author:
Fuld, J.
      Dye, J.

text:
    In the Matter of Max Gross, Respondent, against New York City Alcoholic Beverage Control Board et al., Appellants.
    Argued February 23, 1960;
    decided April 1, 1960.

      Emanuel D. Black and Hyman Amsel for appellants.
    I. Rule 45 of the Rules of the State Liquor Authority is a valid exercise of the discretionary power vested in the State Liquor Authority by legislative enactment. The acceptance and processing by the New York City Alcoholic Beverage Control Board of petitioner’s application being proscribed by said rule, the relief requested by petitioner, an order directing said local board to accept and process his application, therefore, is not available to him as a matter of law. (Matter of Rheims Val. Wine Co. v. Bruckman, 256 App. Div. 203; Matter of Fahey v. Wright, 256 App. Div. 474; Sherman Plastering Corp. v. R. & R. Co., 281 App. Div. 293; Kalmanash v. Smith, 291 N. Y. 142; Matter of Hines v. State Bd. of Parole, 293 N. Y. 254; Matter of Buck v. Hurd, 281 App. Div. 115; Fulton Restaurant v. Quinn, 253 App. Div. 740; Matter of Brenner v. O’Connell, 308 N. Y. 636; Matter of Scopelliti v. State Liq. Auth., 5 Misc 2d 762, 6 A D 2d 694, 5 N Y 2d 706; Matter of Gambino v. State Liq. Auth., 4 A D 2d 37, 4 N Y 2d 997; Crowley v. Christensen, 137 U. S. 86; Bertholf v. O’Reilly, 74 N. Y. 509; Matter of Wager v. State Liq. Auth., 4 N Y 2d 465; Matter of Marks v. Bruckman, 170 Misc. 709; Matter of Yates v. Mulrooney, 245 App. Div. 146; Matter of Fernandes v. State Liq. Auth., 282 App. Div. 770, 306 N. Y. 600; People ex rel. Wood v. Lacombe, 99 N. Y. 43; Surace v. Danna, 248 N. Y. 18; Caddy v. Interborough R. T. Co., 195 N. Y. 415; Matter of Kaplan v. Rohan, 8 A D 2d 270.) II. Subdivision 2 of section 17 of the Alcoholic Beverage Control Law is a valid delegation of legislative power and is not in violation of section 1 of article III of the New York State Constitution. (Matter of Blankfein v. Bruckman, 273 N. Y. 588; Reckler v. Quinn, 280 N. Y. 768; Wilson v. Quinn, 280 1ST. Y. 770; Matter of Brenner v. O’Connell, 3081ST. Y. 636; Matter of Scopelliti v. State Liq. Auth., 5 Misc 2d 762, 6 A D 2d 694, 5 N Y 2d 706; Matter of Barry v. O’Connell, 303 N. Y. 46; People v. Nebbia, 262 N. Y. 259; Nebbia v. New York, 291 U. S. 502.)

      Monroe I. Katcher, II, for respondent.
    I. By their motion pursuant to section 1293 of the Civil Practice Act for the dismissal of the petition as a matter of law, respondents, for the purposes of the motion, admit the truth of all factual allegations and every favorable inference which might reasonably be drawn therefrom. (Matter of Nistal v. Hausauer, 308 N. Y. 146; Matter of Schwab v. McElligott, 282 N. Y. 182; Matter of Felice v. Swezey, 278 App. Div. 958; Matter of Friedman v. Roseth Corp., 271 App. Div. 870; Matter of Rheims Val. Wine Co. v. Bruckman, 256 App. Div. 203; Matter of Fahey v. Wright, 256 App. Div. 474; Fulton Restaurant v. Quinn, 253 App. Div. 740.) II. Insofar as rule 45 purports to execute the statutory direction that the Authority ‘ ‘ limit in its discretion the number of licenses of each class to be issued within the State or any political subdivision thereof,” it fails to set or fix a true and genuine numerical limitation in each county or in the entire State, as contemplated by subdivision 2 of section 17 of the Alcoholic Beverage Control Law, and is an unauthorized and invalid exercise of the power delegated by said provision. (Matter of Ballard v. Roth, 141 Misc 319; Matter of Lincoln Sav. Bank v. Broderick, 140 Misc 380; Matter of Allerad Realty Corp. v. Fire Comr. of City of N. Y., 138 Misc. 232; People ex rel. Hope v. Masterman, 209 N. Y. 182; Matter of Marshall v. Green, 97 Misc. 492; People ex rel. Fiore v. Clement, 70 Misc. 590; People ex rel. Skelly v. Hegeman, 174 App. Div. 715; People ex rel. Chambers v. Shults, 166 App. Div. 868; McMahon v. Henkel, 91 Misc. 85; Brunner v. Diogenes Brewing Co., 93 Misc. 681; Brown v. Common Council, 167 Mich. 492; Honstain v. Board of County Comrs., 52 Mont. 391; Fort v. Common Pleas of Monmouth, 89 N. J. L. 144; Bryant v. Common Council, 169 Mich. 299.) III. Rule 17 fixes a true and genuine limitation in the number of -retail off-premises licenses. (Wilson v. Quinn, 280 N. Y. 770; Reckler v. Quinn, 280 N. Y. 768; Matter of Brenner v. O’Connell, 308 N. Y. 636; Matter of Scopelliti v. State Liq.

      Auth., 5 Misc 2d 762, 6 A D 2d 694, 5 N Y 2d 706; Matter of Marks v. Bruckman, 170 Misc. 709; Matter of Kaplan v. Rohan, 8 A D 2d 270; Matter of Willmont Liqs. v. Rohan, 2 Misc 2d 768 ; Matter of New Lots Liq. Store v. State Liq. Auth., 6 Misc 2d 149; Matter of Deitch v. Rohan, 3 Misc 2d 458.) IV. Bule 45 does not establish a true and genuine numerical maximum in the State or in each county, as contemplated by subdivision 2 of section 17 of the Alcoholic Beverage Control Law. V. Buie 45, besides being invalid as a purported exercise of the powers delegated to the Authority pursuant to subdivision 2 of section 17 of the law, is not authorized by any other provision of the law and is inconsistent and out of harmony with the general and specific provisions thereof. VI. Buie 45 is invalid in its attempt to create judicial unreviewability of disapproved applications for on-premises licenses. (Matter of Picone v. Commissioner of Licenses of State of N. Y., 241 N. Y. 157; Matter of Barry v. O’Connell, 303 N. Y. 46; Matter of Kaplan v. Rohan, 8 A D 2d 270; Matter of Glenram Wine & Liq. Corp. v. O’Connell, 295 N. Y. 336; Matter of Gelces v. State Liq. Auth., 154 Misc. 517; Matter of Yacht Club Catering v. Bruckman, 276 N. Y. 44.) VII. Buie 45 is not merely an administrative rule to carry out the legislative will; it is an attempt to legislate in disregard of the provisions of the statute. (Matter of Picone v. Commissioner of Licenses of State of N. Y., 241 N. Y. 157; Matter of Barry v. O’Connell, 303 N. Y. 46; Miller v. United States, 294 U. S. 435; Manhattan Co. v. Commissioner, 297 U. S. 129; Matter of Cherry v. Board of Regents, 289 N. Y. 248; Saltser & Weinsier v. McGoldrick, 295 N. Y., 499; Boord v. O’Brien, 277 App. Div. 253, 302 N. Y. 890; Witmarsh v. Farnell, 273 App. Div. 584, 298 N. Y. 336; Matter of Bridgman v. Kern, 257 App. Div. 420, 282 N. Y. 375; Leader-Observer v. State Alcoholic Beverage Control Bd., 148 Misc. 757, 241 App. Div. 637; Matter of Sesselberg v. Schoeneck, 151 Misc. 267.) VIII. The Authority does not have general rule-making power; only with respect to particular subjects as specifically provided in the statute may it adopt rules thereunder. (Matter of Florell Equities v. Weaver, 2 A D 2d 542, 2 N Y 2d 982; People ex rel. Brown v. Woodruff, 32 N. Y. 355; Matter of Hering, 196 N. Y. 218; Moritz v. United Brethrens Church, 269 N. Y. 125;
      Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634; Matter of Russo v. Valentine, 294 N. Y. 338; Matter of Berkowitz v. Rohan, 7 A D 2d 703; Matter of Barry v. O’Connell, 303 N. Y. 46.) IX. If rule 45 is regarded as a valid exercise of the powers delegated to the Authority under subdivision 2 of section 17 of the Alcoholic Beverage Control Law, said provision of the statute must be deemed to be a delegation of legislative power without guides or standards, in violation of section 1 of article III of the New York State Constitution. (Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184; Matter of Blankfein v. Bruckman, 273 N. Y. 588; Buttfield v. Stranahan, 192 U. S. 470; Darweger v. Staats, 267 N. Y. 290; People v. Klinck Packing Co., 214 N. Y. 121; Matter of Levine v. O’Connell, 275 App. Div. 217, 300 N. Y. 658; Matter of Seignious v. Rice, 273 N. Y. 44; Matter of Mooney v. Cohen, 272 N. Y. 33; Matter of Barton Trucking Corp. v. O’Connell, 7 A D 2d 36; Matter of Fink v. Cole, 302 N. Y. 216.) X. No material issue exists which could be raised by answer concerning the merits of petitioner’s application herein to merely compel the local board to accept and consider his license application under section 64 of the Alcoholic Beverage Control Law. (Matter of Brennan v. Kern, 173 Misc. 388, 258 App. Div. 1049, 284 N. Y. 810; Matter of Powhatan Democratic Club v. Curran, 206 Misc. 960.)
   Fuld, J.

