People v. Hannon
| Decision Date | 10 May 1966 |
| Citation | 270 N.Y.S.2d 327,50 Misc.2d 297 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. John P. HANNON, George D. O'Connell, and Wilbur P. Trammell, Defendants. |
| Court | New York Supreme Court |
The defendants, O'Connell and Trammell, stand jointly accused of Conspiracy, along with one John P. Hannon, under the first count of an indictment which, by a second count, accuses the defendant, O'Connell alone of the crime of Perjury, first degree, it being further set forth therein that the acts alleged in the respective counts are connected together. The details of this indictment have been summarized in an earlier opinion made and filed on a determination of the defendants' demurrers thereto (see Peo. v. Trammell et al., 50 Misc.2d 179, 267 N.Y.S.2d 434) and no further exposition of its content is necessary to put these pre-trial motions in perspective.
1. Defendant O'Connell's present dual motion seeks an order directing (a) that the conspiracy and perjury counts be severed and that he be given separate trials on each (Code Crim.Pro., Sec. 279) and (b) that he be tried separately and apart from the other defendants named in the conspiracy count (Code Crim.Pro., Sec. 391).
2. Defendant Trammell's motion is for an order directing that he, too, be tried separately from the other defendants on the conspiracy count.
Insofar as defendant O'Connell's present application seeks an order granting him a severance of and separate trials upon the conspiracy, as alleged in the first count, and upon the charge of perjury, as alleged in the second count, the motion is denied.
The entire thrust of his claim to that relief is that a single trial of both charges will prejudice him through the proffer of evidence 'relating to charges with which He is entirely unconnected' (Emphasis Supplied). He urges that, on the face of the indictment, the conspiracy is alleged to have been hatched prior to the time he took office as Comptroller of the City of Buffalo and, even before he was elected to that office. He further urges, therefore, that if there is a trial of both counts, it will involve problems of the admissibility of evidence.
His anticipation that such a trial will involve complicated questions concerning the admissibility of evidence (with appropriate admonitions) may be accepted as correct in view of the averments of the indictment, but the problem of proof does not entitle him to a severance of the counts and separate trials upon each count. Such a problem is one with which the court will concern itself and one to which it will, of course, address itself with appropriate instructions, whenever necessary.
The conspiracy and perjury counts have, obviously, been joined in this indictment pursuant to the authority of the controlling statute, as 'acts or transactions connected together' although constituting different crimes (Code Crim.Pro., Sec. 279). The moving papers do not challenge the validity of the conclusion set forth in the allegation that the acts and transactions set forth in the indictment are connected together; and the basis for that assertion is perceptible from the other averments, from which it appears that the accusation of perjury is based on defendant O'Connell's charged intentional false denial that he ever personally met with one of the individuals named in the first count as a co-conspirator, though not indicted. Although the perjury does not (as, of course, it need not) allege O'Connell's motivation, it is a fair, if not imperative, inference from an examination of both counts that the perjury was committed to conceal his connection with the earlier conspiracy (see, e.g., People v. Gleason, 285 App.Div. 278, 280, 136 N.Y.S.2d 220, 222). Therefore, the allegations in the indictment clearly support the assertion that the crimes were connected together, within the meaning of Sec. 279 of the Code of Criminal Procedure (People v. Jack, 10 A.D.2d 336, 339--340, 199 N.Y.S.2d 336, 339--340, aff'd, 8 N.Y.2d 857, 203 N.Y.S.2d 907, 168 N.E.2d 710) and, for precisely that reason, the Court is without power to grant the motion for severance. In such case the Legislature has seen fit to withhold any power to sever (People v. Jack, supra, 10 A.D.2d 340, 199 N.Y.S.2d 340; People v. McKensley, 36 Misc.2d 311, 232 N.Y.S.2d 572; People v. Cox, 24 Misc.2d 998, 202 N.Y.S.2d 607).
Directing our attention to the applications made by the defendants, O'Connell and Trammell, for separate trials, it appears from the moving papers that it is the expressed intent of O'Connell to call the co-defendants as witnesses and to comment upon their failure to testify, in the event either or both refuse. If such a plan is to be carried out, it becomes obvious that one can reasonably anticipate that the defendant O'Connell will testify in his own behalf.
It also appears from the moving papers submitted by Trammell that he anticipates the necessity to call 'co-defendants, John P. Hannon and George D. O'Connell', as witnesses in his case. As above reasoned, it can also reasonably be anticipated that the defendant Trammell will likewise be presented as a witness in his own behalf.
This deduction becomes important for the reason that determinations upon motions of this type must be viewed from the probable course of events during the trial founded upon 'reasonable anticipation based on the facts then disclosed' (People v. Snyder, 246 N.Y. 491, 497, 159 N.E. 408, 410; People v. Welch, 16 A.D.2d 554, 229 N.Y.S.2d 909); and upon the moving papers it can reasonably be anticipated that (1) these moving defendants will call their co-defendants, (2) comment on a failure of a co-defendant to testify and (3) that they themselves will testify in their own behalf.
The defendant Hannon has made no claim that he will call the other defendants as witnesses in his case; nor has he made any application for a separate trial upon the same grounds as his co-defendants; and obviously (and quite properly), there is no showing nor any judication as to his intention regarding his taking the stand. In the present posture of the matter, it would not be proper to indulge in any assumption of any kind.
In the absence of any similar application by Hannon, the procedure suggested by his co-defendants would require a mistrial as to him, if all were jointly tried.
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