People v. Pobliner
| Decision Date | 04 May 1973 |
| Citation | 32 N.Y.2d 356,345 N.Y.S.2d 482,298 N.E.2d 637 |
| Parties | , 298 N.E.2d 637 The PEOPLE of the State of New York, Respondent, v. Jay T. POBLINER, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Stanley S. Arkin, New York City, for appellant.
William Cahn, Dist. Atty., (Henry P. DeVine, Mineola, of counsel), for respondent.
Defendant appeals from a conviction for the murder of his wife and the denial of his postconviction motion to vacate the judgment.
A primary issue is whether intercepted telephone conversations between defendant and his lawyers before he was indicted, so invaded the counsels of the defense that a dismissal of the indictment is required. A related issue is whether defendant's trial attorney intentionally waived a hearing on the legality and effect of the wiretap, and waived objection to the alleged, but disputed, use by the prosecutor of wiretap information on cross-examination of the principal defense witness. Other contentions turn on the admission into evidence of blown-up photographs of the blood-stained corpse, and testimony about defendant's extramarital sexual relations. Defendant also contends that the trial court erred in denying, without a hearing, his motion to vacate the judgment based on newly-discovered evidence.
There should be an affirmance. Although the interception of the lawyer-client telephone conversations was grossly improper, the counsels of the defense were not so invaded that the indictment should be dismissed. On the related issue whether improperly obtained wiretap evidence was used indirectly by the prosecution, the court properly found that there was no such use. In that connection, defendant either had a hearing during trial or waived his right to a hearing, in seeking to establish such indirect use. The remaining issues raised do not reveal error in the trial.
On December 27, 1968, the bloody corpse of Brenda Pobliner was found in a sleeping position in the marital bed, with three clustered bullet wounds near her left temple. Brenda and her husband, defendant Jay Pobliner, had lived with their 15-month-old son in Merrick, Long Island. . it was a second marriage for each. The evening before the murder, Jay had brought home a male friend, Illis Jurisson. The three apparently spent a quiet evening having a couple of drinks and watching television. According to Joe Hall, a friend of Jay's from North Carolina, Jay admitted to him that, while she slept, he shot his wife with a pistol in the presence of Jurisson the following morning. That morning Jay fed a bottle to the couple's 15-month-old boy, and then drove Jurisson to Manhattan. Defendant had breakfast with his parents in Manhattan and then went to work in a family business arranging travel tours.
After arriving at work, he called his wife, and receiving no answer, called a neighbor, a Mrs. Pober. Mrs. Pober discovered the body, telephoned the police, and then her husband to ask him to call Jay and tell him something was wrong. She did not tell her husband what was wrong with Brenda and did not say anything about blood. Her husband called defendant and told him only that something was wrong and to come home. Defendant then spoke to the men where his automobile was parked, asking for someone to drive him to his home because he was too nervous to drive. He told them that his wife was 'bleeding'. The prosecution relied heavily on Jay's 'guilty knowledge' of the bleeding and his detailed admissions to Joe Hall. Although the murder weapon was never recovered, the prosecution established defendant's prior purchase of an unregistered pistol through Joe Hall, which could have been the weapon used. The defense relied primarily on the alibi testimony of Jurisson.
Immediately after the murder, defendant Jay and Jurisson apparently co-operated with the police investigation. Both were questioned at length, and gave exculpatory signed statements. Lie detector and paraffin tests were performed and Jay's clothes were scientifically examined. The results of these tests were evidently unproductive.
After the murder, Jay and his child stayed with his parents in their Manhattan apartment. The police, concentrating their investigation on Jay, but, as the District Attorney's brief states, 'Having run into a stone wall', obtained two judicial eavesdropping orders for two telephones in the parents' apartment. All telephone conversations were recorded from about January 16, 1969 to February 5, 1969.
On March 24, 1969, Joe Hall, who had asked to speak to someone in the District Attorney's office, revealed Jay's admissions to him. Jay was indicted March 28, 1969.
