People v. Fisher

• Decision Date: 10 October 1958
• Citation: 23 Misc.2d 391,192 N.Y.S.2d 741
• Parties: PEOPLE of the State of New York v. William FISHER, Defendant.
• Court: New York Court of General Sessions

Page 741

192 N.Y.S.2d 741

23 Misc.2d 391

PEOPLE of the State of New York v. William FISHER, Defendant.

Court of General Sessions, New York County.

Oct. 10, 1958.

William B. Moore, New York City, for defendant.

Frank S. Hogan, Dist. Atty. of New York County, New York City, William Rand, Jr., Asst. Dist. Atty., New York City, of counsel, in opposition of motion.

MITCHELL D. SCHWEITZER, Judge.

This is a proceeding for a writ of error coram nobis to vacate a conviction for the crime of manslaughter in the first degree, and a hearing thereon has been completed. The defendant (hereinafter referred to as the petitioner) was so convicted by a jury and was sentenced on November 13, 1933, to State Prison for a term of not less than 15 years nor more than 30 years. He was released on parole in October, 1944, and has since maintained this status, the parole period to expire in 1963.

The petition is based on two charges: first, that the prosecution withheld evidence, to wit, statements taken at the place of the homicide which, if disclosed, would have brought about a different verdict; and, second, that people's Exhibit 2, a gun, was improperly put in evidence as the district attorney knew at the time that Exhibit 2 never caused the death of the deceased. As to the second allegation, one of the people's witnesses at the trial identified the gun as the one held by the petitioner, which he thereafter dropped and which was picked up by Joe Hinchey at the time and place of the homicide. However, three years later the trial district attorney submitted an affidavit in opposition to the petitioner's motion for a new trial in which he stated under oath that the people never contended that the bullet found in the body of the deceased came from either of the two guns (people's Exhibits 2 and 3) which were retrieved from the Harlem River and, 'what became of the gun that was used by the defendant Fisher, the People do not know.' The petitioner claims that this constituted a fraud and misrepresentation on the Court and jury and which, being a fact outside the record for which no adequate remedy at law existed, entitles the petitioner to a vacatur of the conviction.

The Court of Appeals ordered a hearing on these issues (People v. Fisher, 4 N.Y.2d 943, 945, 175 N.Y.S.2d 820) 'upon the ground that questions of fact are presented.'

A proper appreciation of the issues requires a review of the background of the case.

The petitioner was indicted for shooting and killing one David Feldman at the Belden Social Club on January 28, 1933. The club was actually a 'speakeasy' run by one Peter Moran at the southeast corner of 124th Street and Second Avenue. It was a two-room affair, one flight up, the entrance on Second Avenue opening into a sitting room where musicians played and people danced. A bar was located in the room to the rear, also a toilet which had an exit leading through a basement into 124th Street.

The people contended that an argument arose in the sitting room and that Fisher fired across the room at one Hugh Mulligan but that David Feldman, who was standing near Mulligan, was shot and killed. Mulligan then fired at Fisher but struck one High Clark, who later died. Fisher denied having a gun or shooting at any one and maintained that he had been assaulted and stabbed in the barroom outside the toilet door by an unknown assailant and that he first heard shots after he was helped out through the toilet exit, but that he was stabbed while in the vicinity of and in the toilet and again on 124th Street.

