Petition for a Writ of Certiorari — Sullivan v. New York
Supreme Court brief1950
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CHARLES ELMORE CROPLE!
Ixy THE A CLERK
Supreme Court of the United States
October Term, 1949.
No. al J 0 2
JAMES A. SULLIVAN,
Petitioner,
vs.
PEOPLE OF THE STATE OF NEW YORK.
Petition for Writ of Certiorari to the Court of Appeals
of the State of New York and for Stay of Execution,
and Supporting Brief.
FRANCIS A. MCGURK,
Attorney for Petitioner,
42 Broadway,
New York City-
THe Reporter Company, Inc., New York City—1950
Index.
Constitutions .
Statutes .......
Table of Cases Cited
Other Authorities ...
Petition for Writ of Certiorari SAE cin eBid LMF
Statement of Case
Jurisdiction
I a a ee
II AE aie ath Seecegeige tagaoraboeled
Reasons Relied Upon for Allowance of the Writ
ERG EE EES ORT RR SE AE ONTO ORD EE
Dee hh Deen of Fetitiee — 0.
EE SII seticrecinnscinameosuseneciectnnsiniaaninghatandiieoanipcalads
ITI ihisiall reside Neescial mcriecabienioideacapeepeeniasscnenAsacadeaeeetieaaaiinios
Specifications of Error ..
Summary of Argument
Argument
I. The Trial Court lacked jurisdiction because of
disqualification of the Trial Judge by §14 of
Se I BE eit
A. Importance of the question ..........-...-..-....-..
B. Exhaustion by petitioner of State remedies
C. Lack of jurisdiction in the County Court in
this case
D. Legal effect of retention of jurisdiction ....
E. Right to trial by a competent Court was
abridged
Il. The judgment of conviction rests upon perjury,
coerced and knowingly used, and should not
be permitted to stamd -...........----ceceesceeeeeesesssees
Page
il
li
iv
vi
WODODOOMDUIG PH
11
14
BEATA NR LU TS ER SRT REN: SUS ARTA Uy PSS be Ecce Neg
Bisternicecoene
ii.
Page
A. Importance of the question 18
B. Perjury was committed by the witness Balog 18
C. Perjury was coerced and knowingly used
by the State 19
III. Balog, chief witness of the State, was im-
peached in violation of the statutes, and is
also an uncorroborated accomplice, all of
which leaves the verdict unsupported by evi-
dence on the charges of filing and uttering,
and goes to his credibility on all counts of
SED SUI sirincctiersiomnaihrinnicecentien 21
A. Importance of the question ~2..0022000 21
B. There is no substantive evidence of guilt of
filing and uttering under counts first and
GEE \icahisiseiecacisignchaanhsadsindiaanionie . 1
C. The impeachment in this case was in viola-
tion of the statutory methods prescribed
therefor a
?
D. Lack of due process and denial of equal
protection of the laws because of impeach-
ment .. -
E. Denial of the equal protection of the laws,
§399 of the Code of Criminal Procedure 23 |
i 25
i,
CITATIONS.
U. S. Constitution, 14th Amendment, $1
Page
ae 4-7, 10-11,
16-17, 21, 23
N. Y. Constitution, Article 6, $11 17
N. Y. Constitution, Article 1, 96 -..........-.....--.-.---------s0++ 21
STATUTES.
U. S. C. A., Title 28, $1257 (3) -...-.---.-.----------c----eeceneeeee= 4
U. S. C. A., Title 28, $455 ...... A 14
Code of Criminal Procedure, §8-a .........-.. 4-7 : 10, 13, 22-24
Code of Criminal Procedure, $399 .............--- , 11, 15, 24
Code of Criminal Procedure, $39 .. a,
County Law, §230 (3) -.....-.------- 2, 13
County Law, §230 (1) --.-----------------------seeetre 2, 15
County Law, $200 (1) ....-.------------------ 2
County Law, §200 (4) -.--- 17
County Law, §202 Pee Cee we Cae 17
Civil Practice Act, §343-a -..........--------------- 7, 10, 13, 22-24
N. Y. Laws 1847, Chapter 280, §81 -.......-..----.----------- 15
Penal Law, §2051 -..............-.- sinaleicisbaaatabie 2
Penal Law, $440 -....--...--------c----c-ceceesesseecseneeensceeseeenensnsens 2
Penal Law, §887 2
Penal Law, $881 -...------------------sc-s-scescescceseceeeeeeseceeseees 2
Penal Law, §1620 (1) 21
Penal Law, §1620-a . 21
Penal Law, §1622 21
Penal Law, §1624 ..........-....--...-------- 21
Penal Law, $1626 -........ 21
Penal Law, $16.7 . 21
Penal Law, §1627-a cadigiblad ecsapdannaen 21
ee Statutes (N. Y., 4th ed.), 1852, v. 3, p.
, §8 15
ecaaa s Notes to N. Y. Laws in v. 3 R. S. (N. Y.
1828-1835), p. 694, §2 -... TEER eae eI 15
a ATS ARETE OLLIE LLL TELL LE OI IA
OT ET ETERS SRT
a iv.
CASES.
Page
Asheraft v. Tennessee, 322 U. S. 143 ou... 2
pumere ¥. Pearenli, 6S N. Y¥. 200 ............................ 5, 23
nee S eee, See Be, Ee 5
Baltimore Mail 8. S. Corp. v. Faweett, 269 N. Y.
379 PEC Ee Se a 15
Chambers v. Florida, 309 U. S. 227 .............................. 23
Cassel v. Texas, decided April 24, 1950 00. 17
Conrad v. Griffey, 52 U. S. 480 22
Crawford v. Nilan, 200 N. ¥. 444 20. 5
Darling v. Pierce, 15 Hun 542 oF: 16
SO We as es I wakes 14
Eins, Dor, Be a FI annie 17
Ba Parte Virgie, 100 U. S. 300 —...............:........... 17
Eugenie Loeb v. Nassau El. R. R., 240 App. Div.