This article 78 proceeding, brought by the petitioner Max Gross to compel the New York City Alcoholic Beverage Control Board to receive his application for a restaurant liquor license, poses for decision the validity of rule 45 promulgated by the State Liquor Authority.

The petitioner, owning and operating a restaurant in New York City, was licensed some years ago by the Authority to sell beer and cider at retail on the premises. In June of 1959, finding that there was an ever-increasing demand by his patrons for liquor and wine, Gross submitted to the local New York City Board, in accordance with the provisions of the statute (Alcoholic Beverage Control Law, § 64), an application for “ a change of class of [his] license, from beer and cider only, to liquor, wine, beer and cider ” for on-premises consumption.

The board refused to accept Gross ’ application on the ground that he had failed to obtain the permission of the Liquor Auih'-rity to file an application, the permission being in the form of a waiver as required by the Authority’s rule 45. The board’s action was sustained by Special Term, which granted a motion to dismiss Gross’ petition to compel acceptance of his application, but the Appellate Division reversed, denied the motion and granted leave to appeal to this court on certified questions.

Although on its face rule 45 seems designed simply to limit the number of on-premises licenses, its actual thrust is to erect a new and unauthorized procedure for the granting of these licenses. (See Matter of Kaplan v. Rohan, 8 A D 2d 270, 273, appeal dismissed on ground appellants not aggrieved 7 N Y 2d 884.) This contradiction between appearance and reality is made manifest by a close reading of the operative paragraphs of the rule, especially this sentence: the number of annual restaurant liquor or wine licenses, hotel liquor or wine licenses and eating place beer licenses shall be limited to the number in effect throughout the state after all applications for such licenses filed prior to February 1st, 1959 or filed as the result of the next succeeding paragraph have been acted, upon ”. Since the next succeeding paragraph provides that “ any person may be granted a waiver of the foregoing limitation ” if he meets the conditions prescribed by the Authority, it is clear that what appears to be an absolute limitation on licenses, pursuant to subdivision 2 of section 17, is actually an unauthorized change in the statutory procedure for granting licenses under sections 55, 64 and 121. Thus, in effect, rule 45 repeals and amends express provisions of the Alcoholic Beverage Control Law without the sanction of law.

Section 64 declares that ‘‘ Any person may make an application to the appropriate board for a license to sell liquor at retail to be consumed upon the premises where sold ” and goes on to provide that the procedure to be followed shall, so far as applicable, be that set forth in section 54. Section 55 is identical with section 64 except that it relates to beer instead of liquor and, like section 64, it too incorporates the provisions of section 54 insofar as the controlling procedure is concerned. It is to be noted that, in contradistinction to rule 45, both section 64 and section 55 provide that Any person may make an application ”. It should also be noted that neither section 54, 55 or 64 nor any other section of the statute makes any mention of the waiver procedure incorporated into rule 45, or any waiver procedure, as an alternative to those specific and detailed procedures which the Legislature saw fit to establish in section 54.

The change which rule 45 seeks to impose on the statutory scheme by requiring a pre-application waiver is no mere matter of detail; it goes to the very heart of the procedure prescribed by the Legislature in the Alcoholic Beverage Control Law. In outline, the statutory procedure found in sections 54 and 121 provides for an application, approval or disapproval by the local board, review by the Authority and review of the Authority’s action by the courts. At various stages of this procedure, written statements of disapproval are required and there is also provided a hearing by the Authority under stated circumstances. For this elaborately detailed legislative plan of application and review, the Authority in rule 45 would substitute the simple alternative of forbidding local boards to accept and act upon applications except when the Authority issues a waiver after a written application.

Since section 121 of the Law only provides for review in cases where the Authority has either denied, issued or revoked a license, one important effect of rule 45 is to deny judicial review in the case of a person who is prevented from obtaining a license by being refused a waiver. As the unanimous Appellate Division for the Third Department expressed it in the very recent case of Matter of Kaplan v. Rohan (8 A D 2d 270, 273, supra), in consequence of rule 45, ‘ ‘ unsuccessful applicants are * * * denied access to the courts for purposes of review ”.

The rule also avoids other of the procedural safeguards which the Legislature thought important enough to set up when it enacted section 54. Thus, an unsuccessful applicant is, by reason of rule 45, denied a license without a written statement of the grounds of denial, without a hearing and without either an administrative or judicial review of the denial — despite the fact that each and every one of these important safeguards is expressly provided for by sections 54 and 121 of the Law. This represents a gross administrative usurpation of legislative power.

In view of all this, it may well be asked, how does the Authority seek to justify its action? The opening paragraph of rule 45 recites that it is “ Promulgated * * * pursuant to Sections 2, 17 and 111 of the Alcoholic Beverage Control Law”. Although there are numerous sections of the Law which give the Authority express power to promulgate rules (see, e.g., § 98 [rule 19]; § 99-b [rule 15]; § 100, subd. 6 [rule 14]; § 101-b [rule 16]; § 101-c [rule 31]), it is clear that neither section 2, section 17, section 111 nor any other provision authorizes it to enact so far-reaching a change as rule 45 makes in the application procedure prescribed by the statute. Thus, section 2 simply declares the policy of the Alcoholic Beverage Control Law and section 111 merely provides that there shall be no transfer of licenses unless the Authority in its discretion so decides. However, as indicated, neither of those sections may reasonably or, indeed, conceivably be read to empower the Authority to prescribe a variant procedure for license applications.

The Authority, though, points to that portion of subdivision 2 of section 17 which states that it shall have power to “ limit in its discretion the number of licenses of each class to be issued within the state or any political subdivision thereof, and in connection therewith to prohibit the acceptance of applications for such class or classes of licenses which have been so limited.” This clause does permit the agency to limit the number of applications which may be filed; and, if rule 45 were really a limitation on the number of licenses issued, and not a provision for an alternative method of granting licenses by way of waiver, there is no doubt that it would be valid, and so we held in Matter of Brenner v. O’Connell (308 N. Y. 636) which involved rule 17. As comparison of rule 17 and rule 45 quickly reveals, however, there is at least one great and striking difference between them. While the former provides an absolute limitation on the number of licenses, rule 45, although announced and labeled as such a limitation, actually provides for an alternative method of granting licenses. In other words, although the statute, in subdivision 2 of section 17, authorizes a rule limiting the number of licenses and prohibiting the acceptance of applications beyond such a limit, it does not authorize a procedure for granting licenses which in every respect is contrary to, and at odds with, that expressly provided by the Legislature itself.

