People v. Nitzberg

CourtNew York Court of Appeals
Citation47 N.E.2d 37,289 N.Y. 523
Decision Date21 January 1943

289 N.Y. 523
47 N.E.2d 37


Court of Appeals of New York.

Jan. 21, 1943.

[47 N.E.2d 38]

Appeal from Kings County Court; Brancato, Judge.

Irving Nitzberg was convicted of murder in the first degree and from a judgment of the Kings County Court rendered March 23, 1942, and he appeals.

Reversed and indictment dismissed.

CONWAY, FINCH, and LEWIS, JJ., dissenting.

I. Maurice Wormser and Martin W. Littleton, both of Mineola, and Richard H. Brown, of Valley Stream, for appellant.

Thomas Cradock Hughes, Acting Dist. Atty., of Brooklyn (Edward H. Levine, of Brooklyn, of counsel), for respondent.

LEHMAN, Chief Judge.

The defendant was indicted for murder in the first degree for the killing of Albert Shuman on January 9, 1939. The indictment was filed on July 2, 1940, and the defendant pleaded not guilty on July third. He was tried in May, 1941, found guilty by the jury and sentence of death was pronounced on June second. Upon appeal to this court the judgment of conviction was reversed on December 4, 1941. 287 N.Y. 183, 38 N.E.2d 490, 138 A.L.R. 1253. A motion for reargument made by the District Attorney was denied in February, 1942. 287 N.Y. 754, 40 N.E.2d 40,138 A.L.R. 1266. He was again tried upon the same indictment and now appeals from the judgment of conviction rendered March 23, 1942, upon the second trial.

Upon the first trial one Abraham Reles, a self-confessed accomplice in the killing of Shuman, testified in effect that his ‘business' was murder in Brooklyn, that he was told by one of his bosses in such ‘business' that Shuman was giving the police information about him and that Shuman must

[47 N.E.2d 39]

be killed; that the witness then enlisted the services of this defendant as an aide in the killing; and that pursuant to a prearranged plan the defendant shot and killed Shuman. Two other men who were members of the same gang conducting the ‘business' of murder, and who were accomplices in the killing, also testified against the defendant. The defendant denied their story and testified that he had no connection with the gang and was not acquainted with any of the men who according to the testimony of these accomplices, were members of the gang. To furnish the corroboration of the testimony of the accomplices which is required by the statute (Code Cr.Proc. s 399), the People produced three other witnesses who, it is said, were not accomplices. The judgment entered upon the verdict of the jury upon the first trial was reversed for error in the charge, not for insufficiency of the evidence; but in appraising the effect of the error and determining whether it might be disregarded, the prevailing opinion pointed out that ‘this defendant took the stand. His guilt is far from being clearly exhibited by the record. Of the three witnesses for the People who gave evidence sufficient to satisfy the statutory requirement of corroboration of Reles two had been prisoners in a jail where the defendant had been confined. Their testimony was that the defendant admitted his guilt to them or in their hearing to persons who visited him there. The third of these witnesses was a thrice-convicted criminal.’ 287 N.Y. 183, 193, 38 N.E.2d 490, 495, 138 A.L.R. 1253.

An indictment must be based upon evidence which in the judgment of the grand jury ‘would, if unexplained or uncontradicted, warrant a conviction by the trial jury.’ Code Cr.Proc. s 258. ‘It is manifest, therefore, that if the only testimony before the grand jury is the testimony of accomplices, it cannot be said to be sufficient, if unexplained or uncontradicted, to warrant a conviction by the trial jury’ and when it appears that an indictment is founded upon evidence which as matter of law is insufficient to warrant a conviction, the courts have power to set it aside. People v. Sweeney, 213 N.Y. 37, 42, 106 N.E. 913, 915. ‘This power is based upon the inherent right and duty of the courts to protect the citizen in his constitutional prerogatives, and to prevent oppression or persecution. It is a power which the legislature can neither curtail nor abolish, and, to the extent that legislative enactments are designed to effect either of these ends, they are unconstitutional.’ People v. Glen, 173 N.Y. 395, 400, 66 N.E. 112, 114.

