People v. Palumbo

• Decision Date: 04 December 1980
• Citation: 433 N.Y.S.2d 770,79 A.D.2d 518
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael R. PALUMBO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 770

433 N.Y.S.2d 770

79 A.D.2d 518

The PEOPLE of the State of New York, Respondent, v. Michael R. PALUMBO, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 4, 1980.

N. Barclay, New York City, for respondent.

A. Green, New York City, for defendant-appellant.

Before SULLIVAN, J. P., and ROSS, MARKEWICH, LUPIANO and CARRO, JJ.

MEMORANDUM DECISION.

Upon remittitur from the Court of Appeals, judgment, Supreme Court, New York County, rendered July 6, 1977, upon a verdict convicting defendant of receiving unlawful gratuities, affirmed for the reasons stated in the dissenting opinion on appeal herein reported at 65 A.D.2d 443, 451-454, 411 N.Y.S.2d 270.

This court reversed defendant's conviction, and the Court of Appeals reversed and remitted the case for determination of the facts with respect to the suppression of defendant's statements (49 N.Y.2d 928, 428 N.Y.S.2d 620, 406 N.E.2d 437). Based upon our determination of those facts, and for the reasons set forth in the original dissenting opinion we affirm.

Contrary to the view in the present dissent of Justice Lupiano, we find no procedural obstacle to this court's review of the facts, de novo. It is clear that the admonition by the previous majority that it "would reverse and direct a new trial in view of the deprivation of a fair trial" (People v. Palumbo, 65 A.D.2d 443, 449, 411 N.Y.S.2d 270) is dictum, and thus not binding since it was not necessary to the decision. (See Matter of Buehler v. Bd. of Supervisors, 260 N.Y. 268, 183 N.E. 384; also, 343 E. 77th Street Corp. v. Bloom, 45 Misc.2d 545, 257 N.Y.S.2d 263, App. Term, First Dept.) Inasmuch as the previous determination by this court was to reverse and dismiss the indictment, the observation that it would direct a new trial in any event because of trial errors was neither essential to, nor supportive of, its determination and was purely gratuitous.

In addition, whether the doctrine "law of the case" applies when a matter is still on appeal and has not been remanded is an unanswered question since the general application of the doctrine has concerned "the effect of ... statements of law on the lower court, and the effect of ... rulings on the appellate court itself in a later appeal." (Note, Successive Appeals and the Law of the Case, 62 Harvard Law Review 286.) Even when a second appeal is before the bench which has made previous determinations, the doctrine is less than inflexible.

In the absence of statute the phrase, "law of the case", as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit on their power. " Messinger v. Anderson, 225 U.S. 436, 32 S.Ct. 739, 56 L.Ed. 1152.

In a case in which the Appellate Division chose, after dismissing defendant's first appeal on the issue of liability for failure to prosecute, to entertain consideration of the same issue on the second appeal, the Court of Appeals observed that it could not say that the Appellate Division's exercise of its "reserved power" in this instance was error as a matter of law and stated that "(e)very court retains a continuing jurisdiction generally to reconsider any prior intermediate determination it has made ". (Aridas v. Caserta, 41 N.Y.2d 1059, 396 N.Y.S.2d 170, 364 N.E.2d 835). (emphasis added)

Recently, in Matter of Catholic Med. Center of Brooklyn & Queens v. Department of Health of State of N.Y. (48 N.Y.2d 967, 425 N.Y.S.2d 278, 401 N.E.2d 388), the Court of Appeals affirmed an Appellate Division decision which ran contrary to a previous decision in the same case. The dissenter (Meyer, J.) claimed that the Appellate Division violated the doctrine of law of the case, but the majority did not address the issue.

" '(L)aw of the case' is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of coordinate jurisdiction are concerned." (Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867.) Although it sits in panels, the Appellate Division is one court and its panels are not courts of coordinate jurisdiction. Nor are we limited on this remittitur to only a review of the custody issue. The Court of Appeals expressly stated that the issue of the misuse of the taped conversation of defendant was "beyond the scope of our review" (People v. Palumbo, 49 N.Y.2d 928, 929-930, 428 N.Y.S.2d 620, 406 N.E.2d 437). Thus the issue comes back to whether the majority's observation on the original appeal that it would direct a new trial in any event was a holding of this court or dicta.

