People v. Crimmins

• Decision Date: 16 April 1970
• Citation: 310 N.Y.S.2d 300,258 N.E.2d 708,26 N.Y.2d 319
• Parties: , 258 N.E.2d 708 The PEOPLE of the State of New York, Appellant, v. Alice CRIMMINS, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 300

310 N.Y.S.2d 300

26 N.Y.2d 319, 258 N.E.2d 708

The PEOPLE of the State of New York, Appellant, v. Alice CRIMMINS, Respondent.

Court of Appeals of New York.

April 16, 1970.

Thomas J. Mackell, Dist. Atty. (Peter J. O'Connor, Kew Gardens, and Cornelius J. O'Brien, Long Island City, of counsel), for appellant.

Herbert A. Lyon and William M. Erlbaum, Kew Gardens, for respondent.

BURKE, Judge.

Defendant was indicted for, and convicted of, killing her daughter. At the trial the People established that the child died of strangulation within two or three hours of her last meal. The body was found at about 2:00 P.M., on July 14, 1965, and an autopsy determined that death occurred approximately 8 to 24 hours prior to discovery. Two of the People's witnesses, Sophie Earomirski and Joseph Rorech, presented substantially all of the evidence which connected defendant to the crime. The former testified that at about 2:00 A.M., on July 14, 1965, she saw defendant carrying a bundle and holding the hand of a little boy; she was accompanied by a man. Defendant's companion took the bundle and threw it into an automobile, and Mrs. Earomirski, from her third floor window across the street, heard defendant say, 'My God, don't do that to Her.' Mr. Rorech testified that at a subsequent time defendant admitted to him, 'Joseph, please forgive me, I killed her.'

Although defendant raised several alleged errors in the Appellate Division, reversal was predicated on only one--an unauthorized visit by three jurors to the neighborhood which was the subject of Mrs. Earomirski's testimony--and was based on our decision in People v. De Lucia, 20 N.Y.2d 275, 282 N.Y.S.2d 526, 229 N.E.2d 211. Leave to appeal to this court was granted on the People's application. They argue that reversal is mandated only when prejudice to the defendant is shown and that, as found by the Trial Justice, such prejudice is absent herein. They also argue that the evidence is legally sufficient to establish defendant's guilt beyond a reasonable doubt.

After the trial but before the imposition of sentence, defendant moved, on the basis of a juror's affidavit, to set aside the verdict because members of the jury had made an unauthorized visit to the street on which Sophie Earomirski lived. A hearing was held, and the juror, Samuel Ehrlich, testified that, after Mrs. Earomirski had testified, he wanted to see that area. He went there between 1:00 and 2:00 A.M. Ehrlich further testified that his visit did not influence his opinion.

Another visit was made by Ehrlich and two other jurors, Harry Tunis and Irving Furst, at about 5:30 P.M.

During the jury's deliberations the lighting in the area was discussed in 'small talk' and, according to Ehrlich, someone mentioned that the area was well-lit. Another juror, Philip Seidman, testified that the subject was discussed.

During the length of the trial, the jurors were never admonished not to visit any place which had been the subject of testimony. Ironically, after Mrs. Earomirski had testified, defense counsel requested that the court arrange a controlled visit to the area. The court denied the visit as unnecessary.

In People v. De Lucia, this court held: 'In this type of case, proof of the fact of the unauthorized visit is sufficient to warrant a new trial without proof of how such visit may have influenced individual jurors in their juryroom deliberations. Such a visit, in and of itself, constitutes inherent prejudice to the defendants.' (20 N.Y.2d 275, 280, 282 N.Y.S.2d 526, 529, 229 N.E.2d 211, 214 (emphasis supplied).) Appellant's attempt to distinguish De Lucia fails to comprehend the nature of the decision in that case. Although the affidavit averred that the jurors had re-enacted the crime, we did not predicate our decision on actual prejudice. That discussion merely demonstrates one of the manifest evils of an unauthorized visit. Since De Lucia was in the court on mere allegations, a hearing was ordered, and the afore-quoted statement indicates the quantum of proof which would mandate a new trial. The defendants were not required to establish prejudice.

Moreover, our decision in People v. Sher, 24 N.Y.2d 454, 301 N.Y.S.2d 46, 248 N.E.2d 887, should not be construed as...