People v. Howell

• Decision Date: 22 January 1957
• Citation: 158 N.Y.S.2d 985,3 A.D.2d 153
• Parties: The PEOPLE of the State of New York, Respondent, v. William HOWELL, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 985

158 N.Y.S.2d 985

3 A.D.2d 153

The PEOPLE of the State of New York, Respondent, v. William HOWELL, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Jan. 22, 1957.

Jacob W. Friedman, New York City, of counsel (Irving Greenberg, New York City, on the brief; James D. C. Murray, New York City, attorney), for appellant.

Walter E. Dillon of counsel (Daniel V. Sullivan, Dist. Atty., Bronx County), New York City, for respondent.

Before BREITEL, J. P., and BOTEIN, RABIN, FRANK, and VALENTE, JJ.

BREITEL, Justice Presiding.

Defendant Howell has been convicted, after a jury trial, of murder in the second degree, and sentenced for a term of not less than 40 years, nor more than his natural life. He appeals from the conviction and urges, among others, two principal grounds for reversal and dismissal of the indictment.

The first ground urged for reversal is that the verdict upon the trial was against the weight of the credible evidence There is no claim of insufficiency of proof. The second ground urged is that the indictment must be dismissed, because it clearly appears that there was an insufficiency of evidence before the grand jury which returned the indictment.

The conviction should be affirmed.

The court is unanimous in finding that the verdict returned in this case, finding the defendant guilty of murder in the second degree, is amply supported by the trial evidence. With regard to the testimony of the witness Sanders, who was awaiting sentence on his third felony conviction, the question raised for the jury was primarily that of credibility. All of the elements that should have been weighed by the jury were presented to it, especially under the astute cross-examination of able and experienced counsel. Moreover, the jury received a proper charge by the trial court on the factors to be considered. Disagreement, however, exists among the court with respect to whether, and with what effect, the grand jury minutes should be considered in disposing of a motion to dismiss the indictment on the ground of evidentiary insufficiency before the grand jury, which motion is also before us.

It is the majority's view that, unless defendant, at this stage of the proceedings, can establish, from whatever source, by clear and satisfactory evidence, first raised by motion made before judgment, that there was an insufficiency of proof before the grand jury, the indictment is presumed valid and regular. People v. Nitzberg, 289 N.Y. 523, 47 N.E.2d 37, 145 A.L.R. 482; People v. Sweeney, 213 N.Y. 37, 106 N.E. 913; People v. Glen, 173 N.Y. 395, 66 N.E. 112; People v. Sexton, 187 N.Y. 495, 80 N.E. 396; People v. Van Allen, 275 App.Div. 181, 89 N.Y.S.2d 594. Moreover, it is noted that a motion to inspect grand jury minutes, as distinguished from the principal motion to dismiss the indictment for evidentiary insufficiency, is not appealable. Matter of Montgomery, 126 App.Div. 72, 110 N.Y.S. 793, appeal dismissed 193 N.Y. 659, 87 N.E. 1123; People v. Strauss, 165 App.Div. 58, 150 N.Y.S. 991; People v. Harrell, 282 App.Div. 1051, 126 N.Y.S.2d 169; see Code Cr.Proc. §§ 485, 517.

In holding that a motion to inspect is not appealable, it is not decided that grand jury minutes may not be examined on a motion to dismiss the indictment. The motion to inspect is to provide counsel with the inspection. The two motions, although frequently coupled, are not to be confused with one another. The motion to dismiss for evidentiary insufficiency raises a question for the court, in which event it should examine the minutes, but only if defendant supplies extrinsic proof that there is evidentiary insufficiency. This is the rule, as laid down in the Nitzberg, Sexton, Glen and Sweeney cases, supra; although, in fact, in none of these cases did the court actually examine the grand jury minutes.

It is necessary, now, to turn to the evidence received upon the trial. That evidence serves, in this case, two purposes. One is relevant to sustaining the verdict. The other relates to the extent of the proof to show evidentiary insufficiency before the grand jury.