I cach pac dtracibi led acaNeliche saan cs sebhatames 15
ee. eaeee Bw, Gee te OM 14
Be ee ee le Fk ee ect cee 15
Poenews vi Mayer, S Han 466 ......W2. 1... 17
Frank v. Magnum, 237 U. S. 309.0000. 15
Hanrahan v. N. Y. Edison Co., 238 N. Y. 194 000000... 22
Hogan v. General Sessions, 296 N.Y. 1-02.22... 14
Hubbell v. Harbeck, 54 Hun 147 000000... 16
Hysler v. Florida, 315 U. S. 411-2002. 14, 21
Home Tel. & Tel. Co. v. Los Angeles, 227 U. S. 278 4, 17
Johnson v. Zerbet, 304 U. S. 458 ...........0......... 14
Keefe v. Third Nat. Bk. of Syracuse, 177 N. Y. 305 15, 17
Lewis v. Branthwaite, 2 B. & Ad. 437 16
McLaren v. Charrier, 5 Paige Ch. 530 —...0.02002200..... 15
Matter of Knickerbocker T. Corp. v. Sheila Lynn
Ine., 172 Mise. 1015, affd. 259 App. Div. 992... 16
MeMaster v. Gould, 240 N. Y. 379 ... 16
Matter of City of Buffalo, 189 N. Y. 422 20... 16
Moore v. Dempsey, 261 U. S. 86 ...0..0......eceeeeeeee 16
v.
Page
Mooney v. Holohan, 294 U. S. 103 21
Malinski v. New York, 324 U.S. 401-0002... 23
Matter of Roge v. Valentine, 280 N. Y. 268 ~........... 5, 23
Neal v. Delaware, 108 U. 8S. 370 ................................ 17
Cakiey v. Aspiawel, 3%. 7. O47 ........................... 15
Palko v. Connecticut, 302 U. S. 319 00. 16
RBORON Ws EA, Ie, TBR anni secreitnscctirennrrenes 14
Pennenkamp v. Florida, 328 U. S. 3381 .......................- 23
ae ie Re | 5 | eer ne me 16
a ae BO eee 16
People v. Edwards, 282 N. Y. 413 .............-2.0-...... 22
People v. Gillette, 126 App. Div. 665.2000... 20
People v. Glass, 191 App. Div. 483 ............................... 21
People v. Hagedorny, 272 App. Div. 830 ...................... 22
People v. Haas, 105 App. Div. 119 .......0 15, 16
Poon ¥. dune Hing, 712 N.Y. 306 ................... 5
Pe: WT, ee Bee Bs MR pach cesecteseneincecraites 5, 22
People v. Kress, 284 N. Y. 452 .. Se eiidicamasiadtie sieacoes 25
People v. Markan, 123 Misc. 689 ~............................ 20
Bnei W.-M, BR Th Bn Ee heiicccnsttierecteresianinns 25
Peopie v. O’Neil, 109 N. Y. 251 ........................ 22, 24, 25
Poepie v. Partell, 243 WN. ¥. Zo ............................. 5
PUD %. FC, RR Whe Be ER. wrcctisiteesirnins 16
People v. Rathbun, 21 Wend. 509 ................. 17
People v. Romans, 279 XN, ¥. 32 -.......................- 2 5
People v. Robinson, 273 N. Y. 498 ......................... 5, 23
People v. Sellinger, 265 N. Y. 149 .......0..... 22
People v. Sullivan, 275 App. Div. 956 ns 9
People v. Sullivan, 300 N. Y. 696 ..............-.-..ssssssscses0 9
People v. Sullivan, 300 N. Y.. 739. .....2.-...-.......-...cscsss0e00 9
People v. Swersky, 216 N. Y. 471 hie 25
People ex rel. Battista v. Christian, 249 N. Y. 314 17
People ex rel. Childs v. Extrady, Trial Term, 228
ee IE Acetncakdaiseavnlasenicisancceomeinlieiaeelioeamnpaatins 16
People ex rel. Pond v. Trustees, 4 App. Div. 399 .... 15, 16
LS LLAR GOR FUT
vi.
Page
People ex rel. Roe v. Suffolk Com. Pleas, 18 Wend.
SOE Ea SEES ne Rate eee NO 15
People ex rel. Wachowiez v. Martin, 293 N. Y. 361 = 14
Ste INI IEE, i SR III ectcstnscenesnaceeecensiesemvmenanene 21
Ret v. Backes, DS Ved. OD ....... 22
Spielman Motor Co. v. Dodge, 295 U.S. 89 2020... 17
Schneiderman v. U. S., 320 U. S. 118 ....................... 16
I i i I ei tcesamrencocmneiinctiont 4
Snyder v. Masenshusetts, 2 fy aeeehheensoe 16
Sharkey v. Thurston, 268 N. Y. 123 00002... 14, 15, 16, 17
Shea v. Export S. S. Corp., 253 N. Y. 17 ........................ 15
Ten Eick v. Simpson, 11 Paige Ch. 77 sinihalihicesienetiiden 16
Thellusson v. Rendlesham, 7 H. L. Cas. 429 _000000....... 16
Twining v. New aot 3 & & ee 16
U.S. v. Norris, 500 U. S. a Pale ceclpiiscls plein ticetiaactisint 20
Virginia v. Rives, 100 U. \ (poe 17
Whitney v. Post, 8 Paige 4 _ PO eee ee ee 16
Wigand v. Dejonge, 8 Abb. N. C. (N. Y.) 260 22000... 16
Wicks v. Mouthan, 150 N. Y. 232 -....................... 16
Windsor v. MeVeigh, 93 U. S. 274 ~....-..................... 15
Yieck Wo v. Hopkins, 118 U. S. 356-0002... 17
Zambetti v. Garton, 113 N. Y. Sup. 804 -.0..... 16
OTHER AUTHORITIES.
N. Y. Legislative Manual, 1945, p. 658-0... 2
N. Y. Legislative Manual, 1946, pp. 1005, 1014 ...... 2, 15
N. Y. Legislative Manual, 1947, p. 993 ~................ 2, 15
56 Yale Law Journal 605, 624 (Apl., 1947) -............. 16
15 California Law Review 263 (Mar., 1927) -............... 16
Wigmore on Evidence, 3d ed., §§1128, 1129... 20, 23
ESP LS S eS POF OER Re — |
Supreme Court of the United States
Ocroser TERM, 1949,
James A. SULLIVAN,
Petitioner,
vs.
THE PEOPLE OF THE STATE oF New York.
Petition for Writ of Certiorari to the Court of Appeals
of the State of New York and for Stay of Execution
of Judgment.
To the Honorable, the Chief Justice of the United States
and the Associate Justices of the Supreme Court of the
United States:
Your petitioner prays that a writ of certiorari to the
Court of Appeals of the State of New York, being the
highest court of the State of New York, be issued to
review the final order and judgment of said Court (fols.
4069-4076), rendered and filed March 3, 1950 [upon which
a final judgment was entered in the office of the Clerk
of the County of Westchester on March 13, 1950—fols.
4078-4083], which affirmed a judgment of the Appellate
Division of the Supreme Court of the State of New York,
Second Judicial Department, entered on June 20, 1949
(fols. 4048-4053), affirming a judgment of the Trial Court,
the County Court of Westchester County, entered June
14, 1948 (fols. 124-128). Since March 15, 1950, petitioner
has been serving the sentence (fols. 126-127, 3743-37 44).
