People v. Brancazio

• Citation: 22 Misc.2d 302,196 N.Y.S.2d 167
• Parties: PEOPLE of the State of New York v. Anthony BRANCAZIO, Defendant.
• Decision Date: 08 February 1960
• Court: New York Court of General Sessions

Page 167

196 N.Y.S.2d 167

22 Misc.2d 302

PEOPLE of the State of New York v. Anthony BRANCAZIO, Defendant.

Court of General Sessions, New York County.

Feb. 8, 1960.

Frank S. Hogan, Dist. Atty., New York City (by Charles J. McDonough, New York City, of counsel), for the People.

Anthony Brancazio, in pro. per.

THOMAS DICKENS, Judge.

Defendant moves to abrogate the judgment of conviction. It brought him a sentence of three to five years in State prison for having had in his possession heroin, feloniously.

Originally, defendant had pleaded 'not guilty' to the two counts of the indictment. At a later day he compromised by pleading guilty to the first count, which is the count that charges him with the felonious possession of heroin. The second count was absorbed in the compromise.

Defendant propounds several reasons for taking the present step. They are:

First. A violation of due process by permitting him to plead to a count which in fact was not alleged in the indictment.

Second. This violation was caused by the district attorney at the plea of guilty when he proceeded thereupon to offer in evidence a glassine envelope as an exhibit (symbolically marked 'Court's Exhibit 1'), and, in so doing, stated to the Court that it contained 'seven ounces plus forty-eight grain' of heroin, which was a 'distortion' of a smaller amount, that is, 'one' ounce, the amount actually acknowledged by defendant to have been in his possession. (Petition, page II.)

Third. The 'distortion' served to influence the Sentencing Judge to impose a sentence harsher than that which would have been ordinarily imposed. Fourth. It also influenced the Parole Board to defer passing upon his accrued privilege of parole.

The statement of offer that brought about this situation is as follows: 'Before the pedigree is taken the People wish to offer in evidence as a Court's exhibit the police laboratory record which shows that this defendant had in his possession a glassine envelope containing seven ounces plus forty-eight grain of heroin, present in a concentration of sixty-three percent.' (Italics supplied.)

The argument defendant presents in his petition is that, inasmuch as the quantity of 'seven' ounces plus 'forty-eight' grain amounts to more than the acknowledged quantity of 'one' ounce, the glassine envelope to which the district attorney had referred in his statement of offer as containing the larger amount, 'is foreign evidence, * * * and, it does not constitute the crime to which petitioner plead guilty, nor is it within the ambit of facts alleged within the indictment.' (Petition, page II.) This manifestly is what defendant means when he says that his constitutional right to due process was violated.

Around the axis composed of the integrated cardinal numerals of 'seven' plus 'forty-eight,' revolves the alleged accusation of fraud and deception practised by the district attorney upon the court.

Bearing in mind that fraud is a serious charge and that the evidence necessary to establish it must be clear and convincing (Fein v. Starrett Television Corp., 280 App.Div. 670, 116 N.Y.S.2d 571, affirmed 305 N.Y. 856, 114 N.E.2d 210), and bearing in mind the failure of defendant to submit any probative proof to substantiate the alleged accusation of fraud and deception other than his dependence for legal sustenance upon the district attorney's declaration of a wrong numeral, and bearing in mind the presumption that a prosecution officer will act honestly and with the view of enforcing properly the criminal law, and bearing in mind the assumption that he, in this instance the District Attorney of this County, as a quasi-judicial officer representing the People, will present all the evidence in a case in his possession (People v. Rodriguez, 13 Misc.2d 1004, 178 N.Y.S.2d 993),--on the basis of all these factors, I am decidedly unable to find any factual substance in support of this charge. On the other hand, it is quite obvious that if anything can be said to be chargeable to the district attorney, it could be nothing else, at its worst, than a miscalculated quotation; but one, however, unintentionally made.

Moreover, the length of the sentence which defendant had received, tends to strike a discouraging blow at his effort to construe the district attorney's misstated quantity to be one steeped in fraud and deception.

The Penal Law, section 1751, subdivision 3, in its dealing with the crime of illegal possession of heroin, provides, as punishment, an absolute minimum sentence of three years and a flexible maximum sentence stretching to the extreme of ten years, to be applied within this range, as a judge may see fit, according to the circumstances of the particular case. Yet, defendant received as his maximum sentence only five years. This maximum term of confinement, being only one-half of the statutory extremity of time, leads me to the strong belief that the Sentencing Judge took no cognizance of the numerical quantity mentioned by the district attorney, but guided himself entirely by the actual contents of the glassine envelope, 'Court's Exhibit 1.' It is reasonable to presume, therefrom, that the Judge in performing his judicial duty did so in accordance with the actual facts contained in the report, and in accordance with any other appropriate date before him at the time of the imposition of sentence. Cf. People v. Canfora, 9 Misc.2d 930, 931 middle, 168 N.Y.S.2d 729, 730 middle, affirmed 6 A.D.2d 781, 175 N.Y.S.2d 556, certiorari denied 359 U.S. 918, 79 S.Ct. 596, 3 L.Ed.2d 580.

