People v. Phillips

• Decision Date: 20 January 1975
• Citation: 87 Misc.2d 613,384 N.Y.S.2d 906
• Parties: The PEOPLE of the State of New York v. William R. PHILLIPS, Defendant.
• Court: New York Supreme Court

Page 906

384 N.Y.S.2d 906

87 Misc.2d 613

The PEOPLE of the State of New York v. William R. PHILLIPS, Defendant.

Supreme Court, Trial Term, New York County, Part 32.

Jan. 20, 1975.

Henry B. Rothblatt, New York City for defendant.

Robert M. Morgenthau, Dist. Atty. (Jack Litman, New York City, Philip La Penta, Wantagh and William Edward Stanton, New York City, of counsel), for plaintiff.

HAROLD BIRNS, Justice:

INTRODUCTION

Following ten days of meticulous examination beginning on September 17, 1974, twelve jurors and four alternate jurors were selected for the trial of William Phillips, charged in an indictment with two counts of murder and one count of attempted murder. Forty-four witnesses, including the defendant, testified at the trial. On November 21, after seven weeks of testimony, the jury returned its verdict that the defendant was guilty as charged. The evidence to support the jury's finding of guilt was overwhelming. Sentence was set for December 19.

Defendant now moves to set the verdict aside under the provisions of Criminal Procedure Law, section 330.30, subdivision 2, asserting that during the trial there occurred such juror misconduct and prosecutorial misconduct as to warrant the relief sought. Thus, this court is not now confronted with a challenge to the sufficiency of the evidence against the defendant. It is concerned, however, with a tangential attack designed to upset the jury's verdict.

For the reasons stated below, the motion, in all respects, is denied. The alleged misconduct does not meet the requirements of the Criminal Procedure Law.

Prior to the court's charge on November 20 and following summations the previous day, upon information first disclosed by the prosecutors on November 18, a hearing was held, in camera, concerning Juror No. 6, Mr. Lawrence Bethel. On October 4, the trial prosecutors, Messrs. Jack Litman and Philip La Penta, had obtained unverified information that Mr. Bethel had been arrested on a narcotics charge, a misdemeanor. It was not immediately known, but subsequent inquiry established, that he had been arrested on February 1, 1974, arraigned in the Criminal Court on February 2, and that he had then undertaken to cooperate with the Office of the Special Narcotics Prosecutor in seeking the conviction of the alleged seller of the said narcotics. The charge against Mr. Bethel had been ACD'd, i.e., adjourned in contemplation of dismissal because of his promise of cooperation (see CPL, § 170.55).

Mr. Litman explained that the information concerning Mr. Bethel had not been disclosed earlier because the information had not only to be verified but it was also necessary to obtain the stenographic record of Mr. Bethel's interrogation on the voir dire prior to the trial to determine whether the questions put to him then in any way related to this newly acquired information, and that there was considerable delay in obtaining such stenographic minutes.

At the hearing, Mr. Allen Alpert, an assistant to the Special Narcotics Prosecutor, testified that he was an observer at the Phillips' trial on October 4, and that he believed he recognized Juror Bethel as a person in whom his office had an interest. Shortly thereafter, he gave the information concerning Mr. Bethel to Mr. Litman.

Mr. Bethel, summoned from the juryroom (and thereafter not permitted to return), testified that he had not disclosed his arrest upon voir dire because he believed the charges against him were no longer pending and were of no consequence. In fact, it appeared that no question put to Mr. Bethel at that time required him to provide any information concerning his arrest or its surrounding circumstances (People v. Rosen, 251 App.Div. 584, 297 N.Y.S. 877). Mr. Bethel also testified that at no time did he disclose to any of his fellow jurors the fact of his arrest or his promise to cooperate with the authorities.

A defense motion for a mistrial was denied, and thereupon Mr. Litman, the defense counsel Mr. Rothblatt, and the defendant in person expressly consented to the discharge of Mr. Bethel, although defense counsel reserved the right to make further inquiry into the matter, stating he intended to call the police officer, Douglas Brussel, who had arrested Mr. Bethel, to explore the promise of cooperation by Mr. Bethel and whether such cooperation in any way 'tainted' the jury. Mr. Bethel's place in the jury box was taken by Mr. Robert F. Thompson, the alternate, whose name 'was first drawn and called' (CPL, § 270.35, subd. 1).