2
Statement of Case.
Petitioner was convicted May 17, 1948 (fols. 124-128,
3727-3729), upon an indictment charging (1) knowingly
procuring or offering for filing in the office of the Clerk
cf Westchester County on June 4, 1945, of a false and
forged certificate of doing business by Maritime Oil
Company, which certificate. .f genuine, might be filed
there (§2051, Penal Law, MeKinney’s Con. Laws N. Y.,
v. 39, fols. 7-16; see $440, Penal Law); (2) forging the
name of C. J. Arnold to the certificate (§SS87, id. sup.,
fols. 17-18); and (3) uttering said certificate by filing
thereof (§881, id. sup., fols. 19-22). The verdict was
several and not general (fols. 3727-3728).
The Trial Judge (fol. 60), before his elevation to the
bench on January 1, 1946, by appointment of the Governor,
was District Attorney of Westciiester County (County
Law, McKinney, v. 11, §230 [3], N. Y. Leg. Manual 1946,
p. 1005, id. 1945, p. 658, County Law, §200 [1]). In No-
vember, 1946, he was elected County Judge (County Law,
§230 [1], N. Y. Leg. Manual 1947, p. 993).
Having been attorney and counsel for the State in this
ease, he was disqualified to sit therein by $14 of the
Judiciary Law (McKinney, v. 29). April 26, 1948, motion
was made to withdraw a juror and to declare a mistrial,
and denied, and jurisdiction retained despite the facts
upon which the metion was made were admitted (fols.
59-60, 743, 745-755). The Trial Judge also denied a motion
to inspect the Grand Jury minutes and disallowed a -
demurrer to the indictment (fols. 25-27, 31-54, 59).
The indictment is the result of an investigation begun
in March, 1945 (fol. 749), by the Trial Judge, then
District Attorney, and pursued by him for nine months, of
an application for a telephone for Maritime Oil Company,
made by one McGeory for Arthur Arnold who occupied
REP ORCL et SI REI ROL POE EE YPN TET ROE OL EE. EERE EOL SL ARIS EB
a room in the Labor Temple, Yonkers, as tenant of
MeGeory (fols. 1328, 1334, 1335; Exhibits 19, 20, fols. 3820-
3828, 1359-1420, 1469-1479). As evidence that Maritime
was doing business, the certificate was filed by someone
not identified and a certified copy thereof left with the
telephone company (fols. 259, 326, 816-818).
Reports of suspicion of the telephone company that
the telephone would be used for bookmaking purposes
were made to the District Attorney in April, 1945 (fols.
401-406, 1463-1465, 1473-1474, 392, 393, 402, 406, 416,
417, 421, 422, 423-425, 2419-2429, 211, 277-279). In addition,
he also had the records of the telephone company (fols.
: 383, 384). On October 24, 1945, the District Attorney
requested the telephone company to furnish him the name
and address of the (sic) owner of the Ben Weiss telephone
at 307 Walnut Street, Yonkers (Exhibit K, fols. 3964-
3966, 2417, 2424, 2432, 2433-2435). ‘That telephone was 5
found in the room of Arnold, occupied by him as tenant ¢
of MeGeory (Exhibit K, supra, fol. 1354: Exhibit 20, fols. :
3826-3828, 639, 642-645, 656). Arnold had another man
working with him (fols. 1412, 1445-1447; Exhibit J, fols.
; 3958-3960, 2421; Exhibit K, fols. 3964-3966, 2426-2434, 715,
; 731, 736-737).
Balog, chief factual witness for the State, signed the
certificate, although he did not appear before or acknowl-
edge it to the Commissioner of Deeds (Exhtbit-23, fols.
3832-3834, TSS, 866, 793-794). He was pretty sure that
he took the certificate to the County Clerk, ‘‘it could not
be otherwise’ (fol. 795). He is unable to account for
C. J. Arnold written by the Clerk on the back of the
certificate, as the office practice is to ask for the name
of the person presenting documents to be filed and to
endorse the name thus given thereon (Exhibit 23, fols.
3832-3834, 961-962, 817-820). Then he recanted his testi-
mony as to filing, stating the information that he hac
4
filed it was given to him by the District Attorney (fols.
879-882, ef. 795). He testified before the councilmanic
inquiry in Yonkers in July, 1947, but was not asked about
the filing, and he testited before the Grand Jury in this
ease in October, 1947 (fols. 3716, 878-882). Then
Balog recanted his recantation (fols. 938, 956-959).
Therein lie: perjury, and his impeachment, contrary to
the statute (Code Crim. Proc. §8-a; Civil Pract.
Act, §348-a). The second perjury (fol. 959) was
admitted as clarification (fol. 959), which in the context
is meaningless, for it is a flat, mendacious contradiction,
under oath, taken from the quadripartite conference, which
was not under oath, with the District Attorney, the
witness, his wife and his attorney, before his Grand Jury
appearance (fols. 879-882). Balog, obviously, was ‘‘re-
freshed’’ overnight (fols. 965-970, 974, 975). Balog re-
ceived immunity for his testimony, and the District Attor-
ney conceded that he was an accomplice (fols. 3523-3525,
3526, 882, 883, 3484).
Jurisdiction.
Jurisdiction of this Court is invoked under $1257 (3)
of Title 28, U. S. C. A.
See also:
Home Tel. & Tel. Co. v. Los Angeles, 227 U. S. 278,
284, et seq.
Screws v. U. S., 325 U. S. 91, 115, et seq.
Disqualification of the Trial Judge under $14 of the
Judiciary Law was raised during the trial by motion to
withdraw a juror and to declare a mistrial (fols. 745-
755), and in the Court below assigned as error and de-
privation of, due process under the Fourteenth Amend-
ment. Perjury and its use knowingly are manifest in
the record, as is impeachment by the State of the crucial,
a
5
factual witness called by the State, contrary to the stat-
utes. (§8-a, Code Crim. Proc.; §343-a, Civil Prac. Act.)
Those questions were raised in the trial by objection
and exception (fols. 957-960; ef. fols. 975, 815-819, 878-
882, 961-962, 965-970, 974-975, 979, 3716), and by motions
to dismiss (fols. 2396-2402, 3332), assigned as error be-
low and as deprivation of due process under the Four-
teenth Amendment.
Statutes Involved.
