People v. Newsome

Decision Date07 November 1966
Citation52 Misc.2d 178,274 N.Y.S.2d 652
PartiesThe PEOPLE of the State of New York, Plaintiffs, v. Daniel NEWSOME, James Brown, John Prince, Joseph Henry Ratti, Leonard Davis, Joseph Albert Ratti, Randall James, Defendants.
CourtNew York Supreme Court

Evseroff, Newman & Sonenshine, Brooklyn, for Daniel Newsome.

Joseph L. McLemore and Martin Garbus, New York City, for Joseph Henry Ratti.

M. C. Dolan, New York City, for James Brown.

H. Silverman, New York City, for John Prince.

Isidore Dollinger, Dist. Atty., Bronx County, Lawrence Tonetti, Asst. Dist. Atty., of counsel, for the People.

THOMAS DICKENS, Justice.

This motion by the defendants has for its purpose the nullification of the collective verdict against the defendants, tried jointly before me. The underlying reason for this move is the alleged failure of the jury to equalize, by their verdict, the guilt of each of the defendants with one another.

In other words, the defendants raise the point that the jury's finding of guilt as to one of them on the count of manslaughter in the second degree--a count added by me to the instructions given to the jury--and the jury's finding of guilt as to the other defendants on the count of manslaughter in the first degree--the count as declared in the indictment--are diversified, and, so, they contend, that, inasmuch as the findings of the jury were dependent upon the same state of facts applicable to all of the defendants, it follows, therefrom, that the jury's verdict is, in toto, invalid for not being in keeping with the rule of consistency as required in an instance such as is here presented.

The district attorney, on the other hand, does not see eye to eye with the defendants on their view of the rule. Instead, the district attorney advances the argument, in effect, that the verdict is fundamentally consistent in tenor, and therefore, is en re gle.

The case law falls in with the district attorney's point of view. Within the compass of judicial declarations, as narrowed down, I find, therefrom, that the law makes against the defendants, and therefore, the defendants' challenge proves itself to be without legal substance and footless.

In People v. Bofill, 34 Misc.2d 574, 229 N.Y.S.2d 93, I, as the Judge in that case, ruled in accordance with the theorem expounded in People ex rel. Epstein v. Lawes, 164 Misc. 58, 297 N.Y.S. 386, to wit, that a joint indictment of several defendants does not require that they be considered jointly for all purposes, and also, with the further rule expounded in March v. People, 7 Barb. 391, that a judgment in a criminal prosecution must be several against each defendant, although the trial may have been joint.

In its headnote, De Mott v. Notey, 4 Misc.2d 996, 1002, 159 N.Y.S.2d 101, 107, offers this contribution to the solution of the question: 'Consistency in verdicts or decisions between separate counts is unnecessary,' citing in the body of its opinion, several controlling authorities. (See also: People v. Troche, 9 Misc.2d 452, 172 N.Y.S.2d 872.)

The preamble in Klein v. People, 31 N.Y. 229, focuses direct enlightenment on the subject-matter, in this pointed language:

'If the acts of the prisoners committing the offense are a part of one and the same transaction, and the offense in law admits of different degrees, they may be convicted of different degrees, though jointly indicted for the same offense.'

In the body proper of the Klein case (p. 235), appears the following illustration, which apparently runs strongly parallel, in theory, with the situation at bar:

'Thus, where two defendants are charged with murder, in the same indictment, the jury may find one guilty of murder and another of manslaughter.'

Of further persuasive enlightening influence bearing on the issue, is the Ad rem citation of White v. People, 32 N.Y. 465.

In that case, where all the defendants were accused of the same offense though found guilty in different degrees, the court upheld the verdict. For its Ratio decidendi, the court observed (p. 467):

'When all (defendants) are charged upon a similar indictment for acts jointly done at the same time, a portion may be convicted of the principal offense and another portion of them of the lesser charge. Such a result may be demanded by the evidence, as we are bound to presume it was in the present case, and no one can be prejudiced thereby.'

Regarding the defendant Newsome, particularly, who had become the beneficiary, presumably prima facie, of the jury's beneficence by virtue of the jury's verdict of manslaughter in the second degree, I should say that he has no reason to complain when, as I had, also as the presiding Judge in People v. Kildare, 34 Mise.2d 822, 823, 229 N.Y.S.2d 20, 22, stated there that it is considered that,

'A malefactor is in no favorable position to find fault when he is charged with the lower of the alleged offenses involved instead of the higher one, and, when, as a result, he receives a benefit.'

Also, quoting from another citation, I stated further:

"It is hardly becoming for him (...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT