People v. Moore

• Decision Date: 07 July 1977
• Parties: , 366 N.E.2d 1330 The PEOPLE of the State of New York, Respondent, v. Richard MOORE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 975

397 N.Y.S.2d 975

42 N.Y.2d 421, 366 N.E.2d 1330

The PEOPLE of the State of New York, Respondent, v. Richard MOORE, Appellant.

Court of Appeals of New York.

July 7, 1977.

William E. Hellerstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. (Peter L. Zimroth and Richard M. Seltzer, New York City, of counsel), for respondent.

WACHTLER, Judge.

The defendant has been convicted of attempted murder and felonious possession of a weapon in connection with the shooting of two New York City police officers. The Appellate Division has affirmed the convictions. The primary issues on this appeal are whether the defendant was deprived of a fair trial (1) by media coverage of similar crimes, committed and reported during the selection of the jury and (2) by evidence introduced at trial showing that the apartment, used by the defendant and others at the time of the shooting, contained militant antipolice documents and a "field hospital." The order of the Appellate Division should be affirmed.

The shooting occurred May 19, 1971 on Riverside Drive in Manhattan. That evening a marked police car with two uniformed police officers, Thomas Curry and Nicholas Binetti, was stationed outside the home of Frank Hogan who was then District Attorney of New York County. At approximately 9 o'clock the officers noticed a car going the wrong way on a one-way street. They pursued the vehicle and, after stopping it, were met with a hail of machine gun bullets.

Both of the officers were seriously injured but survived the assault. Neither however was able to identify the persons who attacked them. Bystanders supplied some information a description of the car as a blue or green late model Maverick or Mustang, several variations of the license plate number ¹ and a general description of the occupants as being Black. In addition police ballistics experts were able to determine that the two officers had been shot by a .45 caliber automatic or semiautomatic weapon.

Two days after the shooting (May 21) a young Black woman left a package at WLIB, a Harlem radio station. Approximately a half an hour later a Black man left a similar package, folded inside a newspaper, at the security desk of The New York Times. Each of the packages contained a New York license plate No. 8373YR, a .45 caliber cartridge, an airmail envelope and a typewritten letter. The envelope indicated that it contained a letter explaining "(t)he shooting of two N.Y.P.D. Pigs on Malcolm's Birthday", apparently referring to May 19, the birthday of Malcolm X. The letters stated: "Here are the license plates sort (sic ) after by the Fascist state pig police. We send them in order to exhibit the potential power of oppressed peoples to acquire Revolutionary Justice. The armed goons of this racist government will again meet the guns of oppressed third world peoples as long as they occupy our community and murder our brothers and sisters in the name of law and order * * * The domestic armed forces of racism and oppression will be confronted with the guns of the Black Liberation Army, who will meet (sic ) out in the tradition of Malcolm and all true revolutionaries real justice. We are Revolutionary Justice" (the underscored portions were typed in red).

Analysis by police experts revealed that each letter had been written on the same typewriter and halves of the same piece of paper. The police also discovered four readable fingerprints on the newspaper which had been folded around the package delivered to The New York Times. The license plates, it turned out, had been stolen prior to the shooting.

In the early morning hours of June 5, 1971 the defendant and three others were arrested in an unrelated incident at a Bronx "after hours" bar. Several weapons were found in the bar including a loaded .45 caliber submachine gun. One of the patrons said the defendant had entered the bar armed with the submachine gun. Police ballistics experts immediately checked the weapon and found that it was the one which had been used in the Riverside shooting. The police also learned that the defendant's fingerprints matched two of the four prints found on the newspaper which had been left with the package at the office of The New York Times.

A week later (June 12, 1971) the police received an anonymous call from a woman who stated that the defendant had spent the evening of May 19 at a Bronx apartment belonging to the commonlaw wife of one Eddie Joseph. That led them to Pauline Joseph who became the chief witness for the prosecution. ²

Pauline Joseph stated that in January, 1971 a girl friend of hers moved into her apartment with a man named Andrew Jackson, who was active in the Black Panther Party. After that a number of Jackson's friends, including the defendant and Eddie Joseph, visited the apartment and, one by one, set up residence there. On May 15 the defendant moved in with a black vinyl bag containing a machine gun. Later that day she saw a diagram of a building and was informed that the defendant and Michael Hill were then planning to blow up a police station. They apparently abandoned this plan when she protested that "innocent people", meaning prisoners, might get hurt. The following day she again asked the defendant and Hill what they planned to do. The defendant replied "we're going to deal with some pigs." This time however he had decided to "hit them from the outside." When she pressed for further details the defendant simply said "I'm going to kill them."