Judiciary Law of New York, §14, which provides in
part:
**A judge shall not sit as such in, or take any
part in the decision of, an action, claim, matter,
motion or proceeding to which he is a party, or in
which he has been attorney or counsel * * *’’
Section 8-a of the Code of Criminal Procedure, provides:
‘‘In addition to impeachment in the manner
now permitted by law, any party may introduce
proof that a witness has made a prior statement
inconsistent with his testimony, irrespective of
the fact that the party has called the witness or
made the witness his own, provided that such prior
inconsistent statement was made in any writing by
him subscribed or was made under oath.”’
Section 343-a of the Civil Practice Act is in haec verba
as §8-a, C. C. P.
The addition mentioned in the opening sentence of
§8-a, supra, is defined in People v. Katz, 209 N. Y. 311,
338; People v. Jung Hing, 212 N. Y. 393, 401, et seq.;
Crawford v. Nilan, 289 N. Y. 444, 450, 451; People v.
Romano, 279 N. Y. 392; Matter of Roge v. Valentine,
280 N. Y. 268, 276-277; People v. Purtell, 243 N. Y. 273,
280, 281; People v. Robinson, 273 N. Y. 438; Bullard v.
Pearsall, 53 N. Y. 230; Becker v. Koch, 104 N. Y. 394,
401.
6
- §399, Code of Criminal Procedure:
‘*A conviction cannot be had upon the testimony
of an accomplice, unless he be corroborated by such
other evidence as tends to connect the defendant
with the commission of the crime.’’
Questions Presented,
1. Jurisdiction of this case was lost by the County
Judge because of the disqualification of the presiding
Judge by $14 of the Judiciary Law. Retention of juris-
diction deprived petitioner: (a) of due process of law
in that (1) he could, and did, not have a trial, let alone
a fair trial; (2) rendered the proceedings coram non
judice and a nullity; (b) of the equal protection of the
laws; and abridged his right in this case to be tried in a
court having jurisdiction in that he was forced by the
State to try it in a court that lacked jurisdiction in this
ease. All in violation of his rights under the Fourteenth
Amendment.
2. The judgment of conviction should not be permitted
to stand resting, as it does, upon perjured testimony,
knowingly used by the State, and material upon all counts
of the indictment, depriving petitioner of due process un-
der the Fourteenth Amendment.
3. Petitioner was deprived of due process and the equal
protection of the laws in violation of his rights under the
Fourteenth Amendment, in that, in violation of §§8-a
and 343-a of the Code of Criminal Procedure and the
Civil Practice Act, respectively, the chief factual witness,
called by the State, was impeached by the State other than
7"
7
by a statement subscribed by him or made under oath.
Impeaching evidence was admitted (fol. 959, ef. fols. 795,
882), which under the rule (cases cited under statutes
involved, supra, pp. 5, 6), stamped the witness impeached
as an accomplice. But the Court later, in the charge to
the jury, ruled complicity out as matter of fact and law
(fols. 3691-3698, 3708). This is a deprivation of due proc-
ess and equal protection of $399 of the Code of Criminal
Procedure requiring corroboration of an accomplice.
Reasons Relied on for Allowance of the Writ.
Lack of jurisdiction in the Tri:.] Court rendered the
whole proceeding a sham and a nullity and the sentence
of petitioner rises no higher.
Petitioner was denied due process of law, in that he
could, and did, not have a fair trial or a trial at all.
Also, he was denied the equal protection of the laws,
in that cognate cases where the Trial Judge was dis-
qualified, jurisdiction was held not to have attached, but
otherwise ‘n the case at bar. All in violation of his
rights under the Fourteenth Amendment.
Judgment of conviction rests upon perjured testimony,
knowingly used by the State in this case, which was
necessary and material to conviction upon all counts
of the indictment; in violation of petitioner’s right to
due process under the Fourteenth Amendment.
Petitioner was further deprived of due process and the
equal protection of the laws in violation of his rights
under the Fourteenth Amendment, in that, in violation
of §§8-a and 343-a of the Code of Criminal Procedure
and the Civil Practice Act, respectively, the chief factual
witness of the State, called by it, was impeached by it,
in a manner other than by a written statement sub-
scribed by the witness or made by him under oath. And
—_— RO im : YELSE MA HER RE IAI
8
was further deprived of due process and equal protection
of the laws, in that the chief factual witness of the State
was permitted to testify to facts which, under the law,
stamped him indelibly as an accomplice (fol. 959; cases
cited under statutes involved pp. 5, 6), and yet the
Court charged the jury that the witness was not an ac-
complice as matter of fact or law (fols. 3691-3698, 3708).
Conclusion.
The writ should issue.
Respectfully submitted,
JAMES A. SULLIVAN,
Petitioner.
Francis A. McGurx,
Attorney for Petitioner.
EE7”"™
9
Supreme Court of the United States
Ocroser TERM, 1949.
James A. SULLIVAN,
Petitioner,
vs.
Tue PEOPLE OF THE STATE OF NEw YorK.
Brief in Support of Application for Writ of Certiorari
to the Court of Appeals of the State of New York
and for Stay of Execution.
Opinions Below.
The Trial Court rendered no opinion, except a memo-
randum denying a motion to inspect the Grand Jury min-
utes and disallowing a demurrer to the indictment (fols.
52-54).
In the Appellate Division there were three memoranda
opinions, one concurred in by three Justices and one
each by two dissenting Justices (275 App. Div. 956; fols.
4060-4065).
The Court of Appeals rendered no opinion (300 N. Y.
696, fols. 4069-4076). On April 6, 1950, application for
re-argument or to amend the remittitur was denied
without opinion (300 N. Y. 739).
Jurisdiction.
See petition, pages 4 and 5, supra.
(eect, 20 eign
10
Specification of Errors.
It was error for the Trial Judge to have denied the
application for a mistrial and to have retained jurisdic-
tion after disqualification by §14 of the Judiciary Law
had been raised and litigated on the trial, and the facts
upon which the application was made had been admitted
and affirmed after review below (fols. 745-755).
It was error to hold that petitioner had a trial by
jury or even a fair trial as part of due process under
the Fourteenth Amendment, a constituent part of the
court, the presiding Judge, being disqualified; and that
his right or privilege to a trial by a court having juris-
diction was not abridged in violation of his right thereto
under the Fourteenth Amendment.
It was error to hold that petitioner was accorded equal
protection of the laws under the Fourteenth Amendment,
in that applicability of §14 of the Judiciary Law dis-
qualified presiding Judges in cognate cases, but was de-
nied to him.
It was error to hold that petitioner was accorded equal
protection of the laws and due process under the Four-
teenth Amendment in that, one Balog, chief factual wit-
ness for the State and called by it, was permitted to be
impeached by the State (fols. 956-959 ef. 879-882), in a
manner that violated §§8-a and 343-a of the Code of
Criminal Procedure and the Civil Practice Act, and the
impeaching testimony used as substantive evidence to
convict.
