People v. Sher

• Decision Date: 17 April 1969
• Citation: 24 N.Y.2d 454,248 N.E.2d 887,301 N.Y.S.2d 46
• Parties: , 248 N.E.2d 887 The PEOPLE of the State of New York, Respondent, v. Walter SHER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 46

301 N.Y.S.2d 46

24 N.Y.2d 454, 248 N.E.2d 887

The PEOPLE of the State of New York, Respondent, v. Walter SHER, Appellant.

Court of Appeals of New York.

April 17, 1969.

Mario Matthew Cuomo, Brooklyn, for appellant.

William Cahn, Dist. Atty. (Henry P. De Vine, Mineola, of counsel), for respondent.

PER CURIAM.

Walter Sher appeals from a judgment of conviction of two counts of murder in the first degree arising out of a jewelry store holdup on April 5, 1962. Sher was indicted along with co-felon Dominic Carbonaro on April 13, 1962. Both men pled not guilty. The District Attorney contemplated bringing both Sher and Carbonaro to trial together. Before trial, however, Sher was committed to Matteawan State Hospital. A hearing was held before the County Court, Nassau County which found that Sher was not sufficiently capable of understanding the charges pending against him to make a defense and confer intelligently with counsel. Carbonaro, therefore, stood trial alone. He was convicted of felony murder on October 4, 1963 and sentenced to death.

Sher was returned from Matteawan on July 23, 1963 to stand trial. His trial commenced on October 8, 1963, four days after Carbonaro had been found guilty. The jury returned a verdict of guilty on November 21, 1963. A separate sentencing hearing was held before the same jury and a sentence of death was imposed. ^*

Both Sher and Carbonaro appealed their convictions directly to the court. After the appeals were first docketed, a stipulation was entered into by counsel for both defendants and the District Attorney to remand the cases for confession hearings pursuant to People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179. See People v. Sher, 15 N.Y.2d 798, 257 N.Y.S.2d 595, 205 N.E.2d 691. Both Sher's and Carbonaro's confessions were found to be voluntary. Before Sher's appeal was again on the calendar for argument, the court affirmed the judgment of conviction of Dominic Carbonaro (People v. Carbonaro, 21 N.Y.2d 271, 287 N.Y.S.2d 385, 234 N.E.2d 433). The present appeal is before the court pursuant to the original notice of appeal and the stipulation.

The proof of the substantive crime and the identity evidence in this appeal are substantially the same as that reviewed and affirmed in the separate appeal of Carbonaro. In the Carbonaro case the court found that 'The evidence establishing defendant's guilt was overwhelming' (People v. Carbonaro, Supra, p. 275, 287 N.Y.S.2d p. 388, 234 N.E.2d p. 435). That is the case again. Sher does not claim that the evidence of his guilt is insufficient. Counsel in his brief candidly concludes that: 'There is no question but that Walter Sher and Dominic Carbonaro were both involved in the perpetration of acts which, assuming a proper and fair trial and a finding of sanity, would justify a conviction.'

The only incident during trial on which there is disagreement in the court as to whether its occurrence requires a new trial is the anonymous communications by telephone with several of the jurors following the close of the People's case and before submission of the defense. The incident resulted in no palpable prejudice to defendant since each of the jurors during the trial was questioned whether he could sit impartially and confine his verdict to the record evidence, and each answered in the affirmative, despite the telephone calls to Nachbar and others of the jury. This was after each related his own telephone conversations with the anonymous caller and with his follow jurors. This cures the possible harm under the accepted precedents because the questioning of the jurors and admonition to them serve a real purpose in drawing their attention to the unfairness of their considering anything but the record evidence (e.g., People v. Levy, 15 N.Y.2d 159, 166--167, 256 N.Y.S.2d 793, 797--798, 204 N.E.2d 842, 845--846; People v. Broady, 5 N.Y.2d 500, 514--516, 186 N.Y.S.2d 230, 242--244, 158 N.E.2d 817, 825--826, 79 A.L.R.2d 841; People v. Sorrentini, 26 A.D.2d 827, 273 N.Y.S.2d 981; People v. Jackson, 20 A.D.2d 918, 249 N.Y.S.2d 645; cf. People v. Hulett, 22 N.Y.2d 696, 291 N.Y.S.2d 807, 238 N.E.2d 916, affg. 28 A.D.2d 624, 280 N.Y.S.2d 225; People v. Lubin, 190 App.Div. 339, 179 N.Y.S. 691, affd. 229 N.Y. 601, 129 N.E. 924; see, generally, 66 C.J.S. New Trial § 51).

