# Petition for Writ of Certiorari — Akel v. New York (No. 271) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0491%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1960 ## Text . 4 ® . - : ’ ° . . ° ; 4 ‘ e sd ‘ ‘ = — ee -—— tee = . . i _—~ oe = a . Supreme Court uf the United States Oebopen Pia, Tee /’, p,¢ Het, me ee — PETITION FOR A WRIEP OF CERTIORARI TO THE COURT OF APPEALS OF THE STATE OF NEW YORK : Frances Navin Mimherot the Bar of the NH re ne Court of the Cowitedd Nfates ° bey aT Oithiee & PLO Ndadt 40 Proaedwa New York City line NO’ York WOrth 6 4240 TABLE OF CONTENTS PAGE Opinions below oie : pO eee 1 Jurisdiction... pepe Tse Pen eine ee en ; CQavet ics Preemie sc. csncc cis eiepiednnce tenses 2 Procedural History of the Case eset aacantiekerataaares = Facts Material to the Questions Presented 000 000000... +- ARGUMENT I. Certioras! Should Be Granted Beeause an lin- portant Question Affecting Wiretapping as Un- constitutional in the State Courts and the Rights of Petitioner Under the 14th Amendment Are In- Lk. pee OicR ned nnS Re ah ey eee Tg te AS nA Re Thc 6 Il. Certiorari Should Be Granted Because an lin-- portant Question Affecting Violation. of the Right to Counsel Under the Fourteenth ‘Amend. SOD Tk SONS cc cc S CUNIIIN ote eng meee lo APPENDICES: Judgment of Kings County Court 20000000000... Lea Memorandum Decision of Appellate Division 200... 19 Opinion of Co-Defendant Maimone, in Ajipetiate NINE ooo acct etna Sat ene 21 Affirmance’ of Judgment witheut opinion, Court of ‘eae IE conc einnececnontestouces retin hae ch armen te 25 a ue il PAGE iextracts of Wiretap Testimony ............... ane shavsesetnies San Extract of Statement of Gesaro and Barone ........52, 33 Memorandum of Hon. Justice Frankfurter denying BNNs ccarerteccnakcelnnincroenuacies Sasi isiseniacc soma sraneanseooaen Keone 34 AUTHORITIES Cases: | Benanti v. /nited States, 855 U.S. 96 00005........ 2, 7,9, 11, 12 Black v. Impelliterri, 201 Mise, 371, aff'd 251 A. D. 671, an NN WN arse eg se cteemneneeensvi cia ries y Boske v. Comingore, 177 U.S. 409 eee ee eee ae Coinmonwealth v. Jester, 100 A. 993, 256 Pa. 441, re- wersine GS Pa. Super. DOr ................0...0.cccccccoesscseceseseeee - 13 Ex Parte Royall, 117 U. Si 241 00. ee nS 10,11 . Hoffman v. O'Brien, 88 F. Supp. 490... Y Hiumann v. Rivera, 71 N. Y.S. 2d 321, 272 A. D. 352... 13 Lee y, State, 244 Ala. 401, 18 So, 2d 590 00... 14 TW, WPOMI, DOE 0). TR DO nih secs ccstcenacscteecesnnsees 10 Matter of Interception of Telephone Communications, 170 X.Y. S. 2d $4, 9 Mise. 2d 12D oo. ee 12° Nardone v. United States, 3802 U.S. 379 ooo. 2,6 .Nardone v. United States, 308 U.S. 338 ee eee gen neces Moen ecees Palko v. Connecticut, 302 U.S. 319 0... a OSS aera ee A 11 People v. Akel, 9 A. D. 2d 780; 7 N.Y. 2d 998 oo... 1,3 People v. Akel, 1938 N. ¥.S.2d 95; 199 N. Y.S. 2d 510... 1,3 ili PAGE People v, Defore, 242 NOY. 13, 100 N _E os Oy ce rt. de- : AAR ETM Oy RM oo sc.-s ss acta ee wee aang, People ve Hulsen & Weber, New i Law Journal, duly 21, 1960, p. 7, col 1. People vy, ae eee | Rie Brl | sbeneae Cenpeienne tienen aoe a oo Pen Ee eg A) as EMER eee ei ce enie Petition of Ellison, D.C. Texas, 140 : Pfu 5 720, alfa, RRS Re a ee 1D oo Lee (ace ea any ee Epes atte i4 Pugach v. Dollinge r,.277 I, 2d 7359, cert. a1 ranted SO. ST hs Bie | FR ties Bent a Fe ea an eee eae 2 Rea ¥. United States, 350 U.S. 214 oo. oie 11 Ruchin + Cabforia. 362 ©.) 166 0 et J . & Nehwaris v: Teams, 266 0 OD onc oe ec 11 State v. Beeny, 115 Utah 168, 203 P. 2d 897 2. i4 State v. Davenport, 83 La. Ann. 231 0... Ce ay Cove 14 Stefanelil v. Minard, 342 U.S. 117 ..: SS eee 10 Twining *. New Jersey, 211 US, 78 ......... a Ul Scex rel. Hail v. Ragen, D.C. TL. 60 FL Supp. S20 1+ United States v. Simone, CL. ALN. Y., 205 BF. Bd 4800. A3 Wagener v. UL S.C. AL Ala, 171 FL 2d 554, eert. denied, ae ae fe Bet ©. . BR ae eri Dna ee aCe Une BR ee Ran us Wolf ‘. Colorado, me RR ite TR ha A sre AN ape ie or ira 11 STATUTES CITED Federal Communications Act of 1934... Een et Wages 2.3 THe Se a OR Chae bai kc eee 2 Tithe 47 UL S.C. AL 3605 iv. th . PAGE MV, Corde Cr. Pret. SSG o..ciciccs-csesecs.ccscsccsesessicsceennnssossssoese -13 WY Gates Ce Prec, SOIG8 Sis 3, 11,12 N. Y. Penal Law §502(a) BARBS, sl oe Ba need Wan PURE a Bere dn OR 11 CoNSTITUTIONAL AMENDMENTS United States Constitution Sixth Amendment ............