People v. Rosenberg

• Citation: 297 N.Y.S.2d 860,59 Misc.2d 1
• Court: United States State Supreme Court (New York)
• Decision Date: 17 January 1969
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Jerome L. ROSENBERG, Defendant.

Page 860

297 N.Y.S.2d 860

59 Misc.2d 1

The PEOPLE of the State of New York, Plaintiff, v. Jerome L. ROSENBERG, Defendant.

Supreme Court, Criminal Term, Kings County, Part II.

Jan. 17, 1969.

Elliott Golden, Acting Dist. Atty., Kings County, by Sheldon Greenberg, Asst. Dist. Atty., for plaintiff.

Jerome L. Rosenberg, pro se.

SAMUEL S. LEIBOWITZ, Justice.

In this coram nobis proceeding the petitioner, Jerome L. Rosenberg, hereinafter referred to as the defendant, moves to set aside and vacate the judgment convicting him and his co-defendant Anthony Portelli, of murder in the first degree. He alleges that his right to a fair trial was violated by the prosecution's suppression of the negative result of an ultra-violet light test by police officers, of his person, which the defendant alleges was vital information favorable to him at his trial.

His conviction was affirmed by a unanimous decision of the Court of Appeals, 15 N.Y.2d 235, 257 N.Y.S.2d 931, 205 N.E.2d 857. Certiorari was denied by the United States Supreme Court, 382 U.S. 1009, 86 S.Ct. 612, 15 L.Ed.2d 524.

The Governor commuted the death sentence to life imprisonment.

Upon the trial the evidence disclosed that the defendant during the holdup took from a counter in the premises an inkstained towel used to clean a revenue stamp cancelling machine, and covered his face with it. He was then wearing a fedora hat and sunglasses with identifying initials on the earpieces. While the holdup was in progress, two non-uniformed police officers entered the establishment. The officers were shot and killed. The robbers then fled. In a refuse can, about a block away from the scene of the holdup, the authorities discovered the towel, the spectacles and the fedora hat which a haberdasher testified had been sold to this defendant.

Upon the trial there was no claim made by the prosecutor, either directly or inferentially, that any ink stains from the towel had been found upon the defendant.

From the credible evidence adduced upon the hearing, the following essential facts are established: The defendant was not taken into custody until the evening of the fifth day after the murders. On the morning following, at a police station, before proceeding to the arraignment court, two detectives from the Laboratory Squad of the Police Department inspected the defendant with the aid of an ultraviolet light--to determine whether any stains from the towel had left an imprint upon this defendant. The investigators found none and, in words or substance, the defendant was fully apprised of the negative result by the detectives.

Nonetheless, the defendant now maintains that it was the duty of the prosecutor to inform his counsel of the negative result of the test. Therefore, he asserts that his constitutional right to a fair trial was invaded and his conviction should be voided.

'It can be said that the prosecution must not act in an essentially unfair way. But this is an area in which the question of fundamental fairness depends so much upon the facts of the particular case that a precise rule cannot be devised.' (United States ex rel. Thompson v. Dye, 3 Cir., 221 F.2d 763, 769; Barbee v. Warden, Maryland Penitentiary, 4 Cir., 331 F.2d 842).

Evidence is not suppressed or withheld if the accused has knowledge of the facts and circumstances, or if they otherwise become available to him during the trial (United States ex rel. Thompson v. Dye, Supra).

The defendant states that he did not make disclosure to his attorneys concerning the test and its result because he 'did not know the law'. The court rejects this as an excuse. He was represented upon the trial by four experienced criminal lawyers. Not one of his attorneys was called to corroborate his claim that he had not disclosed the facts to him. If the defendant did not inform his attorneys, then it is his responsibility and he must bear the legal consequences. He may not now complain about the suppression of evidence of which he had knowledge but which he did not communicate to counsel.

There must be a denial of the application on further grounds. The defendant's contention is that the passive nondisclosure by the prosecutor of the ultraviolet light test and its negative result having been shown, that in itself, as a matter of law, sustained the burden of proof. This is not so. Mere nondisclosure per se is insufficient (Smith v. United States, D.C., 277 F.Supp. 850, 860). This is not a case of the knowing use of perjured testimony or the intentional suppression of evidence as in Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690; Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217; People v. Savvides, 1 N.Y.2d 554, 154 N.Y.S.2d 885, 136 N.E.2d 853; People v. Creasy, 236 N.Y. 205, 140 N.E. 563. The rule in passive nondisclosure cases is that the suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material, either to guilt or punishment (Brady v. Maryland, 373 U.S. 83, 87, ...