It was error to hold that said Balog did not commit
perjury in wilfully testifying falsely to a material fact,
the filing the certificate (opp. p. 4, fols. 10-12, 795 ef. fols.
3716, 878, 882). Then to permit recantation thereof (fol.
959). And further, that said perjury was not coerced,
and knowingly used, by the State.
, — ——
see pe —" |
RRS A ERG TIS ONLI MALO MPG “3 TH Sc
11
It was error to hold that said Balog was not an ac-
complice whose testimony under §399 of the Code of
Criminal Procedure had to be corroborated, and to have
admitted his testimony upon the only theory upon which
it could be admitted, which stamped the witness indelibly
as an accomplice, and then, to instruct the jury that the
witness was not an accomplice as matter of fact and law
(3691-3698, 3708), thus depriving him of due process and
the equal protection of the laws under the Fourteenth
Amendment.
Summary of Argument.
Holding that having formerly been attorney and coun-
sel for the State in this case did not divest the County
Court of Westchester County of jurisdiction because of
the disqualification of the Trial Judge by $14 of the
Judiciary Law, obviously is important. The quest for
jurisdiction must be found and settled at the outset of
any trial, for it is the foundation upon which the Court
may proceed to judgment. Lack of jurisdiction renders
any trial a nullity. Disqualification, in this case, deprived
the court of a constituent thereof, a Trial Judge.
In numerous prior cases, §14 of the Judiciary Law has
been held to prevent jurisdiction from attaching. It could
be raised at any time, is not waived and jurisdiction could
not be conferred. The provisions of §14 are not rules of
procedure and do not invest the Judge with discretion.
They are a barrier to jurisdiction. This case plainly
shows lack of jurisdiction and due process because thereof.
By enforcing the law as it was enforced here, petitioner’s
right or privilege to be tried by a court having jurisdic-
tion was abridged, and there was denied him equal pro-
tection of the laws.
REPT LE ALE EL A DAE TR SAS
PASE DSI LANE SES OIE NE NILE NM OG LOI AS FEL A REET RE IO St iO
12
The perjury here is manifest from the record, as is
coercion, and the knowing use of testimony thus elicited,
by the State. Conviction rests upon it as does the eredi-
bility of the perjurer. Without his testimony, the case
of the State collapsed, for there is, without it, a palpable
lack of evidence connecting petitioner with filing and ut-
tering the certificate of Maritime Oil Company, charged
in the first and third counts of the indictment; and the
perjurer would not be credible as a witness upon the
second count (cf. fols. 4064-4065).
Interlaced factually, though not legally with the per-
jury, is the impeachment of the perjurer and his com-
plicity in the crimes charged. As to filing and uttering,
reciprocal under the first and third counts of the indict-
ment, the witness was never interrogated as to receiving
the certificate to be filed, and its filing by him, before
the perjury. He testified on cross examination that the
information that he had qua filed the certificate was
given to him by the District Attorney (fol. 882). That
testimony is the gatepost of the perjury, the collapse of
the case of the State, and the impeachment of the wit-
ness (fols. 957-958; ef. fol. 795). The following day, he
was recalled by the State, ostensibly for another purpose
than perjury (fols. 938-940), and while the witness did
not deny in terms his previous testimony (fol. 882), he
did in effect, with an avalanche of words (fol. 959) em-
bodying in direct discourse what had been given him in
indirect discourse by the District Attorney in rehearsing
him for his Grand Jury appearance in this case (fols.
882, 878-881). Thereby he mendaciously, flatly contra-
dicted his testimony at folio 882.
Prior to the trial in a city inquiry in Yonkers, N. Y.
(fol. 794), where the witness was represented by his own
attorney and since had been, he was not asked about
filing the certificate (fol. 3716).
‘s
r
‘
*
>
13
Overnight preceding the day of his recantation, he had
spoken to four members of the staff of the District At-
torney (fols. 965-970, 974, 975). It is obvious that he
was ‘‘refreshed,’’ coerced in the perjury, and it and the
witness: knowingly used by the State to accomplish the
conviction. This is clearly lack of due process.
When he perjured himself, the witness was impeached
(fols. 957-958). He had confessed under oath that he
had made his own the answer given him by the District
Attorney (882), which was unsubscribed and unsworn,
and the impeaching evidence was elicited in violation of
the statutes (§§8-a, Code Crim. Proe., and 343-a, Civ.
Prae. Act). No mention is made of his having testified
before the Grand Jury on the point (cf. fols. 953-954,957-
959). That testimony would have been under oath, and
competent if it existed in fact.
The Court charged that the witness was not an accom-
plice either as matter of law or fact (fols. 3691-3698,
3708). But, upon the only theory that the impeaching
testimony could be admitted as evidence, namely, that
he had made prior consistent statements when motives
to falsify were not present, which is the addition to §§8-a
and 343-a of the Code of Criminal Procedure and the
Civil Practice Act, respectively, the witness is stamped
as an accomplice (§399, Code Crim. Proc.), and must be
corroborated. There is no showing that he made prior
consistent statements, nor that he was actuated by any
motives other than those that actuated him as far back
as the summer of 1947 (fols. 878, 883-884). The impeach-
ing testimony was unsubscribed and unsworn (fol. 959).
Therefore, petitioner was deprived of due process, in that
he did not have a fair trial and also was denied the equal
protection of the laws, $§8-a, 399 and 343-a, supra. (See
cases cited under statutes involved, supra, pp. 5, 6.)
The Trial Court lacked jurisdiction because the
Trial Judge was disqualified by Section 14 of the
Judiciary Law, having been attorney and counsel for
the State in this case.
A. Importance of the question.
The instant case presents the quest for jurisdiction in
a setting novel to this Court, although there is a cognate
federal statute (U. S. C. A. Tit. 28, $455), and the ques-
tion is of primary importance in the true administration
of the law.
B. Exhaustion of State remedies.
The infirmities are not present here that appeared in
Ex parte Hawk, 321 U.S. 114, Hysler v. Florida, 315 U.S.
411, and Darr v. Burford, 339 U. S. 200. This record
manifests the errors, committed on the trial where they
were litigated coram judice and reviewed below on appeal
(Paterno v. Lyons, 334 U. S. 314, 318, 319). Neither er-
ror coram nobis nor habeas corpus is available here (Ho-
gan v. Genl. Sessions, 296 N. Y. 1, 6; People ex rel.
Wachowicz v. Martin, 293 N. Y. 361, 364, 366-367;
Matter of Morhaus, id. 131). Unless this Court will inter-
vene, petitioner is remediless.
