author: Dye, J. Fuld, J. Desmond, J.

text:
    The People of the State of New York, Respondent, v. Leonardo Salemi, Appellant.
    Argued June 9, 1955;
    decided July 8, 1955.

      Jacob Shientag and Rudolph Stand for appellant.
    I. James Forlenza was not at the hospital to receive any dying declaration. II. The deceased could not and did not make any dying declaration. III. The defendant was deprived of due process of law under the Federal and State Constitutions in connection with the exhumation proceedings.

      Frank S. Hogan, District Attorney (Charles W. Manning and Richard Q. Denser of counsel), for respondent.
    I. The motion for reargument of the appeal should be denied. (People v. Patrick, 182 N. Y. 131; People v. Bonifacio, 119 App. Div. 719, 190 N. Y. 150.) II. The failure to produce the evidence at the trial — and before the day of judgment — was owing to want of diligence. III. The alleged newly discovered evidence was of a cumulative nature and, as such, could not be a proper basis for a motion for a new trial. IV. The evidence adduced at the hearing, far from probably changing the jury’s verdict, would have made it easier for the jury to conclude that defendant was guilty. V. As to the propriety of the exhumation proceedings, defendant could not have been prejudiced by an examination revealing the actual physical facts.
   Dye, J.

On March 12,1954, we affirmed by a divided court this defendant’s appeal from a judgment of the Court of General Sessions of the County of New York (Goldstein, J., and a special jury) rendered June 24,1953, upon a verdict convicting defendant of the crime of murder in the first degree and from an order of said court made June 17, 1953, following a hearing, denying defendant’s motion for a new trial on newly discovered evidence (People v. Salemi, 306 N. Y. 863). On June 1,1955, we granted defendant’s motion for a reargument of his appeal so that we might review an order of the Court of General Sessions made by Honorable J onah Goldstein, following a hearing denying defendant’s motion for a new trial on newly discovered evidence (People v. Regan, 292 N. Y. 109; People v. Dunn, 298 N. Y. 706; People v. Stein, 303 N. Y. 627). By this means we are able to test the new matter as if it had originally been a part of the main record. We have done that in this instance.

Briefly, the record shows that at about 8:40 p.m., February 26, 1952, Walter Forlenza was shot and fatally wounded as he sat alone at a table in the dining room of the Belvedere Bar and Grill located at 2056 Second Avenue between 105th and 106th Streets, Borough of Manhattan, New York City; two bullets from a .32 calibre pistol were fired at close range. He died about 9:00 p.m. the following evening, February 27, 1952, while undergoing an emergency operation for the removal of one of the bullets that had lodged near and partially severed the spinal cord. In the confusion following the shooting, the assailant, with a pistol in his right hand, ran out and disappeared. The defendant was suspected and widely sought. Some ten weeks later and on May 14th, accompanied by his counsel, he voluntarily surrendered himself to the District Attorney. Thereafter and on June 19, 1952, the Grand Jury of the County of New York returned an indictment accusing the defendant of the crime of common-law murder. The trial was held in the Court of General Sessions before Honorable Jonah Goldstein and a special jury commencing November 12,1952. At the trial the People did not prove motivation but did show that the defendant and his victim for a long period of time had been friends and acquaintances and that there had been ‘ ‘ argument ’ ’ from which the jury could properly infer that defendant had a grievance against decedent. Identification was furnished by two witnesses present at the time and both of whom knew the defendant, one Paul B. (Whitey) Janson, a patron sitting at the bar, positively identified the defendant as the man whom he had seen standing over the deceased with a gun in his hand immediately after the shooting — the other, Andrew Bertorelli, a part owner of the tavern, placed the defendant in the bar a few minutes earlier. In addition, the People offered as a dying declaration, and it was so received, a conversation had between James Forlenza and the deceased a few hours before he died in which the deceased named the defendant as his assailant. Other witnesses were called to show flight or concealment to account for defendant’s disappearance for upwards of ten weeks. The defendant did not take the stand in his own behalf. He relied on his plea of not guilty and his defense of an alibi furnished by witnesses who placed him near a restaurant in Queens at about the time of the shooting. Defense counsel attempted to discredit, on cross-examination, the reliability of the People’s witnesses. In an effort to contradict and impeach as a falsity the dying declaration, the defense called Evelyn Forlenza to testify that he had told her he did not know who shot him. On November 20, 1952, the jury rendered a verdict of guilty as charged in the indictment. Prior to sentence which had been set down for December 12, 1952, counsel for the defendant was advised by the court, as had already appeared on the trial, that while the witness Janson was being held in prison as a material witness and two days before he testified at the trial he had rammed his head into the bars of his cell inflicting a severe gash in his scalp requiring eight stitches to close. Thereafter he was lodged in a hotel under guard; that on the evening following the coming in of the verdict Janson had been sent to Bellevue for observation as to his mental condition which was then described as “ psychotic ”. On December 4, 1952, he was committed to the Pilgrim State Hospital for treatment. The court postponed sentence apparently for the purpose of allowing counsel for the defendant to look into the matter and at the same time advised counsel that the hospital records would be made available to him for use in preparing a formal motion. On March 12th, nearly four months after the verdict, the defendant formally moved to set aside the verdict and for a new trial based on two grounds, first that Janson was mentally incompetent at the time he testified and secondly that new evidence had been discovered supporting defendant’s claim of innocence.

The court permitted the case to be reopened for the purpose of receiving evidence bearing on the defendant’s contentions. Hearings were held beginning May 19, 1952, at which time the defendant called a psychiatrist to testify that in his opinion Janson was mentally incompetent at the time he testified. The expert concededly had never personally examined the witness Janson. He based his opinion upon Janson’s trial testimony, statements made by him to examiners at the mental hospital as contained in the hospital records, and Janson’s self-inflicted injury. The People’s expert, Dr. Lichtenstein, who had examined Janson prior to his being called to testify at the new trial, gave as his opinion that Janson was sane at the time of testifying.

At the main trial Janson, who knew both defendant and the deceased and had been present in the Belvedere on the night in question at the time of the shooting, identified the defendant as the assailant. The matter developed by the defense at the new trial hearing to show that Janson at the time he testified was moody and depressed both before and after the suicide attempt* was not new matter at all, but had been before the court and jury on the main trial. The suicide attempt was there brought out and fully explored, at least to the extent that Janson had blown his top ” and had deliberately butted his head against the iron cell bars causing a deep scalp wound requiring several stitches to close. During the course of his cross-examination the suicide episode was adverted to several different times and he was asked whether he had been in a mental hospital or had psychiatric treatment. He even was asked to exhibit his scalp to the jury. In summation, the defense counsel commented on the espisode at length and called Janson “ the man that purposely banged his head against the bars ”. At the motion hearing Janson was recalled. He had been released from the hospital in custody of his wife sometime preciously. He testified that on July 2, 1952, after a witness, the bartender at the Belvedere had been found strangled to death in First Avenue — he had been locked up as a material witness, for which he was “ only too glad ”. As the trial date approached, owing to his knowledge of the bartender’s fate — he became obsessed by fear and terror as to what might happen if he testified; he said that on November 11, 1952, he “ blew his top ” and tried to commit suicide by deliberately running his head into the bars. He repeated without material inconsistency, identification testimony-given on the main trial. His testimony at the hearing was not shaken by cross-examination. We unanimously agreed that Judge Goldstein was right when he ruled that on both occasions he [Jonson] was competent to testify ”.

Judge Goldstein denied the motion for a new trial. Upon the main appeal we reviewed the judgment of conviction rendered on the verdict of guilt and also the order denying defendant’s motion for a new trial made at the reopened hearing. At that time the defendant argued that his conviction was not supported by the evidence — the trial issues had turned largely on identity, lack of motive and an alibi — certain trial rulings were urged as erroneous. The adequacy of the jury charge was also questioned.

As to all these points we unanimously agreed that the judgment of conviction was amply sustained beyond any reasonable doubt; that on the record then before us, including both the minutes of the trial and the minutes on the motion for a new trial, the conduct of the trial was free from reversible error in all respects excepting that the dissenting Judges were of the view that the court’s charge did not marshal the evidence as required by People v. O’Dell (230 N. Y. 481) ” (People v. Salemi, 306 N. Y. 863, 865). On that issue, the court was under no necessity of writing a formal statement of their view to the contrary as the law on that subject is governed by section 420 of the Code of Criminal Procedure which provides: “ In charging a jury, the court must state to them, all matters of law which it thinks necessary for their information in giving their verdict; and must, if requested, in addition to what it may deem its duty to say, inform the jury that they are the exclusive judges of all questions of fact ”.

While this statute emphasizes that the court shall charge the jury on all matters of law, it does not follow that the charge on the law shall be given with only slight reference to the facts. The better practice for the court in a capital case, as we long ago pointed out, even when uninvited by the defendant to do so, is to present to the jury the case on trial in all its phases in which the jury ought to consider it (People v. Fanning, 131 N. Y. 659). Here, as in the O’Dell case (230 N. Y. 481), we must examine the charge in the setting of the case to determine whether the omission to detail all items of the evidence renders the charge so incomplete as to require a reversal and a new trial. In this case the court charged: “ It is the prosecution’s contention in this case that the defendant and the deceased Walter Forlenza knew each other, and that on Tuesday evening, February 26th, 1952 at about 8:30 p.m. in the Belvedere Bar and Grill at 2056 2nd Avenue the deceased Walter Forlenza was sitting at a table in the dining section, and the defendant was allegedly at the bar, and it is claimed that the defendant walked to the table at which the deceased was seated and fired two shots at the deceased at close range. That the defendant immediately fled, and Walter Forlenza was removed to Beth David Hospital where he died the following day from the effects of the bullet wounds.”

The court adverted to the defendant’s flight and his alibi by saying:

•“ The prosecution claims that the defendant fled and was not seen or heard from until May 14th, 1952 when in the custody of his lawyer he surrendered himself at the District Attorney’s office. It is the defendant’s contention that on the night of the shooting he was not in the Belvedere Bar and Grill. It is claimed that he was in a restaurant in Queens County.
If you find as a fact that the defendant was not in the Belvedere Bar and Grill when the shooting occurred, then you should acquit him.
‘ ‘ If you find as a fact that the defendant was in the Belvedere Bar and Grill when the shooting occurred, but that he did not shoot the deceased, then you should acquit him.”

The defendant, we must remember, relied on his plea of ‘ ‘ not guilty ” and his alibi witnesses. Under the proof the court said about all that could be said, for — as we know and as they had been instructed — the statute says: ‘ ‘ The jury * * * are the exclusive judges of all questions of fact ’ ’. The issue was murder in the first degree. The shooting was quickly done. The lone assailant had fled and disappeared and the victim died of the wounds inflicted. What more was necessary to be said? The jury had heard all of the witnesses. We may assume that they had paid attention to the witnesses as they testified and were intelligent enough to remember the various incidental and collateral details without repetition by the court. On the main appeal we regarded the charge in the setting of this case as full and fair. Our view has not changed by our later reconsideration and we adhere to our former decision that no error was committed on this aspect of the case.

On that motion the defense also stressed as error the admission of testimony of James Forlenza concerning a dying declaration, for lack of proper foundation and veracity, inadequacy of the charge, etc., all of which Judge Goldstein carefully reconsidered and adhered to his former rulings. On the main appeal we considered all phases of the controversy concerning the admissibility and credibility of the dying declaration. We unanimously agreed that no error was assignable to that aspect of the case.

We now turn to the within order denying defendant’s motion for a new trial based on alleged newly discovered evidence showing that the dying declaration naming the defendant-appellant as the killer was not made at the time claimed and could not have been made at any time because the victim’s physical condition was such that he could not talk, a new claim made for the first time on this motion.

The power to grant an order for a new trial on the ground of newly discovered evidence is purely statutory. Such power may be exercised only when the requirements of the statute have been satisfied, the determination of which rests within the sound discretion of the court. So far as pertinent the statute provides, viz. (Code Crim. Pro., § 465):

“ § 465. In what cases granted. The court in which a trial has been had upon an issue of fact has power to grant a new trial, when a verdict has been rendered against the defendant, by which his substantial rights have been prejudiced, upon his application, in the following cases. * * *
££ 7. Where it is made to appear, by affidavit, that upon another trial, the defendant can produce evidence such as, if before received, would probably have changed the verdict; if such evidence has been discovered since the trial, is not cumulative; and the failure to produce it on the trial was not owing to want of diligence. The court in such cases can, however, compel the personal appearance of the affiants before it for the purposes of their personal examination and cross-examinatian, under oath, upon the contents of the affidavits which they subscribed.”

The test thus enunciated was long ago approved in this court, and since followed — viz.: that “Newly-discovered evidence in order to be sufficient must fulfill all the following requirements: 1. It must be such as will probably change the result if a new trial is granted; 2. It must have been discovered since the trial; 3. It must be such as could have not been discovered before the trial by the exercise of due diligence; 4. It must be material to the issue; 5. It must not be cumulative to the former issue; and, 6. It must not be merely impeaching or contradicting the former evidence.” (People v. Priori, 164 N. Y. 459, 472; People v. Eng Hing, 212 N. Y. 373, 392.) On this record these criteria are not satisfied.

At the trial James Forlenza, a brother of the victim was called by the People to testify to a conversation had with the victim shortly before his death, in which he named the defendant as the person who had shot him. This conversation was admitted over objection as a dying declaration. According to the witness’ best recollection at the trial, the conversation had taken place between 5:00 and 5:30 p.m. February 27, 1952.

Although it appeared and was readily admitted that, in a prior written statement to the District Attorney, James had fixed the time at 1:00 p.m. and that when he testified before the G-ránd Jury he had fixed the time at between 4:00 and 4:30 p.m., the defense made no effort to ’ clear up this inconsistency. The cross-examination of this witness was devoted almost entirely to discrediting the statement as a dying declaration on the ground that the declarant was not expecting to die. James Was cross-examined to the point of exhaustion on slight inconsistencies in language used on the three different occasions. Everyone, including the defense, proceeded on the theory that such a conversation had, in fact, taken place, the attack being centered at all times on its competency and materiality as a dying declaration, as to which more will be said later.

Eeturning to the issue as to the time the declaration was made, the defense called Detective Mengrone, who visited the hospital four times between 1:00 a.m. and 4:30 p.m. on February 27th, to testify that he saw other relatives of decedent but at no time did he see James either at the hospital or at the bedside.

Notwithstanding the existence of a time discrepancy, defense counsel barely mentioned it in his summation but devoted the greater part of his comment to an attempt to persuade the jury that the defendant was innocent and that the dying declaration was a false, perjurious fabrication.

Counsel for the People, in the course of his summation, pointed out that, in the testimony by James as to the time, the statement was made according to his best recollection; that the inconsistency was explainable by the attendant anxiety incident to the stress and strain of the tragic news plus the utter lack of motive to testify falsely. The question, then, was fully presented to the jury and we must assume that they considered the inconsistency as unsubstantial. Nothwithstanding this state of the record on the main appeal, counsel for the defense now argues that the inconsistency in time raises an issue of fact which should he resubmitted to the jury. At the hearing so-called newly discovered evidence calculated to throw new light on this point was presented. After a careful study of this testimony, we are constrained to conclude that it adds nothing to what was previously before the trial jury. For example:

Nurse Cancro said she was there between 4:30 and 5:15 p.m. when the patient was taken to the operating room and during that time had not seen James. However, on her cross-examinatian she conceded that, when she returned from her lunch hour sometime between 12:30 and 1:00 p.m., she saw two men whom she did not know at the patient’s bedside, one of whom had his head inside the oxygen tent. Now it is true that this witness did not testify at the trial. Her name was in the records of the hospital. She married in December, 1952, long after her attendance on the deceased. No one sought to locate her until 1955 — nearly three years after the trial and her marriage-— when her married name was not easily discoverable. The point is that the defense did not attempt to locate her at the time of the trial and does not claim to have done so, since it was not then the theory of the defense that the deceased could not talk.

Dr. Strully, who between 4:30 and 5:15 p.m. aided in preparing the "patient for the operation, testified that no outsiders were present during that time. His name appeared on the hospital chart and was available.

Patsy Yannotti was at the bedside for a short while when preparations for the operation were commenced about 4:30 p.m. He left the ward and joined Evelyn and a friend named Donato in the adjacent hallway. During that time he did not see James Forlenza whom he knew.

The moving affidavit alleges that the identity of Tannotti did not become known until sometime in July, 1954. To the extent that the identity of Cancro and Yannotti were unknown by defense counsel at the time of the trial, I suppose it can be said with some plausibility that the testimony they gave at the hearing was newly discovered in the sense that these witnesses had not been interviewed by the defense counsel prior to the trial. Even if we assume this is so, it does not follow that “ the failure to produce [their testimony] on the trial was not owing to want of diligence ” (§ 465) for, surely, the names of each one of these witnesses were either mentioned in the hospital records or could have been easily learned by the simplest sort of inquiry. Furthermore, even though we assume that such testimony would have been material to the issues upon which the trial was conducted, it cannot reasonably be said that if. before received ” such evidence “ would probably have changed the verdict ” (§ 465). When these basic ingredients are lacking — and by any standard they are lacking here — the so-called newly discovered evidence does not qualify as the basis for granting a new trial (§ 465).

