on Jan. 4, although the undercover agent testified unequivocally that defendant sold him a bag of white powder on that date and the police chemist testified that the bag contained heroin. Defendant denied this alleged sale. It seems reasonable to infer from the jury’s disagreement on the Jan. 4 charge that they may have had some reservations about the officer’s veracity. As to the Jan. 6 charge, the undercover agent testified that defendant sold him two “decks” of heroin on that date. Defendant testified that the agent kept asking for drugs that night and that defendant went to a friend’s apartment, filled two empty glassine envelopes with baking powder and gave them to the agent for $12. s : : ppinaas sn eno en meone eR RRO ee Nae A ARE SBA CIT The prosecution was then permitted to impeach defend- ant’s credibility by the use of a statement concededly inadmissible under Miranda v. Arizona (384 U. S. 436) and which severely undermined his testimony as to mat- ters directly related to the crime charged (People v. Schwartz, 30 A. D. 2d 385, 388; People v. Johnson, 30 A. D. 2d 575; ef. People v. Shivers, 21 N. Y. 2d 118, 122). There can be no mistake about the effect of this use of the statement. It tended “to prove guilt by im- plication” and was “incriminating in any meaningful sense of the word” (Miranda v. Arizona, supra, p. 477). Defendant was convicted on the second count and sen- tenced to six to eight years in prison. Under the circumstances outlined above, I cannot agree that this error of constitutional dimension was “harm- less beyond a reasonable doubt” (Chapman v. California, 386 U. S, 18, 24). An error is not harmless if “there is a reasonable possibility that the evidence complained of might have contributed to the conviction” (Fahy v. Connecticut, 375 U. S. 85, 86-87). The burden of show- ing that a constitutional error is harmless rests with the : People who, in this case, have not even attempted to as- : sume that demonstration (Chapman v. California, supra). Surely it cannot be said with any certainty that the ; improper use of defendant’s statement did not tip the : scales against him, especially when his conviction rests on the testimony of the same undercover agent whose testimony was apparently less than convincing on the Jan. 4 charge (cf. Anderson v. Nelson, 390 U. S. 523, 525). On the contrary, it is difficult to see how defendant could not have been damaged severely by use of the in- ‘ consistent statement in a case which, in the final analysis, pitted his word against the officer’s. The judgment should be reversed and a new trial granted. OE NTO ES ARNO NN NEN ORS aM ET Bless Deniade 2 ERP 1 to toes IT a ld sawed — 112. At a Term of the Appellate Division of the Supreme Court of the State of New York, Second Judicial De. partment, held in Kings County on February 17, 1969 Hon. GEORGE J. BELDOCK, Presiding Justice Hon. Marcus G. CHRIST Hon. ARTHUR D. BRENNAN Hon. SAMUEL RABIN HON. FRED J. MUNDER Associate Justices THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT Vv. VIVEN HARRIS, APPELLANT ORDER ON APPEAL FROM JUDGMENT OF CONVICTION In the above entitled action, the above named Viven Harris, defendant in this action, having appealed to this court from a judgment of the County Court, Westchester Couuty, rendered December 20, 1966; and the said ap- peal having been submitted by Joel Martin Aurnou, Esq,, of counsel for the appellant, and by James J, Duggan, Esq., of counsel for the respondent, and due deliberation having been had thereon; and upon this court’s Opinion and decision slip heretofore filed and made a part hereof, it is: ORDERED that the judgment appealed from is hereby affirmed. Beldock, P.J., Brennan and Munder, JJ., concur, with separate memoranda. Christ, J., and Rabin, J., dissent and vote to reverse the judgment and grant a new trial, with dissenting memorandum by Christ, J., in which Rabin, J., concurs. Enter: HERMAN M. PoGuUL Clerk of the Appellate Division bea seatia cori sar a a . - ee A ae SES INNIS RA MINE PREM RN BIET CEES LY Care re ee Re ee a ee eS ee eS a —— 113 STATE OF NEW YORK COURT OF APPEALS 2. No. 254. 69 THE PEOPLE &C., RESPONDENT vs. VIVEN HARRIS, APPELLANT OPINION PER CURIAM: On this appeal from a judgment convicting the de- fendant of selling narcotics, the defendant raises two oints. : The first concerns a statement obtained from him after his arrest and under circumstances which concededly vio- lated the requirements prescribed by the Supreme Court in Miranda v. Arizona (384 U. S. 486). In its direct case, the People did not offer the statement in evidence. On cross-examination, however, and over the defendant’s objection, the statement was employed extensively by the prosecutor in cross-examining the defendant who had taken the witness stand in his own defense, The state- ment was at complete variance with the account given by the defendant on direct examination although it was no more inculpatory than his direct testimony. Such use