Where the Authority promulgates a rule providing for an absolute limitation on the number of licenses, it may prohibit acceptance of applications and permissibly foreclose judicial review of the decisions which it makes. This is the clear meaning of section 17 (subd. 2) and section 121 of the Alcoholic Beverage Control Law. (See Matter of Brenner v. O’Connell, 308 N. Y. 636, 643, concurring opinion, supra.) But where the Authority, in the guise of setting an “absolute limitation”, actually sanctions the grant of an unlimited number of waivers of such a limitation, the limitation is illusory, and we are confronted with an alternative method of issuing licenses. Neither section 17 non any other section of the Law authorizes the Authority to prescribe such an alternative to section 54. And, furthermore, it deprives applicants of substantial rights to review at both the administrative and judicial level.

The Liquor Authority, as the dissenting opinion observes (p. 542), unquestionably possesses “ a large degree of flexibility ” in exercising the discretion vested in it, but such flexibility certainly does not sanction either the announcement of a ‘ policy ’ ’ or the promulgation of a rule by the agency which contravenes explicitly mandated legislative procedures. More specifically, to state the matter briefly, the Authority is without power to adopt a scheme of its own to deal with applications for licenses and employ it as a substitute for that provided by the Legislature. Rule 45 was issued in excess of the grant of statutory authority and must be stricken as invalid.

The order of the Appellate Division should be affirmed, with costs, and the first question certified answered in the affirmative, the second question certified answered in the negative, and the third question certified need not be answered.

Dye, J.

(dissenting). The decisions about to be made in this case and in Matter of Swalbach v. State Liq. Auth. (7 N Y 2d 518), handed down herewith, strike at the very heart of the legislative policy declaring that the regulation and control of the traffic in alcoholic beverages ‘ ‘ will best be carried out by empowering the liquor authority of the state to determine whether public convenience and advantage will be promoted by the issuance of licenses to traffic in alcoholic beverages ” (Alcoholic Beverage Control Law, § 2).

From 1934 to date, this court has been careful not to substitute its judgment for that of the State Legislature and the Liquor Authority in the carrying out of that stated policy. A majority are now not only striking down a determination, made pursuant to a stated policy of the Authority, respecting the location of licensed premises, on the ground that it could not adopt a policy in that respect, but have gone one step further by declaring that rule 45, promulgated in 1956 (Alcoholic Beverage Control Law, §§ 2, 17, subd. 2; § 111), is “ a gross administrative usurpation of legislative power not to be tolerated ”. They seek to justify this impeachment of a high level agency of our State Government by reading the rule not only as a calculated plan or scheme on the part of the Authority to evade its clear administrative responsibility respecting statutory procedures in the issuance of liquor licenses (§§ 54-55, 64), but also as a subtle device to deprive the applicant of his fundamental right of court review.

In essence, rule 45 limits liquor licenses for on-premises consumption “to the number in effect” on the stated date and those to be issued in accordance with the conditions there provided. Local boards may not accept for filing and processing any application for license (whether by way of assigned application or change in class) except that any person may be granted a waiver of the limitation, provided he establish, by proof satisfactory to the State Liquor Authority, compliance with certain enumerated conditions, in addition to which ‘ ‘ the applicant must make a prima facie showing that public convenience and advantage will be served and promoted after consideration of the neighborhood and the number and condition of hotels, restaurants and other eating places in the proposed area, whether licensed or not

Rule 45 is substantially the same as rule 17. The latter rule was promulgated in 1952, pursuant to the same statute. It limited the number of licenses to those 11 in effect ’ ’ on the stated date, and forbade local boards to accept applications during a stated period, except under certain named circumstances. "When that rule was challenged, we upheld it (Matter of Brenner v. O’Connell, 308 N. Y. 636).

Rule 45 differs only as to the necessities of the subject matter dealt with. It relates to liquor licenses for “ on-premises ” consumption (§ 64), while rule 17 relates to liquor licenses for “ off-premises ” consumption (§§ 63, 79). In each instance the fundamental consideration is whether public convenience and advantage will be promoted. In either situation the Authority has the ultimate responsibility. A proper exercise of that broad discretion respecting licenses for “ on-premises ” consumption requires a large degree of flexibility, so that licenses may be issued whenever and wherever a bona fide eating place demonstrates to the Authority that such license or change in class will promote public convenience or advantage and will not add to the evils which the law is designed to prevent.

The court below has read the waiver requirement of rule 45 as an unwarranted restriction on the manner of issuance of licenses, and not contemplated by subdivision 2 of section 17, since the applications there mentioned are “in connection” with the limitation on the issuance of licenses. Such a reading flouts the long expressed policy of the State (§§ 2, 17, 111), and would be wholly inconsistent with our holding in regard to rule 17 (Matter of Brenner v. O’Connell, supra). Requiring a waiver during the proscribed period “in connection ’ ’ with license applications before a local board may receive and process them is not at aE unreasonable. It provides a procedure which in no way alters statutory standards for the control of the liquor traffic but, in fact, is an aid to expeditious and efficient administration, since it provides a prompt method of determining whether public convenience and advantage wiE be served before there has been a vast amount of time, money and paper work expended in connection with a hearing before the local board. The showing in each instance is materially different. We must bear in mind that ultimately it is the Authority which determines whether a license shaE issue or a change shaE be allowed. As has often been said, there is no inherent right in a citizen to engage in the liquor traffic (Crowley v. Christensen, 137 U. S. 86; Matter of Wager v. State Liq. Auth., 4 N Y 2d 465).

Moreover, there is no merit to the contention that rule 45 is indefinite and uncertain in its application because it does not specify a numerical limitation on licenses, for the reason that the limitation mentioned refers to those in existence on a stated time and also those that may be issued in compliance with the conditions. The very nature of an eating place license necessitates the exercise of a broad unhampered discretion in order that public convenience and advantage will be promoted. Although we approved rule 17, which limited licenses “ to the number in effect” (Matter of Brenner v. O’Connell, supra), it does not follow that rule 45 must be stricken down because not so limited.

The challenge to rule 45, based on the alleged nonreviewability of a denial to issue a waiver, is wholly without substance. If, indeed, denial of a waiver is tantamount to a denial of a license, it follows as day follows night that the disappointed applicant can have a review in the manner provided by article 78 of the Civil Practice Act or “by any other appropriate remedy” (Alcoholic Beverage Control Law, §§ 2, 121, subd. 1). The failure of section 121 to specify the denial of a waiver is not evidence of nonreviewability. The confusion seems to arise out of an unwarranted attempt to apply the language of subdivision 2 of section 64 to the license of a bona fide restaurant. Section 55 prescribes the standard by which the bona fide restaurant should be judged. It was not intended to apply, nor does it apply, to a restaurant eligible for a liquor and wine license (Matter of Fernandez v. State Liq. Auth., 306 N. Y. 600, revg. 282 App. Div. 770). We have repeatedly declared that the intention of the Legislature in the enactment of a law should be ascertained from the cause or necessity which led to the enactment (People ex rel. Wood v. Lacombe, 99 N. Y. 43, 49), and that the “ end to be served, the mischief to be averted, supply the clews and the keys by which construction must be governed ’ ’ (Surace v. Danna, 248 N. Y. 18, 25; Caddy v. Interborough R. T. Co., 195 N. Y. 415).

It is significant that in the four years of its existence the rule has operated successfully and without challenge, that the vast number of persons subject to the regulatory jurisdiction of the Authority do not oppose it, and that the Legislature, aware of its existence, has not seen fit to void it or in any other manner indicate its displeasure with the rule.

It is basic that State courts should uphold State regulation whenever possible ” (People v. Nebbia, 262 N. Y. 259, 271). On appeal to the Supreme Court of the United States, that court stated (sub nom. Nebbia v. New York, 291 U. S. 502, 537-538): ‘ ‘ Times without number we have said that the legislature is primarily the judge of the necessity of such an enactment, that every possible presumption is in favor of its validity, and that though the court may hold views inconsistent with the wisdom of the law, it may not be annulled unless palpably in excess of 1 egislative power.” The same comment applies with equal cogency to the problem now considered.

