108 Misc. 635 | N.Y. Sup. Ct. | 1919
The defendant Alessandrio Vollero was convicted by a jury in this court of the crime of murder in the first degree. Upon appeal the Court of Appeals affirmed the conviction by a divided court and without opinion under section 542 of the Code of Criminal Procedure, the section providing that the court must give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties. 226 N. Y. 587. The defendant has moved this court at Special Term for a new trial under section 465 of the Code of Criminal Procedure upon the ground of newly discovered evidence. Although the motion was heard on June seventh last, the brief of the district attorney was, with the court’s concurrence, not submitted until July fifth, and the great length of the printed record, comprising more than 1,000 pages, and the importance of the questions involved in the motion, both to the defendant and to the public, have precluded an earlier determination. Whatever doubt this court may entertain as to the legality of the original conviction must remain unexpressed in deference to the judgment of the Court of Appeals that any technical errors or defects upon the trial as disclosed by the record did not affect the defendant’s substantial rights. The only question which now requires solution is that raised by the defendant’s motion for a new trial upon the grounds which the statute expressly authorizes, as set forth in the section above referred to. That section, in subdivision 7, provides that the court has power to grant a new trial ‘ ‘ Where it is made to appear, by
The court has approached the consideration of the question involved with full appreciation of the grave responsibility resting upon it and recognizing that its decision upon the question is final and unappealable after affirmance of the original judgment of conviction either by the defendant (see People v. Trezza, 128 N. Y. 529; People v. Mayhew, 151 id. 607; Hebberd v. Loeb, 125 App. Div. 579) or by the People (People v. Beckwith, 42 Hun, 366; People v. Priori, 163 N. Y. 99).
The defendant was indicted with eight other men for the killing of Charles Ubriaco. He demanded and obtained a separate trial. The theory upon which he was tried was that certain persons known as “ The Navy Street Gang,” in order to obtain control of certain lines of graft and blackmail which were supposed to be levied upon Italians from and by a gang known as “ The Morellos,” in Harlem, borough of Manhattan, as well as to have revenge against the Morellos for the murder of one Del Guardio, entered into a conspiracy to kill six men belonging to the Morello gang. Three of these six men were actually killed, viz.: Charles Ubriaco and Nicholas Morello on September 7, 1916, and Antonio Perrazano on October 6, 1916. The three other members of the Morello gang, who it is claimed were to have been killed by the conspirators, escaped. The defendant himself did not actually participate in the killing of any of the three men who were killed, nor was he present at the commission of the murders; but the prosecution claimed that he plotted and planned the murder of Ubriaco, and that he was
It is undeniable that without Daniello’s testimony the defendant’s conviction would have been impossible. There is no attempt to dispute the fact that it was his confession that caused the conviction. He is repeatedly referred to in the district attorney’s brief as the “ principal witness for the prosecution.” He was regarded for all purposes of the trial as an accomplice both in law and in fact. The trial justice, in charging the jury, said: “ There is no question about his being an accomplice, if you believe what he says, because he says he is, and that settles that point. ” Daniello, having turned state’s evidence, later, with consent of the district attorney, took a plea and was released, at the request of the district attorney, under a suspended • sentence. The rule as to who may be regarded as an accomplice is thus stated in People v. Sweeney, 213 N. Y. 37, 46: “ To constitute an accomplice one must be so connected with a crime that at common law he might himself have been convicted either as a principal or as an accessory before the fact. (People v. Zucker, 20 App. Div. 363, 365; affd., on opinion below, 154 N. Y. 770; People v. Bright, 203 N. Y. 73, 79.) ” Assuming, therefore, that Daniello was an accomplice within the meaning of the statute next referred to, what was the effect of such complicity upon his evidence? Section 399 of the Code of Criminal Procedure reads as follows: “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.”
The prosecution contended both upon the trial, in the Court of Appeals and upon the present motion that
I am wholly unable to subscribe to this proposition. Mancini, as will be seen, was indicted as a principal for the murder of Ferrazano, who was one of the six men whose death was the object of the conspiracy. If a conspiracy were entered into either for the purpose of effecting, or resulting in, the murder of six persons, and three of them were murdered by different members of the criminal conspiracy, all the conspirators are liable as principals for the commission of each murder. If it be true that a criminal conspiracy to commit these murders was formed and that Mancini aided or abetted in their commission, he was “ concerned in the commission ” of all the crimes, whether present or absent when each crime was committed. He thereby became an accessory before the fact and liable asa“ principal ” even though he did not actually participate in any of the homicides. Penal Law, § 2.