Besides, within the maxim that 'That which is proved by the record ought not to be denied' (People v. Canfora, supra, 9 Misc.2d at page 932 top, 168 N.Y.S.2d at page 731 top), it would be foolhardy to accept as a legal proposition that an official document may, at random or otherwise, be arbitrarily changed or altered or amended by the mere utterance of a misstatement, or by any other peremptory means, at the whim or fancy of any one (the Judiciary not considered here), including a district attorney or any other public official. See interesting discussions on the subject of mistakes by public officials involving public documents in Application of Keough, 179 Misc. 1, 37 N.Y.S.2d 163 and in Petition of White, Sup., 124 N.Y.S.2d 748.

To make matters more onerous for defendant, the minutes of the plea of guilty record that when the offer of 'Court's Exhibit 1' was made, defendant's attorney informed the Judge that he had no objection to its admission. By assuming such position, the attorney indicated either a waiver (People ex rel. Sollazzo v. Jackson, 205 Misc. 691, 132 N.Y.S.2d 505), or a consent. It is axiomatic that 'Consent takes away error,' in the absence of any state of facts denoting illegality or nullity. Wharton's Maxims, page 55. Of course, as I had pointed out before, I find nothing in the district attorney's conduct to warrant a finding of either illegality or nullity.

It should not be overlooked as another point militating against defendant's position, that, by his plea of guilty, the allegations of the indictment were admitted, and, in consequence, defendant stood before the Court as convicted as if a jury had found him guilty of the crime. People ex rel. Carr v. Martin, 286 N.Y. 27, 35 N.E.2d 636; People v. Quinn, 8 Misc.2d 546, 161 N.Y.S.2d 977, affirmed 5 A.D.2d 824, 825, 171 N.Y.S.2d 792; People on Complaint of Waldron v. Aster, 281 App.Div. 963, 120 N.Y.S.2d 545. Besides, the plea was made in open court by counsel without protest by defendant, at any time. People v. Freccia, 284 App.Div. 1020, 134 N.Y.S.2d 792, certiorari denied 349 U.S. 964, 75 S.Ct. 897, 99 L.Ed. 1286.

Notwithstanding these preliminary impediments lying in the pathway of defendant's move, I have resolved to side-step them for the moment and to undertake a disposition of this application, fully, by entering into an examination of its merits, whatever they may be, if any, as a gesture of judicial assurance to defendant that I have left no stone unturned in the process of arriving at a careful determination of his rights.

At this time, this query looms: Unintentional as it was, did the error, or mistake, supposing that it was such, still retain sufficient efficacy as a prejudicial act, to produce any damaging effect with regard to defendant's right to due process, on the assumption, with such aim in mind, that the error could be made a subject of consideration in coram nobis? For answer, I shall proceed to analyze the language of both the allegations of the heroin count in the indictment and the language pertaining thereto in the statute.

The full substance of the count to which defendant had pleaded guilty, charges him with having had in his possession and under his control 'one-eighth of an ounce avoirdupois weight and more of a preparation, compound, mixture and substance containing one per centum and more of the alkaloid heroin.' The statute (Penal Law, section 1751, subdivision 3) contains like phraseology with the exception that in the statute the disjunctive, 'or' is used as the connecting link before the repeated word 'more' instead of the conjunctive 'and,' which, as heretofore observed, is employed as the connecting link in the count of the indictment. But, the variance existing between these connecting links, is not to be considered fatal (Cf. People v. Kane, 43 App.Div. 473, note 61 N.Y.S. 632, affirmed 43 App.Div. 472, 61 N.Y.S. 195, affirmed 161 N.Y. 380, 55 N.E. 946) in the light of the general rule of liberal construction of indictments (People v. Cadle, 7 A.D.2d 65, 180 N.Y.S.2d 576), for 'The words 'and' and 'or' when used in a statute, are convertible as the sense may require.' People ex rel. Cohen v. Butler, 125 App.Div. 384, 109 N.Y.S. 900, 903; see also, People v. Frudenberg, 209 N.Y. 218, 103 N.E. 166; McKinney's...