Matter of Kaplan v. Rohan (8 A D 2d 270), so strongly relied on by the majority in support of its decision, is distinguishable both on procedural and factual grounds. Nothing said in that opinion is binding on this court, nor does it necessarily point the way this court should follow. Moreover, it is the fact here that no waiver was requested and none has been denied.

I dissent and vote to reverse the order appealed from and to reinstate the order of Special Term, with costs. The first and third questions certified should be answered in the negative, and the second question certified should be answered in the affirmative.

Judges Froessel, Van Voorhis and Foster concur with Judge Fuld; Judge Dye dissents in an opinion in which Chief Judge Desmond and Judge Burke concur.

Order affirmed, etc.

      . The relevant portion of rule 45 provides:
      “ Now, Therefore, Be It Resolved And Ordered, that on and after February 1st, 1959 and pending the completion of the aforesaid survey and study and determination thereon, the number of annual restaurant liquor or wine licenses, hotel liquor or wine licenses and eating place beer licenses shall be limited to the number in effect throughout the state after all applications for such licenses filed prior to February 1st, 1959 or filed as the result of the next succeeding paragraph have been acted upon, and it is further

        “ Resolved And Ordered, that during the period February 1st, 1959 through January 31st, 1960, no application for any of the aforesaid licenses (whether by way of an original application or by way of a change in class) shall be accepted by any Local Board or Zone Office of the Liquor Authority except that any person may be granted a waiver of the foregoing limitation provided that he shall establish by proof satisfactory to the State Liquor Authority compliance with * * * [certain specified] conditions ”.


source: Caselaw Access Project

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

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Carmine Di Biasi [Di Biase], Alias Sonny Pinto, Appellant.
    Argued February 23,1960;
    decided April 1, 1960.

      Maurice Edelbaum for appellant.
    I The guilt of defendant was not established beyond a reasonable doubt. II. It was prejudicial to force Luparelli to testify over his claim of privilege, to impeach him, and then to exploit his testimony in inflammatory summation. (People v. Minsky, 227 N. Y. 94; People v. Minkowitz, 220 N. Y. 399; People v. Gibson, 218 N. Y. 70; People v. Maloy, 204 Mich. 524; State v. Gregory, 339 Mo. 133; United States v. Tucker, 267 F. 2d 212; United States v. Maloney, 262 F. 2d 535; United States v. Tomaiolo, 249 F. 2d 683; People v. Gokey, 2 A D 2d 231; Matter of Grae, 282 N. Y. 428; Matter of Doyle, 257 N. Y. 244; People v. Petersen, 4 N Y 2d 992; People v. Ferraro, 293 N. Y. 51.) III. The defense was severely prejudiced by the prosecutor’s inflammatory remarks in his summation concerning a supposedly unsavory type of “ Neighborhood Boys ” or “ Mulberry Street ” residents and imputing to this supposed class of persons a special proclivity to defeat the ends of justice. (People v. McGraw, 66 App. Div. 372; People v. Cascone, 185 N. Y. 317; People v. Freeman, 203 N. Y. 267; People v. Gioia, 286 App. Div. 528.) IV. It was error to admit testimony of an alleged statement extracted from defendant in the absence of his counsel while under indictment and before arraignment. (Spano v. New York, 360 U. S. 315; People v. Reilly, 181 App. Div. 522, 224 N. Y. 90; People v. Crum, 272 N. Y. 348.)

      Frank S. Hogan, District Attorney (Charles W. Manning and Arthur Muhlstock of counsel), for respondent.
    I. Defendant’s guilt was established beyond a reasonable doubt. II. The statements of defendant after his surrender were properly admitted. (Spano v. New York, 360 U. S. 315; Murphy v. People, 63 N. Y. 590; People v. Chapleau, 121 N. Y. 266; People v. Garfalo, 207 N. Y. 141; People v. Randazzio, 194 N. Y. 147; People v. Reilly, 181 App. Div. 522, 224 N. Y. 90.) III. The prosecutor’s examination of the witness Luparelli was proper. (People v. Ferraro, 293 N. Y. 51; People v. Kelly, 113 N. Y. 647; People v. Portese, 279 App. Div. 63; Presley v. United States, 148 F. 2d 634; People v. Page, 28 Cal. App. 2d 642; State v. Holder, 237 Iowa 72; Meyerson v. State, 181 Md. 105; People v. Nankervis, 330 Mich. 17; People v. Cascia, 191 App. Div. 376.) IV. The prosecutor’s summation was proper. (People v. Seidenshner, 210 N. Y. 341; People v. Pallister, 138 N. Y. 601; People v. Gioia, 286 App. Div. 528; People v. Maestry, 167 App. Div. 266; People v. McGraw, 66 App. Div. 372.) V. This court will limit itself to the record herein. (People v. Seidenshner, 210 N. Y. 341; People v. Flack, 216 N. Y. 123.)
   Desmond, Ch. J.

Appellant has been convicted of murder in the first degree and sentenced to death for the killing of Michael Errichiello on the early morning of December 26, 1951. He was convicted at the same time for the attempted murder of one Boceo Tisi. An appeal from that latter conviction is pending in the Appellate Division, First Department, and is not before us at this time.

About 5:00 o’clock on the morning of December 26, 1951, police officers were called to a place known as the Mayfair Social Club on the ground floor of a building on Mulberry Street in Manhattan, an enterprise which had been conducted by defendant and the victim Errichiello as partners. When the officers arrived defendant was standing in front of the place and pointed through the door to the body of the victim who had been shot to death and was lying slumped in a chair. The police questioned defendant but did not arrest him and when they went looking for him later he was not to be found. As a result of later investigations he was indicted, about a month after the killing. Defendant remained away from New York until, pursuant to arrangement made by his lawyer, he voluntarily surrendered to the police or the District Attorney.

The incriminating evidence against defendant at the trial came almost entirely from the witness Boceo Tisi who testified that about 4:30 on the morning of the killing he went alone to the club and that as he entered it he saw defendant and a couple of others standing just outside. Tisi testified that when he entered the club he saw Errichiello asleep in a chair and an employee of the club (one “ Pretty Willie ”) sitting nearby, that the witness talked to the employee, and that both of them started to leave the place about 5:00 o’clock but as they started out the door defendant walked in with Indelicate and a third man who was not identified. Tisi’s testimony was that defendant told the employee to leave the place and the latter did; that defendant then fired the fatal shots into the body of Errichiello; that Indelicate at defendant’s urging tried to shoot the witness but his revolver misfired; that there was then a fight with Indelicate during which the latter hit the witness with the gun and the witness broke a bone in his left leg or ankle but managed to hop out of the building and hide nearby until Indelicate and the defendant left the scene. Police officers testified that an hour or so after the killing they went to a hospital where they questioned Tisi who told them that three men unknown to him had come into the club and announced a stickup and that one of them had shot the deceased. One of these officers testified, as to defendant, that on the afternoon of the killing he gave them a statement describing his movements on the night of December 25-26 and stating that he had gone to the club about 5:00 o ’clock in the morning, had entered and seen the decedent’s body and had then gone out and called the police. The officers said that defendant had been told to return to the police station later that day, that he never came back, and that they were unable to find him despite efforts that extended for several years.

In his first point on appeal defendant argues that his guilt was not established beyond a reasonable doubt. He points out that the clothing worn by defendant when the police came to the club early that morning was quite different from the description which Tisi gave them of the clothing of the killer and that there are other discrepancies in Tisi’s various statements. Defendant makes much of the strange fact that Tisi’s own brother testified at the trial that Tisi’s reputation for untruthfulness was very bad and that he would not believe his brother under oath. While the weight of evidence is, of course, open to our review on an appeal like this, we do not see how we could come to the conclusion that this testimony was not sufficient for a conviction. Any doubt as to the witness Tisi’s untruthfulness was for the jury to resolve.