C. Lack of jurisdiction in the County Court in this case.
General jurisdiction of the County Court under Section
39 of the Code of Criminal Procedure is not challenged.
Its jurisdiction in this case is (Sharkey v. Thurston, 268
N. Y. 123, 126; Johnson v. Zerbst, 304 U. S. 458, 468;
EET RIES a NS EI Is he RIT, OE KS AG RO et Rs Ne BET tags Set WE as EAE SG ORES iP BER
a
Frank v. Magnum, 237 U. S. 309, 329; Windsor v. Me-
Veigh, 93 U. S. 274, 282-283; Ex parte Reid, 100 U. S. 13,
23) because of Section 14 of the Judiciary Law, which
provides in part:
15
‘*A judge shall not sit as such in, or take any
part in the decision of, an action, claim, matter,
motion or proceeding to which he is a party, or in
which he has been attorney or counsel * * *.’’
In syneopated form, it appears first in Laws, New York,
1847, Chapter 280, Section 81 (2 R. S., 4th ed. 1852, p. 463,
§8; Rev. Notes to Chap. III, tit. I, Laws N. Y. in 3 R.
S. N. Y. 1828-1835, p. 694, §2).
It applies to civil and criminal cases (eople v.
Haas, 105 App. Div. 119, 120).
The Trial Judge (fel. 60) was District Attorney of
Westchester County before his elevation to the bench by
appointment of the Governor on January 1, 1946 (County
Law, §230 [3], N. Y. Leg. Manual, 1946, p. 1005; id. 1945,
p. 658). In November, 1946, he was elected County Judge
(County Law, §230 [1], N. Y. Leg. Manual, 1947, p. 993).
Having raised the jurisdictional point which was liti-
gated on the trial (fol. 754) and which could be raised
at any time, is never waived and jurisdiction could not
be conferred (Baltimore Mail S. S. Corp. v. Fawcett, 269
N. Y. 379; Shea v. Export S. S. Corp., 253 N. Y. 17),
nevertheless jurisdiction was retained over objection (fol.
754). The result is that the whole trial is coram non
judice, ab initio, a fiction and a nullity (Oakley v, Aspinwall,
3 N. Y. 547; Keefe v. Third Nat. Bank of Syracuse, 177
N. Y. 305, 311, 313; Sharkey v. Thurston, supra; People
v. Haas, 105 App. Div. 119; Eugenie Loeb v. Nassau Elec-
tric R. R. Co., 240 App. Div. 912; McLaren v. Charrier, 5
Paige Ch. 530, 532; People ex rel. Roe v. Suffolk Com.
Pleas, 18 Wend. 550; People ex rel. Pond v. Trustees, 4
RE AOE FRR tf MgSO ROR IIT uR WeRReR an
16
App. Div. 399; Darling v. Pierce, 15 Hun 542; Hubbell
v. Harbeck, 54 Hun 147; Whitney v. Post, 8 Paige Ch.
36; Ten Eick v. Simpson, 11 Paige Ch. 177; Matter of
Knickerbocker T. Corp. v. Sheila-Lynn, Inc., 172 Mise.
1015, affd. 259 App. Div. 992. See also: 56 Yale Law
Jour. 605, 624, Apl., 1947; 15 Calif. Law Rev. 263 Mar.,
1927; Thellusson v. Rendlesham, 7 H. L. Cas. 429, 430;
Lewis v. Branthwaite, 2 B. and Ad. 437, 445).
D. Legal effect of retention of jurisdiction.
No man may be both accuser and judge (Sharkey v.
Thurston, supra; Pcople v. Haas, supra). Disqualifica-
tion is not illusory. The statute should not be construed
to defeat its purpose; nor may it be rationalized or over-
simplified into a rule of procedure investing the Trial
Judge with discretion to sit or not to sit (Sharkey v.
Thurston, supra, p. 127; People v. Patrick, 183 N. Y. 52;
ef. Schneiderman v. U. S. 320 U. S. 118, statement of Mr.
Justice Jackson, p. 207). There is no qua prerogative
(fol. 3416) involved. The Judge is not above the law.
The statute is a substantive enactment and raises a juris-
dictional barrier (Wigand v. Dejonge, 8 Abb. N. C. (N. Y.)
260; cf. Zambetti v. Garton, 113 N. Y. Supp. 804; Snyder
v. Massachusetts, 291 U. S. 97, 105, 116).
Due process requires a judicial proceeding, not an as-
sumption of authority (McMaster v. Gould, 240 N. Y.
379, 385; Matter of City of Buffalo, 1389 N. Y. 422, 429,
430: Wicks v. Monihan, 130 N. Y. 232, 237, 238; People
v. Bork, 96 N. Y. 188, 196; People ex rel. Childs v. Ex-
trady. Trial Term, 228 N. Y. 468, 467; Pennoyer v. Neff,
95 U. S. 714, 733; Twining v. New Jersey, 211 U. S. 78,
110, 111; Palko v. Connecticut, 302 U. S. 319, 327; Moore
v. Dempsey, 261 U. S. 86).
el
17
E. Right to trial by a competent court was abridged.
Disqualification of the trial judge left the Court with-
out a constituent part in this case, the presiding judge
(People ex rel. Battista v. Christian, 249 N. Y. 314, 319).
The trial was a fiction and no trial at all (Sharkey v.
Thurston, 268 N. Y. 123, 126, 127; People ex rel. Battista
v. Christian, supra, p. 318; People v. Rathbun, 21 Wend.
509, 542). There was no one to preside, instruct the jury,
receive the verdict and pass sentence, although it was
passed (fols. 3473, 3474).
The trial judge was no less disqualified because he
claimed lack of personal knowledge of the investigation
of this case by his office or its result. Action by his
staff is his own (Keefe v. Third Nat. Bk. of Syracuse,
supra, p. 313; Davis v. Seaward, 85 Mise. 210, 222, 223;
County Law, §§200 [4], 202; Spielman Motor Co. v. Dodge,
295 U. S. 89, 93; Fellows v. Mayor, 8 Hun 484).
From the foregoing cases (cited under C supra, Lack of
Jurisdiction in County Court, pp. 15-16), in which the
jurisdictional bar embodied in Section 14 of the Judiciary
Law is applied, there emerges a manifest discrimination
between them and the case at bar, where application there-
of was refused. The action of the County Court was
State action through its constitutional court (N. Y. Const.,
Art. 6, §11), affirmed by its highest court (Home Tel. &
Tel. Co. v. Los Angeles, 227 U. S. 278; Neal v. Delaware,
103 U. S. 370, 385-389; Yick Wo v. Hopkins, 118 U. S.
356; Virginia v. Rives, 100 U. S. 318, 318-322; Ex parte
Virginia, Id. 339, 344-349; Cassel v. Texas, dec. April 24,
1950). Therefore, on this phase of the case, there is lack
of equal protection of the laws.
