People v. Yamin
| Decision Date | 15 February 1965 |
| Parties | PEOPLE v. Martin YAMIN. |
| Court | New York Supreme Court |
Aaron E. Koota, Dist. Atty., William I. Siegel, Brooklyn, for the People.
The basic facts underlying the petition are fully stated in a 57-page opinion dated April 15, 1962 (unreported; referred to hereafter as the 1962 opinion). After an extended hearing, I granted the application and vacated the judgment of conviction on the several grounds stated therein.
The Appellate Division, Second Department reversed both my findings of fact and conclusions of law (21 A.D.2d 908, 252 N.Y.S.2d 5). Judge Fuld granted leave to appeal to the Court of Appeals. The contentions of the petitioner Yamin on appeal (unargued as yet) raise important and novel issues of due process under the State and Federal Constitutions.
In the preparation of the appeal additional evidence was brought to petitioner's attention concerning one of the several issues pending before the Court of Appeals. Petitioner instituted the instant coram nobis proceeding to establish a more favorable record. A hearing has been held (see minutes of November 13, 1964-53 pages).
In the instant coram nobis proceeding petitioner Yamin contends that an express promise of leniency was made to the witness Lococo before the trial; that Lococo testified at the trial that no promise of any kind had been made to him; that the prosecutor at the trial remained silent and failed to crrect this false testimony.
Before discussing the law applicable to the instant contention it is necessary to relate the instant contention to the 1962 proceedings. The factual background too must be briefly stated.
The Witness Lococo was indicted with petitioner Yamin for Murder, first degree. After the indictment was obtained, Lococo agreed to turn state's witness. His case was severed. He was thereafter continuously in the District Attorney's office actively engaged in the preparation of the case against Yamin. He procured witnesses for the People whose existence was unknown to the prosecutor (see pp. 6-8, 42-43 of 1962 opinion). He and these witnesses gave statements to the District Attorney. On the basis of those statements (not disclosed to the defense) I found that the People had used false testimony at the trial 'uncritically and carelessly' (see pp. 53-56 of 1962 opinion). I found Lococo's trial testimony to be false (p. 52 of 1962 opinion). More particularly I found that Lococo had falsely denied a sentence promise.
In view of the reversal by the Appellate Division on the facts, the only significance and purpose of re-stating the foregoing is to establish that Lococo was the main witness at the trial upon whose testimony all issues turned. His credibility was therefore a central circumstance.
At the trial Lococo testified that no promise had been made to him in exchange for his testimony. The following took place (p. 49 of 1962) opinion):
'Q And what reward do you expect to get for your testimony?
'Q You didn't ask for any reward?
'Q Well, what do you expect to get for your testimony here?
'P. 304.
'Q Now if you were given a plea to conspiracy to commit murder, you know that would be a misdemeanor, don't you?
'A I do not know the laws . . ..
'Q And don't you expect to get a misdemeanor plea in this case, although you are indicted for murder in return for your testimony?
'A I don't know anything.'
The trial assistant remained silent during this questioning.
Furthermore when Lococo was asked more specifically whether he had had any conversations with his attorneys (who had permitted him to become a state's witness) concerning an 'exchange' of leniency for his cooperation, the District Attorney's objection that this was a privileged communication between attorney and client was sustained. Parenthetically it is noted that the prosecutor may not invoke the attorneyclient privilege; further that the privilege was waived by Lococo when he stated no one had made him a promise.
It is interesting to note that despite Lococo's strong denial that a 'promise' was made, defense counsel on cross-examination was able to 'predict' precisely what plea (conspiracy to commit murder) would ultimately be given to Lococo.
For, some weeks later, Lococo was in fact permitted to plead guilty to conspiracy to commit murder. And the prosecutor in his plea statement (C.C.P. § 342-a) in People v. Lococo indicated that it was his 'intention' before the Yamin trial that Lococo receive consideration, viz.:
'and [I] therefore felt it was necessary when Lococo offered to turn state's witness, that consideration should be extended to him.'
Apart from the frank admission by the prosecutor of a pre-existing intention to extend leniency, the after-the-fact-extension of leniency is substantive proof of an understanding that leniency was to be extended.
On the date of Lococo's sentence (1/31/56) the prosecutor addressed the Court on behalf of Lococo:
'Lococo with the other material witnesses had come to my office, day after day, morning, noon and night; this witness [Lococo] was able to refresh the memories of the other material witnesses, the facts which they forgot to mention to me, and I felt with this assistance and cooperation we were then able to get a plea of guilty from the real culprit, namely Martin J. Yamin.' (Italics mine)
As a result of an eloquent plea for leniency, Lococo, a twice-convicted felon then on parole, received a suspended sentence.
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* * *
Given the fact of leniency, the issue was whether Lococo had been promised 'consideration'.
In my 1962 opinion (see pp. 48-52) I found:
'The prosecutor should not remain silent and leave the jury with the impression that the witness 'didn't ask for any reward'--'I came up here and told the truth' when in truth and in fact the prosecution at all times despite no express promise always intended to ask for leniency.
* * *
* * *
'The ultimate fact that Lococo received a misdemeanor plea and a suspended sentence is proof of an 'implied' promise.
* * *
* * *
'No experienced Judge will fail to charge that an accomplice witness testifying under similar circumstances is as a matter of law an interested witness because he expects (and invariably receives) a return for his testimony.'
This ruling was predicated of course on the conceded fact that Lococo was not the ordinary accomplice witness but the main witness upon whose credibility the case turned.
The Appellate Division (21 A.D.2d 908, 909, 252 N.Y.S.2d 5, 7) ruled however:
'We also find that defendant failed to establish: * * * (e) that the People's witness, Lococo, had been promised a misdemeanor plea by the People or by anyone acting on the People's behalf.
'Finally, we conclude as a matter of law that, if the People intend to request consideration for a People's witness who is the subject of an indictment, the People are not obliged to disclose that intention to the trial court so long as the People, impliedly or expressly, have not entered into such an undertaking with the witness (cf. People v. Mangi, 10 N.Y.2d 86, 217 N.Y.S.2d 72, 176 N.E.2d 86; People v. Savvides, 1 N.Y.2d 554, 154 N.Y.S.2d 885, 136 N.E.2d 853).'
The Appellate Division ruled therefore that 'intention' coupled with after-the-fact-extension of leniency is insufficient as a matter of law to establish an 'implied' agreement with the witness.
During the preparation of the appeal in which the foregoing ruling was only one of several issues, the petitioner's counsel ascertained that an 'actual' promise had in fact been made to Lococo by an assistant district attorney. He brought this proceeding to establish that fact. In the instant coram nobis hearing (11/13/64) that assistant testified (pp. 5-6):
Mr. Lococo also testified at the instant coram nobis hearing and again denied any 'promise'. But I find his testimony 'internally' inconsistent and in other respects unworthy of credit.
If find as a matter of fact that the testimony of the assistant district attorney quoted above is truthful and accurate and amounted to a 'promise' as a matter of law.
I discuss the applicable law.
People v. Savvides, 1 N.Y.2d 554, 154 N.Y.S.2d 885, 136 N.E.2d 853, is the leading case on disclosure of sentence promise to a material witness. It was recently quoted with approval by the United States Supreme Court (Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217) as well as other courts federal and state.
Savvides is not factually significant since it was established that a promise had in fact been made to a material accomplice...
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