In People v. Hooghkerk, 96 N. Y. 150, 162, Judge Andrews, after referring to this statute, said: “ Prior to this statute the rule in the State permitted the jury to convict a defendant upon the uncorroborated testimony of an accomplice (People v. Costello, 1 Denio, 83), but it was the uniform custom of judges to advise the jury that the evidence of the accomplice should be received with great caution, and it rarely happened that a conviction was had upon his unsupported evidence. The rule now embodied in the statute is substantially the rule which before the statute courts were in the habit of stating to the jury for their guidance, although, as has been said, it was not enforced as a rule of law.
“It is plain that independently of the statutory rule corroborative evidence to have any value must be evidence from an independent source of some material fact tending to show not only that the crime has been committed, but that the defendant was implicated in it, and such is the doctrine of the best considered cases. But neither the doctrine hitherto declared by the courts, nor the rule embodied in the statute, requires that the whole case should be proved outside of the testimony of the accomplice. Such a rule would render the testimony of an accomplice in most cases unnecessary, and would defeat the policy of the law which permits the use of accomplices as witnesses in aid of, and in the interests of public justice.”
In People v. Plath, 100 N. Y. 590, Chief Judge Euger,
The latter case is referred to by Judge Peekham in People v. Ogle, 104 N. Y. 511, 515, where he says of the Plath case: “ It only requires a corroboration as to some material fact which goes to prove the prisoner was connected with the crime.” And he then points out “ that the witnesses, in regard to whom the request was made, were not accomplices in any sense of the word.” And that: “ Even if the rule as to the evidence of an accomplice had been erroneously stated by the court, it was, therefore, wholly immaterial in this case.”
In People v. Everhardt, 104 N. Y. 591, Judge Earl says, speaking of the section in question: “ This section has changed that rule of law and requires that there should be simply corroborative evidence, which tends to connect the defendant with the commission of the crime. * * * Whether that evidence was sufficient corroboration of the accomplice was for the determination of the jury. The law is complied with if
In People v. Christian, 78 Hun, 28; affd., 143 N. Y. 666, on opinion below, it was held that: “ Under this statute it matters not how consistent the narration of the accomplice, how much it is fortified by detail in the statement itself, or how reasonable and convincing the relation of facts by her, it is not enough unless corroborated by such other testimony as tends to connect the defendant with the commission of the crime.”
In People v. Patrick, 182 N. Y. 131, Judge Gray, writing the prevailing opinion, quotes from the May-hew case and says of the rule there stated: “ This is but just; or, otherwise, if the statute is to be given a narrower construction, the ends of justice might be often defeated. The law, in its humane policy, intends that the life, or the liberty, of an accused person shall not be sworn away by an accomplice, unless the accomplice be so corroborated, as to some material fact, or
This rule of corroboration extends also to the proceedings before the grand jury which found the indictment.
In People v. Sweeney, 213 N. Y. 37, 42, Judge Chase, after referring to the section under consideration, says in reference to the Code of Criminal Procedure: “ It also provides that ‘ The grand jury can receive none but legal evidence.’ (Sec. 256.) And that an indictment should not be found by a grand jury unless ‘All the evidence before them, taken together, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.’ (Sec. 258.) It is manifest, therefore, that if the only testimony before the grand jury is the testimony of accomplices, it cannot be said to be sufficient, if unexplained or uncontradicted, to warrant a conviction by the trial jury.”
The rule as to corroboration of the testimony of an accomplice is subject to an important exception which has bearing upon the question to be decided at this time. The exception is stated in the syllabus of the case of People v. O’Farrell, 175 N. Y. 323, as follows: “ The fact that upon the trial of an indictment * * * two accomplices testified in regard to the defendant’s guilt instead of one is not a corroboration within the meaning of the statute, and in such a case it requires the same amount of other evidence to connect the defendant with the crime as if but one accomplice testified, in order to establish Ms guilt.”
In tMs case the Court of Appeals unanimously reversed the Appellate Division and said (at p. 327): “ This brings us to the consideration of the second question, whether the fact that two accomplices testified in regard to the crime instead of one, removed the
Bearing in mind the principles which have been adverted to we are now in a position to discuss the grounds upon which the present application rests.