In reaching this conclusion, we have not limited our consideration of the testimony in accordance with the bare language of the statute but have examined it in the light of the evidence as to this point contained in the record on the main appeal. The issue as to the exact time of the making of the dying declaration as testified to by James Forlenza, as we have seen, was fully explored at the trial, was adverted to by counsel in summation and its credibility passed upon by the jury. "When this alleged newly discovered evidence is viewed against the main record in light of the best inference rule, the most that can be said concerning it is that — at best, it is cumulative or designed merely to impeach or contradict the former evidence. It throws no new light on the issue (People v. Priori, 164 N. Y. 459, supra). The statute requires that to justify granting a new trial it must be shown that the evidence “ is not cumulative ”. This the appellant is unable to do. It should be mentioned that at the hearing the People met the so-called new evidence by calling several persons who had not testified at the trial.

Patrolman Snyder, who testified that, while on duty between 4:00 p.m. and 9:00 p.m., the 27th, he saw two women at the bedside but did not recall seeing any men.

Patrolman Perrino, on duty between 8 :00 a.m. and 4:00 p.m., who testified that he saw two men at the bedside about 1:30 p.m.

Jeanne Forlenza, a sister, who saw James at the hospital at about 4:30 p.m., the 27th.

Anne Forlenza, a sister, who saw James at the hospital at about 4:00-4:15 p.m., the 27th.

Anthony Donato, a friend of the Forlenza family for many years, that he reached the hospital with "Yannotti about 3:00 p.m. ; that they looked at Walter, said nothing and remained outside in the corridor until about 3:30 p.m., when they left. They returned about 4:00 p.m. During these times the witness did not see James.

Maud Forlenza, wife of James, who testified at the trial, was recalled to testify that her husband, James, was at the bedside about 4:30 p.m., the 27th; that she left him and returned to her place of business where she was joined by James not later than 5:15 p.m.

As to this aspect of the attack on the dying declaration, Judge Goldstein determined that the time the declarant had made the statement to James was fully explored at the trial and that its credibility was passed upon by the trial jury. He accordingly rejected this aspect of the defendant’s motion as a ground for granting a new trial. We cannot now say that, in so ruling, Judge Goldstein abused his discretion as a matter of law. It seems clear that on this phase of the record nothing was shown requiring the court to exercise his statutory power any differently than he did.

The defendant’s contention that the dying declaration was never made because the decedent could not talk was not raised at the trial for the very good reason that the defense had proceeded on the theory that the testimony of James Forlenza was false and unworthy of belief because, in conversations had with others, the decedent had refused to name his assailant, and that the alleged statement did not qualify as a dying declaration because the declarant had not expected to die, the purpose being — of course — to throw doubt on the credibility of James and the declarant. For this purpose the defense had called Evelyn to testify affirmatively that she talked with her husband between 4:00 and 5:30 p.m. on the 27th.

It seems clear beyond dispute that at the trial the defense ■ assumed throughout that Walter could and did talk. At-no time was the dying declaration assailed because it was not made due to declarant’s inability to talk, but solely on the ground that he had said something else and this at a time when they had the hospital records and autopsy report in court, when the names of Nurses Blanchard and Cancro- and Doctors Strully and Breidenhach were known to the defense and whom the defense did not call, although available.

At the motion hearing these persons Avho had not been trial witnesses all testified on the issue of decedent’s ability to talk:

Nurse Blanchard in charge of the floor and Nurse Cancro, special nurse, both testified to the fact that they had no recollection of having heard the decedent say anything at all.

Dr. Strully was of the opinion that the patient could not have carried on a conversation as testified to by James. He based this opinion on the circumstance that the decedent had made no reply to his routine inquiries; that based on the hospital report, he believed some teeth were missing but had not verified this by an independent examination as the patient’s face, mouth and neck were swollen and that, in his opinion, the patient could not have carried on a conversation as testified to by James.

Dr. Breidenbach, that when he saw the patient he found some teeth missing; that the patient’s mouth, tongue and neck were badly swollen due to injury from the bullets and that he suspected the jaw had been fractured; that the patient was in a semi-stupor and very weak and that, in his opinion, he was in no condition to have talked, as claimed.

All of this testimony was completely opposed to the theory adopted at the trial and, as such, served only to impeach and contradict former evidence which we have said is not new evidence of the sort warranting the granting of a new trial (People v. Eng Hing, 212 N. Y. 373, supra).

Furthermore, such testimony was all available at the time of the trial but, for reasons best known to the defense, the alleged inability of the decedent to talk was never mentioned.

When the People offered the dying declaration, the defense claimed no surprise which he might have done if he actually believed that decedent could not talk, as now claimed, but he could not do so at that time as the trial strategy was based on the theory that the decedent could have and did talk. To now claim surprise is proposing an afterthought based on a desperate effort to find new grounds for the granting of another trial. Furthermore, defense counsel having failed to convince the jury on the theory that decedent was lying when he named defendant as his assailant, it seems rather late for a new counsel to ask that the case be reopened in order to introduce an entirely new and contradictory theory respecting the validity of the dying declaration. The trial strategy, we must assume, was carefully and deliberately planned. Having failed in its purpose, we know of no reason for permitting the case to be reopened in order to try out a different and opposing theory.

We must bear in mind that this case has been exhaustively litigated. More than six months intervened between the verdict of guilt and the sentence in order to permit defense to explore the Janson episode and renew many of the contentions made at trial and rejected by both court and jury. Following our affirmance, many other motions were made including two to the Supreme Court of the United States, none of which raised any issue as to declarant’s ability to speak. There is overwhelming evidence that decedent did speak — and to various persons at various times — for instance :

Maud Forlensa, wife of James, and the two sisters, Anne and Jeanne, testified that there was almost a continuous flow of conversation.

Mary Karasik, director of nurses, to the effect that Nurse Blanchard had overheard the patient asking his wife how their child was.

Evelyn Forlensa, who testified at the main trial for the defense and at the hearing for the People, in each instance to a conversation had with decedent, but which was contradictory, she having testified at the trial that decedent did not state who shot him — while at the hearing she testified that she lied at the trial and that, in fact, the decedent had told her about 11 -.00 a.m. on February 27th that the defendant had shot him. She said that the deceased had her swear that she would not disclose the information except to his brother, James, and then only in case that he should die.

Evelyn explained her recantation on the ground that on the main trial she was literally “ scared to death ”. Well she might have been. She had just borne a baby out of wedlock, fathered by the victim, Walter. She was familiar with the fact that Walter “ had money in the street ” which, if collected, would go towards the support of the infant; that decedent had made the statement under a solemn promise that she tell no one but James and then only if he should die; that to be careful of herself and the baby ‘ ‘ as something might happen ’ ’ to them and not to move back to Harlem; that the bartender, Pauitta, who had witnessed the shooting from his unobstructed vantage point behind the bar, met violent death by strangulation shortly after he had testified before the Grand Jury. She knew that, following this tragic coincidence, other witnesses, Bertorelli and Janson were taken into custody as material witnesses and that James had been given a police bodyguard. She knew the ramifications of the narcotic trade and the peril attending a squealer ”. The trial was sensational and it is little wonder that Evelyn chose the easy way out. After all, she was a mother protecting her own in face of stark realities of life as she knew and understood them. Her recantation as to the contents of the conversation, which at one time even the defense counsel conceded she had with the decedent, was thus fully explained.

Nothing of significance flows from the failure of the People to recall James Forlenza on the hearing. His testimony on the trial had been subjected to a most thorough and exhaustive cross-examination. Nothing remained for him to say.

Perhaps a word should be mentioned concerning another witness named Anthony Donata (or Tony Iodine), a trafficker in narcotics with a long criminal record. He knew both the decedent and the defendant. On the 26th he visited the victim’s bedside and, in Italian, asked decedent who had shot him; decedent did not answer but ‘£ rolled his eyes toward the officer standing behind the bed the following day he returned at about 10:30 a.m. ; when Evelyn and Lizzie (Louis Farlradi) stepped out for a moment, he put his head under thé tent and again asked the victim who had shot him and was told in a painful way ££ Nardi ” and to tell Albert££ to watch out that he had no feeling in his legs and that he believed he £ could not make it ”. Donato left when ordered out by a nurse.

Judge Goldstein had presided at the trial. He was thoroughly familiar with every aspect of this case. When Doctors Strully and Breidenbach testified with respect to the decedent’s physical condition contrary to the autopsy report, factual issues were raised presenting a serious question of weight and credibility. It could only be solved by a re-examination of the decedent’s body. It is now contended that this re-examination prejudiced defendant by depriving Mm of his right to due process, although he consented to the exhumation. This contention is based on the circumstance that the examination was not for the purpose of determining the cause of death, which was already known, but to resolve a collateral matter, condition of the teeth, and whether the wounds were such as to have prevented speech prior to death.