In Getty v. Roger Williams Silver Co. (181 App.Div. 413, 168 N.Y.S. 155), upon which one of the dissenters relies on the custody issue, the court, after receiving the remittitur from the Court of Appeals, justified its determination to remand, rather than to affirm, in part on the fact that it had not changed its mind since its previous decision. By its language the Court implied that if, indeed, it had changed its mind, it would not have felt constrained by its initial determination.

The bench which decided the original appeal here and the bench which has received the remittitur from the Court of Appeals are not, as already noted, courts of coordinate jurisdiction but constitute the same bench, although one of the original judges is no longer a member of this court. Under our constitutional system the new members of the panel are not the mere proxies of the original majority.

All concur except MARKEWICH and LUPIANO, JJ., who dissent in separate memoranda as follows.

MARKEWICH, Justice (dissenting):

I concur only in the alternative result suggested in Justice Lupiano's dissent: defendant-appellant should have a new trial, having been deprived of a fair one by reason of admission into evidence of an inculpatory statement, taken without appropriate Miranda warnings while he was in custody. This conclusion is derived from the facts alone. The appellant was virtually arrested by police at a railroad station as he was about to board a train to go to work, and continued to be under close surveillance thereafter while being conducted to the place of examination, there held until the questioning was completed without being permitted even to go to the bathroom alone. All that was lacking to convert this into a full-blown arrest was the use of handcuffs. In these circumstances, it cannot be fairly claimed that the questioning was not custodial. Nor is it a relevant factor that he had theretofore voluntarily appeared for questioning. It is significant that only in the presence of the described coercion did appellant say anything which inculpated him. As to the matter of misuse of appellant's taped conversations, we could have properly reviewed this error by exercise of discretion in the interest of justice. We did not, however, record such a basis for taking up this point, as is shown by a reading of the pertinent portion of our last decision (65 A.D.2d 443, 446-7, 411 N.Y.S.2d 270), and it is now beyond reach. ^* At a retrial, however, appropriate objection could be made.

LUPIANO, Justice (dissenting).

The instant case reflects an element of "chance" or "fate" somewhat at variance with my judicial philosophy, which is predicated on the search for objective truth and a minimizing of the subjective element in the decision making process. Without engaging in an appraisal of the imaginative, as compared or contrasted with the purely rational basis underlying the processes by which appellate courts resolve the questions and issues brought before them, it suffices to briefly delineate the procedural history of this matter.

Defendant was convicted, after a jury trial, of receiving unlawful gratuities. The defendant's subsequent appeal was heard by a four-man Bench, with the result that the majority of three concluded on this record that the interrogation of defendant at the time he made an inculpatory statement was custodial, as a matter of law, and that the failure of the authorities to give the required Miranda warnings rendered such statement inadmissible. Accordingly, the Court concluded that the judgment convicting defendant should be reversed, on the law, and the indictment dismissed. The Court also stated:

"In any event, if we were not reversing and dismissing the indictment, we would reverse and direct a new trial in view of the deprivation of a fair trial" (People v. Palumbo, 65 A.D.2d 443, 449, 411 N.Y.S.2d 270, (1st Dept. 1978)).

Upon the People's subsequent appeal to the Court of Appeals, that court declared:

"We cannot agree that this interrogation was custodial as a matter of law, i. e., that under no view of the evidence in the record could it be found to be noncustodial. Accordingly, we hold that the determination of the Appellate Division in this regard was error. The case must, therefore, be remitted to the Appellate Division for determination of the facts under CPL 470.40 (subd. 2, par (b)). The other error on which the Appellate Division would have reversed (and granted a new trial)-namely misuse of the taped conversations of defendant-was not preserved for appellate review, no timely protest on this theory having been registered. Accordingly, that issue is beyond the scope of our review"(People v. Palumbo, 49 N.Y.2d 928, 929-30, 428 N.Y.S.2d 620, 406 N.E.2d 437 (1980)) (Emphasis supplied.)

The remittitur to this Court limited to a factual determination on the issue of whether the interrogation was custodial or noncustodial comes before a somewhat different Bench-one of the three Justices formerly comprising the majority having left this Court. Assuming the same Bench on the remittitur, the rationale of Getty v. Williams Silver Co., 181 App.Div. 413, 168 N.Y.S. 155 (1st Dept. 1917) would be most compelling. In that...