Defendant argues that it was prejudicial for the prosecution to force the witness Luparelli to testify despite the witness’ assertion of his privilege against self incrimination and afterwards to impeach the witness. When first called to the stand, Luparelli consistently and emphatically refused to answer any questions on the ground that the answers would tend to incriminate him. It appeared that he had been confined in jail for some time as a material witness in the cause and that he had made unsuccessful efforts to get an attorney to advise him of his rights. In open court he refused the court’s offer to assign an attorney to him. A pretrial statement made by him seven weeks after the killing was not admitted into evidence but is in the record as an exhibit for identification. This witness, who was illiterate or nearly so, was about 15 years old at the time of the killing and had been at a movie, that night and until some time before the killing, with the deceased and the alleged eyewitness Tisi. The District Attorney prodded Luparelli with questions as to whether he had seen defendant in front of the club at about 4:00 o’clock on the morning of December 26th and as to whether he had gotten a package in a paper bag from the defendant at that time and place. He continued to refuse to answer although the court insisted that these were not questions the answers to which would tend to incriminate him. Court was adjourned until the following day and Luparelli again took the stand. At the next day’s session of court he no longer asserted his privilege against testifying but answered most questions by saying that he did not remember. The result of all this was that he gave no testimony directly damaging to defendant but, of course, his attitude may have produced an impression on the jury unfavorable to defendant, especially since some of the unanswered questions suggested things highly unfavorable to the latter. As Luparelli left the stand the court, on motion of the defense, instructed the jury not to consider any of the questions or answers put to the witness from the alleged statement and not to draw any inferences from any of the questions or answers since the witness had said that he did not remember.

Defendant argues that Luparelli’s appearance on the stand and the somewhat emotional references to the incident in the prosecutor’s summation were highly prejudicial to defendant, especially as they presented or suggested a picture of “ neighborhood ” people protecting each other out of fear or loyalty. After the trial and conviction defendant, through newly retained counsel, moved in arrest of judgment and for a new trial on the grounds that the prosecutor had made improper use of Luparelli’s claim of constitutional privilege when the prosecutor knew in advance that the witness would claim the privilege and, second, that the prosecutor had knowingly put before the jury the alleged statement- by Luparelli which the prosecutor had reason to know had been obtained by threats, force and fraud practices on the witness. A hearing was held on this motion before sentence and the court, after taking testimony, held that no grounds were shown for impeaching the verdict. At that hearing the Assistant District Attorney who prepared and tried the case took the stand and denied that Luparelli had announced in advance of the trial that he would claim his privilege. This whole Luparelli matter may have resulted in unfairness of a sort to defendant but we can see nothing in it which would justify a reversal of the conviction.

We come now to what appears to us to be the important question in the case. Defendant, indicted in 1952, surrendered, in the company of his attorney or at least by arrangement with his attorney, in August, 1958. At the District Attorney’s office defendant was then questioned by several police officers and an Assistant District Attorney but in the absence of his own lawyer. The record does not seem to show how long this questioning lasted. At the trial Detective Talty was permitted to testify to the statements made by defendant although the defense objected on the ground that questioning after indictment and after surrender for arraignment and trial was improper. Defendant, during this questioning, made no admissions of guilt but he did describe his business and personal relationship with the deceased and stated that he knew Tisi, Indelicate and “ Pretty Willie ”. During this questioning in the District Attorney’s office he said that he had been very drunk at the time he came into the club and found deceased and called the police. He admitted that there had been a ‘ ‘ misunderstanding ’ ’ between him and the deceased which admission may have been important since there was nothing else in the record as to motive. He also admitted (along the same line) that he had not gone to the decedent’s funeral. More importantly, he admitted that about two weeks after the killing, when he learned that the police were looking for him “ relative to the homicide ”, he left town, stayed away for seven years and never communicated with his wife or family because “ he could have been traced by the Police Department ”. This was an admission of importance because it corroborated the prosecution’s claim of flight.

In Spano v. New York (360 U. S. 315) the United States Supreme Court, reversing this court (4 N Y 2d 256), held that a conviction was improper and had to be set aside because a confession had been gotten from the defendant by police officers by means of long and unfair questioning after defendant had been indicted and had surrendered himself. A majority of the United States Supreme Court based the reversal on the ground that the confession, obtained by pressure, fatigue and falsely aroused sympathy, had been involuntary, especially since defendant had been refused access to the attorney who surrendered him and who had instructed Spano not to answer. The Chief Justice, in writing the majority opinion, said (p. 320) that he found it unnecessary to pass on defendant’s contention that ‘ following indictment no confession obtained in the absence of counsel can be used without violating the Fourteenth Amendment ”. The Supreme Court majority, therefore, did not directly decide that question. Four Justices, however, in two opinions, strongly took the position that after indictment the right of an accused to the assistance of an attorney is absolute and that questioning him after indictment in the absence of his attorney is a violation of his right to counsel. This latter position is the one some of us took in dissent when the case was here (People v. Spano, 4 N Y 2d 256, supra). In view of what happened in the Supreme Court we do not think we are concluded by this court’s decision in Spano. We think this questioning was a violation of this defendant’s constitutional rights and that the admission in evidence, over objection, of his admissions made during that questioning after indictment and surrender for arraignment was so gross an error as to require reversal, regardless of any other question in this case.

This was testimonial compulsion (see People ex rel. Ferguson v. Reardon, 197 N. Y. 236, 242; People v. Defore, 242 N. Y. 13, 27; People ex rel. Kenny v. Adams, 292 N. Y. 65, 70, 71).

The judgment should be reversed and a new trial ordered.

Fuld, J.

(concurring). I believe that there should be a reversal not only for the reason given by Chief Judge Desmoíto, but because prejudicial error was committed in connection with the Assistant District Attorney’s examination of one of his witnesses.

Luparelli, termed a “ neighborhood boy ” by the prosecutor, was called by the People as their own witness. The first question which the prosecutor asked brought forth from Luparelli a claim of privilege against self incrimination, and other questions either elicited a refusal to answer on the same ground or were parried with I refuse to answer ” or u I don’t remember ’ ’. Despite this, and despite the fact that Luparelli was the People’s own witness, the prosecutor cross-examined him at length, confronted him with former criminal convictions, all of which he acknowledged and, then, on summation, pointedly adverted to his ‘ ‘ disgusting spectacle ’ ’ on the stand. The District Attorney’s tactics must have given the jury the impression that the defendant was somehow or other responsible for this ‘ ‘ neighborhood boy’s ” ‘ disgusting spectacle ” and, whatever the prosecutor’s purpose may have been, there can be no doubt that his treatment of his own witness, after the latter had made it clear that he would not answer any questions, could only have served to discredit the defense. Such tactics were palpably erroneous and prejudicial (see People v. Minsky, 227 N. Y. 94, 98-100; People v. Minkowits, 220 N. Y. 399, 403), even if the District Attorney did not know, before putting Luparelli on the stand, that he would claim his privilege or refuse to answer questions.

I turn to the other ground for reversal. Some years after he had been indicted, the defendant was surrendered by his lawyer to the authorities in New York County. Under our system of law and justice, an indictment must be followed by arraignment and trial and, in the present case, it is obvious that the defendant’s voluntary surrender was designed to assure him a prompt arraignment, with all of its consequent advantages. The defendant had a right to the effective aid and assistance of the attorney who represented him. The fact that his attorney surrendered him for such arraignment in court could not possibly be regarded as a consent or invitation to secret interrogation by police or prosecutor or a waiver of fundamental rights. It matters not, therefore, that the defendant did not object to being questioned or insist on the presence of his lawyer. The damaging statements made by the defendant during the course of his illegal interrogation by the police and District Attorney should not have been received in evidence.

Dye, J.

(dissenting). The decision about to be made turns on the question of the admissibility of defendant’s statement to the District Attorney, made shortly after his unqualified surrender, in the company of his counsel, to answer an indictment, filed January 28, 1952, charging him with the crime of murder in the first degree. A majority regard the admission of such a statement as an invasion of defendant’s constitutional rights, requiring a reversal of the judgment of conviction and the ordering of a new trial. This is because the defendant’s attorney was not present at the time. Such a ruling not only makes admissibility of the statement into evidence dependent on the presence of defendant’s attorney at a prearraignment interview, but also implies that a defendant who has retained an attorney somehow or other acquires a better constitutional status than one who has neglected to secure counsel.