As we view this aspect of the proof, we see no new issue of fact requiring submission to a new jury on the ground of newly discovered evidence. The opinion of Doctors Strully and Breidenbach that the victim was incapable of speech was based on a superficial examination of the outward effects of the injury — since, concededly, they made no otherwise independent examination at the time — relying on statements contained in the hospital records, the generally weakened condition of the patient and the fact that he said nothing to them. The autopsy report subsequently made showed the true nature of the victim’s condition. The missing teeth which had played so prominent a part in their diagnosis were, in fact, not the result of wounds but of a long prior extraction in normal course. While all can say that these witnesses were eminent physicians and honorably disposed, with no reason to testify falsely, they — nonetheless — were mistaken as to the actual damage caused by the bullets and had given their opinions in reliance on facts that were plainly and definitely inaccurate. The re-examination of the body demonstrated this inaccuracy and confirmed the original defense theory that the victim had, in fact, talked to various persons, as testified to on the trial. The medical examiners agreed that the wounds were not of such a nature as to prevent talking prior to death.

It is also contended that Judge Goldstein conducted the examination and interrogated witnesses not in the presence of counsel for the defendant. To state these objections is to demonstrate their absurdity. The record shows that the examination was attended by a physician of defendant’s own choosing, Dr. Birnkrant; that counsel for defendant — and People as well — preferred to stand in the hallway and look through the door rather than be close spectators to the re-examination. A careful stenographic record was made of the proceedings and no one contends that such record was incomplete or inaccurate. It demonstrates that defendant’s rights were fully protected. It cannot reasonably be said that Judge Goldstein in any way prejudiced defendant’s rights by asking Dr. Birnkrant from time to time if he saw, understood and agreed with what the operating pathologist, Chief Medical Examiner, Milton Helpern, M. D., was doing and the results found. True, Judge Goldstein swore the undertaker who had exhumed the body but only for the purpose of identification of the body, a most necessary and essential step in the proceeding. Had the Presiding Judge not done these things — and he was not to be blamed if counsel preferred to remain out of hearing — he would, no doubt, have been charged with another kind of dereliction. In our view, Judge Goldstein acted with judicial propriety,

When this record is measured with the requirements of the statute, it cannot reasonably be said that the evidence adduced satisfies statute and case law as having been newly discovered, for it is not such as could not have been discovered before the trial by the exercise of due diligence and, even if we assume that it is material to the issue, it nonetheless is cumulative and any purpose it might serve is to impeach or contradict the former evidence; in fact, it cannot reasonably be said that it is of such a nature and quality as would probably change the result of a new trial if granted. As a matter of fact, the evidence adduced at the hearing — far from “ probably changing the [jury’s] verdict ” would have made it easier for the jury to conclude that the defendant was guilty.

Furthermore, the statute contemplates diligence. Here trial counsel acknowledges that he made no investigation concerning the dying declaration until after the Supreme Court denied rehearing on November 22, 1954. The point now raised is clearly an afterthought and is not supported by evidence warranting the granting of a new trial as newly discovered within the meaning of section 465. This is not the situation where the court is depriving the jury of its right to determine an issue of fact, but rather whether the facts are sufficient to warrant setting aside the jury verdict and granting a new trial. We agree with the Court of General Sessions that the alleged newly discovered evidence is insufficient to warrant the granting of a new trial. We are also satisfied that this defendant has been accorded due process in accordance with applicable State law.

The judgment of conviction should be affirmed.

Fuld, J.

(dissenting). I was one of the bare majority of four who voted to affirm the judgment of conviction when this case was first before us (306 N. Y. 863). Although the record evidence was far from strong, I concluded that there was sufficient to justify a verdict of guilt. The new matter which has been developed and adduced upon the motions for a new trial, as well as upon the application for an order in the nature of a writ of error coram nobis, has radically changed the picture, and I cannot now, consistent with the dictates of conscience or the demands of due process, adhere to my original vote of affirmance, A refusal to direct a new trial will not only work an injustice upon Salemi but, even more important, will do a disservice to the administration of the criminal law.

The conviction against the defendant depended primarily upon the testimony of two witnesses, Paul Janson, who identified defendant as the killer, and James Forlenza, the deceased’s brother, who testified that the victim had made a dying declaration to him, naming defendant as his assailant.

As to Janson, proof not before the jury demonstrates that he was probably insane at the time he testified against the defendant, and, as to Forlenza, the newly discovered evidence creates a real doubt as to whether he ever received a dying declaration from his brother. No more need be said about the evidence relating to Janson, for it is indisputable that he was committed as an insane person on the very day after the jury returned its verdict of guilt against defendant. And very little more need be said about the testimony bearing upon the authenticity and existence of the alleged dying declaration. It is enough to observe that, had the new matter been before the jurors at the trial, they would have heard — from witnesses of the highest character, whose honesty and sincerity are beyond all suspicion — not only that Forlenza was not at his brother’s bedside in the hospital during the period he said he spoke to the latter and received the declaration, but that, in point of fact, the victim was in no condition, physically or mentally, to have uttered any statement. There was, it is true, conflicting testimony, but the vital thing is that the jury never heard the evidence which, if credited, would have gone far toward destroying the prosecution’s ease.

In arriving at my decision that there should be a reversal and a new trial, I would not be understood as saying that the defendant is not guilty — I do not know whether he is or not — or that the jury, with the new evidence before it, would have returned a verdict of acquittal. My view is simply that the original jury, or another, could reasonably and conscientiously have reached a verdict contrary to the one that was reported, on the basis of the matter recently uncovered and not adducible by the defense at the time of the original trial.

The judgment of conviction should, upon this reargument, be reversed and a new trial granted.

Desmond, J.

(dissenting). When defendant was tried, convicted and sentenced to death, all the important proof against him consisted of eyewitness identification testimony by witness Janson, and testimony by James Forlenza of an alleged dying declaration in which the victim is supposed to have named defendant as his slayer. On the trial record as it then stood, and despite the mystery as to motive or background, we held that the jury’s guilty verdict was not against the weight of evidence. But, since our affirmance, quantities of new evidence have come to light, the existence and weight of which we must recognize. To my mind, the new proofs insistently demand a new trial for this defendant. In voting for such a new trial this court would not be passing on defendant’s guilt nor would we be reviewing again the weight of evidence as to that question. We would be seeing to it that this man does not go to the electric chair until a jury has heard this strange new series of conflicting and confusing narratives, many of them highly favorable to defendant. We would be upholding defendant’s fundamental right to a full trial by jury.

Let us assume that the new information, not known at the trial, as to witness Janson’s mental condition, does not meet the requirements that new evidence to call for a new trial must be more than merely cumulative or contradicting or impeaching, that it must be such as could not by due diligence have been discovered before the trial and that it must be such as would, if produced at a new trial, probably change the result (Code Crim. Pro., § 465, subd. 7; People v. Priori, 164 N. Y. 459). Let us go further and assume that the highest court of New York is so tightly bound by that rule that we must close our eyes to everything but the rule. On those two assumptions, even, I still think that a new jury should decide whether or not it is safe to accept the testimony of a witness who went straight from the courtroom to a mental institution, and the seriousness of whose mental illness was certainly not disclosed during the trial to defense counsel. It is unreasonable to charge defense counsel with lack of diligence in discovering the facts as to Janson, facts which were diligently kept from him by those whose duty it was to disclose all pertinent information about a witness, especially in a first degree murder case. It cannot be stressed too much that Janson was the only witness who identified defendant as the killer.

If the jury had been permitted to learn that Janson was at least temporarily insane during the trial, the jury might have had to rely, for a finding of guilt, on Forlenza’s testimony as to a dying declaration. That testimony obviously came as a complete surprise to defense counsel at the trial. To say now that the latter should have stopped the trial and made a prompt and thorough investigation, as to the probability or possibility of that declaration ever having been made at all, is to demand the impossible. Even if a long delay in the trial, for such an investigation, could have been had, how could any lawyer in such a situation have guessed at the existence of testimony which it has since taken months or years to uncover ? How could defense counsel have imagined that elaborate investigations later made would turn up two physicians, two nurses, two police officers and several other persons, each prepared to give testimony of greater or less definiteness, completeness and weight, to the effect that the dying declaration could not have been made by decedent or heard by Forlenza? Such testimony is “ cumulative ” in the broadest sense only of that term since there was no real opportunity or effort to try out the precise question at the trial. For the same reason, it cannot be said to be merely “ contradictory ”. It is brand new evidence to show that an alleged fact surprisingly testified to (not the fact of guilt but the alleged fact of a dying declaration) simply could not be true. To say that all this neAV material (or any of it) could with due diligence have been produced at the trial by the defense is to ignore reality. How could defense counsel, having no reason to expect dying declaration testimony, have been expected to prepare himself with medical proof that the victim Avas in fact unable to speak? There simply Avas no such issue in the case until James Forlenza took the stand. The charge against defense counsel of lack of due diligence is particularly unfounded as to the victim’s special nurse Cancro, now a most important witness for defendant, whose very name could not be learned till long after the trial.

The important dispute of fact on a new trial would be as to whether the victim could or did talk. Since at the last trial defense counsel could not have anticipated that any such dispute would arise, diligence in preparing for it is simply not in the picture at all.