-...-.-----0:0-2ee- iy i day ae Fourteenth Amendment: ‘...................- oa OSB pete = N.Y. Const., Article 1, §12. 92 cet. ea ee 11 Supremacy Clause, Article VI, Clause 2 .............. Cie Se MISCELLANEOUS é ak SE OE Be Ce nc ees eee 13 Ix THE Supreme Court of the United States Ocrosner Term, 1900 No. Tuomas AKEI, ; wo. Petitioner, —against— Strate or New York, Responds ut. = On February 11, 1938, petitioner was sentenced by: the County Court of Kings County (Joyce. J.), to a term of two and one-half to five vears.as a first felony offender following his conviction by ~ of the crime sof being an Accessory toa Felony.(P. L. nace 1654) erroneously stated that petitioner behalf, Was accused of being an stecessory to the erime- of “violation of the’ narcoties law." The Court there further misstated: that petitioner was aceused of being an decessory to the crime of “violation of the narcoties law." The prosecutor intermittently dangled the narcoties, he- longing to the Peopie’s star witness, before the eves of the ; 14 jury during the course of his summation, The prosecutor opened People’s E xhibit. One, consisting of Joseph Basile’s narcotics, and remarked that petitioner and co-defendants are tarred with the same narcotics. DPetitioner, was com- ‘pelled to sit idly by while the district attorney employed other misteading and inflammatory devices to destroy peti- tioner’s credibility in his ‘successful attempt to obtain a_ conviction, Had counsel for petitioner been present at the colloguy subsequent to. the prosecutor's summdtion and | prior thereto, appropriate objection and timely exception could have been made which may have prevented the ad- verse findings and the rendition of judgment. The prejudice resulting from the absence of counsel in the instant: case constituted reversible error. Absence of counsel at any “stage is as serious a reflection on the standards and dis- vipline of the Court a@ it is on the character and attitude of the attorney concerned. Qne line of decisions holds that counsel must be present at every stage, and deems it error when the Court proceeds Without counsel. State v. Beeny, 115 Ctah 168, 203 P. 2d 897 (1949), judge failed to reinstruet jury because of counsel's hbsence; State ve. Davenport, 33 La. Ann. 231 (1881), judge charged jury in‘absence of counsel ; Lee vy. State, 244 Ala. 401, 18 So. 2d 590 (1943), counse! PBL, at verdict; (". S. ex rel, orietd . Ragen, D.C. LL, 60 FL Supp. 820; Wagner JUS. CLA, Ala. 17% FL 2d 354. cert. den. 69 S, Ct. 1499; Petition of Ellison, D.C. Pex., 140 FL Supp. 720, affd.. C, As 2359 Ik. 2d 175. That petitioner's constitutional rights under the Four- teenth Amendment and the Sixth Amendment were violated. The latter ‘Amendment provides, in part: “In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defense.” 15 CONCLUSION - _ THE PETITION FOR CERTIORARI SHOULD BE GRANTE v FOR THE REASONS RELIED ON HEREIN. BEFORE. Dated: July 21, 1960, Respectfully submitted, Frances Kany Member of the Bar of the Supreme Court of the United States -lttorney for Petitioner 401 Broadway New York 13, New York 17 APPENDIX Judgment 2 At a term) of the County Court, held in and for ‘the County of Kings, at 120 Schermerhorn Street, in the Borough of Brooklyn, City of New York, on the 11th day of February, 1958. roe % Present: . Hon. Georce J. Joyce, County Judge. Indictment 1445/1957 — Tue Peorte or THE State oF New York, —against— — eat Thomas AKEL Alias “Brooklyn Tommy” Alias “Brooklyn Kid” . pon 5 ad e Alias “Thomas Dorio elie Indicted for Accessory to a Felony, Section 2 of the Penal Law, and convicted thereof as charged by the ver- . . ee dict of a jury. os Being personally present and sworn says: My true name is