This is a new concept in criminal prosecution. Heretofore a statement in the nature of a confession or an admission by a defendant in a criminal case was admissible against him “unless made under the influence of fear’-’ or duress, “or unless made upon a stipulation of a district attorney, that he shall not be prosecuted therefor” (Code Grim. Pro., § 395). The test of admissibility has been, until now, voluntariness. Here the challenged statement was freely and voluntarily made without any show of unwillingness or of circumstances indicating that it was in response to pressure, coercion or mistreatment. Neither does it appear that the defendant ever asked for or was denied counsel nor, for that matter, does it appear that he at any time refused to answer any of the questions because his attorney was not present. This is not the “testimonial compulsion ” we spoke of in People ex rel. Kenny v. Adams (292 N. Y. 65), where books were surrendered pursuant to subpoena and threat of criminal prosecution, or in People ex rel. Ferguson v. Reardon (197 N. Y. 236), where authorities sought to examine relator’s books and papers for possible use against him in a criminal proceeding. We also fail to see how the holding of People v. Defore (242 N. Y. 13), relied on by the majority, supports its position; there, testimonial compulsion was absent and defendant’s conviction was affirmed.

In the course of the questioning, which appeared to have been carried on in a conversational tone and manner, the defendant gave answers stating his true name; that sometimes he was known as ‘ ‘ Sonny Pinto ’ ’; that he was married, had two children, and knew the deceased Errichiello, sometimes known as “ Mikey Evans ”; that he had a financial interest in the club in which Evans was slain; that the deceased had been best man at his wedding and the godfather of one of his children; that he had known Tisi, ‘1 Pretty Willie ’ ’ and Indelicato. When asked if he killed the deceased, “ Mikey Evans,” he stated that he had not. He further stated that on December 26, 1951 he had spent the evening at his mother-in-law’s home and from there had gone to his own home where he" remained until about 1:00 or 1:30 a.m. ; that he had then proceeded uptown to the Town Crest Bar and Drill where he had drinks with friends whose names he would disclose “at the proper time”; that he had stayed there until closing time and returned “ downtown ”, but by what means or by what route he could not remember; that he had made a stop to get something to eat and then gone to the club, which was closed; and that he had opened the door and seen ‘1 Mikey ’ ’. He said he remembered nothing in particular, because he was “so drunk”, except that he had called the police and, after they had talked with him at the club and at the station, had gone home. He said he had not been told to return. Afterwards, he did not attend the wake or funeral for “ personal ” reasons, hinting there might have been a “misunderstanding ” between himself and the deceased. He stayed around about two weeks and then heard that the police were looking for >1101 relative to the homicide. He then left town and did not thereafter communicate with either his family or his friends, because he thought he could be traced. He was away seven years. He supported himself by doing odd jobs, but he declined to say where or for whom, or whether he had ever left New York State. The information thus elicitéd was generally favorable to the defendant. Here, nothing about the statement resembled a confession. Defendant never admitted his guilt. With those aspects claimed to be harmful the authorities were already familiar. Following this interview, Detective Talty took the defendant to the Fifth Detective Squad where he was booked, fingerprinted and photographed, all in the normal routine.

The circumstances under which the statement was given in no way resembled those in Spano v. New York (360 U. S. 315). There the defendant, having been surrendered by his attorney and cautioned to answer no questions, was nonetheless questioned from early evening until the late hours of the following morning during which time he requested that his attorney be called and was refused. He was, however, allowed to talk to his friend Bruno, who importuned him to confess. Contrary to his attorney’s admonition, he accepted Bruno’s advice and confessed. At the trial the voluntariness of that confession was left to the jury as a question of fact. In the Supreme Court it was contended that following indictment no confession obtained in the absence of counsel could be used without violating the Fourteenth Amendment. However, a majority of that court found it unnecessary to reach that contention, for they found the “ use of the confession obtained here [was] inconsistent with the Fourteenth Amendment under traditional principles” (p. 320). Three of the concurring Justices posed the question as ‘ ‘ whether after the indictment and before the trial the Government can interrogate the accused in secret when he asked for his lawyer and when his request was denied ” (p. 325), adding that This secret inquisition by the police when defendant asked for and was denied counsel was [a] serious invasion of his constitutional rights ” (p. 326). Two of those concurring Justices then joined with a third Justice to express the view that the absence of counsel, when the confession was elicited was alone enough to render it inadmissible ” (p. 326). But here again the Justices took care to point out that the confession had been obtained after “ an all-night inquisition in a prosecutor’s office, a police station, and an automobile” and that his repeated requests ‘‘ to be allowed to send for his lawyer * * * were repeatedly denied ” (pp. 326-327).

Thus a majority in the Supreme Court refused to consider the contention that a defendant’s confession, made after indictment .but before arraignment, is inadmissible solely on the ground that it was given in the absence of his attorney. We expressly rejected that very contention when the case was before us (People v. Spano, 4 N Y 2d 256). On this record I find no basis for overturning that ruling. It follows that the statement was properly received in evidence.

Accordingly, I vote to affirm.

Judges Van Vooehis and Foster concur with Chief Judge Desmond; Judge Fuld concurs in a separate opinion in which Judge Van Vooehis concurs; Judge Dye dissents in an opinion in which Judges Fboessel and Bubke concur.

Judgment of conviction reversed and a new trial ordered.


author: Fboessel, J.

text:
    The People of the State of New York, Respondent, v. Pablo Vargas, Appellant.
    Argued January 11, 1960;
    decided April 1, 1960.

      Thomas Grimes and Arthur H. Schwarts for appellant.
    I. The judgment of conviction is against the weight of evidence. (People v. Crum, 272 N. Y. 348; People v. Weiss, 290 N. Y. 160; People v. Williams, 292 N. Y. 297; People v. Valletutti, 297 N. Y. 226; People v. Hayner, 300 N. Y. 171.) II. The evidence in the record, dehors the alleged admissions obtained by >the police, does not have the weight and credibility required to support a judgment of death. (People v. Fitzgerald, 156 N. Y. 253; People v. Razezics, 206 N. Y. 249; People v. Woltering, 275 N. Y. 51; People v. Weiss, 290 N. Y. 160; People v. Taddio, 292 N. Y. 488; People v. Suffern, 267 N. Y. 115.) III. The weight of evidence establishes the alleged admissions obtained from defendant to be both involuntary and untrue. (People v. Williams, 292 N. Y. 297; People v. Weiss, 290 N. Y. 160; People v. Valletutti, 297 N. Y. 226.) IV. Defendant was denied a fair trial because of fundamental errors in the trial court’s charge to the jury. The trial court’s charge unfairly permitted the jury to find defendant guilty upon the basis of his alleged statements to the police without due regard to the other circumstantial evidence in the case. (People v. Bretagna, 298 N. Y. 323; Gangi v. Fradus, 227 N. Y. 452; Wechsler v. Bowman, 285 N. Y. 284; People v. Hayner, 300 N. Y. 171; People v. Leyra, 1 N Y 2d 199.) V. In respect of the circumstantial evidence in the records, dehors the allegedly incriminating statements, the trial court’s charge failed adequately and fairly to set forth the issues of fact presented for the jury’s determination. (People v. Becker, 210 N. Y. 274; People v. Odell, 230 N. Y. 481; People v. Montesanto, 236 N. Y. 396; People v. Corey, 157 N. Y. 332.) VI. The trial court committed prejudicial error in permitting the jury to arrive at its verdict upon a finding that defendant had attempted to contrive a false defense. (People v. Giordano, 213 N. Y. 575; People v. Pignataro, 263 N. Y. 229; People v. May, 290 N. Y. 369; People v. Leyra, 1 N Y 2d 199; People v. Van Aken, 217 N. Y. 532; People v. Jenman, 296 N. Y. 269.) VII. The trial court committed reversible error in failing to charge the jury that the delay in the arraignment of defendant was illegal as a matter of law. (People v. Snyder, 297 N. Y. 81.) VIII. The admission into evidence of the statements obtained from defendant by the police violated defendant’s rights under the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. (Leyra v. Denno, 347 U. S. 556; Fikes v. Alabama, 352 U. S. 191; United States ex rel. Caminito v. Murphy, 222 F. 2d 698; United States ex rel. Wade v. Jackson, 256 F. 2d 7; United States ex rel. Corbo v. La Vallee, 270 F. 2d 513.)