Significantly, the juror Nachbar, to whom the only really seriously unfavorable communications were made, stated: 'A. If I may say so, Judge, this incident has done only one thing to me: It has strengthened my resolve to be completely impartial and to be governed by the evidence alone. There was no evidence given me at all yesterday, nothing whatsoever that could be called evidence. It was just somebody's urging to do a certain thing.'

People v. Cocco, 305 N.Y. 282, 113 N.E.2d 422 involved an entirely different situation. There the improper communication came to defendant's attention after the verdict and there was never an opportunity to 'sterilize' the jury by appropriate examination and admonition. Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 involved the vastly more serious situation of a court official, a bailiff, passing on the contaminating words (see, generally, Ann., Prejudicial effect, in criminal case, of communication between court officials or attendants and jurors, 41 A.L.R.2d 227). That is not to be compared with an anonymous or other irresponsible communication which a juror should easily understand is to be given no credence, if so advised and admonished.

Accordingly, the judgment of conviction should be affirmed.

KEATING, Judge (dissenting).

Walter Sher was convicted of two counts of murder in the first degree and sentenced to death. If Sher had received a fair trial, the proof introduced by the People would amply justify his conviction. It is the pride, however, of American jurisprudence that the most cold-blooded killer is entitled to the same essentials of a fair trial as the most upright pillar of society. Sher's trial was infected by a number of unauthorized telephone communications to jurors in the middle of the trial. We believe, because of the nature of these communications, that a great likelihood existed that the jury could not have reached its verdict solely on the evidence introduced at trial. These communications, therefore, deprived Sher of being convicted by an impartial jury, one of the fundamental requirements of due process.

The majority, in finding these communications harmless, fail to perceive that our task is to evaluate the possible prejudice to the defendant by the rule announced in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, since the defendant was denied one of the basic mandates for a fair trial. In Chapman the Supreme Court stated that 'the beneficiary of a constitutional error * * * (must) prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' (Id., p. 24, 87 S.Ct. p. 828.) Applying this test to the instant case, we must find that a substantial likelihood existed that the jurors considered the unauthorized communications in arriving at their verdict.

The District Attorney Completed the People's case on Wednesday, October 23, 1963. Defense counsel made a number of motions at this time. All were denied. The court then dismissed the jurors and asked them to return on Feiday morning when the defense would start presenting its case. Before the jury was permitted to return home, the court admonished them that they were not to discuss the case among themselves or with anyone else. The Judge also directed them not to read or listen to any accounts of the trial in newspapers or on television. The jury was then permitted to go home. This admonishment had been given numerous times before as required by section 415 of the Code of Criminal Procedure.

When the jury returned on Friday, it was brought to the court's attention that a number of unauthorized communications had taken place and that the jurors discussed these communications among themselves. In order to determine the extent of the problem the Judge called each juror and alternate individually into his chambers, in the presence of counsel, and inquired if they received a communication, whether they had discussed it with other members of the jury, and asked the extent of their knowledge of other communications. The Judge conducted the investigation. He asked each juror to describe briefly what occurred. Though counsel were both present they did not fully participate in questioning the jurors. (See People v. Colascione, 22 N.Y.2d 65, 291 N.Y.S.2d 289, 238 N.E.2d 699.)

It came to light that an unidentified female had telephoned a number of jurors on Thursday evening. She urged that the jury convict the defendant. She asked a few jurors to disregard the defense of insanity. She also remarked that Sher was a vicious killer, disregard the defendant's attorney, vote for the electric chair, Sher must be found guilty, ignore the plea of insanity and disregard the testimony of the defendant's psychiatrists. During one call she told juror Nachbar that Sher had a criminal record and that his co-felon Carbonaro had been found guilty and sentenced to death. The anonymous caller only reached five members of the jury. It was apparent, however, from questioning the jurors, that those jurors who had not received calls had, upon arrival at court, either held or overheard conversations detailing the substance of the calls. All the jurors, however, assured the Judge that they would not be influenced by what had occurred and not draw any inference from it. The jurors each promised the Judge that they would only decide the case on the evidence introduced during the trial.

The defendant moved for a mistrial. The prosecution admitted that the comments made to juror Nachbar were prejudicial and suggested that Nachbar be withdrawn. Defense counsel did not concur in the District...