This court, since it cannot directly review an order not in the original judgment roll, denying a motion for a new trial on newly discovered evidence, reaches the same result by ordering a reargument (People v. Regan, 292 N. Y. 109) as we did here. But such a reargument brings up not only the newly discovered evidence, but the whole record, old and new. We cannot, or at least should not, treat the alleged newly found evidence as something separate and off by itself. We should picturé the trial record as it would look with the new testimony added. After thus re-examining the total record, our duty is to say whether or not a new jury, hearing all of it, might well come to a different conclusion.

And our power to order a new trial is not limited by the rules as to newly discovered evidence. Having heard a reargument of the entire proceedings, we have now the same powers of disposition and decision as in any other appeal in a capital case. Among those is the power to order a new trial if justice so requires (Code Crim. Pro., § 528). I strongly feel that the interests of justice demand a full trial of this cause before a jury which can hear all the witnesses.

The judgment should be reversed and a new trial ordered.

Conway, Ch. J., Froessel and Burke, JJ., concur with Dye, J.; Fulo, J., dissents in an opinion in which Desmond and Van Voorhis, JJ., concur; Desmond, J., dissents in a separate opinion in which Fuld and Van Voorhis, JJ., concur.

Upon reargument: Judgment of conviction affirmed. And upon such reargument there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: The defendant argued that he was deprived of due process of law under the Fourteenth Amendment of the United States Constitution in respect to the exhumation proceedings by the trial court upon the hearing on the application for a new trial. This court held that the defendant’s constitutional rights were not violated.

      . “ Q. Will you keep your voice up now, Mr. Forlenza, and tell us exactly what happened as you approached the bedside of your brother? A. When I approached the bedside of my brother I lifted up the flap of the oxygen tent and stuck my head in, bent over him and asked him: ‘ How do you feel ? ’ He said: ‘No good, very bad,’ he says: 1 am not going to make it, I am going to die.’
      “ Q. Did you say anything to him at that time, or did he say anything to you? A. He said to me: ‘ That is why I sent for you.’ So I asked him, he said: ‘ That is why I sent for you tell you about what you asked me last night.’ And I said: 'Who shot you?’ He said: 'Nordi.’ I said: ‘Nordi who?’ He said: ‘ Nardi Salemi, the fellow that I introduced you to.’ [Objections by defense overruled.]
      "Q. And when your brother said that did you say anything to him? A. No, he kept on talking.
      " Q. What else did he say? A. He said: ‘I have five thousand dollars out in the street, see that it is collected.’” [Objections by defense that no proper foundation for admission as dying declaration overruled’]

      . “Q. Did you talk to your husband ? A. Yes.

        “ Q. And between four and 5:30 did you talk to him? A. Well, he couldn’t — Yes, I was talking to him but he was under oxygen and I couldn’t talk to him much.
      “ Q. You couldn’t talk too much? A. No, because I would take all the oxygen out of the tent.
      “Q. Did you see James Forlenza there between the hours of 4 and 5:30? A. No.
      “ Q. Did you ask Walter Forlenza who shot him? A. Yes.
      “ Q. What did he tell you? A. He says he didn’t know. He says ‘All I was doing was sitting down eating.’
      “ Q. Did he at any time ever tell you that Salemi shot him? A. No.
      “ Q. Did you ask him that question constantly? A. I kept asking him to tell me who done it.
      “Q. And he always said to you what? A. ‘I don’t know»’ Mr. Fruchtman: That is all. Your witness.”

      .
      Motions for reargument of appeal and for an order of recall and amended remittitur denied April 15, 1954 (306 IT. Y. 946)
      Motion for stay of execution pending determination of petition for writ of certiorari in United States Supreme Court denied April 23, 1954 (306 IT. Y. 978)
      Execution stayed by Mr. Justice Stanley Reed, Associate Justice of the United States Supreme Court April 24, 1954 (not reported)
      Certiorari denied Oct. 14, 1954 (348 U. S. 845)
      Rehearing denied Nov. 22, 1954 (348 U. S. 890)
      Petition for writ of error coram nobis dismissed December, 1954 (not reported)
      Certificate granted by Desmond, J., permitting appeal from dismissal of writ of error coram nobis February 4, 1955 (not reported)
      Order dismissing petition for writ of error coram nobis affirmed, Desmond and Van Voobhis, JJ., dissenting March 11, 1955 (308 N. Y. 863)
      Motion granted pursuant to section 503 of the Code of Criminal Procedure, setting week beginning April 18,1955, for date of the death sentence March 11, 1955 (308 N. Y. 883)
      Motions for vacating judgment of death and for a new trial upon ground of newly discovered evidence denied April 27, 1955 N. Y. L. J., April 28,1955, p. 8, col. 4
      Motion for reopening proceeding and for reargument of motion for new trial granted May 5, 1955 (not reported)
      Motion for reargument of application for new trial denied May 10, 1955 (not reported)

      . This material was before the court, in connection with an appeal from an order denying a motion for a new trial, when we originally affirmed the judgment of conviction. However, it did not then have the same impact as it does today when considered with the other evidence brought to our attention by the more recent applications.


source: Caselaw Access Project

author: Dye, J. Van Voorhis, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Edward Nelson, Appellant.
    Argued January 20, 1955;
    decided July 8, 1955.

      Nancy Carley for appellant.
    I. The trial court erred in its insistence and proclamations that notice and knowledge of violations to defendant were of no consequence in the case because, insofar as the second count of the indictment was concerned, the jury may well have found as a matter of fact that there could be no culpable negligence on defendant’s part without such notice or knowledge. (People v. Angelo, 246 N. Y. 451.) II. The court erred in its insistence that appellant could be guilty without general notice since this court has held that when notice is fraudulently withheld the withholder is the culprit, and thus it was a question of fact for the jury whether there was fraud in the withholding of notice herein and whether such fraud brought appellant within the above-mentioned holdings. (Pharm v. Lituchy, 283 N. Y. 130; Kilmer v. White, 254 N. Y. 64.) III. The trial court erred in failing' to dismiss the first count of the indictment at the end of the People’s case insofar as the People failed to prove that defendant was engaged in an independent misdemeanor. (People v. Grieco, 266 N. Y. 48; People v. Vollmer, 299 N. Y. 347; People v. Luscomb, 292 N. Y. 390.) IV. The court erred in not dismissing the first count of the indictment at the end of the People’s case insofar as the misdemeanor charge was not a crime against the person or property of another. (People v. Grieco, 266 N. Y. 48; Adler v. Deegan, 251 N. Y. 467.)

      Edward S. Silver, District Attorney (William I. Siegel of counsel), for respondent.
    I. Appellant’s guilt was established beyond a reasonable doubt. (People v. McCarthy, 250 N. Y. 358.) II. No errors of law were committed by the trial court. (People v. Schwartz, 273 App. Div. 823, 298 N. Y. 551; People v. Harris, 74 Misc. 353; People v. Diamond, 95 Misc. 114; People v. Buddensieck, 103 N. Y. 487; People v. Sandgren, 302 N. Y. 331; People v. Polstein, 184 App. Div. 260, 226 N. Y. 593; People v. Vollmer, 299 N. Y. 347; People v. Luscomb, 292 N. Y. 390; People v. Giblin, 115 N. Y. 196; People v. Patini, 208 N. Y. 176; People v. Wagner, 245 N. Y. 143; People v. Clark, 7 N. Y. 385; Adler v. Deegan, 251 N. Y. 46; People v. Angelo, 246 N. Y. 451.)
   Dye, J.

The defendant-appellant appeals to this court by permission from a judgment of the Appellate Division, Second Judicial Department, modifying and affirming as modified a judgment of the County Court of Kings County rendered upon a jury verdict convicting the defendant of the crimes of manslaughter, first degree, and manslaughter, second degree (Penal Law, § 1050, subd. 1; § 1052, subd. 3).

The indictment upon which the conviction was based contained two counts: The first charged manslaughter in the first degree insofar as the death of two persons was caused by a fire which occurred in defendant’s multiple dwelling. These persons were Enable to escape because of lack of adequate fire protection which iefendant had knowingly neglected to provide, as required by the Multiple Dwelling Law, a misdemeanor, affecting “ the person or property ” of the two persons killed (Penal Law, § 1050, subd. 1; Multiple Dwelling Law, §§ 187, 188, 189, 304). The second count charged manslaughter in the second degree by reason of the fact that under the same circumstances of ownership he “ wilfully and wrongfully used said building ” in an inlawful manner and ‘1 with gross and culpable negligence” owned, operated and neglected to render the ‘ ‘ building safe for he tenants and occupants thereof ’ ’ by failing to provide adequate fire protection as required by law, and thereby caused he death of two persons (Penal Law, § 1052, suhd. 3; Multiple Dwelling Law, §§ 187,188,189, 304).

