People v. Presley
| Decision Date | 03 December 1964 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Charles E. PRESLEY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Asher S. Cohen, Syracuse, for appellant.
Francis R. Moran, Syracuse, for respondent; Lucien Ali, Syracuse, of counsel.
Before WILLIAMS, P. J., and GOLDMAN, HENRY, NOONAN and DEL VECCHIO, JJ.
The question as to the defendant's guilt or innocence was clearly one of fact for the jury and the verdict finding him guilty should be upheld unless errors of a substantial and prejudicial character were committed during the trial. We have reviewed the record and in our judgment the defendant received a fair trial and his guilt of the crimes of robbery, first degree, and grand larceny, second degree, as charged in the indictment was established beyond a reasonable doubt without substantial error.
The dissenting justices vote for reversal on the ground that defendant did not have a fair trial and advance three grounds. In light of the reasons stated, we desire to point out the following: (1) The District Attorney, as a means of securing an impartial jury, was entitled to twenty peremptory challenges for which no reason need be given. (Code Crim.Proc. §§ 372, 373.) The defendant was a Negro and, although the reason for asking whether any juror had been 'active either directly or indirectly with the so-called Congress on Racial Equality, which is also known as CORE' does not appear in the record, we may not speculate as to what was in the District Attorney's file or what was in his mind. He was fully justified in asking the question to ascertain whether there were prejudices or opinions that would influence judgment. Furthermore, based upon instinct and experience he may have concluded not to accept as a juror one who was connected with CORE activities even though he could not be excused for cause.
There is authority that bias on account of race is a basis for disqualification of a juror (People v. Leonti, 262 N.Y. 256, 186 N.E. 693) and that questions may be propounded on voir dire for the purpose of determining whether to exercise a peremptory challenge. (Dresch v. Elliott, 137 App.Div. 252, 122 N.Y.S. 14.) The privilege extends to questions concerning membership in organizations involved with race relations. (Smith v. United States, 4 Cir., 262 F.2d 50.) (People v. Buyle, 22 Cal.App.2d 143, 145-146, 70 P.2d 955, 957.) Moreover, in view of the court's suggestion that the District Attorney proceed along another line, the subject of CORE activity was not pursued beyond the single question addressed to the panel.
Our decision in People v. Burney, 20 A.D.2d 617, 224 N.Y.S.2d 1012, relied upon in the dissent, has no application. In that case there was a deliberate, unnecessary and unwarranted injection of the racial issue. Here the reference to CORE was to obtain information as to the suitability and acceptability of jurors. There is no reason to impute an improper, unfair or unethical motive to the district Attorney where one does not appear in the record.
(2) In our opinion it was not improper to bring out on direct examination matters concerning the execution of waivers of immunity which the prosecutor felt should be called to the jury's attention in evaluating the testimony of accomplices he was to call as witnesses. In any event, there was no objection to the procedure followed by the District Attorney. When the prosecutor announced that he was going to bring the accomplices in the courtroom and put them on the stand 'on the proposition of immunity' and asked whether there was any objection, defendant's counsel responded, 'No'.
(3) The most important question for consideration is whether the period of deliberation had any effect upon the verdict. The trial had lasted seven days; the case was submitted to the jury at 5:20 p. m. and the verdict was returned at 3:47 a. m. However, of the intervening time, nearly four hours were consumed by dinner and the reading of certain testimony, leaving a little over six hours for deliberation. At 12:35 a. m. the jury addressed a note to the Court: (Emphasis supplied.) The Court returned the jury to the courtroom, advised them that after a six or seven day trial it 'is always difficult at this point to feel that we are up against an impasse as you have indicated', and inquired whether there was anything further the Court could do that would be of assistance to the jury. The foreman then said, 'Would you explain to us at what point we would be at an impasse, what is the law at this point?' The Court stated that if it were satisfied that it was impossible for the jury to reach a verdict then it could grant a mistrial, but that because of the length of the trial 'we of course would like to have you arrive at a verdict if you think a little more time at deliberating would bring about a verdict, or if there is anything the Court could explain to you in connection with this case, that's what we want to do.' The foreman immediately said, 'Could you again, I'm told by one of the jurors, they've requested that you explain to us about reasonable doubt.' Shortly thereafter, the jury requested the re-reading of some important testimony. At 1:30 a. m. the jury was again returned to the courtroom and fifty minutes were consumed in the re-reading of the testimony requested, then the jury retired for further deliberation, free to convict, acquit or disagree. At 3:47 a. m. they agreed upon a verdict of guilty as charged in the indictment.
It is well established that the determination of how long a disagreeing jury will...
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