The transcript of recorded conversations contains 1,338 pages. Eleven conversations were recorded between Jay and a lawyer-friend, one Handman; ten conversations between one of Jay's parents and Handman; eight between Jay and his private investigator; and three betweey Jay's parents and the investigator. One conversation between Jay and his trial attorney was reflected in the detective's notes but was not recorded in the transcript. There was one recorded conversation between Jay and the trial attorney's law partner.
Much of the recorded conversations were converned with the progress of police investigations, defendant's plans for investigation, or were simply to arrange conferences among Jay, his lawyers, and investigator. There were discussions of possible witnesses, including Jurisson, and of Jay's plans to visit Asheville, North Carolina.
Some conversation between Jay and his lawyer-friend involved treatment of Jurisson's mental condition. The District Attorney asserts that by getting Jurisson admitted to a private hospital for shock treatments, Jay and his lawyer were intentionally destroying material evidence. The District Attorney, therefore, argues that the conversations involved commission of a crime which would not be covered by any confidential privilege. The conversations between Jay and his lawyer show that they arranged for Jurisson's admission to the hospital; that they fretted about what Jurisson might say to the police; and that Jay's family paid a Jurisson hospital bill of $900.
At the preliminary hearing (prior to the first trial which ended in a mistrial) defendant's trial attorney moved for a hearing on the validity of the wiretap, citing the invasion of the lawyer-client conversations. The prosecutor advised the court that no wiretap evidence and no evidence discovered as a result of the tap would be used on the People's direct case. On that representation, the court ruled that it would not permit use of the wiretaps, either directly or indirectly. Mr. Edelbaum, the trial attorney, however, who had listened to the tapes, was advised to object during trial to the introduction of evidence, if ascribed by him to the wiretaps. At the first and second trials, Edelbaum also moved to dismiss the indictment, because of the invasion of 'privacy between attorney and client'. The motion was denied. The prosecutor and the court agreed, nevertheless, that defendant was entitled to a hearing to explore the content of certain blank tapes and the circumstances of their erasure. Edelbaum first said he did not want such a hearing, and when it was offered again he reserved decision over the weekend, and apparently did not bring up the subject again.
At the second trial beginning September 8, 1970, Edelbaum asked whether and was informed that the court would make the same rulings on the wiretap evidence. After selection of the jury, the prosecutor suggested that since the validity of the wiretaps had never been determined, a hearing for that purpose should be held at the outset. Edelbaum objected strongly, requesting the court to adhere to its original decision which had the effect of denying the prosecution direct wiretap evidence or indirect evidence from wiretap leads. He also feared that the jury might be prejudiced by the delay. The court adhered to its original determination.
Defendant contends that the direct, intentional intrusion into defendant's confidential relationship with his lawyers requires dismissal of the indictment. He cites no New York case which would support an outright dismissal of the indictment. He relies on the statement in Hoffa v. United States (385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374) that '(i)t is possible to imagine a case in which the prosecution might so pervasively insinuate itself into the councils of the defense as to make a new trial on the same charges impermissible under the Sixth Amendment' (at p. 308, 87 S.Ct. at p. 416; see, also, United States v. Balistrieri, 403 F.2d 472, 477--478 (7th Cir.), vacated 395 U.S. 710, 89 S.Ct. 1463, 22 L.Ed.2d 761, appeal from determination on remand 436 F.2d 1212, 1214--1215, cert. den. 402 U.S. 953, 91 S.Ct. 1620, 29 L.Ed.2d 124; Caldwell v. United States, 92 U.S.App.D.C. 355, 205 F.2d 879, 881, n. 11).
Dismissal of the indictment is a drastic remedy, seldom employed, to sanction illegal seizure of evidence, as distinguished from the preclusion of illegal evidence. As the Supreme Court stated in United States v. Blue, with respect to the privilege against self incrimination: ...
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