The appellant concedes that his premises were existing in violation of the safety provisions required by the Multiple Dwelling Law, and that such violations were the proximate cause of the death of two tenants. He, nonetheless, prays that his conviction on both counts be set aside on the ground that the trial court erred, as a matter of law, in ruling that lack of notice of the aforesaid violations afforded no defense, thereby depriving the jury of its right to determine as a question of fact, on the issue of culpable negligence, whether without such notice or knowledge he was “ engaged in committing, or attempting to commit, a misdemeanor, affecting the person or property, either of the person killed ” or whether such homicide when committed without a design to effect death, was the result of culpable negligence.

It is true defendant was not personally notified of the violations in conformity with section 326 of the Multiple Dwelling Law,- but nothing turns on such omission for such notice is not required in a criminal proceeding (People v. Schwartz, 298 N. Y. 551). However, the record is replete with proof establishing that he had knowledge of the existence of the violations. There is evidence showing that the plaintiff had been a tenant of the subject premises for. over fifteen years; that he was well familiar with its physical aspects, including lack of sprinkler system and secondary egress for use in case of fire. There came a time in 1951 when he negotiated with the then owner to purchase the premises. At the closing of title on June 15,1951, the defendant was present and represented by attorneys. A report furnished by the company issuing the title insurance noted violations of the Multiple Dwelling Law and these were set forth in a deed which was given subject to such violation. While defendant now says that this reference to the violation was not brought to his attention, he nonetheless is bound thereby. In addition to such uncontroverted documentary proof, there is oral testimony to the effect that he had told a tenant that because boys were using the roof scuttle as a means of entrance, he had nailed it shut; that the real estate agent had told defendant of the need for fire escapes and that defendant had made measurements for such installation but that he “ hadn’t gotten .to,-it yet

On November 17, 1952, the defendant undertook to repair a leak in the roof. He heated a tar compound in a shallow pan over an open gas burner located in the basement. The tar caught fire and despite his best efforts spread to the building. He ran to give the alarm to the tenants. It was too late. Two tenants who were cut off jumped from the fourth-story window and were badly injured. One died and a third tenant trapped in her apartment was burned to death. An assistant fire marshal testified that on the day of the fire the defendant had told him that ‘ he knew he was supposed to have fire escapes or a sprinkler ’ ’.

In such a setting the defendant is chargeable with knowledge of the existence of the violation — a misdemeanor (Multiple Dwelling Law, § 304) “ affecting the person and property * * * of the person killed ” (Penal Law, § 1050, subd. 1) and, even though such violations were committed without design to effect death, his act was culpable within the meaning of subdivision 3 of section 1052 of the Penal Law. This is so whether or not he knew the penal consequences of such culpability.

People v. Grieco (266 N. Y. 48), relied on by the appellant, is not authority to the contrary. There the defendant was charged with manslaughter while engaged in the commission of a misdemeanor, namely, reckless driving while intoxicated, in such a manner as to cause the death of a human being. The trial court charged the jury that at the time of the killing the defendant was committing a misdemeanor affecting the person killed or another, within the meaning of section 1050 of the Penal Law. We ruled this was error and set aside the conviction, inasmuch as the People had not contended or proven that the defendant saw the deceased before his automobile struck her or that he intentionally ran her down, thus holding that prior knowledge was an essential ingredient of the crime charged which, under the circumstances of that case, was justified.

The within case falls more properly within our rule in People v. Alexander (293 N. Y. 870), wherein we unanimously affirmed a judgment rendered on a jury verdict convicting the defendant-appellant of the crime of manslaughter in the first degree under section 1050 of the Penal Law and manslaughter in the second degree under section 1052. The indictment had charged that defendant and two others, as owners in possession and control of a multiple-family dwelling, willfully and with gross negligence, had failed to comply with the Multiple Dwelling Law and other laws, with the result that seven persons lost their lives in the fire in a tenement building for lack of prescribed safety equipment. The defendant admitted that the building was not equipped as required for “ old law tenement houses ” but that the building in question was not a tenement house as defined in subdivision 9 of section 4 of the Multiple Dwelling Law, but rather a Class B multiple dwelling as defined in subdivision 5 thereof. The case went to the jury under a charge to the effect that, as far as the misdemeanor is concerned, ignorance of the law is no excuse. The jury rendered a verdict finding the defendant guilty of manslaughter in the first and second degrees as charged (Penal Law, §§ 1050, 1052) and we affirmed unanimously.

In the case at bar the conviction must also be upheld. From the time of the appellant’s acquisition of title to the date of the fire, a period of about one and one-half years, the lack of a secondary means of egress or a sprinkler system constituted a continuing misdemeanor “ affecting the person * * * killed ’ ’. This continuing omission to provide proper fire protection was not merged in the homicide of the two deceased tenants as claimed by the appellant. The situation is not analogous to the assault homicide where a continuing assault against one resulting in death is merged in the homicide (People v. Vollmer, 299 N. Y. 347; People v. Luscomb, 292 N. Y. 390). It is undeniable that a tremendous duty is placed upon the owners and those in charge of property under the applicable section of the Multiple Dwelling Law; however, it is quite apparent that the Legislature intended the burden to be onerous so that owners would be impressed with the consequences flowing from violation of the statute, which violations could so readily endanger human life in the congested conditions under which people must live in the city of New York.

The judgment of conviction as modified should be affirmed.

Van Voorhis, J.

(dissenting). Defendant appeals from a criminal conviction of manslaughter in the first degree. The indictment charged him in particular with violation of subdivisions b and c of section 187 of the Multiple Dwelling Law, in not having a means of egress extending through the roof of a four-family, multiple dwelling which he owned at 71 Lefferts Place, Brooklyn, and in failing to have two independent means of egress from the building or one means of egress equipped with a sprinkler system. Violations are misdemeanors (§ 304). On November 17,1952, this building burned. There is evidence in the record from which a jury could find that two persons lost their lives as a result of the absence of these statutory requirements. Manslaughter in the first degree is defined by subdivision 1 of section 1050 of the Penal Law as including homicide committed without a design to effect death, ‘1 By a person engaged in committing, or attempting to commit, a misdemeanor affecting the person or property, either of the person killed, or of another ”. That is the basis for defendant’s conviction.

Appellant’s defense was chiefly based upon his lack of knowledge or notice of the existence of these violations, but the trial court excluded such testimony upon the ground that the misdemeanors with which appellant was charged were mala prohibita, that he could be guilty of these violations of the Multiple Dwelling Law without having created or even knowing the condition of the building, and that, if the deaths of the persons named in the indictment resulted therefrom, he is automatically guilty of manslaughter regardless of culpable negligence and irrespective of any criminal intent. If the last conclusion is correct, it seems to me that the law has retreated a long distance into a stage of primitive formalism.

Appellant had himself been a tenant in these premises for a number of years. He is a Negro seventy-one years old whose education ended with the first grade in elementary school. His defense was that he had recently bought this real property; that he did so for a cash consideration of $1,000 and a purchase-money mortgage of $7,500, under threat of eviction by the former owner unless he became the owner; that these violations had been filed against the former owner without having been caused to be removed by the city department of housing and buildings, and were deliberately concealed from him by his vendor in order to induce him to purchase the property and to relieve the former owner of responsibility; that although there is a general recital in the deed that the conveyance is subject to building violations, he did not read it personally or know its full contents, and that the deed was recorded by the vendor’s agent who procured it back from the register’s office and kept it in his possession in order to prevent these matters from coming to appellant’s attention. Appellant contends that he was in complete ignorance of these circumstances until he found himself confronted with a charge of manslaughter, but that the trial court withheld this defense from the jury upon the ground that criminal intent is unrelated to his guilt or innocence.