Following the declaration of the jury's verdict, defense counsel specifically requested a further hearing concerning Mr. Bethel. December 9 was set for that purpose. Police Officer Brussel and Mr. Bethel were to appear on that date. In fact, Mr. Brussel on that occasion testified that he learned in June or July from Assistant District Attorney Alpert that Mr. Bethel would cooperate against the alleged seller, but he never saw Mr. Bethel after the arraignment in Criminal Court or spoke to him since that time.

This court is satisfied beyond a reasonable doubt (Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, discussed At the commencement of the proceedings on December 9, District Attorney Richard Kuh, again in camera, in the presence of defendant and defense counsel and others, made the following statement: On December 4, he had learned for the first time that during the trial of Mr. Phillips a letter had been received by his office on October 23 from one John Dana Smith seeking employment as an investigator. It developed that Mr. Smith was Juror No. 3 at the Phillips' trial. The letter, addressed to District Attorney Kuh's office, read as follows:

infra at page 918) that at no time did Mr. Bethel disclose to any of his fellow jurors the fact of his arrest or of his promise of cooperation. To no degree was the jury 'tainted' by Mr. Bethel. There was no misconduct by Mr. Bethel. The substitution of the alternate for Mr. Bethel, consented to by the defendant, prevented any prospective prejudice to the defendant. The belated disclosure concerning Mr. Bethel can be attributed in part to the delay in obtaining his voir dire minutes and perhaps to trial pressures on the prosecutors. However that may be, the delay itself in supplying this information, although protracted in no manner constituted prosecutorial misconduct, as will be seen, under the provisions of the Criminal Procedure Law (§ 330.30, subd. 2).

'I understand that a federally funded investigative unit is being formed in your office to investigate major felonies. I wish to apply for a position as an investigator.'

Attached to the letter was a re sume containing biographical information concerning Mr. Smith. District Attorney Kuh proceeded to outline the history of the letter from the time of its recipt until its disclosure in court.

Defense counsel requested and was granted an immediate hearing concerning the letter and the failure of the trial prosecutors to disclose its existence during the trial. A hearing was held in open court (CPL, § 330.40, subd. 2(f)). Decision was reserved. It is noted that the law places upon the defenda 'the burden of proving by a preponderance of the evidence every fact essential to support the motion' (CPL, § 330.40, subd. 2(g)).

FACTS

The testimony elicited at the hearing revealed the following unprecedented chain of events:

After being selected and sworn as a juror on September 23, Mr. Smith lunched with Criminal Court Officer Rudolph Fontaine, who had attended the John Jay College of Criminal Justice with Mr. Smith's wife. They discussed jobs in law enforcement. Mr. Fontaine told Mr. Smith of opportunities for persons with investigative backgrounds in the District Attorney's Office. Mr. Smith evinced interest.

Mr. Fontaine then inquired of Investigator Mulderig of the District Attorney' Office, whom he knew, as to the procedure for filing applications for investigators' positions for himself and a friend. Mr. Johanssen, Mr. Mulderig's superior, verified the procedure. At no time did Mr. Fontaine mention Mr. Smith or his status as a juror. However, he did relate the information obtained to Mr. Smith. Mr. Smith's letter was mailed on October 22 and Mr. Fontaine submitted his own letter of application.

Mr. Smith's letter found its way to the desk of Assistant District Attorney Conboy, an administrative assistant, who, upon returning from vacation, referred it on or about November 9 to Miss Joan Sudolnik, an assistant in charge of the Major Felony Program in the District Attorney's Office. She was seeking to employ investigators. In routine fashion she turned the letter over to her subordinate Mr. Lang, who noted on a memo that an appointment should be made with the applicant Mr. Smith. Up to that point no one in the District Attorney's Office knew or had reason to know that the applicant was a juror in a pending criminal trial. Supreme Court Officer Mario Piazza saw Mr. Smith and Mr. Fontaine at a luncheonette during the trial and voluntarily undertook to learn the name of the person in charge of hiring investigators and was told by Mr. Lang on a subsequent date Upon ascertaining that indeed there was an application from Mr. Smith and that Mr. Smith was a juror in the Phillips case, Miss Sudolnik immediately attempted to communicate with Mr. Litman, but could not reach him until the following day, November 14. Incredulously, Mr. Litman heard the information about Mr. Smith and also was told that no action was taken upon the application. Mr. La Penta was present. Mr. Litman directed Miss Sudolnik to make no response at all to Mr. Smith's application, with which direction she complied. On Friday night, November 15, Mr. Holmes met Mr. La Penta in a restaurant and began to tell him of the Smith letter of application. Mr. La Penta did not want to hear any mention of it at that time and place.

that it was Miss Sudolnik. Mr. Fontaine sought to learn from ...