A few days after the motion for reargument of the first appeal had been denied by this court, the defendant made a motion for the inspection of the minutes of the grand jury as a preliminary to a motion to dismiss the indictment. The motion was denied by an order entered February 17, 1942. Co.Ct., 33 N.Y.S.2d 55. A motion to dismiss the indictment made immediately thereafter on the ground that the indictment was based solely on the testimony of witnesses who were accomplices as matter of law was denied on February 24, 1942. Upon the appeal from the judgment of conviction entered upon the verdict of the jury rendered upon the second trial the defendant seeks to bring up these two orders for review.

We may upon this appeal disregard the order denying the motion for an inspection of the minutes if it appears even without such inspection that the testimony of accomplices was the only evidence before the grand jury, and that the indictment should have been dismissed on that ground. Unquestionably none of the three witnesses produced at the first trial to furnish corroboration of the testimony of the accomplices were heard by the grand jury before it indicted the defendant. The alleged admissions of guilt of the defendant were made to the two prisoners in the jail where the defendant was confined after the indictment was found, and the third corroborating witness, one David Price, ‘a thrice-convicted criminal,’ had testified at the first trial that he did not appear before the grand jury and had not informed the District Attorney that he had any information concerning the homicide until immediately before the trial began. There can be no doubt that the indictment was based upon evidence which, as matter of law, is insufficient unless the grand jury had access to corroborative evidence which the District Attorney had failed to produce at the first trial of the indictment.

[47 N.E.2d 40]

To prove that no additional evidence was produced before the grand jury, the defendant showed that upon the motion for a reargument the District Attorney had submitted an affidavit stating: ‘We have no additional evidence to offer’ and that the Assistant District Attorney who participated in the preparation and the first trial of the case had on November 24, 1941 while the appeal from the judgment rendered at that trial was pending in this court asked in the Court of General Sessions of New York County that clemency be shown to one George Stern because George Stern had been helpful to the People in obtaining evidence against Nitzberg. The minutes of the hearing in the Court of General Sessions show that the Assistant District Attorney of Kings county at that time said in open court:

Nitzberg was indicted on the 2nd of July, 1940, and at that time the evidence against Nitzberg was only that of accomplices who had squealed, or opened up, to the district attorney of Kings County about the whole group of cases which were then being prosecuted in our office. We had no independent corroborative testimony upon which we could proceed against Nitzberg and the indictment went along for some time without being prosecuted because of that fact. A number of motions were made in the County Court to dismiss that indictment for lack of prosecution.

‘In the month of March, 1941, Judge Fitzgerald, in the County Court, ordered that we proceed with the trial of Nitzberg's case on or before May 12th, otherwise he would dismiss the indictment. At that time we still had no corroborative testimony, or independent proof, upon which we could hope to base a conviction against Nitzberg.’

The District Attorney of Kings county did not assert upon the motion to dismiss the indictment that ‘any corroborative testimony or independent proof’ had been in his possession or produced before the grand jury. As now appears, he could not have done so, for in an affidavit made by the District Attorney after the conclusion of the second trial, the District Attorney stated that in March, 1941, ‘the principal evidence in our possession came from accomplices, and the necessary corroboration by way of independent proof was lacking.’ Further reference to that affidavit will be made hereafter in this opinion. Since the affidavit was made after the motion to dismiss the indictment was decided, we refer to it at this point only because it destroys any possibility that the statements or admissions of similar nature made by the District Attorney or his assistant which were submitted upon the motion might be subject to some undefined limitation or explanation.

‘An indictment is a record of the court, which imports absolute verity until properly impeached. People v. Hulbut, 4 Denio 133, 136, 47 Am.Dec. 244. The presumption is that an indictment is based upon legal and sufficient evidence until there is satisfactory proof to the contrary.’ (Italics are new.) People v. Glen, supra, 173 N.Y. at page 403, 66 N.E. at page 115. In that case the court refused to set aside the indictment saying: ‘In the case at bar there is no proof of that kind.’ In the case we are now reviewing there is unchallenged ‘proof to the contrary.’ No ‘presumption’ can overcome such proof. In an analogous situation, Mr. Justice Story, then sitting as a Circuit Judge, has said: ‘Lee's affidavit is direct and positive, as to a fact, of which he could not be ignorant. The counter affidavits are merely of impressions. The court must be governed by the rules of evidence, and the facts must therefore be taken to be as stated by Lee. Of the law arising upon these facts there can be no doubt. The grand jury is the great inquest between the government and the citizen. It is of the highest importance, that this institution be preserved in its...

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