Testimony by witnesses for the prosecution is at variance with defendant’s version, but removing the whole question of guilty knowledge from the jury was a serious infraction of appellant’s rights, unless the court was correct that notice and criminal intent are not factors in this kind of manslaughter. '

Manslaughter where death results from the commission of a misdemeanor is analogous to felony murder (People v. Grieco, 266 N. Y. 48, 53). “Felonious intention, as an element of the homicide, is supplied by the intention to do the unlawful act of which the homicide is a consequence. The intent is transferred by implication of law.” (26 Am. Jur., Homicide, § 188, pp. 281, 282.) As in the case of felony murder, no design to effect death is necessary, but just as there must have been an intention to commit an independent felony in case of murder, so must there have been an intent to commit an independent misdemeanor in order to render a defendant guilty of manslaughter. Otherwise the whole underlying theory of criminality is withdrawn from the felony charge. At least, where the misdemeanor consists in a continuing offense which is malum prohibitum, a defendant must have been aware of its existence before being convicted of manslaughter. It is said (40 C. J. S., Homicide, § 57, pp. 920-921) that, in determining whether a homicide was committed by a person while engaged in the commission of a misdemeanor, he must have had an intent to commit the act which constitutes the misdemeanor. Appellant’s position is similar to that of a mortgagee confronted by a charge of manslaughter in case of death from fire immediately after taking title to mortgaged premises. The mortgagee has not created the condition which constitutes the misdemeanor and may be ignorant of it. Under those circumstances, he cannot be guilty of manslaughter on the ground of culpable negligence. Can he he held to be guilty of the felony charge solely upon the theory that he is constructively guilty of the misdemeanor 1 I think not. The mere circumstance that such a mortgagee would not have had to have harbored an intent to violate the Multiple Dwelling Law in order to render him guilty of the misdemeanor, would not suffice to convict him of manslaughter unless he were aware of the existence of the violation and had opportunity to correct it. That follows from the language of section 1050 (subd. 1) of the Penal Law which states that homicide is manslaughter when committed by a person engaged ” in committing or attempting to commit a misdemeanor. The use of the words ‘1 engaged in committing ’ ’ signify conscious personal participation in, the commission of the misdemeanor. That much is fundamental to the criminal law, which seizes upon the wrongful intent to accomplish the lesser crime and utilizes it as a basis for visiting upon the wrongdoer the consequences of the greater wrong which has unexpectedly and unintentionally followed in its train. If awareness of the misdemeanor is held to be irrelevant, the basis for guilt of manslaughter is eliminated. Wharton’s Criminal Law states that ‘ ‘ When there is a general intent to do evil, in other words, of which evil the wrong actually done may he looked upon as a probable incident, then the party having such general intent is to be regarded as having intended the particular wrong.” (12th ed., Yol. 1, § 157, p. 213.) This court was acutely conscious of the necessity for moral wrong in discussing the doctrine of merger-in the felony murder case of People v. Huter (184 N. Y. 237, 243) when it said that “ A person who attempts or engages in the commission of a felony, is not only chargeable with express malice, but also with being perversely wicked, evincing a depraved mind and a disregard of human life, and if, while so engaged, he causes the death of a person, although unintentional, the legislature has seen fit to enlarge the crime and make it murder in the first degree ”. If a criminal purpose is so large and necessary an element to fulfill the doctrine of ‘ ‘ transferred intent ” in case of felony murder, can it be true that one may become guilty of manslaughter in complete moral innocence without so much as knowing that a misdemeanor has occurred? If the People’s witnesses testified truthfully, defendant is not morally guiltless, but that does not concern the outcome of this appeal inasmuch as the trial court did not give him his day in court on this issue by refusing to allow him to testify to his lack of knowledge of these building violations, and therefore his conviction can stand only upon the basis that his moral innocence is irrelevant.

Vendors who have concealed building violations from their vendees have been held civilly liable for damages to' injured persons in place of the vendees (Pharm v. Lituchy, 283 N. Y. 130; White v. Kilmer, 254 N. Y. 64). In the latter case this court approved the following section of the Bestatement of Torts: “ Liability for Concealed Dangerous Conditions Known to Vendor. A vendor of land, who conceals or fails to disclose to his vendee any condition whether natural or artificial involving unreasonable risks to persons upon the land, is subject to liability for bodily harm caused thereby to the vendee and others upon the land in his right, after the vendee has taken possession if: a. The vendee does not know of the condition or the risk involved therein, and b. the vendor knows of the condition and the risk involved therein and has reason to believe that the vendee will not discover the condition or realize the risk.” (§ 353.) It would appear that a fortiori a defendant in a criminal prosecution for manslaughter should be allowed to testify to his lack of knowledge of such a risk, leaving it to the.jury to decide whether he is telling the truth.

In Reg. v. Franklin (15 Cox C. C. 163, 165) Justice Field said wisely ‘ I have a great abhorrence of constructive crime. ’ ’ In that case the defendant unlawfully threw a crate into the sea at the public bathing beach at Brighton, which accidentally killed a bather. The court refused to submit to the jury what it called “ the narrow ground ” that the act of throwing this box into the sea at a public bathing resort Avas unlawful. The case was submitted upon the broad ground of culpable negligence, which is an entirely different matter.

Abhorrence of constructive felony has been shared by many an American court. In Estell v. State (51 N. J. L. 182), the New Jersey Court of Errors and Appeals reversed a manslaughter conviction Avhere a tollhouse keeper had been killed while the defendant attempted to'drive his horses through the gate Avithout payment of toll. That act Avas prohibited by law. The defendant had been found guilty of manslaughter ‘ by reason of the single fact of his having attempted to pass through the toll gate without paying his toll ’ ’. The court said that apart from culpable negligence, “ This was a plain misstatement of the legal principle. * * * The mere unlawfulness of the act does not, in this class of cases, per se, render the doer of it liable, in criminal law, for all the undesigned and improbable consequences of ‘it. The doctrine is stated in the text books, and is exemplified in a long train of decisions. 1 Bish. Crim. L. (2d ed.), § 258.”

The surest reply to the distorted view that criminal liability depends upon chance is to insist wherever possible upon moral guilt in felony convictions. Although the common-law crime of involuntary manslaughter has been superseded by statute, the Legislature should not readily be deemed to have required manslaughter convictions without criminal intent. Death caused by a person “ engaged in committing a misdemeanor ” was designed to mean by a person consciously engaged in committing the misdemeanor. Criminal intent is not a necessary factor in some misdemeanors, and may not be required in case of violations of these sections of the Multiple Dwelling Law. But under the doctrine of transferred intent, which is as applicable to manslaughter growing out of misdemeanor under section 1050 (subd. 1) of the Penal Law as it is in felony murder under section 1044 (subd. 2), it by no means follows that the Legislature intended to create constructive criminal liability to the felony charge. ‘ ‘ Outside of a narrow class of exceptions, punishment is meted out by the law of crimes for a specific unlawful intent.” (People v. Katz, 290 N. Y. 361, 365.) Such crimes as are merely mala prohibita are of lesser magnitude and, even ip such instances, are strictly construed (People v. Werner, 174 N. Y. 132, 134). The general minor character of such offenses is thus described in People v. D’Antonio (150 App. Div. 109, 113): There is no doubt about the general rule that one cannot be convicted of a crime without proving a criminal intent, but this rule has its exceptions. Statutes which are in their nature police regulations, as the one here under consideration is, impose criminal penalties, irrespective of any intent and obviously for the purpose of requiring a degree of diligence for the protection of the public against violations.” Manslaughter is not a police regulation, and is not lightly to be regarded as having been intended by the Legislature to be capable of being sustained without evidence of .criminal intent in the commission of the underlying misdemeanor. This court considered at length a question closely related to the present in an opinion by Judge Lehman in People v. Clark (242 N. Y. 313), where a conviction was reversed of a public officer for having received ‘ ‘ emolument, gratuity or reward * * * except such as may be authorized by law ”. That crime is made a felony by section 1826 of the Penal Law, and nowhere expressly includes guilty knowledge on the part of the officer. Nevertheless, it was held to have been error for the trial court to have refused to charge that ‘‘ if the defendant received the sum of $1,000 from Mr. Cass and the defendant believed that he had a right to receive, the same and did receive it without wrongful and corrupt intent, the defendant cannot be convicted.” The opinion states: “It may be said with equal right that no court should. impute to the Legislature the intent, even if it has the power, to make such innocent act a felony, and construction of a criminal statute to include such acts is unreasonable if other construction is possible.” (Pp. 325-326.) And this court there said further that “ Penal statutes should be construed accordingly to give effect to the legislative intent. The crime of receiving money ‘.not authorized by law ’ is not committed unless the money is received with wrongful intent. That intent is shown when it appears that the public officer has received something which he knows that the law does not permit him to accept.” (P. 329.)

The Supreme Court of Nebraska in Thiede v. State (106 Neb. 48, 53-54; note 15 A. L. R. 244) applied this principle to the question now at hand saying: “We believe the rule to be that, though the act, made unlawful by statute, is an act merely malum prohibitum and is ordinarily insufficient, still, when such an act is accompanied by negligence or further wrong, so as to be, in its nature, dangerous, or so as to manifest a reckless disregard for the safety of others, then it may be sufficient to supply the wrongful intent essential to criminal homicide, and, when such act results in the death of another, may constitute involuntary manslaughter.

‘ ‘ Such an unlawful act alone, unaccompanied by negligence, is insufficient. Potter v. State, 162 Ind. 213, 64 L. R. A. 942; State v. Horton, 139 N. Car. 588, 1 L. R. A. n. s. 991; Estell v. State, 51 N. J. Law, 182; Commonwealth v. Adams, 114 Mass. 323; People v. Pearne, 118 Cal. 154; State v. Trollinger, 162 N. Car. 618.” (Italics supplied.)

The first paragraph quoted from the Thiede case (supra) was quoted with approval in People v. Pavlic (227 Mich. 562), which held that selling intoxicating liquor resulting in the death of the buyer through acute alcoholism and exposure to cold, does not render the seller guilty of involuntary manslaughter in the absence of intent or recklessness manifesting a reckless disregard of human life, although the selling of intoxicating liquor was made a felony by statute. To similar effect is Copeland v. State (154 Tenn. 7).