The undisputed proof is that on August 28, 1953, one Ryan, in the afternoon of that day, entered the apartment house in which the victim resided. The victim, Lewis, president of his union, had come home from his union office and had just reached his apartment door. Ryan entered the apartment house, his face covered by hand and handkerchief, and, although there was an elevator available, took the stairway to the fifth floor. Minutes after he entered, the firing of several shots was heard. Ryan was then seen running out of the apartment house with his face again covered. He was pursued by the doorman, who had previously observed him entering and leaving the apartment house, and the pursuit was picked up by a uniformed patrolman in the neighborhood. The policeman and Ryan exchanged shots. Ryan then approached a maroon Ford automobile which belonged to the wife of defendant Howell. He had a brief conversation with the driver, and then the automobile drove off as the policeman and Ryan continued their shooting duel. The duel ended in Ryan's death on the street. Near him was found a .45-caliber automatic pistol, with three unexpended cartridges in the magazine. In his pocket was found a brown paper bag containing an empty clip for the pistol and nine unexpended cartridges.

The victim, Lewis, was shot five times. At least one of the bullets made its entrance from the back and its exit from the front. Two of the shots were sufficient to prove fatal, and near the body of the deceased victim were found seven discharged shells. The shells were .45-caliber automatic pistol cartridges, and had been fired from Ryan's pistol.

On the foregoing proof, a clear case of premediatated and deliberate murder in the first degree, by Ryan, was established. The nature of the weapon used, the nature of the wounds sustained, and the immediate circumstances preceding and following the commission of the crime established the nature and degree of the crime. People v. Harris, 209 N.Y. 70, 102 N.E. 546; Thomas v. People, 67 N.Y. 218; People v. Weiss, 290 N.Y. 160, at pages 162-163, 48 N.E.2d 306, at page 307.

We now turn to the principal proof connecting defendant Howell with Ryan in the commission of the crime. It is conceded that Ryan and Howell were acquainted with one another. Both, incidentally, had criminal records. On the two nights proceeding the killing, and in the preceding night extending into the early hours of the morning, the two men were in one another's company. There was also evidence of Howell's association with the union and various figures in the union. A witness placed the gunman, Ryan, in the Howell automobile, the maroon Ford, in the company of Howell the day preceding the killing. When Ryan fled from the apartment house, after the shooting of the deceased, he was seen to run to the Howell Ford, which was moving slowly down Jerome Avenue, the next street, separated by a park, from Creston Avenue on which the victim's apartment house was located. ¹ Ryan ran through the park, stopped the car, opened the door, and spoke with the driver. The policeman identified the driver as the defendant Howell. As the shooting resumed, Howell drove off, alone, in the automobile. The automobile was later found abandoned in Manhattan with a bullet-crease dent in one of its fenders. Howell, concededly, stayed in hiding, away from his home, and away from his family, until he surrendered voluntarily on September 13th.

When Howell was taken into custody, he denied that he had been in The Bronx on the day of the killing, and he denied that he had been in possession of the automobile on that day. He claimed that he had lent the automobile to Ryan. If the People's witnesses are credited, these pretrial statements were false.

Upon the trial, Howell testified in contradiction of several People's witnesses, including his workmen's compensation physician, that he had not been in The Bronx, or in New York, for the two weeks preceding the killing. If the People's witnesses are credited, this trial testimony was false.

The presence of defendant Howell in the automobile near the scene of the crime, his flight alone when he saw that Ryan was being pursued by the policeman, his status as a fugitive for over two weeks and his statements upon being taken into custody, and upon the trial, if believed to be false, constituted strong evidence in the circumstances of this case that Howell was an accomplice of Ryan in the commission of the premeditated crime, for which purpose Ryan had gone to the deceased's apartment house.

While it has been repeatedly said that flight from the scene of a crime, continuing fugitive status, and even false statements may have no precise weight or value assigned, People v. Leyra, 1 N.Y.2d 199, at pages 208-210, 151 N.Y.S.2d 658, at pages 664, 666, nevertheless, when considered together with all the circumstances of the case there may arise a higher degree of guilt indication. People v. Ogle, 104 N.Y. 511, 11 N.E. 53; People v. Willett, 213 N.Y. 368, 386-387, 107 N.E. 707, 712; People v. Meehan, 256 App.Div. 268, 9 N.Y.S.2d 725.

True it is that the flight, continuing fugitive status, and even false statements may be explained away. But, when instead of explanation, false denial of the events, referring to denial of presence at, and flight from, the scene of the crime, there is no innocent explanation at all.

The foregoing was not all the proof offered by the prosecution upon the trial. In addition, there was the testimony of Sanders, a thrice-convicted felon, awaiting sentence for his most recent robbery. He and Howell had known one another since 1945. He had also known Lawrence Lynch, one of the figures in the union of which the deceased victim was the president, and with whom Howell was acquainted. After Howell's surrender and his detention in prison, they met...