People v. Brown

• Decision Date: 07 March 1988
• Parties: The PEOPLE, etc., Respondent, v. Samuel BROWN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 618

525 N.Y.S.2d 618

136 A.D.2d 1

The PEOPLE, etc., Respondent, v. Samuel BROWN, Appellant.

Supreme Court, Appellate Division,

Second Department.

March 7, 1988.

Robert N. Isseks, P.C., Middletown (Alex Smith, of counsel), for appellant.

Kenneth Gribetz, Dist. Atty., New City (John S. Edwards, Sondra Holt and Janice Gittelman, of counsel), for respondent.

Before BRACKEN, J.P., and WEINSTEIN, KOOPER and SULLIVAN, JJ.

PER CURIAM:

On October 20, 1981, a Brink's armored truck was robbed outside Nanuet National Bank at the Nanuet Mall in Rockland County. During the course of the robbery Joseph Trombino and Peter Paige, two of the Brink's guards, were shot, Paige fatally. The perpetrators fled in a red van and a light-colored Honda. The van was abandoned in a nearby parking lot, and its occupants left the lot in a U-Haul truck, heading toward Nyack. When the U-Haul attempted to enter the New York State Thruway it was stopped by several Nyack police officers. While the officers were speaking with one of the U-Haul's passengers, Katherine Boudin, the back of the truck opened and as many as six armed men ran out and opened fire on the officers. Several witnesses identified the defendant as one of those men. When the shooting was over, two of the officers, Sergeant Edward O'Grady and Police Officer Waverly Brown, were dead. All of the perpetrators, with the exception of Boudin, managed to flee the scene, but after a high-speed chase, the Honda crashed and its occupants, Judith Clark, David Gilbert and the defendant, were arrested. Several of the perpetrators were subsequently identified as then current or former members of the "Weather Underground", a revolutionary group said to have engaged in violence in order to achieve political reform. It was alleged that this robbery was committed to finance the group's cause. By Rockland County Indictment No. 285/81 filed November 19, 1981, the defendant, Boudin, Clark and Gilbert were charged, under the theory of acting in concert, with, inter alia, three counts of felony murder and six counts of robbery in the first degree.

Initially there was some indecision over who would represent the defendant. During the months following his indictment the defendant was approached by several attorneys who were said to be sympathetic to the "Weather Underground" movement. In March 1982 Evelyn Williams, who the defendant alleges was also at one time associated with that movement, was substituted as counsel for the defendant. However, in December 1982 after a Wade hearing was conducted, Ms. Williams moved for permission to be relieved. According to Ms. Williams, she had just learned that the defendant had voluntarily provided information to Federal law enforcement officials without her knowledge, and as a consequence she did not believe she could continue to represent him. Though her motion was initially denied, in June 1983 Ms. Williams was relieved, and Robert N. Isseks was ultimately appointed to represent the defendant.

Throughout the proceedings the defendants expressed concern over their ability to receive a fair trial in light, inter alia, of their reputations and the publicity surrounding these crimes. In 1982 the defendant and Boudin moved in this court to change venue from Rockland County. It was alleged that the prejudicial character and intensity of the local publicity, along with the emotionally charged atmosphere the crimes created in this small community, made it impossible for the defendants to receive a fair trial in Rockland County. This court denied that motion as premature, noting that it was "not convinced that the publicity surrounding this case is of so localized and incessant a nature, or that the atmosphere in Rockland County has become so emotionally charged, as to preclude the selection of a fair and impartial jury" ( People v. Boudin, 87 A.D.2d 133, 135, 451 N.Y.S.2d 153). Several months later, and prior to the commencement of jury selection in Rockland County, the defendants renewed their motion for a change of venue, based upon additional facts presented in support of the renewed motion. This court granted the renewed motion and venue was changed to Orange County ( People v. Boudin, 90 A.D.2d 253, 457 N.Y.S.2d 302). On the eve of trial in Orange County, Boudin and the defendant made a pre-voir dire motion to change venue to a large, metropolitan community, again based on intense local publicity and community-wide prejudice. This court denied the motion, with leave to renew after completion of the voir dire, and noted that the publicity in Orange County was not of the same intensity as that in Rockland County, and the evidence presented did not establish community pressure comparable to that found to exist in Rockland County ( People v. Boudin, 95 A.D.2d 463, 467 N.Y.S.2d 261). The motion was renewed after the initial screening of potential veniremen. Based upon the totality of the circumstances, the nature and homogeneity of the community combined with the percentage of veniremen having expressed a firm opinion which they could not set aside, this court determined that "the stringent standards necessary for a change of venue have now been met" ( People v. Boudin, 97 A.D.2d 84, 85, 469 N.Y.S.2d 89). ¹ The case was removed to Westchester County, this court noting that the defendants conceded that Westchester was an appropriate site for the trial, "agreeing that its population is of sufficient size and heterogeneity to ensure the selection of a fair and impartial jury" ( People v. Boudin, supra, at 86-87, 469 N.Y.S.2d 89).

