People v. Graham

• Decision Date: 29 April 1964
• Citation: 249 N.Y.S.2d 97,20 A.D.2d 949
• Parties: The PEOPLE of the State of New York, Respondent, v. Burton GRAHAM, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 97

249 N.Y.S.2d 97

20 A.D.2d 949

The PEOPLE of the State of New York, Respondent, v. Burton GRAHAM, Appellant.

Supreme Court, Appellate Division, Third Department.

April 29, 1964.

J. R. Hoover, Elmira, and William A. Danaher, Jr., Horseheads, for appellant.

Paul H. McCabe, Dist. Atty., Elmira, for respondent.

Before GIBSON, P. J., and REYNOLDS, TAYLOR, AULISI and HERLIHY, JJ.

MEMORANDUM DECISION.

Defendant, after trial upon an indictment charging him with murder in the first degree, in effecting the death of his estranged wife, was convicted of murder in the second degree. Essential to the conviction, of course, was proof of defendant's 'design to effect the death.' (Penal Law, § 1046.) Such is to be found, if at all, in statements taken from defendant by the authorities and by inference from two so-called suicide notes which defendant is alleged to have prepared, typing his wife's purported signature thereon.

In the first statement, which is in question and answer form, defendant repeatedly denied any intention to kill his wife; denied that he knew that she was dead when he left her, if, in fact, she was; and described his anger and a long and bitter quarrel, during which he received numerous severe scratches or minor lacerations, as was graphically demonstrated by photographs offered by the People.

Some six days after his arraignment defendant was interrogated in his jail cell by police authorities and a statement far more damaging than his prior one was taken and reduced to writing. This statement and the suicide notes, which were identified by it, were offered together and defendant's counsel, after reserving his right to cross-examination, stated with respect to them, 'I have no objection for what they are worth', but subsequently moved to strike out the suicide notes.

It is now beyond dispute that 'any statement made by an accused after arraignment not in the presence of counsel * * * is inadmissible.' (People v. Meyer, 11 N.Y.2d 162, 165, 227 N.Y.S.2d 427, 428, 182 N.E.2d 103, 104.) The suicide notes were likewise inadmissible, since their identification and reception in evidence were predicated solely upon such a statement, illegally obtained. Neither the trial judge nor either counsel is subject to criticism is this connection, however, as the reception of exhibits of this nature had not been expressly inhibited by decisional law, as it was by the Meyer decision (supra) subsequently handed down. It seems clear to us that the illegal evidence introduced upon the trial gave rise to substantial prejudice. These long, detailed notes, with their repeated recitals, allegedly composed by defendant, of the wife's intimacies, whether fictional or not, as well as the prolonged and perhaps depraved scheming evident in their fabrication, seem to us of such...