People v. Crimmins

• Citation: 33 A.D.2d 793,307 N.Y.S.2d 81
• Parties: The PEOPLE, etc., Respondent, v. Alice CRIMMINS, Appellant.
• Decision Date: 22 December 1969
• Court: New York Supreme Court Appellate Division

Page 81

307 N.Y.S.2d 81

33 A.D.2d 793

The PEOPLE, etc., Respondent, v. Alice CRIMMINS, Appellant.

Supreme Court, Appellate Division, Second Department.

Dec. 22, 1969.

Thomas J. Mackell, Dist. Atty. of Queens County, Kew Gardens, for respondent, Peter J. O'Connor, Asst. Dist. Atty., of counsel.

Herbert A. Lyon, Kew Gardens, assigned counsel for appellant.

Before BELDOCK, P.J., and CHRIST, MUNDER, MARTUSCELLO and KLEINFELD, JJ.

MEMORANDUM BY THE COURT

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered August 9, 1968, convicting her of manslaughter in the first degree, upon a jury verdict, and imposing sentence, upon which appeal there has been brought up for review an order of said court dated July 29, 1968, which denied her motion to set aside the verdict.

Judgment reversed, on the law, and new trial ordered. The findings of fact below, resulting in the conviction, are affirmed.

We have examined all the arguments advanced by counsel for both sides and we reverse and order a new trial on one ground alone. Visits by three trial jurors to the scene of the critical identification of the accused made by People's witness Earomirski were so fundamentally prejudicial and violative of appellant's rights that we are constrained under People v. De Lucia, 20 N.Y.2d 275, 282 N.Y.S.2d 526, 229 N.E.2d 211 to order a new trial.

One of the trial jurors visited the scene of identification alone at about 2 A.M. and tried to simulate the conditions of the identification as best he could in order to verify for himself the reliability and credibility of a key prosecution witness. The explanations and exculpations of two of the jurors at the hearing After the verdict are not sufficient safeguards of appellant's rights and could not sterilize or cure the harm that had already been completed (cf. People v. Sher, 24 N.Y.2d 454, 301 N.Y.S.2d 46, 248 N.E.2d 887). Mrs. Earomirski's identification occurred in July, 1965 and the jurors' visits to that scene were accomplished during the trial in May, 1968.

The Court of Appeals in De Lucia (supra) relied on the Supreme Court of the United States (Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420) in declaring that when jurors visit the scene of a crime they thereby become 'unsworn witnesses' against the defendant 'in direct contravention of * * * (his) right, under the Sixth Amendment, 'to be confronted with the witnesses' against * * * (him)' (People v. De Lucia, Supra, 20 N.Y.2d p. 279, 282 N.Y.S.2d p. 530, 229 N.E.2d p. 214). The gravity of the error in the present case is that defendant did not know of the jurors' visits, had no way to test the jurors' observations in open court and had no opportunity to diminish or eliminate false impressions. The net effect of the jurors' visits was that they made themselves secret, untested witnesses not subject to any cross-examination.

The error is not an innocuous and unimportant loophole in the law through which a guilty person may escape. It is a fundamental, serious and concrete flaw in the process that convicted appellant and it was discovered and disclosed at a time when no curative device could be interposed as in Sher (supra) to insulate the verdict.

CHRIST, MUNDER and KLEINFELD, JJ., concur.

MARTUSCELLO, J., concurs, with the following memorandum:

I concur in the reversal on the ground assigned by the majority. However, I am of the opinion that the trial court erred in connection with offers of proof by defendant with respect to testimony by the People's witnesses Earomirski and Rorech. Earomirski testified that on the night of the crime she hear...