People v. Ballott

• Decision Date: 30 November 1967
• Citation: 286 N.Y.S.2d 1,233 N.E.2d 103,20 N.Y.2d 600
• Parties: , 233 N.E.2d 103 The PEOPLE of the State of New York, Respondent, v. Shelby BALLOTT, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 1

286 N.Y.S.2d 1

20 N.Y.2d 600, 233 N.E.2d 103

The PEOPLE of the State of New York, Respondent, v.Shelby BALLOTT, Appellant.

Court of Appeals of New York.

Nov. 30, 1967.

Thomas A. Wooters and Anthony F. Marra, New York City, for appellant.

Thomas J. Mackell, Dist. Atty. (Jerrold I. Ehrlich, New York City, of counsel), for respondent.

FULD, Chief Judge.

Following his second trial--the first ended in a disagreement--the defendant was convicted of robbery, as well as of related crimes of grand larceny and assault, and sentenced to imprisonment for a term of from 15 to 30 years.He seeks a reversal on two grounds, first, that he was improperly denied a copy of the minutes of the prior trial and, second that the pretrial identification procedure adopted by the police violated his constitutional rights.

Miriam Seidman and Rose Scipone worked for the M. N. Axim Lumber Company in Queens County.It was the task of those employees, each Friday, to drive to the bank and pick up the company payroll of about $5,000 and then return to the company's offices with the money in an envelope.On the Friday in question, January 18, 1963, as they were about to alight from their car, a Negro wearing a hat and a heavy overcoat, with turned up collar, appeared at the window and demanded the envelope, threatening to shoot if it was not turned over to him.Frightened, Mrs. Seidman handed him the envelope and Mrs. Scipone gave him her purse containing $27.The robber then fled.

The defendant was arrested a year later, having been implicated in the robbery by a man named Doyle.The latter, questioned a short time after the robbery, declared that, having learned of the payroll procedure from one of the lumber company's employees, he and the defendant Ballott had planned the commission of the crime.Doyle pleaded guilty to conspiracy to commit larceny, a misdemeanor, and subsequently testified against the defendant.

Mrs. Scipone testified upon the trial that she had not seen the face of the robber and only Mrs. Seidman identified the defendant as the man who had held them up.It was disclosed, during the course of her testimony, that in January, 1964, a year after the robbery, the police had exhibit to her the defendant, alone in a room in the station house, and that she had then stated that he was the person who committed the robbery.It also appeared that she had identified the defendant only after he had, at her request, donned a hat and a heavy coat--similar to those worn by the robber--and uttered the words-- somewhat like those spoken--'give me the money, give me the envelope'.Mrs. Seidman acknowledged that she made her identification only after she had heard the defendant speak.

An indictment, returned against the defendant in February, 1964, was dismissed upon the ground that the identification testimony before the Grand Jury was 'ambiguous'.Another indictment was returned against him some time later and this is the one upon which he has been tried and convicted.The appeal is before us following an affirmance by a closely divided Appellate Division.

As noted above, the defendant was tried twice.The first trial, in September of 1964, resulted in a jury disagreement and the declaration of a mistrial.After the court set the case down for a new trial, it appeared on the calendar on several days in October and November.On December 7, when it was again called, the defendant requested a postponement in order to obtain the minutes of the earlier trial.The request was granted and the case was put over until February 1, 1965.On that day, the defendant sought a further adjournment of 'a week' which, he said, it would take him to raise the money to purchase the minutes.He explained that their cost was $300, that he had about $250 and that he needed the extra week to obtain the balance.The court denied the application, observing that he had had 'sufficient time' to procure them.The case then proceeded to trial.

The defendant asserts that the court's ruling denied him equal protection of the laws; that he was, in effect, deprived, by reason of his indigency, of his right to confront the witnesses against him with their prior testimony and to prepare an adequate defense.