On May 19 Pauline Joseph saw the defendant load the machine gun and place it in a duffel bag. At approximately 6 p. m. he picked up the duffel bag and left the apartment. Within 10 or 15 minutes, Irving Mason and Eddie Joseph, who was armed with a hand gun, also left the apartment. The three men returned approximately four and one-half hours later. Pauline Joseph noticed that one of the machine gun magazines was empty. The defendant would not tell her what had happened to the bullets. At 11 o'clock they all watched the news reports of the Riverside shooting on television. After it was over Pauline Joseph told the defendant "I think you did it" and he replied "so what, you better learn to keep your mouth shut."

That evening Pauline Joseph and Irving Mason's wife found an expended shell casing on the floor of a blue Maverick parked two blocks from the building. They turned it over to Irving Mason. The following day she saw two license plates in the apartment and she heard the defendant and several others discussing the possibility of getting into the hospital "to finish off the cops."

The next day (May 21) defendant's girl friend, Patricia Greene, came to the apartment with a portable typewriter. Later Pauline Joseph saw the defendant writing something on a pad with the girl beside him making corrections. In the late afternoon she saw a sheet of paper in the typewriter with the words "Revolutionary Justice" written in red. In one of the bedrooms she saw two license plates, envelopes, wrapping paper and other items including about four or five cartridges. That evening when Mrs. Mason and Andrew Jackson left the apartment at about 6 o'clock, Pauline Joseph noticed that Mrs. Mason was carrying a package addressed to "WLIB News". When Mason and Jackson returned approximately two hours later, the defendant, his girl friend and several others were listening to music on radio station WLIB. Shortly thereafter the announcer mentioned a package which had just been received and read the "Revolutionary Justice" letter. The defendant and Eddie Joseph then looked at each other, smiled and slapped each other's hand in a congratulatory manner.

With Pauline Joseph's consent the police searched her apartment. They found fingerprints from a number of individuals she had mentioned, including the defendant. In one roo which they characterized as a "field hospital", they found a large store of medical supplies. They also discovered a number of letters and other documents including: (1) a leaflet listing medical supplies and equipment and describing how to treat an arm wound; (2) a single paragraph "History of the Black Panther Party", concededly written by the defendant, in which he states that this is the "first National Organization to utilize Armed Propaganda"; (3) a crude map or diagram of what appears to be a prison; (4) two letters from one Landon Robert to his wife discussing Black militant activities; (5) a "press release" stating that the people should be informed of the "N.Y.P.D's plan for premeditated murder" and "how the pigs occupy our communities like a foreign army"; (6) a letter addressed to the police commissioner referring to the Riverside shooting and stating that "what we have in mind is to let you know that EVERYTIME you use your guns against our people we'll use our guns against your repressive forces" (emphasis in original). The last two documents had been written on the same typewriter which had been used for the letters sent to WLIB and The New York Times.

At the trial the defendant objected to the introduction of these documents and the description of the room containing the medical supplies. The court overruled the objections noting at one point that this evidence showed " the character of the premises and the persons that occupied it." The defendant claims that this was improper because he had chosen not to place his character in issue (see, e. g., People v. Fiore, 34 N.Y.2d 81, 356 N.Y.S.2d 38, 312 N.E.2d 174). He also claims that this evidence bore no connection to him or the Riverside shooting and could only have served to prejudice the jury against him.

Of course none of the evidence at trial directly established the defendant's guilt. The People's case was largely circumstantial. In such a case "motive often becomes not only material but controlling" (People v. Fitzgerald, 156 N.Y. 253, 258, 50 N.E. 846). According to Pauline Joseph, the defendant and his associates planned and carried...