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18
Il.
The judgment of conviction rests upon perjury,
coerced and knowingly used, and should not be per-
mitted to stand.
A. Importance of the question.
Perjury affects and corrodes the conviction here. This
Court is ever sensitive and vigilant to strike it down,
for it destroys the sanctity and binding character of an
oath, which is the last means of preserving truth and
faith among fellowmen in courts of justice.
B. Perjury was committed by the witness Balog.
It is clear that recanting the recantation is material
and necessary to conviction. In fact, it supplies the only
evidence of, and connecting petitioner with, the reciprocal
charges of filing and uttering the certificate (fols. 879-882,
938, 956-962, 7-16, 19-22). To put it in perspective, we
must go back to Balog’s halting, direct testimony, indicat-
ing the contest in the forum of his conscience (fol. 795).
He was never asked on his direct examination whether the
certificate was returned to him after he signed it. The
State glossed it over thus (fol. 796):
‘*Q. Do you remember the time of day that you
came up with them? A. Yes, it was my lunch
hour.”’
He was never asked on re-direct examination (fols. 908-
913) (sic), to clarify (fol. 959) his free and uncoerced
testimony given the same day (fols. 882, 743). Recalled the
day following, April 27, 1948, upon the State’s representa-
tion that it was to ask him about some checks (fols. 938-
939), he was then asked what bears the hallmark of co-
ercion, and the real purpose was then revealed for his re-
| —
19
call (fols. 951-959). Refreshing the witness about checks
was not the purpose, which the Court refused to allow
although within §8-a of the Code of Criminal Procedure
(fols. 951-954). The witness could not be called hostile
or confused (fols. 952-954). He was then to give his quid
pro quo for his promised immunity (fol. 3484), namely,
to testify falsely as to filing and uttering the certificate
so that conviction might be had.
€. Perjury was coerced and knowingly used by the
| State.
Balog had given his testimony the day before, freely,
truthfully and not under coercion (882, cf. 795). Over-
night, when he saw and talked with four members of
the staff of the district attorney, he was informed
that he was to be recalled (sic) ‘‘to clear up a point’’
(fols. 965-970, 974, 975). There can be no doubt that
he was told just what he was to say. Clearly, then,
knowledge by the State is spelled out that the testi-
mony was perjury, and that it was knowingly used in the
trial. Balog was not asked at the Yonkers inquiry in July,
1947, about filing the certificate (fols. 878, 3716). He
testified before the Grand Jury in this case in October,
1947 (fol. 879).
Before appearing before the Grand Jury, he conferred
with the district attorney, and his wife and his own at-
torney were also present at the conference (fols. 879-882).
He testified that, at the conference, the district attorney
gave him the information that he, Balog, filed the certifi-
eate (fol. 882). He made that statement his own except
that he did not put it into direct discourse, but into in-
direct (fol. 882). That was not what the State wanted of
him, they wanted the statement, direct from him. He even
failed them at first (fol. 795) and then he gave up the
SATS ELIT ARE NPIS LS SARE EY IY eR Ce Corea
20
truth (fol. 882). That testimony upset the plan of the
State. It was not touched upon on re-direct until the next
day after the State had ‘‘refreshed’’ him. Then under co-
ercion, he toed the mark set for him. (Wigmore on Evi-
dence, 3rd ed., §§1128, 1129). It is to be noted that Balog
did not waive immunity (fols. 882, 883). He felt the
State had enough evidence to indict him, which he wanted
to avoid, and the State shared his views (fols. 883, 3525,
3526).
With the truthful and uncoerced testimony before the
jury, the case of the State had collapsed (cf. fols. 4062-
4065). But the victory was to be achieved the next day
albeit the baser factors would be exposed, the perjury.
Overnight, the coercion began and the next day it
bore fruit (fol. 959). It came out, it will be noted,
in a great expostulation, an avalanche of words, few of
which are responsive to the question (fol. 959). This did
not just happen. It is not accidental nor a coincidence.
It is a plan, frustrated at first, but now worked and its
object achieved. He was conceded to be an accomplice by
the State (fols. 3525, 3526). The Court declined to charge
that he was (fols. 3691-3692, 3695-3698, 3708).
The protestations of the State and Balog, do protest too
much (fols. 980-984). They fail to cover the perjury, its
coercion and knowing use thereof to convict, the evidence
of which on this record is clear.
His filing the certificate is a myth. When he signed it,
he did not read it (fols. 791, 870). But if he filed it,
he must have read it, otherwise he would not have come
by the name of C. J. Arnold, placed upon the back thereof
by the clerk under his office practice (fols. 10-12, opp. p. 4,
fols. 816-820, 961-962). If his cross examination on April
26, 1948, is true (fol. 882 cf. fol. 795), and he is vouched
for by the State who called him, then he is plainly a per-
juror (U. S. v. Norris, 300 U. S. 564; People v. Gillette,
126 App. Div. 665; People v. Markan, 123 Mise. 689;
21
Penal Law, §§1620[1], 1620-a, 1622, 1624, 1626, 1627,
1627-a). It must be borne in mind that the case of People
v. Glass, 191 App. Div. 483, was decided in 1908, and
could not arise now because of the additions to the per-
jury statute in 1986 of §§$1627 and 1627-a. The Gillette
case turned, not on the fact of perjury, but upon the privi-
lege of silence under the New York constitution (Art. 1,
§6). But the commission of perjury is what we are con-
cerned with, not its prosecution. Where there is a law
against perjury, that will suffice to vitiate the judgment
(Mooney v. Holohan, 294 U. S. 103). Perjury clearly
emerges here, even under the criteria of the State and
corrodes the judgment (Mooney v. Holchan, 294 U.S. 103;
Pyle v. Kansas, 317 U. 8. 213; Hysler v. Florida, 315 U.S.
411, 413).
Ill.
Balog, chief witness of the State, was impeached in
violation of the statutes, and is also an uncorrobo-
rated accomplice, all of which leaves the verdict un-
supported by evidence on the charges of filing and
uttering, and goes to his credibility on all counts of
the indictment.
A. Importance of the question.
The true administration of the law and the safeguard-
ing of the right to a fair trial.
B. There is no substantive evidence of guilt of filing
and uttering under counts first and third.
Impeachment rests upon the factual basis argued in
Point II, supra, and is bound up in the reeanting of the
recantation (fols. 957-959 cf. fols. 795, 882). From im-
iitiseneeene , , —_
22
peachment on, we come logically and naturally to com-
plicity.