Thomas Akel;,] am 22 years of age. I was born in New York City; I reside at 161 State St., B’klyn; I am a salesman; J am not m&rried, I can read and write, I have an Sth grade elementary school educa- . is tion; I am a Catholie regular attendant: my parents are dead; I am temperate. I have previously been convicted of two misdemeanors ; | do not use drugs.. Being asked and he having nothing to say why the judg- ment of the law should not be pronounced against him, the Court prenounced J udgment as follows: Whereupon, it is Ordered and Adjudged, by the Court, that the said Thomas Akel, alias “Brooklyn Tommy”, alias “Brooklyn Kid” alias "Thomas Dorio” for the felony afore- said whereof he is convieted be imprisoned in the Sing Sing State Prison at Ossining, N. Y., at hard labor, under an indeterminate sentence, the maximum of such imprisonment to be five (5) years and the minimum thereof two (2) years and six (6) months. A True Extract’ from the Minutes JosEPH B. Witty Ch rk 19 Appellate Division Opinion (193 8. ¥.S. 2d 95) . a . Prope or THE Stare or New Yorn, Respondent, —_—V— Tomas Aner alias *Baookiys Tomay,” alias “DrookLyN Kip.” alias “Tiromas Doro,” . Appeltant. > Supreme Court, Appellate Division, Second Department. Nov. 16, 1999. - . . . . . e Mowakp HH. Levine, New York, City, for appellant Akel. Vernon C, Rossxen, New York City, of counsel, Kpwarp S, Sinver, Dist. Atty., Brooklyn, for respondent, WiLtiaM Soxensuine, Brooklyn, of counsel, Before: > Notas, Po/., and Wenzer, Becvock, Mereuy and onic dale ie oN \ Appeal from a judgment: of the County Court, Kings County, rendered February 11, 1958. senténeing: a pellant to serve from 2h to Jveags, after he had been found guilty bya jury of being an ACCESSOPY toa felony (Pengl Lew, $2). The potice of appeal states that appeal is alsa ae MeMoraNpUM BY THE Court 20 “all of the objections, exceptions and motions mage during the trial, after trial, and from all intermedtate orders made in this matter.” Judgment unanimously affirmed. See People vy. Maimone, App. Div., 193 N. Y. S. 2d 90. 5 7 No separate appeal lies from the objections, the excep- tions or the intermediate orders, which have been reviewed on the appeal from the judginent of conviction. y 21 ‘ emeleas Division Opinion a (13 NL YLS. 2d 90) 7 . a Provii or tHe Stare or New York! R spondent, . —v.— SAVERIO Marios : ei “Satvatonke Marvone,” alias “Sippir.” ’ ' i Appellant. <> Suprenie Coat, Appellate Division, Seeond Department. > Now. 16, 1959, « Eowsanp HH. Levine. New York City: Vernon C. Rossxer, New York Cnty, Of ferent , fol cpp lent Marmone . ’ . e ° . Kowarp S. Sinven, Dist. Atty... Winuiam Soxessuixe, Brookls Bh, 60>) fC rebhaest 2 ar) a spoude nt. Be fo re - Nonas, 2?.7.. and Weszer, Beroock, Meneuy and Uanerra, J. Mimorann M BY THE Court Appeal-from a judgment of the County -Court, Kings County, rendered Apri#t 22. 1958. sentencing appellant to serve from ll. too vears, after he lad been found guilty uy at jury of being an aceessory toa felony (Penal Law. (2). Judgtuent unanimeusty affirmed >») (1-3) Appellant, Thomas: Akel, Salvatore Giordano, Robert Douglas Williams and five others were indicted tor heing accessories to a felony, (Penal Law, 2) in that, after one Basile had committed the felony of unlawfully * possessing narcotic drugs, appellant and his codefendants, acting in concert and aiding and abetting each other and pursuant to a common plan or scheme, harbored, conce aled and aided Basile with intent that he might avoid and escape from arrest, trial, convietion and punishment, with knowl- edge and reasonable grounds to believe that Basile had committed said felony. Under the charge of the court, to Which there was no exception and \ hich thus was the law of the case, the gvidence was sufficient to justify the finding. implicit in the jury's verdict that Basile, the principal wit- ness against appellant and lis codefendants, Was not an ac- complice. His testimony, therefore, did. not require cor- roboration as provided. by section 399 of the Vode of Crim- inal