People v. LeGrand
| Decision Date | 24 December 1975 |
| Citation | 84 Misc.2d 985,379 N.Y.S.2d 269 |
| Parties | PEOPLE of the State of New York v. DeVernon LeGRAND et al. |
| Court | New York Supreme Court |
William Sonenshine, Brooklyn, for defendants.
Eugene Gold, Dist. Atty. of Kings County, Brooklyn, Neil Firetog, Asst. Dist. Atty., for the People.
Defendants, father and son, are charged in the indictment with kidnapping in the first degree, rape in the first degree, and the lesser included sexual offenses.
It is alleged that the crime took place August 22, 1974.
Defendants move to suppress certain personal property consisting of notes or written or typed memoranda that were removed from a cabinet in the bedroom of an apartment and turned over to the District Attorney upon the ground that their constitutional rights have been violated.
A hearing was held and the court finds the facts to be as follows: Prior to November 14, 1975, defendant DeVernon LeGrand and his wife, Kathleen LeGrand, together with two children and other members of their 'family', which included other numerous children, resided at 222 Brooklyn Avenue, Brooklyn, New York.
On November 14, 1975, at about 1:30 P.M., the wife of defendant, DeVernon LeGrand called the office of the District Attorney of Kings County and spoke to Henry Sobel, an assistant district attorney in charge of the Major Offense Bureau. She advised him of her desire to talk to him about the defendant, DeVernon LeGrand. The District Attorney made the necessary arrangements to meet with her at the office. The conversation they had and the information he received from her were substantially as follows: The wife, Kathleen LeGrand, indicated that she wanted to leave her husband and the marital residence; was concerned about the safety of herself and her two children, and if her husband learned that she contemplated leaving him, the children would be held as hostages.
During this conversation she explained that her husband was preparing a false and perjurious defense in this case in which he was about to proceed to trial; that she had typed various transcripts or memoranda concerning prepared false testimony, as well as transcripts in question and answer form for the witnesses in two previous cases in which her husband, as a defendant, also procured false testimony. She said that certain witnesses were about to perjure themselves; that her husband, sitting in a large room with various witnesses, arranged for mock trials from a script, with persons acting out roles as judge and lawyer; that stories were constructed and made up falsely, and that she typed the transcripts which were rehearsed. Other discussions were had relative to or concerning the two prior criminal cases in which her husband appeared as a defendant. The district attorney was also told that her husband drank on Friday nights (this was a Friday night) and that some of his children carry guns.
Mrs. LeGrand informed the district attorney that these notes or memoranda were kept in a cabinet in their bedroom and that on at least 20 or 25 occasions she had taken these notes out for use during the rehearsal periods and then returned them to the cabinet in the bedroom. The cabinet was not locket. Her husband and defendant Nocanda LeGrand were present at these mock trials or rehearsals.
Mrs. LeGrand stated that she wanted possession of her papers, her clothing, her children, and wanted to return to her house to obtain them. She requested police protection in doing so.
On the evening of the same day, at about 6:30 P.M., Mrs. LeGrand returned to 222 Brooklyn Avenue, the marital residence, accompanied by five detective investigators from the office of the District Attorney, and present at the scene or in the vicinity was a total of 29 law-enforcement officers. They had no search warrant.
Mrs. LeGrand entered the house accompanied by the detective investigators and went directly to the bedroom on the second floor. She entered the bedroom, took her fur coat from a cabinet or a closet took other articles of personal property including clothing for the children, and removed several files. Eight manila folders containing the papers which are the subject of this motion were placed by her on her bed, and with her consent one of the men from the District Attorney's office picked them up and carried them out of the house when they all left. Mrs. LeGrand voluntarily turned over the folders and papers to the District Attorney.
Without enumerating these papers in detail, it is sufficient to state that they contained the names of potential witnesses to be called by the defendants on the trial of the present indictment; names, notes and memoranda of various witnesses and transcripts of testimony concerning not only the present case but two previous cases. The notes, most of which were typed in triplicate, bear handwritten notations or comments on the evidence intended to be adduced upon the trial of this indictment.
Defendants contend that the notes, paper and memoranda in the custody of the District Attorney are the product of unlawful search and seizure. On the other hand, the People contend that they did not conduct a search and that these notes, papers and memoranda belong to Kathleen LeGrand and are as much her property as that of her husband. The People argue that since the papers were jointly owned or possessed, the wife was equally entitled to retrieve them; to keep them and place them in the care of the District Attorney for safeguarding by and for the use of the People as they deem fit and proper.
The court finds, based upon the credible evidence, that the property removed by the wife, specifically the notes, memoranda or transcripts concerned with this case and defendants' prior cases, was joint property, much of which was typed and prepared by the wife and used jointly by husband and wife in a matter in which they had an interest. Both husband and wife had joint control and access to the marital residence and to the bedroom and cabinet which they both shared. Both had knowledge as to where the papers were kept. The cabinet and bedroom were not under the control solely of the husband but were jointly used and controlled. Further, the papers, notes and memoranda were used by the husband and wife in concert with others in the preparation and rehearsal of witnesses for the expected proffered testimony in the various cases including this one involving the husband.
It is settled that evidence wrongfully seized by a private person is admissible in a state criminal prosecution because neither the Fourth nor the Fourteenth Amendment proscribes private as opposed to governmental activity (People v. Horman, 22 N.Y.2d 378, 292 N.Y.S.2d 874, 239 N.E.2d 625, cert. den. 393 U.S. 1057, 89 S.Ct. 698, 21 L.Ed.2d 699; People v. Williams, 53 Misc.2d 1086, 281 N.Y.S.2d 251; People v. Santiago, 53 Misc.2d 264, 278 N.Y.S.2d 260; People v. Zalduondo, 58 Misc.2d 326, 295 N.Y.S.2d 301).
In People v. Horman, supra, the court said, 22 N.Y.2d at page 382, 292 N.Y.S.2d at page 877, 239 N.E.2d at page 628:
In Horman the court made it clear that the evidence has to be seized by a civilian without the participation or knowledge of any governmental official.
In the instant case the District Attorney's office--at least five detectives and...
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People v. Lifrieri
...564). Several trial courts in New York have found the marital privilege inapplicable outside of the trial context (People v. Le Grand, 84 Misc.2d 985, 379 N.Y.S.2d 269; People v. Helmus, 50 Misc.2d 47, 269 N.Y.S.2d 613; see also, People v. Andreas, N.Y.L.J., July 20, 1987, at 15, col. The F......