The contention of the defendant upon this motion is that since the trial of this case the defendant has dis
On redirect examination Mr. Warbasse, the trial assistant district attorney, asked these questions: ‘ ‘ Q. Last November, when you were sent to police headquarters, you were sent there under arrest as a witness, were you? A. I was arrested as a witness, yes. Q. And you are still held as a witness? A. Yes, as a witness. I am under $25,000 bail. Q. You testified before the grand jury, didn’t you, in this case? A. Yes.”
On re-cross examination by Mr. Reilly the following took place: “ Q. You say you are here as a witness now? A. Yes. Q. Haven’t you been indicted in New York, and haven’t you pleaded not guilty to the indictment of murder in the first degree? Mr. Warbasse: Objected to. Your Honor has already excluded it as improper. The Court: Well, I will allow him to answer. The Witness: I have not killed anybody yet. What do I know? By Mr. Reilly: Q. Have you pleaded to an indictment in New York. A. I was only before the grand jury. I was not before the court. Q. Have you been over to New York since you have been arrested? A. Yes, after they called me here, they sent me to New York.”
After the trial and conviction of the defendant, and on the 13th of December, 1918, Maneini pleaded guilty to manslaughter in the second degree, in that he, with others, conspired to kill Ferrazano, and upon the recommendation of the district attorney of Kings county he received the same terms and benefit as Daniello had received, namely, a suspended sentence and probation.
The question is thus squarely presented whether, if the jury by whom the defendant was convicted had been aware of the relation of Maneini to the conspiracy, and the fact that at the time when he testified he was an accomplice and under indictment for the commission of one of these murders, would the jury have regarded his testimony in the same light as they presumably regarded it in reaching the conclusion which they did?
It is apparent from what will now be stated that the question of the corroboration of Daniello’s testimony by that of Maneini was a factor of extreme importance in the minds of the jury. I am unable to give any stronger proof in support of this statement than is found in a perusal of the record itself. In the summation of the case by the assistant district attorney great weight was placed upon the fact that Maneini’s testimony corroborated that of Daniello, and that Daniello’s testimony corroborated that of Maneini upon the fundamental point in the case, namely, that the defendant was initiated into the band
The court charged the jury regarding Mancini as follows: “ The People claim that among other witnesses they have corroborated what Daniello said, and have shown the defendant’s connection with this crime by the witness Mancini. Mancini, you may remember, was the man who testified that he was a partner of Daniello some years ago in the restaurant business, and claims that he was present at one or two of the conferences at Coney Island and elsewhere, and also in the restaurant on Myrtle avenue on the day of the alleged murder. Mancini claims that he was in those places; that he heard some of the talk as to the planning of this shooting in Navy street; and that he went over to New York with Daniello at the time of the killing of Ferrazano, who is said to have been the third member of the Morello gang to be killed pursuant to this conspiracy. Although there is no claim that Mancini had a hand in the actual killing of Ferrazano, he appears to have been outside of or near the restaurant with Daniello at the time that the two other men went into the restaurant and did the actual killing. The claim of the defense is that Mancini was also an accomplice; that he was a party to the same undertaking, and was just as guilty as Daniello. An accomplice, very briefly, is anyone who has a hand in the commission of a crime, where the proof shows that he himself could be indicted for the crime. In other words, the proof has to show, before a jury can find that a witness is an accomplice, that the alleged accomplice could himself have been legally and properly charged with the commission of the offense in question. I have said, as to Daniello, that there is no question about his being an accomplice, if you believe what he says, because he says he is, and that settles that point. But
The jury retired at 6:31 o ’clock p. m. They returned into court at 2:23 o’clock on the following morning, and the following took place: “ The Court: Mr. Foreman, you say you want a part of the charge read? The Foreman of the Jury: The part of the charge in which you state the law about John Mancini in this case. The Court: All right, the stenographer will read that to you. [The stenographer read as follows] : ‘ They have corroborated what Daniello said and have shown the defendant’s connection with this crime by the witness Mancini. Mancini, you may remember, was the man who testified that he was a partner of Daniello some years ago in the restaurant business, and claims that he was present at one or two of the conferences at Coney Island and elsewhere, and also in the restaurant on Myrtle avenue on the day of the alleged murder. Mancini claims that he was in those places, that he heard some of the talk as to the planning of this shooting in Navy street, and that he