Procedure and the proof was sufficient to sustain the verdict. ; : (4-6) Considerable evidence was received, as to trans- aetions between Basile and the defendants other than ap- pellant, involving the illegal possession and sale of nar- coties. There was no claim that appellant teek any part in such transactions or even had any knowledge of them. This evidence was properly received as'against those defendant- ‘who were directly connected with these transactions, even though such transactions had no relation to the felony as to which such defendants were accused of being accessories, sinee it tended to establish as against them that they were busily engaged with Basile in the traffié in nare oties and had a motive for aiding him to escape capture and prosecution for the original felony which he had committed, so that their business relations with him might continue (cf. People v. Molineux. 168 N. ¥, 264, 294, 61 N. K. 286, 295, 62 L. R.A. 193, People v. Fitzgerald, 106 N.Y. 208, DU N. EB. 846) and a See » 23 ° also tended to establish the means by which they aided Basile to remain at large. Tt was for the jury to determine, under the charge of the court, to which there was ne exeeption, whether this evidence could be*considered against sppel- lant as proof of a continuing conspiracy, originated by ap- — and others, to harbor and aid Basile, even though appellant did net know, of all of the details of the acts auesiiea during the conspiracy, or the identity of all of lis sore ak ty Moreover, tuost of the evidence now complained of was admitted without objection, and, al- though some. eae anid irrelevant evidence as to the ' details of the nareoties tr allie Was improperly admitted over objection, it Was'ne mere prejudicial to appellant’= rights than the other evidence to which no objection was made. It was not error, under the circumstances here disclosed, to refuse to accept the concession tendered by appellant and acodefendant, that Basile had committed the fe lony charged nthe indictment and to permit proof thereot by the People. The record does not clearly dxtablish that the concession was offered’on behalf of all defendants, and in any event appelfant appears to have acquiesced in the trial court's rul- ing. The concession was offered only for the purpose of sav- Ing tine, and no objection was made to proof that Basile had committed the felony, on the grounds that it: was iM lnaterial and unnecessary in view of the concession. Com, liwnts by the prosecutor in summing up that Basile’s testi- mony Was uncontradicted and Unimpeache ‘d Were improper, ‘nee much of that testimony could not have been contra- dieted unless appellant had testified in his own defense (ef, People v. Watson, 216 N.Y. 565, 111 N. EL 243: People y Forte, 277 N.Y. 430, 14 N. E. 2 783: pole, v. Fitzgerald, 1G: NON Sa a Bae. supra; People vy. Minkowitz, 220. N.Y. 399, 115 NE. OST). However, the trial court cor. rectly and satisfactorily charged the provisions of seetion ate of the Code of Criminal Procedure. That being se, it is 24 oe our opinion, although we do not condone the prosecutor's conduct, that reversal is not required, in view of the fact that appellant’s guilt was clearly established (People +. Watson, supra, 216 N.Y. at: pages 569-570, 111 N. BE. at pages 244-245; People y. Priori, 164 NX. Y. 459, O85 N. E. 66S; Code Crim. Proe. 42). 25 Court of Appeals (No Opinion) (¢ N. ¥. 2d 998, 199 N.Y. S. 2d 510) - = PEOPLE, ete., Re spondent, — Tuomas AKEL. ete.. . - Appellant. Propie v.? Mammone ~- Court of Appyals of New York. "March 24, 1960 Appeal fronr Supreme Court, Appellate Division, . See- ond Department, 9 A.D. 2d Ts0, 1938 N.Y. S. 2d 90, 94, 95: 9 A. D. 2d 781. ® Defendants were charged by indictment with being ae- cesseries to a felony in that after felonious possession of hareotics by nareoties Peddler, the defendants, acting in concert, and aiding and abetting each other, harbored, concealed, and aided narcotics peddler wath intent that he might avoid and escape argest, trial, conviction and pun ishinent. : ; { The defendants were convicted Under Seetion 2 of the Penal Law, Consol. Laws, «. 