      Frank S. Hogan, District Attorney (Richard G. Denser of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. (People v. Bretagna, 298 N. Y. 323; People v. Johnson, 185 N. Y. 219; People v. Taddio, 292 N. Y. 488; People v. Johnson, 140 N. Y. 350; People v. Valletutti, 297 N. Y. 226; Stein v. New York, 346 U. S. 156; Spano v. New York, 360 U. S. 315; People v. Elmore, 277 N. Y. 397; People v. Mummiani, 258 N. Y. 394.) II. The court’s charge was proper. (People v. Emieleta, 238 N. Y. 158; People v. Seidenshner, 210 N. Y. 341; People v. Bretagna, 298 N. Y. 323; People v. Radcliffe, 232 N. Y. 249; People v. Leyra, 1 N Y 2d 199; People v. Pignataro, 263 N. Y. 229; People v. Deitsch, 237 N. Y. 300; People v. Johnson, 140 N. Y. 350; People v. Scully, 4 N Y 2d 453; People v. Peres, 300 N. Y. 208; People v. Elmore, 277 N. Y. 397; People
      v. Alex, 265 N. Y. 192; People v. Mummiami, 258 N. Y. 394; People v. Lovello, 1 N Y 2d 436; People v. Snyder, 297 N. Y. 81; People v. Mussenden, 308 N. Y. 558; People v. Murch, 263 N. Y. 285; Dedieu v. People, 22 N. Y. 178; People v. Miller, 143 App. Div. 251, 202 N. Y. 618.)
   Fboessel, J.

Defendant, 33 years old, has been convicted of murder in the first degree and sentenced to death. His conviction rests largely on certain inculpatory admissions which he made to the police during the course of their investigation of the homicide. It is contended on this appeal that the judgment of conviction should be reversed on the grounds, among others, that the inculpatory admissions were involuntarily made and were untrue; that their admission in evidence violated defendant’s rights under the Fourteenth Amendment of the United States Constitution; that the trial court erred in failing to charge that defendant’s arraignment was illegally delayed; and that the jury’s finding of guilt is against the weight of the evidence. The factual background and circumstances of this homicide, and the events which led to defendant’s inculpatory statements to the police, are as follows:

The victim of this homicide was a 16-year-old girl, one Lillian Mojica. She died of strangulation but had also been raped, her scalp lacerated and her body scorched by fire. Her 15-year-old brother, Eichard, discovered the body beneath a mattress in the basement of their home, located at West 187th Street in Manhattan, shortly after 3:00 p.m. on February 13,1958.

At the time of the homicide, defendant was a roomer in the Mojica house. He worked as an assistant cook at the Jewish Memorial Hospital nearby on West 190th Street, which was 10 to 15 minutes’ walking distance from the Mojica house. It is undisputed that, when Eichard Mojica departed for school at 6:15 a.m. on the day of the murder, defendant was alone in the Mojica house with Lillian. She had locked the door as Eichard left. Defendant was not seen that morning until about 9 o’clock when he appeared at the Jewish Memorial Hospital. That day, Thursday, was defendant’s day off from work. He claimed to have received a telephone call before going to the hospital, in which the caller — without asking his name or identifying herself — merely directed him to “ Eeport to work ” and hung up the transmitter. Upon his arrival at the hospital, defendant was told that he had not been sent for. He thereupon went to a nearby bank to cash a check, and thence traveled to downtown Manhattan to visit his wife, from whom he was separated.

When defendant returned to the Mojica housp at about 5 o’clock that afternoon, the police were at the scene. Between 6:00 and 7:00 p.m. the members of the Mojica household — including defendant and two other roomers — and a number of Lillian’s acquaintances from the neighborhood were taken to the police station for questioning. These various people were seated in a large “ squad room ” on the second floor of the police station and were interrogated individually. Immediately adjacent to the squad room was a small room formed hy metal partitions. That room was the office of Lieutenant Robb, who supervised the investigation, in which subsequent interrogations of defendant and others took place. The questioning of the numerous people brought to the station house continued until 4:00 a.m. on February 14th, at which time the first phase of the police investigation of the instant homicide was concluded.

Defendant was questioned for the first time, and briefly, about two hours after his arrival at the police station. He told of the telephone call directing him to report for work. Following his statement, defendant was placed in the main squad room with the other persons awaiting interrogation. Between 10:00 and 11:00 p.m., three police officers returned to the Mojica house and searched defendant’s room. They found among his clothing a bathrobe with a bloodstain on the sleeve. The robe was taken to the police station, along with some other articles of clothing, and defendant was interrogated for the second time. This was about midnight. Defendant attributed the bloodstain to the fact that he frequently cut himself shaving. He had a bad acne condition. He also repeated the episode of the mysterious telephone call, stating that he received it at about 6:30 a.m. and arrived at the hospital at 7:00 a.m. This second interview by the police lasted from about an hour to an hour and a half, ending at approximately 1:00 a.m., at which time defendant returned to the squad room. According to Mrs. Mojica, he talked with her at about 3:00 a.m., and, after she told him the police were taking fingerprints ‘‘ inch by inch ’ ’, defendant replied that his fingerprints were “ over all the house ”, and added “I’m not going to confetif anything.”

At 4:00 a.m. Mrs. Mojica, her son Richard and defendant’s half brother (Aponte) left the police station. Defendant remained in the main squad room and, commencing at about 5:00 a.m., Detective Waldron spoke with him generally until about 8:00 a.m. During this period, Waldron brought some coffee and pastry for defendant. In the meantime, the police had planned to check on his statements, and make a more complete examination of his room in daylight.

At about 10:00 a.m. that day, February 14th, two detectives went to the Jewish Memorial Hospital in order to ascertain the time at which defendant arrived there on the previous day; and, at the same time, Lieutenant Robb, accompanied by another police officer, returned to the Mojica house to conduct a more careful search of the premises. At the hospital, it was definitely learned that defendant had not arrived there until 9:00 a.m. on February 13th — as opposed to 7 :'00 a.m. as claimed by him. At the Mojica house, additional bloodstains were discovered in defendant’s room, on the floor and on the soles of a pair of damp slippers found underneath defendant’s bed. A further bloodstain was subsequently discovered on defendant’s bedspread.

Upon discovering the bloodstains, Lieutenant Robb returned to the station house, arriving there at about 11:30 a.m. Defendant was then sitting in the squad room, and Robb asked him to come into his office. Robb ordered a sandwich and coffee for defendant, which he ate, and then conferred with defendant alone. He told defendant at that, time that the police had found bloodstains in his bedroom and blood on his bathrobe, and that it would be better for him if he would tell ‘ ‘ in his own version what happened ’ ’. Robb further told him ‘ ‘ it could have been an accident, it might have happened to me or anyone ”, and urged him to “ get it off ” his “chest ”. After a pause, defendant said: “I pushed her”; and related in substance the following events.

On the previous morning, February 13th, defendant saw Lillian standing in the bathroom combing her hair. The bathroom was located on the second floor of the house, adjacent to defendant’s room. Defendant became “excited”, entered the bathroom through the open door and pushed her. She fell and her head started to bleed. Defendant then went to his bedroom to “ think ”. He explained that he had blood on his hands and perhaps on his shoes at the time. This, according to defendant, accounted for the bloodstains on the floor of his room; and, as for the stains on his bathrobe, defendant stated: “ I might have touched it when I went into the bedroom.” Defendant then returned to the bathroom and dragged the girl down to the cellar, where he burned her clothes with matches.

