People v. Vernon
| Decision Date | 17 February 1977 |
| Citation | 391 N.Y.S.2d 959,89 Misc.2d 472 |
| Parties | The PEOPLE of the State of New York v. Lawrence VERNON, Defendant. |
| Court | New York Supreme Court |
William Gallagher, The Legal Aid Society, New York City, by Ellen Schall, New York City, of counsel, for defendant.
Robert M. Morgenthau, Dist. Atty., New York County by Paul Morgenstern, Asst. Dist. Atty., for the People.
The issue now ruled on is narrow and Ad hoc. It is whether on the prospective hearing of the particular motion to be held pursuant to Criminal Procedure Law, section 210.40(1) to dismiss the indictment or one count of it in furtherance of justice, on the ground that dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstances demonstrating that conviction or prosecution of the defendant would constitute or result in injustice, colloquially labelled a 'Clayton hearing,' People v. Clayton, 41 A.D.2d 204, 342 N.Y.S.2d 106, the court is prohibited from granting a preliminary application by the accused that the court receive in evidence on the Clayton hearing testimony of the results of a polygraph examination to which the accused submitted, on his own initiative, and testimony of a second such test by another polygrapher, also procured on the defendant's initiative but on notice to the People and by a polygrapher whose credentials are unassailed by the People (Richard O. Arther, Editor of the Journal of Polygraph Studies).
Equally significant are the issues not adjudged on this ruling: whether the accused is guilty or not; whether such polygraph evidence is admissible on a trial, by jury or court, by consent or over objection, by either party; whether such evidence is admissible in Clayton hearings on offer of the People over the defendant's objection; or whether the Clayton motion to dismiss the indictment or count should be granted or denied.
The defendant justifies the reception of the evidence under the second of the discretionary criteria enumerated in Clayton, namely, 'available evidence of guilt,' where, he argues, the only truly reliable evidence of guilt in the case at bar is circumstantial but not insufficient to sustain conviction, inviting a practical need to prove a negative; this the defendant is helpless in this action to attempt because of a self-inflicted but nonetheless effective incapacity. The negative is that he did not possess a weapon, Penal Law section 265.02, which was found beside him; the circumstantial evidence is that it was there; and his disability to adduce facts affirmatively disproving his possession arises from the fact that he was incapacitated by intoxication.
The court was made aware (by both sides) that the defendant was arrested in a tavern when two police officers entered, responding to a report (later found unsubstantiated) of a shooting. Dining booths, partitioned by plexiglass enclosures, lined a wall, and the defendant was seated in one with his head slumped on the table, cupped in his folded forearms, in an alcoholic stupor. One officer, it appears, believes and will testify that he saw the defendant conspicuously and with deliberation remove a revolver from his pocket, transport it in a sinuous mid-air arc to the right, and carefully drop it between the seat of the booth and the wall. The vitality of this evidence, it is to appear, will be diluted by the failure of the officer's partner, who immediately preceded him, to observe the revolver on the defendant's person or in transit, or to see anything more than a vague movement lacking probative force. But it appears that the revolver was there between booth and wall; and this circumstantial evidence is to be the only substantial proof bearing probative value. Although the offense would otherwise be a misdemeanor, the defendant is a predicate felon.
The defendant's position is that where his disability prevents him from disproving the only substantially probative available evidence of guilt, which is circumstantial, the opportunity to avoid injustice if he is innocent need not be sacrificed, when, in addition to that situation, some extraneous compelling factor, consideration or circumstance demonstrates that conviction or prosecution would result in injustice, C.P.L. section 210.40(1). Responding to that call, another judge of this court directed a Clayton hearing. The accused now argues that before the court, upon such hearing, determines the question whether the extraneous compelling factor, consideration or circumstance exists, it ought first be persuaded that conviction Would result in injustice. As to such injustice, innocence is not extraneous. Conviction of an innocent person is an injustice. Such innocence, argues the defendant, ought to be demonstrable by whatever means, independently of the extraneous factors. Differently stated, the defendant's argument is that there are two elements to the issue as applicable to his fact situation: the compelling factor, consideration or circumstance, to which guilt or innocence is concededly irrelevant, and the injustice resulting from conviction or prosecution. As to the latter element, as distinguished...
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