In People v. Grieco (266 N. Y. 48, 52, supra) where the People based a charge of manslaughter upon the contention that driving an automobile while intoxicated constitutes a misdemeanor, this court said of the People’s assertion: “ The intent to commit the minor offense would make the driver guilty of the more serious offense of manslaughter ” (italics supplied). It is relevant to the present point that Grieco’s alleged guilt of manslaughter was founded upon an intent to commit the minor offense ”. In the case at bar, the trial court held that the existence of an intent to commit the minor offense was irrelevant.

Allied to the need of establishing a criminal intent in order to sustain' a conviction of manslaughter, is the issue that has frequently arisen concerning whether manslaughter can be based on accidental homicides growing out of any and every kind of misdemeanor. In the able and exhaustive 1937 Report of the Law Revision Commission to the Legislature upon this subject, it was said: “ Most other states include provisions in their statutes to the effect that homicide committed in the course of a misdemeanor or in the course of an ‘ unlawful act ’ less than a felony is manslaughter. Courts, called upon to construe these, have evinced a uniform reluctance to interpret the provision literally, and manage to read into it limitations which materially modify its rigor. As in the case of the felony murder rule, limitations have been effected in two ways — the imposition of the requirement of some causal connection between the underlying offense and the homicide, and a limitation of the kind of unlawful act which will be sufficient to furnish a basis for the charge of manslaughter. Both are encountered in various forms: it is variously stated merely that some causal connection must exist, or that the homicide must be the natural and probable consequence or the proximate result of the unlawful act. Still greater diversity exists in the statement of the law concerning the nature of the misdemeanor. Some authorities emphasize that the underlying offense must be intrinsically dangerous to human life; others, that it must be in violation of a statute designed to protect human life. By far the greatest number assert, however, that it must be malum in se, and that an act only malum prohibitum resulting in homicide is insufficient to subject the wrongdoer to liability for manslaughter. Among the misdemeanors which have been held to be insufficient under one criterion or another in cases where the defendant was charged with homicide, are hunting on another’s land, carrying a concealed pistol, selling liquor, and driving past a tollgate to evade payment of toll. Infractions of laws regulating the operation of motor vehicles have been the subject of greater controversy, but such acts, though sometimes characterized as mala prohibita, are generally held to fall within the- provisions of statutes on manslaughter committed in the course of unlawful acts.” (1937 Report of N. Y. Law Revision Commission, pp. 663-664.)

A fatal automobile accident case bearing out the last statement is People v. Darragh (141 App. Div. 408, affd. 203 N. Y. 527). But in People v. Grieco (266 N. Y. 48, supra), a conviction in such an instance “ was reversed by the Court of Appeals ”, quoting again from the Law Revision Commission’s Report (p. 746), in an opinion which seems to adopt as its basis the dissenting opinion in the Darragh case ” of Justice McLaughlin at the Appellate Division. It was held in Grieco that although driving an automobile while intoxicated was a misdemeanor, it was not one “ affecting the person or property, either of the person killed, or of another ”. The indictment was dismissed upon the ground of merger also, for the reason that there was no separate, independent crime in which the defendant was collaterally engaged at the time of the homicide. The misdemeanor would simply have been punishable as a felony. There is no doubt that death at the hands of intoxicated drivers upon the public highways is a public menace, and the distinction is narrow between declining to hold that such a misdemeanor is aggravated into manslaughter where homicide accidentally results, and an opposite conclusion where death flows from a violation of the Multiple Dwelling Law also without any independent crime.

The Grieco decision sprang from a realization of the need to limit the application of subdivision 1 of section 1050 to serve the ends of justice. As was said by the Law Revision Commission (Report, p. 744): “the statutes are honeycombed with misdemeanor provisions. The probability is that most death-resulting acts would come within some misdemeanor section. It would be a most exceptional case in which the underlying act would not be brought within at least one of these specific provisions. In the second place, the Penal Law contains several misdemeanor sections of a general and catch-all nature, which in themselves cover a wide sphere of acts and would fill most of the interstices that might be found to exist in the network of specific misdemeanors.”

Without attempting to define exactly how or where the operation of subdivision 1 of section 1050 should be confined, these trenchant comments by the Law Revision Commission accent the importance of holding that an accused shall at least have been aware of the facts constituting the underlying misdemeanor before he can be convicted of misdemeanor manslaughter. Sir Matthew Hale, in his Pleas of the Crown, declared that homicides in the course of any act malum prohibitum are neither murder nor manslaughter (1st Amer. ed., 1847, Vol. 1, p. 428). Decisions in many States and countries have been patterned on that idea. Even if we are to hold that a misdemeanor which is malum prohibitum can form the basis for a manslaughter conviction, the defendant should at least have been aware of the facts constituting the misdemeanor.

Knowingly to neglect to provide proper means of egress in case of fire would constitute malum in se in the form of culpable negligence. That charge is not before us. Elimination of knowledge of the existence of a statutory violation as a factor in misdemeanors consisting in violations of the Multiple Dwelling Law, renders such misdemeanors mala prohibita. No one questions that an owner is guilty of misdemeanor even though he is ignorant of the building violation. But to have been found guilty of misdemeanor manslaughter, a defendant should have known at least of the existence of the underlying offense, yet the trial court ruled and instructed the jury on this count in the indictment, that not only was this defendant held to strict compliance with this statute (which was correct so far as being guilty of the misdemeanor went), but that neither ignorance of the condition of the building nor of the Multiple Dwelling Law was a defense to first degree manslaughter. This was almost equivalent to charging the jury that he was guilty under the first count as matter of law. Defendant’s counsel duly excepted to these portions of the charge and to the rulings excluding evidence of that character.

Service of a notice of violation is not essential to guilt of the misdemeanor (People v. Schwartz, 298 N. Y. 551). It may not have been essential to manslaughter based on misdemeanor, if defendant knew the facts constituting the misdemeanor, although it was unfair for the People to have introduced extensive evidence that defendant’s predecessor in title was given frequent notices by the department of housing and buildings which were not enforced during a period of nine years, and then to have restricted defendant in showing lack of notice to himself coupled with an instruction that lack of knowledge ór notice in any form could not exonerate him. In effect, this conveyed the idea to the jury that the city department of housing and buildings had already determined the facts necessary to establish defendant’s guilt, while his predecessor was the owner, and that nothing which happened afterward except the fire was of any consequence. If absence of notice of violations from the city to defendant meant nothing, even-handed justice would seem to inquire why repeated notices to his predecessor meant so much?

One may assume from his familiarity with the building that defendant knew that there was no outside fire escape or other secondary means of egress. He may also have known that there was no sprinkler system, which section 187 of the Multiple Dwelling Law provides would have rendered secondary means of egress unnecessary. A question of fact was presented (except that the Trial Judge removed it from the jury), whether he knew that the means of egress through the roof (scuttle) was fastened down so as to be unavailable. In her harrowing account of this fire in which her husband died, Mrs. Elizabeth Green emphasized on the witness stand that she and her husband could have éscaped through this exit to the roof, but did not attempt to do so for the reason that defendant had told her that its covering had been nailed down to prevent entrance by mischievous boys. Defendant denied this conversation. The jury may have found that Mrs. Green’s husband, who jumped to the ground, and the other person whose life was lost might have been saved if they could have used the escape to the roof. If the jury found, as the District Attorney presented to the jury, that the exit to the roof was closed, then it became especially important for them to have considered whether defendant knew that this means of egress had been eliminated. One of the jurors interrupted during the charge by asking ‘ ‘ When a person buys a home, is there a law that requires him at that time, before buying the home, to see if there are any violations against it in the Housing Department? ” No categorical answer was given to this inquiry, but the instruction which was delivered amounted to an affirmative reply. The effect was to tell the jury that defendant was guilty of manslaughter.

The Appellate Division eliminated the sentence imposed on the second degree manslaughter conviction, founded upon the charge of culpable negligence. As I interpret this modification, elimination of this sentence amounted to dismissal of the second count, in view of section 1938 of the Code of Criminal Procedure which states that conviction under one count bars prosecution under the other if both have been based upon the same set of facts. That is what the Appellate Division stated is the situation here. However that may be, defendant’s conviction under the second count could hardly have been affirmed in view of instructions, duly excepted to, that knowledge or notice of pending violations was irrelevant. Defendant might well have been tried under that count alone, and his felony guilt or innocence have been made to depend upon the really substantial issue of culpable negligence.

The conviction should be reversed and a new trial granted.

Conway, Ch. J., Desmond, Fuld and Burke, JJ., concur with Dye, J.; Van Voorhis, J., dissents in an opinion in which Froessel, J., concurs.

Judgment affirmed.

       The modification in the Appellate Division eliminated the sentence of seven md one-half to eleven years imposed on the manslaughter second conviction [Penal Law, § 1938).