The people's proof, in part, consisted of the testimony of Dr. Helpern, the Medical Examiner, who described the two wounds in Feldman's body, either of which could have caused death. He testified that the bullet which caused the trunk wound was recovered from Feldman's overcoat, while the bullet which inflicted the second wound was not found. Patrolman Boudreau testified that on January 28, 1933, he noticed a number of people running out of 2418 Second Avenue and as he tried to get in he was forced back. He then went around to 124th Street and saw two men, one lying on the street and the other standing above him and apparently punching him. The standing man fled and he then saw Fisher get up from the ground, come over to him, and asked him to call an ambulance which he did. He then went up to the 'speakeasy' and found Clark unconscious on the floor in the sitting room and the body of Feldman in the barroom. He also found a small fully loaded automatic revolver on the floor about two feet from Feldman. (This gun was not admitted in evidence.) He accompanied Clark and Moran to the hospital. White and Perry were two musicians who were playing in the sitting room, and they testified about a commotion and a shot being fired and seeing Fisher with a gun in his hand and then seeing Mulligan shoot in Fisher's direction. They both testified that Mulligan and Fisher threw their guns to the floor. White said he heard the shot come from Fisher's direction and that although he could not identify the gun, Exhibit 2 'looked like' the gun Fisher had in his hand, which was pointed toward the barroom. He did identify the guns at one point in his testimony. He saw Fisher leave through the front door and Mulligan hit him at the time. Perry testified that after he heard the shot, he saw people grappling with Fisher. He further stated he did not see any one cur or stab Fisher and that Joe Hinchey, the bartender, picked up the guns. Joe Hinchey testified that when he was in the barroom he heard two shots; he then went into the sitting room, heard another shot and then turned and ran out through the barroom toilet exit. At the time he heard the two shots he saw two or three fellows grappling with Fisher near the toilet door, and Fisher put his hand in his inside breast pocket as if to 'draw a gun'; that he picked up a gun at the toilet door and another on the lower floor at 124th Street. He took them home. The guns he picked up looked like Exhibits 2 and 3. James Hinchey, the bartender's brother, testified that he found the two guns in his home and he dropped them into the Harlem River at 139th Street and that people's Exhibits 2 and 3 looked like the guns he threw into the river. Detective Andrew O'Connor told how the guns were retrieved from the river and identified Exhibits 2 and 3 as the same guns. They were then received in evidence.

The petitioner testified in his own defense and the substance of his testimony has already been alluded to. He also described in detail the wounds inflicted on him and his period of hospitalization. Moran testified as a defense witness and stated that at about 2:00 a. m. five fellows came in with what looked like guns and said, 'Stick up, stick them up'. Fisher, Mulligan and Feldman were already there. He heard six or seven shots and he ducked behind the bar but was shot in the leg. He saw Fisher on the floor near the bar. He did not see Mulligan or Fisher shoot at each other and did not see Joe Hinchey pick up any guns. There were other witnesses for the defense but their testimony is not germane.

Statements were taken from several persons in the premises by Assistant District Attorney Joseph Cohn and some of these people were detained as material witnesses. A statement was given by John Newerla, relating certain events concerning his entrance and egress from the barroom toilet. Detective Andrew O'Connor also made a statement which included something told him by Patrolman Boudreau, which will be referred to later in connection with Newerla's statement. The petitioner made a motion in 1934 for a new trial based on newly discovered evidence in which he claimed that the guns retrieved from the river and admitted in evidence as people's Exhibits 2 and 3 did not cause the death of Feldman. His offer of proof, although interesting, is not pertinent to this inquiry. This is the time when the assistant district attorney, who tried the case, swore in a 1936 affidavit that it was never contended that the guns introduced in evidence were the guns used in the homicide and that the people did not know what became of the gun used by Fisher. The motion was denied.

It is of interest to note that Mulligan was indicted for the slaying of Clark, but was not apprehended until Fisher was sentenced. His bail was discharged in December of 1934 on recommendation of the district attorney on the grounds that White and Perry could not be located and that Fisher fired the first shot.

The charge of suppression of evidence favorable to the defense has arisen from the disclosure of certain statements made by John Newerla and Detective Andrew O'Connor to Assistant District Attorney Cohn soon after the shooting on January 28, 1933, and which were not known to the defense at the time. These statements, among others, were turned over to the defense counsel, Mr. Moore, by the District Attorney's office in January of 1956 in connection with the instant proceeding.

The petitioner claims that these statements bear out his defense that he was not in the Belden Social Club at the time of the shootings, and if they had been made available at the time of the trial, they would have been used to advantage by his counsel. By way of mention, Newerla was arrested as a material witness and released on bail but never testified before the Grand Jury or at the trial, nor was he ever interviewed by defense counsel. Detective Andrew O'Connor was the officer in charge of the case and he testified both in the Grand Jury and at the trial.

The substance of Newerla's statement was that he was in the barroom toilet and as he came out, he heard a shot, and a fellow flopped at and on his feet. This concededly was Feldman. He lifted the man off his feet, turned around, went back into the toilet and made his exit from the building through the basement and out to the street. His statement further narrated that when he came out on the street, he spoke to a...