40. of being accessories te a felony!’ The County Court, Nings County, Jovee, Jo. en- tered judgment, and the defendants appealed. The Appellate Division aftirmed the judgment. . The defendants appealed te the Court of Appeals. The defendant Akel contended in the ‘Court of Appeals -that ” 26 a the People failed as a. matter of law to prove each and every essential element of the offense of being an ae cessory to a felony, and that evidence adduced failed te controvert defendant's prestmption of innocence hevond a reasonable doubt, and that defendant failed to receive a fair an impartial trial guaranteed by Seetion 6 toi Article 1 of the state ( ‘onstitution. The defendant Gior dano one if the Court of “Appe: us that the Counts Court erred in denying his motion to dismiss the indie ment and in denying his motion for a directed) verdict, and that admission of evidence of crimes not ee the indietment denied him a fair trial in violation of due process clause of the Fourteenth Amendment. te the federal Constitution, and. that .erroneots rulings of the County Court denied him a fair trial, and that allegedly unfair comment and allege diy unfair trial tactics of the proseentor denied hin a fair trial, and that ‘is motion for new trial should have been granted. T he defendant Williams contended in the Court-of Appeals that the County Court erred in failing to direct a ‘verdict of acquittal for hyn. and that evidence was insufficient. to support jury *s find. ing that he was part of a single continuing cons piracy, and that he was deprived of his constitutional right to a flr: trial. The defendant Maimone contended in the Court et "Appeals that he was dey rived of a fair trial by the ad mission of highly .pre judicial ep inflammatory detatis concerning the narcotics traffic and by the prosecutor's remarks, and that the evidenee was instificient te saistain the conviction, and that narcotics peddler was ‘an decom: splice asa matter of law and that County: Court) shenld have so ruled. t Judgements afiitmed. All coneur. Extracts of Wiretap Testimony in Kings County Court (ff. 3056-307 4) Mr. Kern: May T then take iy exception for the record? The Court: The rulings will be the same. Mr. Bonom: And the same exe eption as Tar as the defen- dant Akel is concerned. ° ‘ - The Court: Phave an Exhibit 7 for identification ‘and TAY Hotes show it is a tape recording, Sacramento 2-7421, ‘Phat is all T have here. That is all | was told at the time it Wis offered. . ¥ Mr. Kottler: That's right. The Court: What are vou talking about 7A or 7B? Mr. Kottler: Well, at this time [Po offered in evidence it transcript of a conversation on that tape which Isa fer identification. The Court: Yes. Mr. Kottler: And pursuant to stipulation between the prosecutor and the counsel for the defendants, we have . agreed. that these conversations are to wo inte oy idence and the first conversation to go in is the one, the copy of which Was just handed to vour Honor. The Court: And vou are calling that 7A. Mr. Kottler: TA in evidence. The Court: Al right. Mr. Kottler: Whieh is a conversation held between June =. 196 and June 4. 1956, on that teléphone number between the defendant Sain Barone and the wife of ‘defendant - Giordano. The Court: All mght. (Transcript of conversation between Sam Barone are Mrs. Giordano marked People's Exhibit 7A. in evidence, ) v : 28 Mr. Kotyler: Lit. the record also show that we prepared mimeographed copies which are exact of this transeript Which | have been handing to the jury. The Court: That's right, and the attorneys. : Mr. Kottler: And the attorneys for the defendants. , a | (Exhibit 74 played, as follows: “Incoming call MO (Sam) to Fl (Joan) “FI Hello, “MO Hello is Jimmy there? “FIT No who is this? . * “MO This is er—Sam you know (inaudible. ) “FL Sam who? “MO Sam, vou know Sam. *FLOh Sam. ' “MO Yea. “FI Ah of course dear, you were supposed to see hit or something. “MO Yea, “FI Tonight? "MO Yea. MET