164 Misc. 167 | N.Y. Sup. Ct. | 1937
Charles Luciano was convicted in June, 1936, upon sixty-two counts of an indictment charging him with violating subdivisions 2, 4 and 8 of section 2460 of the Penal Law, acting in concert with other men named in the same indictment. Nine of these other men were sentenced at the same time. Luciano and the rest were by the jury’s verdict pronounced guilty of conducting and directing on a large scale the business of prostituting women, with features of wholesale oppression and corruption. At the trial Luciano was proved to be the leader of the conspiracy and his counsel concedes that if he was guilty the sentence he is now serving was well deserved.
Luciano moves for a new trial under that portion of subdivision 7 of section 465 of the Code of Criminal Procedure relating to newly-discovered evidence, which gives the court power to grant a new. trial “ where it is made to appear, by affidavit, that upon another trial the defendant can produce evidence such as, if before received would probably have changed the verdict.” His codefendants, Liguori, Betillo, Pennochio and Wahrman, likewise serving sentences for these offenses, have been permitted to join in the motion upon the same moving affidavits; they also move on separate grounds, apparently relying on subdivision 3 of the same section of the Code of Criminal Procedure, employing one affidavit made by Lorenzo C. Carlino. An entire day was occupied in listening to arguments of counsel for the defendants Luciano and Liguori and for the People. The voluminous affidavits have been thoroughly read and considered in the light of the arguments and the briefs.
Three of the People’s trial witnesses, Flo Brown, Nancy Presser and Mildred Harris or Balitzer, have under oath recanted as to Luciano. Helen Kelly, a former witness for the prosecution, swears the trial testimony of the other three was in certain important respects false. The wife of People’s witness Bendix (Muriel Weiss, not a trial witness) swears his trial testimony was in several respects false. The theory of the motion appears to be that the conviction of Luciano rests on the trial testimony of the three
Flo Brown, Mildred Balitzer and Nancy Presser were all interviewed under oath by the court, after the trial, in circumstances which would naturally inspire confidence and eliminate motive for falsehood, as well as supply the court with another opportunity for observing their demeanor. Each then freely reasserted the truth as testified to by her at the trial. They made statements to various persons at various times scattered through the remaining part of the year 1936 which are strongly corroborative of their trial testimony and utterly inconsistent with what are claimed to be their present motive and memory of the facts. In my opinion, their trial testimony was substantially true and their present statements were, in my opinion, induced by fear, financial pressure and craving for drugs, and are poisonously false.
The special prosecutor was scrupulous to place before the court and jury upon the trial every item of previous testimony contradictory in character and to reveal the exact facts as to the records
Were the evidence in the latest affidavits of the three recanters and the other former witnesses for the People (now witnesses for defendant Luciano) presented to the same jury on behalf of the defendant Luciano, they would hear little not already disclosed and considered at the trial. If they received in addition, as they must, the new evidence in the answering affidavits, much of it highly favorable to the People, the latter’s case would be as a whole much strengthened. It will not be forgotten, moreover, that a number of respectable and disinterested persons testified against Luciano at the trial and that as a witness in his own behalf he supplied very damaging testimony against himself. The court is satisfied that the defendant Luciano and the other intervening defendants cannot produce evidence such as, if before received, would probably have changed the verdict.
I turn to the separate grounds of the Liguori motion seemingly to the effect that the jury and other officials were guilty of improper conduct. The 'single affidavit submitted in support is made by defendant’s attorney and counsel. Not a fact is stated on knowledge. The affiant seems to have overlooked the necessity, not to say the duty, of verifying information and substantiating belief. His hearsay statements about what the jury saw, heard and did are, if and so far as they can be considered material, contradicted under oath by all twelve of the jurors. He says he received the information from only one of them, and that particular juror denies he gave the information for which he is quoted. Whatever issue of fact remains must, of course, be decided against the defendant. No reason or authority is shown for granting a motion on ■sUCh grounds at this time.
The defendants contend that the court should, in the circumstances, cause to appear and be examined and cross-examined the affiants upon whose supposedly new evidence the motion is based, or at least the recanting witnesses. Indeed, when reproached
The statute (Code Crim. Proc. § 465, subd. 7) reads, in part, as follows: “ The court in such cases can, however, compel the personal appearance of the affiants before it for the purposes of their personal examination and cross-examination, under oath, upon the contents of the affidavits which they subscribe."
There appears to have been some original doubt of the court’s power to compel the production for oral examination of affiants. Obviously, nothing in the language of the law sustains the contention of defendants, which rests rather upon their construction of two Court of Appeals decisions (People v. Shilitano, 215 N. Y. 715, and People v. Arata, 254 id. 565). These cases contain no support for such conclusion. They hold merely that where the court finds incomplete or otherwise insufficient the affidavits submitted, it may be desirable, in the interests of justice, to exercise the power to call and examine orally those who made them. In People v. Eng Hing (212 N. Y. 373), where lengthy affidavits had been submitted in support of a motion for a new trial and in opposition, without the appearance or examination of any witnesses, the same court sustained a denial of the motion. The court below said (Record on Appeal, vol. 2, pp. 191, 192): “ There is no reason to believe that an oral examination of the persons making affidavits in support of the present motion or of other persons mentioned in the motion papers * * * would disclose evidence of a character which, had it been received upon the trial, would probably have changed the verdict.”
Evidently no general practice in the case of recanting witnesses, independent of particular circumstances, exists. For example, in People v. Cohen (117 Misc. 158) the motion was granted without calling witnesses — that is to say, in spite of the burden upon the defendant, in spite of what the Court of Appeals in the Shilitano case said: “ There is no form of proof so unreliable as recanting testimony ” (218 N. Y. 161, 170). The court was there (in the Cohen case) able to say, without more ado, that there should be a new trial. Here, the court is satisfied without further investigation that there should not be a new trial. The provision permitting but not requiring oral examination applies primarily to witnesses who have made affidavits. If the court is able to reach its conclusion without calling them they need not and should not be called, since to carry the matter further would not serve the ends of justice or any public interest.
All motions for a new trial are denied upon all grounds.