People v. Mendola

• Decision Date: 10 January 1957
• Citation: 2 N.Y.2d 270,159 N.Y.S.2d 473
• Parties: , 140 N.E.2d 353 The PEOPLE of the State of New York, Appellant, v. Anthony MENDOLA, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 473

159 N.Y.S.2d 473

2 N.Y.2d 270, 140 N.E.2d 353

The PEOPLE of the State of New York, Appellant, v. Anthony MENDOLA, Respondent.

Court of Appeals of New York.

Jan. 10, 1957.

Harry L. Rosenthal, Dist. Atty., Rochester (John C. Little, Jr., Rochester, of counsel), for appellant.

James W. Murray, Batavia, for respondent.

CONWAY, Chief Judge.

On March 25, 1954, at approximately 20 minutes after midnight, defendant and one James Compton, inmates of the Monroe County Penitentiary, escaped with the aid of two former inmates, who entered the prison, one of them armed with a revolver, overpowered and bound two guards, taped their mouths, threatened to blow out the 'guts' of one of them if he caused any trouble and stole the automobile of one of the guards. Thereafter, defendant was apprehended and charged with conspiracy, escape and various felonies. Two trials were had in the County Court of Monroe County on the indictment since the first jury was unable to agree upon a verdict on certain of the counts. The final outcome was that defendant was convicted of the crimes of (a) conspiracy to commit the crimes of (i) aiding escape, (ii) robbery in the first degree, and (iii) grand larceny in the first degree from the person of property over $500 in value; (b) escape from prison; (c) robbery in the first degree, and (d) grand larceny in the first degree.

On appeal, the Appellate Division, Fourth Department (1 A.D.2d 413, 151 N.Y.S.2d 279), unanimously (1) reversed the judgment of conviction (the two separate verdicts of guilt on the two trials culminated in one judgment of conviction), on the law, and (2) ordered a new trial. In its opinion that court declared: 'After reviewing the records, we are satisfied that the evidence fully supports the conviction, and if the trials had been free from serious and prejudicial error, we would affirm without hesitation.' The Appellate Division went on to hold that prejudicial error had been committed in that defendant had been handcuffed to a deputy sheriff throughout both trials over the objection of defense counsel.

At the outset we must state the scope of our review on this appeal. All that the order of the Appellate Division states is that the judgment of conviction 'is reversed on the law'. Section 543-a of the Code of Criminal Procedure provides that whenever an intermediate appellate court shall reverse or medify a judgment or order rendered in the court of first instance, its order shall state whether its determination is upon the law, or upon the facts, or upon both the law and the facts, and if the determination is stated to be upon the law alone as here the order shall also state whether the findings of fact below have been affirmed or have not been considered. If the order of the intermediate appellate court does not comply with the provisions of section 543-a, it must be presumed, for the purpose of an appeal to our court, that the questions of fact were not considered by such court. Here, the order of the Appellate Division does not state whether the findings of fact which term has been held to encompass certain discretionary matter decided by the court of first instance (see Cohen and Karger, Powers of the New York Court of Appeals, pp. 587-593) have been affirmed or considered. However, the opinion of the Appellate Division does state, as we mentioned above, that the Appellate Division was 'satisfied that the evidence fully supports the conviction'. Since the opinion is referred to in the order, it may supplement the order by supplying a fact required to be stated in the order. In this case, then, we may take cognizance of the fact that the Appellant Division affirmed those findings of fact implicit in the jurys' verdicts of guilt, Code Crim.Proc., § 543-a, subd. 3. That still leaves open the question of the discretionary matters decided by the trial court, more particularly, the issue of the trial court's exercise of discretion in refusing to order the hancuffs removed during defendant's two trials. It is with respect to the matter of handcuffing that the Appellate Division disagreed with the trial court.

Had it so chosen, the Appellate Division could have reversed the judgment of conviction in the exercise of discretion, that is, the Appellate Division could have exercised the discretionary power confided to it to order a new trial in the interests of justice (see Code Crim.Proc., § 527). Phrased differently, the Appellate Division could have substituted its discretion or judgment, with respect to the handcuffing of defendant, for that of the trial court. Had the Appellate Division done so, we, in this court, would have been unable to review its determination for, a reversal in the interests of justice is a reversal predicated upon the facts and we are powerless to review such a determination (see Cohen and Karger, Powers of the New York Court of Appeals, p. 754). Instead, the Appellate Division, as its order declares, 'reversed on the law'. Accordingly, we must look at the opinion through the eyes of the order and commence our consideration of the case with the proposition that the Appellate Division did not substitute its discretion for that of the trial court, but, rather, concluded that the trial court was guilty of a prejudicial abuse of discretion as a matter of law.

We address ourselves to that narrow issue.

Section 10 of the Code of Criminal Procedure provides, in part, that a person charged with crime cannot 'be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge.' As the Appellate Division said, this statute is declaratory of the common law. The common law is summed up in 23 C.J.S., Criminal Law, § 977, pp. 313-314, as follows: 'During the trial accused should be free from shackles, except in so far as the trial court, in its sound discretion, deems them necessary to prevent the escape of accused or his forcible release, to restrain him from doing violence to others, or from injuring himself, or to prevent such misconduct as would obstruct the work of the court * * *. If accused is shackled without such necessity, it is reversible error, unless it is clear that no prejudice in the minds of the jury was caused thereby.'

At the time of the escape, Mendola still had seven months to serve in the Monroe County Penitentiary. When he was apprehended following the escape he stated, in the presence of the deputy sheriff and the assistant district attorney who tried the escape case against him, that he 'really wanted out'; that he 'was always trying different guys, if I could get a saw' and that he would have escaped even if he 'had one day to go'.

Thus, the Sheriff and District Attorney were confronted, in the person of Mendola, with the picture of a man so desperate for freedom that he was forever looking for a means of escape and was prepared to admit that he...