Because he told ine he wasn't coming right home, He must have meant he was going to meet vou. “MO Well if he “calls vou, tell him PH be there in - about an hour. “FT That you won't-be there until an hour? “MOTH he there in about an hour, 1 mean... “FY You mean you'll be there, vou're there now? “MO No, Pve .. “FL Oh DT see, vou won't be there until anchour, | see and he knows everything, huh. “MO Yea, he knows where. “FL Now look dear, if he doesn't eS “MO Well then, he must be there. . i . o = ef 29 (Exhibit TA continued to be plaved: “FLO alright, so if not vou call in the morning, eh. “MO No, I've got to call, ve got to see him tonight. “Fl Alright dear, then he'll be... “MO T've got to see him as soon as possible, “FI Alright then, [m= quite positive he must. be there, “MO Okay. | ? : eis “FI See beeause . “MO If he calls you, tell himethat I'll be there. “FIT If he calls you, I’ Ul tel] hina you'll be there in an hour. “MO Yea. “FIT Alright dear. “MO Okay. “FI Bye bye. “MO Bye bye. - (Exhibit 7A was played to the jury.) Mr. Kottler: At this time, if the Court pleases, pursuant to stipulation, and with regard to the same Exhibit 7 i for identification; | offer in evidence a conversation from that ( . extitlut which took place between June 2 1956 and June 4, Moi, between Joe Basile andthe wife of defendant Gior. dano, on that telephont number Sacramenta 2— hatever that number is, : | The Court: 7421. Mr. Kottler: 7421. This is 7B in evidenee. (Conversation between Joe Basile and Mrs. (Ciierdane marked People’s exhibit iB in ey iderreg: ) Mr. Cooperman: TPomerely want te state that ir may “ipulation PT consented that these conversations were hele 30 between the parties set forth in this exhibit. That is all lL am eonceding. | The Court: Without conceding the truth of it. Mr. Cooperman: [| am also not conceding it is: bindiny on my defendant. Mr. Kottler: But you are conceding Joan is the wife of the defendant Giordano. Mr. Cooperman: That’s right. That's all I concede, (Tape recording played back.) Mr. Kottler: I think the. recor! should show that. th) transcript seems to be inaccurate in that the two words, “Hello, hello,” Aare’ missing at the very beginning of it. | now offer in evidence as People’s Exhibit (Cla tran- script of a conversation on the tape which is People’s Ey- - hibit 7 for identification, And this conversation took place between June 2nd and June 4, 1956, between the defendam Barone and the wife of defendant Giordano. lL ask that this be marked 7C in evidence. (Conversation between Barone and Mrs. Giordano marked People's Exhibit 7C in evidence. ) (Tape recording played back :) Mr. Cooperman: Now, if the Court pleases, my client informs me in hearing this telephone conversation, alleged telephone conversation, that the party on the wire being ‘the "Female In,” is not his wife, Joan. a The Court: All right. We will come to that in time, maybe, Mr. Kottler: [now offer in evidence also with regard to People’s Exhibit ¢ for identitfieation, a transeript of a eet versation on that reel between defendant Barone and the 31 defendant Giordano, on Sac ‘ramento 2-7421, between June , 1956 and June 4, 195 %, and | ask that this be marked People's Exhibit 7D in evidence. (Transcript of conversation het wee ‘nm Barone and Gior- dano marked People’s Exhibit 7D in ev idence.) Mr. Kottler: That's between Joan and Giordano. . {Tape recording played back. ) Mr. Kottler: Now, with regard to: People’s: Exhibit. § for identification, 1 offer inte evidence a transcript of ¢ conversation on that reel, Pe ‘ople’s Exhibit S for identifiea. tion between the witness Basile and the wife of the defen. dant Giordano, and | ask that it be marked Péople's tuxhibit SA in evidence. (Transcript of conversation between Basile and Mrs. Giordano marked People’s Exhibit SA in evidence, ) Mr. Cooperman : Again, if the court Pleaxes,smay | note for the record that all we conceded was that suc ‘hy conversa- tion did take place, on the telephone: that any conversation With the wife of the de ‘fendant: is not