Substantive evidence of guilt was removed by impeach-
ment of Balog (People v. Hagedorny, 272 App. Div. 830;
People v. Sellinger, 265 N. Y. 149, 154; Hanrahan v. N.
Y. Edison Co., 238 N. Y. 194; and see cases cited under
statutes involved, supra, pp. 5, 6). Notwithstanding its re-
moval from the case, there can be no doubt upon this
record that it was considered by the jury and applied as
substantive evidence of guilt. Upon to the time of
impeachment, the State’s case had collapsed, and made
dismissal of counts first and third mandatory as matter of
law (fols. 2396-2402, 3332).
C. The impeachment in this case was in violation of the
statutory methods prescribed therefor.
Under §§8-a and 343a of the Code of Criminal Procedure
and Civil Practice Act, respectively, a prior consistent
statement may be shown, provided it was made at a time
when the witness was not actuated by motives to shield
himself. It does not include statements made out of court and
not under oath, which is the case of Balog (People v. Katz, ‘
209 N. Y. 311, 338, People v. Edwards, 282 N. Y. 418, 416,
Robb v. Hackley, 23 Wend. 50; Conrad v. Griffey, 52 U.S.
480, and cases cited supra, pp. 5, 6, under statutes in-
volved; fols. 879-882). While the Court ruled out complicity
entirely on the facts and law (3691-3698, 3708), and the
connection of Balog with the charges here is the same
thing as his complicity therein (People v. O’Neil, 109 N.
Y. 251, 267), then it must follow that the impeaching tes-
timony (fol. 959), was admitted under the addition to |
§§8-a and 343-a, supra, which makes the verdict contrary |
to and inconsistent with the charge, and shows that the
jury considered the evidence substantively in reaching it.
PONTE PEE POLO LARP SILL LLGLEEL IEEE LE ELLIE! BOO LES LEIS SIE STE ee |
23
Balog was not a hostile witness (fol. 953, cf. fol. 959) and
was actuated upon the trial by motives no different from
those that actuated him in July, 1947 (fols. 878, 896, Wig-
more Op. Cit. Sup. §§1128, 1129), when he knew of the im-
minence of things to come and when he was represented
by his own attorney (fols. 831-833, 878, 879-880, 884-896,
898-899, 901-906, 954, 960-962, 965). His motives had not
changed at the time of trial, except that he tried hard at
first, to live up to the sanctity and binding character of
the oath he had taken (fol. 795, cf. fol. 882). The evidence
was not substantive proof under the circumstances here
(Bullard v. Pearsall, People v. Robinson, Matter of Roge
v. Valentine, supra, and cases cited under statutes in-
volved, supra, pp. 5, 6).
D. Lack of due process and denial of equal protection
of the laws because of impeachment.
Impeachment clearly emerges, even under the criteria
of the State, and the use of such testimony as substantive
evidence of guilt to convict. That is lack of due process
and denial of the equal protection of §§8-a and 343-a of
the Code of Criminal Procedure and Civil Practice Act,
respectively, and the case law of the State as to the use
of impeaching testimony (Cases cited under statutes in-
volved, supra, pp. 5, 6; Pennenkamp v. Florida, 328 U. S.
331, 345; Chambers v. Florida, 309 U. S. 227, 239-242;
Ashcraft v. Tennessee, 322 U. S. 143, 154-156; Malinski v.
New York, 324 U. S. 401, 404, 406).
E. Denial of the equal protection of the laws, Section
399 of the Code of Criminal Procedure.
Petitioner did not have a fair trial because, as shown
above, the impeaching testimony was admitted under the
shibboleth of clarification (fol. 959), meaningless in the
Bertie seco sarees EES ERE EAE DIMA PTE LL FLITE ELFEN NI BOY FETED II EY TE BE OY ERE I
24
context, but affording a fulerum of excuse upon which to
introduce the perjurious reeantation (fol. 959 cf. fols. 939,
958).
Introduction of the impeaching testimony (fol. 959),
leaves, however, a train of fatal and grave illegality. It
could be admitted in no event unless it was written and
subscribed by the witness or made by him under oath
(§§8-a and 343-a Code of Crim. Proce. and Civil Prac. Act,
resp. aud cases cited under statutes involved, supra, pp.
5, 6). He never made a consistent prior state-
ment. The district attorney did (fols. 879-882; see
eases cited under statutes involved, supra, pp. 5,
6). None of the requisites is present (fols. 954-959).
That is the only exception to the rule mentioned in
those statutes. But, when thus admitted in evidence,
it stamps the witness indelibly as an accomplice, and then
he must be corroborated (§399, Code Crim. Proe.). But
the Court ruled as matter of law and fact that Balog is
not an accomplice (3691-3698, 3708). But the law irrevo-
cably stamps him as one (cases cited under statutes in-
volved, supra, pp. 5, 6). Therefore, the testimony is in
evidence as coming from an accomplice; and between the
charge and verdict of conviction, there is an antithesis or
inconsistency that should not be allowed to stand, for it
infects the verdict. It is tantamount to further impeach-
ment by the Court itself (fols. 957-959, 3691-3698, 3708).
It is a negation of the rule admitting the testimony.
It is respectfully submitted that the jury con-
sidered the impeaching evidence and used it to convict.
Uncorroborated as Balog now is, he must, although he
cannot, be corroborated under §399 of the Code of
Criminal Procedure. As to his filing and uttering the
certificate, of necessity, he could not be corroborated
(People v. O’Neil, 109 N. Y. 251, 267). Nothing that de-
pends upon his credibility can corroborate him. None
of the records can corroborate him, including the Mari-
SLSR HY IRIN BS Se RR cg CRE Ret BOT OL ARN OMAK Pale a the = — pore |
: o t RIERA IS ES Rye
|
25
time certificate (Exhibit 3, fols. 3760-3762, 229; Exhibit
26, fols. 3850-3852, 1270; Exhibit 23, fols. 3832-3834, 784;
Exhibit 12, fols. 3802-3804, 436; People v. Nuzzo, 294 N.
Y. 227, 234-235; People v. Kress, 284 N. Y. 452, 459,
People v. Swersky, 216 N. Y. 471, 476; fois. 4064-4065;
People v. O’Neil, supra). Nor could Balog’s payment of
$100 at the time of executing the application for the Mari-
time telephone corroborate him (Exhibit 3, fols. 3760-3764,
246-248). That alone would make him an accomplice
(People v. Swersky, People v. Kress, supra).
CONCLUSION.
The writ should issue.
Respectfully submitted,
FRANCIS A. McGURK,
Attorney for Petitioner.
BRERA ATR OS ITER TEE PREETI GE G LD RIELES A I e hig ar
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