During the course of jury selection in Westchester County, the defense counsel questioned the defendant's physical and mental competency. The defendant had been experiencing pain intermittently, and apparently was very apprehensive about his continued imprisonment in the Rockland County Jail. ² In March of 1984 the court ordered an examination pursuant to CPL article 730. After conducting an initial examination, the two psychiatrists appointed under the authority of CPL 730.20, Drs. Leslie Brooks and Edward Allan, agreed that the defendant should remain at the Westchester County Jail for a three-week evaluation. After speaking with Dr. Allan further, the trial court concluded that jury selection could continue during this evaluation period. In April 1984 a competency hearing was held, at the conclusion of which the trial court determined that the defendant was not an incapacitated person as that term is used in CPL 730.10(1), and that the pain the defendant was experiencing did not so incapacitate him as to render him unable to go forward.

Prior to the conclusion of the competency hearing, Boudin entered a plea of guilty to the crime of murder in the second degree and robbery in the first degree in satisfaction of the indictment. She was sentenced to concurrent terms of 20 years to life imprisonment for murder and 12 1/2 to 25 years imprisonment for robbery.

Jury selection resumed, and all the prospective jurors previously examined were called back to be questioned regarding their knowledge of Boudin's guilty plea and its effect upon their ability to render a fair and impartial verdict. The defendant's motion for a mistrial was denied. After jury selection was completed, the defendant made his final motion for a change of venue, based upon pretrial publicity with particular emphasis on the publicity surrounding Boudin's plea and sentence and the heightened security measures in the courthouse. This court denied that motion by order dated May 24, 1984.

At the conclusion of the trial, the jury found the defendant guilty of three counts of murder in the second degree and four counts of robbery in the first degree.

Several days later, a post-trial hearing was held on the issue of whether the indictment should be dismissed because (1) the defendant was a victim of brutality and (2) the attorneys who represented the defendant prior to the appointment of Mr. Isseks had allegedly failed to provide him with meaningful representation. ³ At the hearing, the defendant testified that for the first five days of his imprisonment he was beaten by several correction officers three to six times a day. As a result of these beatings his neck was seriously injured and he required spinal surgery in January of 1982. With regard to the denial of effective assistance of counsel the defendant testified that while he was being held at a Federal correctional facility in Otisville ⁴ he was approached by Federal agents. He was interviewed repeatedly and wrote down whatever he was told. Though he was represented by counsel, his counsel was not consulted by the agents. In fact, it was as a result of these interviews that his attorney Ms. Williams ultimately sought to be relieved as counsel.

The testimony given by Kenneth Maxwell, Special Agent with the Federal Bureau of Investigation (hereinafter FBI), at the pretrial voluntariness hearing ⁵ was placed into evidence by the prosecution at this post-trial hearing. Special Agent Maxwell testified that he and another FBI agent met with the defendant at the defendant's request, and obtained statements from the defendant to this effect. Each time they met, the defendant signed a waiver of counsel form and indicated that he did not want his attorney present.

The trial court found, based upon a comparison of the X-rays taken when the defendant was arrested and those taken prior to his operation, that the defendant sustained a broken neck while in custody and thus was a victim of brutality during his detention. In addition the court found that the defendant's right to counsel had been violated. However, the court denied the defendant's motion to dismiss the indictment, because the defendant failed to establish any causal link between this official misconduct and the evidence offered to convict him ( see, People v. Brown, 125 Misc.2d 132, 479 N.Y.S.2d 113). The defendant was subsequently sentenced to three...