In view of this recital of the proceedings upon the trial, and in view of the facts which have developed with regard to Mancini’s indictment and subsequent conviction, is it possible to resist the conclusion that if the facts regarding his indictment for complicity in the crimes which were the outcome of the conspiracy had been known to the jury the result of their long deliberations would have been different? Whether knowledge of the fact of Mancini’s indictment for murder was deliberately kept from the trial court and the jury by the assistant district attorney who tried the case, as is claimed by the defendant, or whether it was then unknown to the prosecuting officer, is immaterial. I do not decide that question. It is sufficient that the jury did not know the fact. Clearly the trial justice himself was not aware of it. If he had been he most certainly would not have charged the jury as he did regarding Mancini. Moreover, there is nothing in the elaborate briefs which were submitted to the Court of Appeals which disclosed the fact to that court. As a matter of fact, the fourth point in the brief of the learned district attorney before that court (p. 121) states as a proposition: ' ‘ It was not error for the court not to charge as a
In reviewing the second trial the Court of Appeals said: “ The jury were properly warned that in weighing the words of Bose, Yallon and Webber, the fact that these witnesses had been granted immunity provided they did not actually fire the fatal shots, should be taken into account, and the further fact that they had an interest to shield themselves in the testimony they should give.” 215 N. Y. 126, 140. In the
The assistant district attorney who opposed the present application contends that even without regard to the testimony of Mancini there was sufficient cor-' roboration of the story told by Daniello to support the conviction of the defendant, but he does not specify how otherwise it was corroborated. I regret that I cannot concur in the contention. Such corroboration as there was came from the mouths of other members of the conspiracy who were equally steeped in the crimes committed. If, then, we regard Mancini as an accomplice in the crime, his testimony is valueless as corroboration of the testimony given by Daniello, also an accomplice. I am accordingly forced to the conclusion that the jury would in all probability not have found a verdict of guilty against the defendant if the real facts which are now known concerning Mancini’s indictment as a principal in one of the murders had been known to the trial court and explained, in its legal effect, to the jury. Indeed, I am not at all sure that if the facts concerning his indictment and the suspension of his sentence had been disclosed to the Court of Appeals a different result would not have been reached in that court.
There remain for consideration certain matters involved in the decision of this application which are discussed in the brief submitted in opposition by the district atttorney. He cites the ease of People v. Priori, 164 N. Y. 459, in which the Court of Appeals declares the rule applicable to such a motion as this as follows: “ Newly discovered evidence in order to
As to the first of these conditions I assume that the language employed by the court is equivalent to the language used in section 465 of the Code of Criminal Procedure, viz.: “ 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.” This phase of the case has already been considered and requires no further comment. As to the second and third conditions, the moving affidavit of defendant’s counsel states: “At the close of the trial of this defendant, the court not being aware that Maneini had been indicted in this conspiracy and the counsel for the defendant and defendant not having been able to obtain such information, the following discussion took place between the trial court, the trial district attorney and the counsel for the defendant.” And in his memorandum, submitted to the court, he says that he had stated under oath that he did not know the fact that Maneini had been indicted in this conspiracy. The district attorney does not meet these statements with anything more substantial than surmises that defendant and his counsel must have known of Maneini’-s indictment for the murder of Ferrazano.
The question of Maneini’s participation in the conspiracy as a principal as affecting the right of the prosecution to use him as a material and disinterested
As to the fourth, fifth and sixth conditions above stated: The evidence in question is certainly material (see 5 Chamberlayne Ev. § 3754), and it was not cumulative in its nature, nor does it merely impeach or contradict the former evidence.
To my mind the fact that no affidavit by the learned district attorney or his trial assistant is submitted in contradiction of the statement that the fact of Mancini’s indictment was know to the district attorneys of Kings and New York counties at the time of defendant’s trial is significant. Their silence upon this point seems quite remarkable in view of the serious charge made in the moving affidavit. In my opinion the answering affidavits are singularly unsatisfactory and incomplete, and were it not for that fact, I should have less difficulty in reaching a conclusion more satisfactory to my own mind and conscience and one which would not involve the expense and labor of a new trial of this defendant.
In the light of all that has been stated in this memorandum, which I fear only inadequately covers the matters involved in this application, I have concluded, in the exercise of the judicial discretion which the law reposes in the court, to grant a new trial to this defendant.
Motion granted.