of the statement for purposes of impeachment is author- ized by our decision in People v. Kulis (18 N Y 2d 818), to which we adhere. The defendant’s second contention is that use of the statement should, in any event, be barred because the People failed to comply with section 813-f of the Code of Criminal Procedure which provides that, “where the people intend to offer a confession or admission in evi- y dence * * * the people must * * * give written notice 5 of such intention to the defendant”. We agree with the decision of the Appellate Division herein—and not with its later, seemingly inconsistent, position in People v. PRESTO SLE TE EE OES LEENA ES tS, A SRP I CI hee yo cH Re Ne re RN RRR ae: Teg 114 Torres (82 A D 2d ——, N.Y.LJ., June 12, 1969, p, 15, col. 8)—that section 813-f is not applicable. Section 813-f is not intended as a discovery device; its function —as the very language of the statute itself indicates (see tit. II-C of Part VI, Code Crim, Pro.)—is to afford a defendant an opportunity for a hearing under section 813-g to determine the voluntariness of his confession or admission. Accordingly, when the prosecution neither offers nor plans to offer a statement in evidence against the defendant, the section in question is just not appli- cable. Moreover, where, as in the present case, a state. ment obtained in violation of Miranda is used solely for impeachment purposes, no purpose would be served by requiring compliance with section 813-f, and the People were not obligated to furnish the notice there prescribed. The judgment should be affirmed. 115 COURT OF APPEALS THE PEOPLE Of THE STATE OF NEW YORK, RESPONDENT against VIVEN HARRIS, DEFENDANT-APPELLANT Fup, Ch. J. (concurring) : Some three years ago, the court held in People v. Kulis (18 N Y 2d 318) that, although a statement concededly taken from a defendant in violation of his constitutional rights cannot be received in evidence against him, it may, nevertheless, be used for purposes of cross-examining him if he takes the witness stand and testifies in his own defense. This seemed wrong to Judge Keating and to me, and we dissented (18 N Y 2d, at pp. 323-324) on the ground that to allow the use of an illegally obtained confession or statement even for impeachment purposes was violative of a court’s responsibility to preserve and maintain basic constitutional rights. Not alone a need to deter official misconduct but a regard for “the impera- tive of judicial integrity” (Elkins v. United States, 364 U.S, 206, 222) mandates that a confession which was unlawfully taken from a defendant should not be used for any purpose. I still believe that this is so, and I am confirmed in that view by the fact that, since the Kulis decision was handed down, at least a dozen tribunals, including the highest courts of three states and six Federal Courts of Appeals, have actually repudiated the conclusion reached in Kulis and held an illegally procured statement com- pletely unusable.! However, in light of the majority’s present determination to adhere to the decision in People "See State v. Brewton (247 Or. 241, cert. den., 387 U.S. 943 [1967]) ; Commonwealth v. Padgett (428 Pa. 229 [1968]); Gaert- ner V. State (35 Wis 2d 159 [1968]); Proctor v. United States (404 F 2d 819 [D.C. Cir. 1968]) ; United States v. Fox (403 F 2d 97 (2d Cir., 1968]) ; United States v. Pinto (394 F 2d 470 [3d Cir., 1968]); Breedlove v. Beto (404 F 2d 1019 [5th Cir., 1968]); Groshart v. United States, 392 F 2d 172 [9th Cir., 1967 ]); Wheeler Cee i ee ee ee eee ee eee | ee re al ARI ney ) SORE aw ee a IEE SELENA | 8 EE NRT TEE RENTER OS 116 v. Kulis (18 N Y 2d 318, supra), I deem myself con. strained to cast my vote for an affirmance. Judgment affirmed, Opinion Per Curiam. Concur: Burke, Scileppi, Bergan, Breitel and Jasen, JJ.; and Fuld, Ch. ry in a separate opinion. v. United States, 382 F 2d 998 [10th Cir., 1967]); United States Vv. Prebish (290 F. Supp. 268, 273-275 [D.C. Fla. 1968]); United States Vv. Birrell (276 F. Supp. 798, 817 [D.C. S.D. N.Y., 1967]); cf. United States v. Armetta (378 F 2d 658, 861-662 [2d Cir, 1967}). _— 117 COURT OF APPEALS STaTE OF NEW YORK, SS: PLEAS in the Court of Appeals, held at Court of Appeals Hall, in the City of Albany, on the 2nd day of July in the year of our Lord one thousand nine hundred and sixty-nine, before the Judges of said Court. WITNESS, The Hon. STANLEY H. FULD Chief Judge, Presiding RAYMOND J. CANNON Clerk REMITTITUR JULY 2, 1969 2. No. 254. 69 THE PEOPLE &C., RESPONDENT vs. VIVEN HARRIS, APPELLANT BE IT REMEMBERED, That on the 13th day of May in the year of our Lord one thousand nine hundred and sixty-nine, Viven Harris, the appellant—in this cause, came here unto the Court of Appeals, by Joel Martin Aurnou, his attorney—, and filed in the said Court a Notice of Appeal and return thereto from the judgment of the Appellate Division of the Supreme Court in and for the Second Judicial Department. And The People &., the respondent—in said cause, afterwards appeared in said Court of Appeals by Carl A. Vergari, District Attorney. Which said Notice of Appeal and the return thereto, filed as aforesaid, are hereunto annexed. 