In a case such as the present--where the first indictment had been dismissed because of insufficient evidence of identity and the first trial had resulted in a mistrial because the jury had been unable to agree on a verdict--the defendant's need for the minutes of the earlier trial is particularly obvious.Under the circumstances, the defense was 'entitled' to procure the testimony previously given by the witnesses who were again to testify against him in order to enable him to conduct an effective cross-examination.(See, e.g., People v. Rosario, 9 N.Y.2d 286, 289, 213 N.Y.S.2d 448, 450, 173 N.E.2d 881, 882, 7 A.L.R.3d 174;People v. Malinsky, 15 N.Y.2d 86, 90, 262 N.Y.S.2d 65, 69, 209 N.E.2d 694, 697.)Without such testimony a defendant is deprived of a substantial right.And, where he is an indigent, the State must make that testimony available to him.(SeePeople v. Montgomery, 18 N.Y.2d 993, 278 N.Y.S.2d 226, 224 N.E.2d 730;People v. Jaglom, 17 N.Y.2d 162, 165, 269 N.Y.S.2d 405, 407, 216 N.E.2d 576, 578;Williams v. United States, 358 F.2d 325(9th Cir.);Peterson v. United States, 351 F.2d 606(9th Cir.);People v. Miller, 35 Ill.2d 615, 221 N.E.2d 653.)Although the defendant did not at the trial expressly claim indigency and demand that the prosecution provide him with the minutes, it was evident that he was then financially unable to obtain them.Since this inability resulted in a deprivation of a substantial right, he was denied equal protection of the laws.(SeeGriffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.)

However, even if it were to be said that the absence of a specific claim of indigency prevents the defendant from now urging a denial of that constitutional right, there must be a reversal since the trial court's refusal to grant an adjournment constituted an abuse of discretion as a matter of law.The defendant desired a delay of but a week, solely for the purpose of raising the $50 needed to purchase the minutes of the first trial.He had a fundamental right to the testimony of the witnesses who were to testify against him and, surely, one who is attempting to pay for such testimony should be given every reasonable opportunity to do so.Under the circumstances, the court either should have adjourned the case or should have directed that the minutes be transcribed at public expense and furnished to the defendant.Its failure to do one or the other effectively prevented the defendant from exercising his right and was, therefore, an abuse of discretion.(Cf., e.g., People v. Snyder, 297 N.Y. 81, 90, 74 N.E.2d 657, 660;People v. McLaughlin, 291 N.Y. 480, 53 N.E.2d 356.)

The defendant also urges that the police station identification procedure was violative of constitutional guarantees and that it rendered Mrs. Seidman's in-court identification inadmissible.

Contrary to one of the defendant's arguments on this phase of the case, neither the identification procedure employed by the police nor anything which the defendant was called upon to do at the police station--in order to approximate the appearance and conduct of the robber--violated his privilege against self incrimination.(SeeUnited States v. Wade, 388 U.S. 218, 221--223, 87 S.Ct. 1926, 18 L.Ed.2d 1149;Schmerber v. State of California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908)¹ nor was his right to counsel denied in view of the Supreme Court's determination that the rule announced in the Wade case(388 U.S. 218, 87 S.Ct. 1926, supra) and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct.1951, 18 L.Ed.2d 1178, should not be applied, retroactively.(SeeStovall v Denno, 388 U.S. 293, 296, 301, 87 S.Ct. 1967, 18 L.Ed.2d 1199.)Nor do our decisions in People v. Waterman, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445;People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825, and similar cases assist the defendant.They, too, are predicated on the privilege against self incrimination (seePeople v. Waterman, 9 N.Y.2d, at p. 566, 216 N.Y.S.2d, at p. 75, 175 N.E.2d, at p. 448, and, as the Supreme Court recently observed in Wade (388 U.S. at p. 221, 87 S.Ct. at p. 1929), that privilege "protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature * * *.'Schmerber v. State of California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908.'

However, a...