binding on the defen- dant Giordano, The Court: Denied. Mr. Cooperman: Exception. (People’s Exhibit SA in evidence plaved back. ) * Extract of Statement Taken of Anthony. DeGesaro .: Received in Evidence and Marked ' “People’s Exhibit 35” “Q. What is your mane? A.. Anthony DeGesaro. ‘*Q. Did you receive a plone call from New York this week? A. Yes. “Q. Can yg describe that phone eall?: A. A person called. od 3 “QoWhat was that person, a man ora woman? A. To me it sounded like a woman's voice. She, said she was Joe’s sister. | “Q. By doe, whom did you consider that to mean! A. Joe Dedohn, that is the name I knew him by which later turned out to be art alias. “Q. Did you subsequently learn him to be Joe Basile? A. Yes. 7 ; “Q. How did you find that wut? A. From the news- papers. “Q. How many phene calls did you get from New York this week? A. Two or three. “Q. Was it two or was it three? A. I don't know. It could have been two or it could have been three, but I think it was closer to three. Al] from the same person? A. Supposed to be, it sounded like the same person. “Q. As a result of these conversations, did you go to the Albany:Sehnectady Airport teday?) A, Yes, sir. “Q. What happened then? A. Some fellow showed tne a badge and said go against the wall and ther he cheeked me to see if Twas carrfing any weapons and firearms. “®. Did he then take ven to this office? A. Yes, “Q. That is, the Distriet Attorney's office? AL Yes.” | . . 33 Extract of Statement of Sam Barone Received in Evidence and Marked “People’s Exhibit 36” “Q. What is your name? A. Salvatore Barone: “Q. Do you know Anthony DeGesaro? A. Yes. “Q. Did you see or speak to DeGesaro on Mon night, June 17th, 1957? A. Yes, I did. “Q. What conversation did you have with-him? A. Nothing, just about a phone call that York. ; “Q. What phone call did he say he got from New York? A. Said he got a plone call from Joe Basile's. sister. “ : “Q. What was said? A. She asked him for the clothes so T told him when she calls bac come up and get them.” lay l got from New k for him to ot Memorandum by Mr. Justice Frankfurter R > Tiromas AKEL, PP: trtiar er. —V,— ht State or New York. .Os Morton ror Bat This is a motion to fix bail pend « a petition for cer tiorart to be filed seeking review of a judgment of convic Jon affirmed in the Court of Appeals of New York on ‘arch 24, 1960. ; , When a judge as solicttous as is Judge Stanley H. Fuld to safeguard the interests of defendants in eriminal ease deMes an application for bail pending a proposed petition for certiorari to this Court on a claim of a substantia! federal right, one naturally attributes some selid) ground for such denial. To me this is found in the opposing affi davit in whieh it is deposed that at ne time in the COMPS of this prosecution was a elaim of a federal mature mad: . that the New York Court of Appeals did not certife thar ans federal question was presented to it, and that, altho! ifirmance of the judgment of conviction was rendered on Mareh 24 last, the remittitur below has not heen ainencded soas to slow that.in faet a federal claim was considered ane rejected hy the New York Court of Appeals. While thie petition for admission to bail claims that a federal lies hen is te be raised by a proposed petition for vertiorari, itdoes not allege that such ad federal question had been, raised betore the New York Court of Appeals and wa- 30 there denied. Nor is there any claim that the remittitur Was amended so as to set forth that the Court of Appeals did in fact pass on the federal claim. Nor does the memo- randum of the Court of Appeals affirming the conviction, 7 N.Y, 2d 998, 999, in setting forth the arguments made by defendant Akel in that court, include the claith of a federal right. + In this state of the record before me dam compelled to deny bail pending the filing of a petition for certiorari, Fevix Fraxkrurrer Assoriate Justice, Supreme Court of the United States July 19, 1960 . ” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0491%3A2. Public record. Not legal advice.