118 WHEREUPON, The said Court of Appeals having heard this cause argued by Mr. Joel Martin Aurnou, of counsel for the appellant—, and by Mr. James J. Dug. gan, of counsel for the respondent—, and after due deliberation had thereon, did order and adjudge that the judgment of the Appellate Division of the Supreme Court appealed from herein be and the same hereby is affirmed. And it was also further ordered, that the record afore said, and the proceedings in this Court, be remitted to the Cc inty Court, Westchester County, there to be pro ceedea pon according to law. THEREFORE, it is considered that the said judgment be affirmed, as aforesaid. And hereupon, as well the Notice of Appeal and re turn thereto aforesaid as the judgment of the Court of Appeals aforesaid, by it given in the premises, are by the said Court of Appeals remitted into the County Court, Westchester County, before the Judges thereof, according to the form of the statute in such case made and pro- vided, to be enforced according to law, and which record now remains in the said County Court, before the Judges thereof, &c. /s/ Raymond J. Cannon Clerk of the Court of Appeals of the State of New York Court of Appeals, Clerk’s Office Albany, July 2, 1969 I HEREBY CERTIFY, that the preceding record con- tains a correct transcript of the proceedings in said cause in the Court of Appeals, with the papers originally filed therein, attached thereto. /s/ Raymond J. Cannon Clerk — 119 SIR. PLEASE TAKE NOTICE that the within is a true copy of an order duly entered in the Office of the Clerk of Westchester County on the 8th day of August, 1969. Dated: August 11, 1969. Yours, ete. CARL A. VERGARI District Attorney of Westchester County Office and Post Office Address: Court House White Plains, N. Y. TO Joel Martin Aurnou, Esq. Attorney for Appellant SIR: PLEASE TAKE NOTICE that the within order will be presented for settlement and signature to the Hon. Be ace Se ee a Ge within named Court at the Courthouse, White Plains, Boo oe... aye .................,. BD Dated: lhe Sigeanican acts Yours, ete. District Attorney of Westchester County Office and Post Office Address Court House White Plains, N. Y. oe NN, Attorney for Defendant PROT ENS He 120 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT against VIVEN HARRIS, APPELLANT REMITTITUR CARL A. VERGARI District Attorney of Westchester County Office and Post Office Address: Court House --- White Plains, N. Y. TO Joel Martin Aurnon, Esq. Attorney for Defendant 121 COUNTY COURT : COUNTY OF WESTCHESTER Indictment No. 50/1966 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF —against— VIVEN HARRIS, DEFENDANT ORDER A motion having been made by JOEL MARTIN AUR- NOU, ESQ., for an Order dismissing the first count of the indictment herein pursuant to Section 66A of the Code of Criminal Procedure, Section 8 of the Code of Criminal Procedure, Section 12 of the Civil Rights Law, and the Sixth Amendment to the Constitution of the United States, and upon reading and filing the Notice of Motion and Affirmation of JOEL MARTIN AURNOU, ESQ., both dated the 14th day of May, 1969, and the Affidavit in Opposition of JAMES J. DUGGAN, sworn to June 10, 1969, and the Reply Affirmation of JOEL MARTIN AURNOU, affirmed the 11th day of June, 1969, together with due proof of service thereof, and after hearing counsel in open Court and after due deliberation, this Court having rendered its decision in writing, NOW, upon motion of JOEL MARTIN AURNOJ, it is ORDERED, that the motion be and the same hereby is granted and the first count of indictment No. 50/1966 be and the same hereby is dismissed with prejudice. ORDER signed this 31 day of July, 1969, at White Plains, New York. ENTER, /s/ George Beldock J.C.C. 122 SUPREME COURT OF THE UNITED STATES No. 1022 Misc., October Term, 1969 VIVEN HARRIS, PETITIONER Vv. NEW YORK On petition for writ of Certiorari to the Court of Appeals of the State of New York. On consideration of the motion for leave to proceed herein in forma pauperis and of the petition for writ of certiorari, it is ordered by this Court that the motion to proceed in forma pauperis be, and the same is hereby, granted; and that the petition for writ of certiorari be, and the same is hereby, granted. The case is transferred to the appellate docket as No. 1635 and placed on the summary calendar. And it is further ordered that the duly certified copy of the transcript of the proceedings below which accom- panied the petition shall be treated as though filed in response to such writ. June 1, 1970 Mr. Justice Marshall took no part in the consideration or decision of this motion and petition. W ©. S. GOVERNMENT PRINTING OFFICE, 1970 3976868 12 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0234%3A1. Public record. Not legal advice.