When defendant concluded the foregoing statement, Lieutenant Robb called two other police officers into his office. Defendant repeated his original statement made to Robb and added some details, including the fact that he had raped the girl. Defendant denied strangling her, and declined to admit dragging her to the rear of the cellar where she was eventually found by her brother. He maintained that he left her at the foot of the cellar stairs. After having thus enlarged upon his first statement to Robb, defendant lowered himself to the floor at the request of the detectives present and demonstrated how he raped the deceased.

At about this time defendant’s wife was in the squad room of the police station, having been brought there by the police. Defendant was permitted to speak to her. According to her testimony, defendant entered the squad room, embraced her, and protested:6 ‘ These people are trying to blame on me a crime that I did not commit.” Defendant was crying, she said, and told her that the police put a gun in his chest. She asked him what was wrong with his head, having apparently noticed what she described as an indication of a “ beating ’ ’ on his forehead. When asked by counsel for the defense whether this mark on his forehead was bleeding, Mrs. Vargas replied “ Not too much ”.

After this alleged conversation with Mrs. Vargas, and at about 1:30 p.m., the police took defendant back to the Mojica house, where he re-enacted the events previously described to them. Defendant was then returned to the station house and sat on one of the desks. The police brought him a sandwich and coffee. At about 4:30 p.m. two Assistant District Attorneys arrived, and at 6:00 p.m. one of them took a statement from defendant which was recorded by a stenographer. During this interrogation defendant repudiated, in substance, his earlier admissions to the police. His frequent retort was that he was confused and nervous. In response to certain questions with regard to the admissions, defendant admitted making the statements but asserted that they were not true. He maintained that the police had told him what to say, and that he was struck.

Following the interview by the Assistant District Attorney, defendant was booked and taken downtown to the 30th Precinct station house at 152nd Street for overnight detention. On Saturday morning, February 15th, he was taken to the police 1 ‘ lineup ’ ’ and photographed. From there defendant was taken to the District Attorney’s office where he was briefly interrogated by an Assistant District Attorney, but this interrogation was of no consequence. Then at about 11:00 a.m. defendant was arraigned in the Felony Court.

Defendant’s position, while testifying at the trial, was similar to that taken when interrogated by the Assistant District Attorney on Friday, February 14th. Concerning the treatment he allegedly received at the hands of the police, however, defendant greatly elaborated upon the declarations which he made to the Assistant District Attorney; and he was more emphatic in asserting his innocence. Defendant claimed that, commencing with the latter part of the evening of February 13th, he was subjected to violent beatings and cursing by the police. These beatings, according to defendant, continued at intervals through the afternoon of Friday, February 14th.

Defendant testified that he was screaming and, on one occasion specifically, was crying. The last session which he described allegedly took place for five continuous hours, starting at 7 o’clock Friday morning; this the police emphatically denied. That session, he testified, was culminated by a kick in the forehead, allegedly inflicted by one of the police officers.

It may be noted that no objection was made to the introduction of the admissions nor was any voir dire requested to probe the question of voluntariness. On the issue of the voluntariness of the inculpatory admissions, the credibility of the defendant was squarely pitted against that of the police officers. Simply put, defendant testified that he was beaten and forced to inculpate himself, whereas the police officers testified that this was not so. The police officers who were principally involved in the investigation of the homicide categorically denied beating or threatening the defendant, and, in addition, maintained that they did not see anyone else strike him.

This issue was properly submitted to the jury for their determination. Their function was explained at length by the Trial Judge in his charge; and the court, being mindful of the crucial nature of the testimony of the police officers in this case, took pains to stress that their statements on the stand were to be evaluated in the same manner as those of any other witness — “in the light” of the jury’s “ experience and common sense, with a view to determining whether * * * [they] had a motive or an interest to speak other than the truth ”.

The law which controls the admissibility in evidence of inculpatory statements was competently discussed by the Trial Judge. “ [Statements made under the influence of fear produced by threats, mistreatment, violence, duress or coercion of any kind, mental or physical, would not be voluntary.” The jury was instructed, in fact, that if they were not ‘ ‘ satisfied beyond a reasonable doubt that the admissions testified to ” by the police ‘ ‘ were in fact made by the defendant, or were voluntarily made, ” or if they were not ‘ ‘ satisfied that the admissions were true ”, they “ must acquit ” the defendant (emphasis supplied).

The jury’s determination of the issue of fact thus presented to them was adverse to the defendant. Their adverse determination cannot be disturbed ‘‘ without breaking down the barriers that separate the functions of a jury from those of an appellate court” (People v. Arata, 255 N. Y. 374, 375; People v. Lytton, 257 N. Y. 310, 312-313; People v. Perez, 300 N. Y. 208, 216; see, also, People v. Peller, 291 N. Y. 438, 446). Nor can it be said that defendant’s rights under the Fourteenth Amendment have been violated.

We have examined the record before us “ with the patient care exacted by the life that is at stake ” (People v. Lytton, supra, p. 313), and note that the evidence given by the police at the trial, which the jury chose to believe, gains credence and support when one objectively considers the circumstances and environs in which the alleged beatings depicted by defendant took place. The interrogations of defendant all took place in Eobb’s office, except the interrogation from 5:00 to 8:00 a.m. by Waldron, the latter having taken place in the main squad room. Eobb’s office, it will be recalled, was located immediately adjacent to the main squad room on the second floor of the police station. The walls of this office Avhich separated it from the squad room Avrere of metal partitions. Under such circumstances, any physical violence by the police, and the resulting manifestations of pain, such as screaming, on the part of defendant, would have been audible to the many people sitting in the adjacent squad room throughout the evening and early morning of the 13th and 14th. Defendant’s own half brother, Aponte, was in the squad room until 4:00 a.m. on February 14th. Certainly, if defendant had been screaming, as he claimed he was, Aponte would not have testified that as far as he knew his brother was “ well treated ” by the police. A photograph of defendant, offered in evidence and taken at about 5:00 a.m. by a newspaper photographer in the squad room, shows him. placidly seated, dressed in a winter overcoat. The photographer testified that he did not hear any screams nor did he see anyone being struck.

Defendant was not denied any right of communication. He was not isolated, nor interrogated for long periods of time. While he was not furnished a bed for sleep during the intervals between interrogations, he was permitted to sit, unmolested, in the main squad room. He was also supplied with food.

There are only two items of objective evidence in this record which, standing alone, could possibly indicate that defendant was struck. There is in evidence a photograph showing a slight mark on the forehead above defendant’s right eye, and there is evidence that defendant had a scar on his back which at the time of the trial was stipulated to have been from six months to two years old.

The photograph which shows the mark over his right eye was taken by the police on Saturday, February 15th. It was defendant’s contention that this mark was a .cut, and that it resulted from the kick which he allegedly received from the police officer. This was the mark to which Mrs. Vargas alluded in her testimony. There was an abundance of testimony given at the trial, however, to conclusively refute defendant’s and his wife’s testimony in this regard.

During the afternoon of Friday the 14th, defendant was noticed rubbing his forehead with the hem of a handkerchief and with his finger, as though he were picking a pimple. At 5 o’clock on that afternoon, a reporter testified, he observed some scratched pimples on defendant’s forehead and face. When shown the police photograph of defendant, the reporter stated that when he saw defendant the mark was “ definitely not that pronounced ’ ’.

This rubbing by defendant continued during the interrogation by Assistant District Attorney Herman on Friday evening. Reference to the rubbing, in fact, appears in the stenographic transcript taken at that time. Mr. Herman testified at the trial, and, when asked by defense counsel whether defendant was “ deliberately trying to build up an injury ”, replied that “ he was enlarging on something which might have been originally a pimple or a slight scratch and was trying to make it bigger.” With regard to the scar on defendant’s back, the period during which it could have been inflicted is too broad to lend any significance to it. As already noted, it was stipulated at the trial, about 10 months after defendant was interrogated by the police, that the scar could have been anywhere from six months to two years old. The physician from the City Prison who examined defendant there on February 15, 1958 testified that he noticed only a very extensive acne condition on defendant’s back; and defendant when asked by the physician whether he had any complaints stated that he had not.

We turn now to the question of delay in arraignment. The Trial Judge presented this issue to the jury for their determination as a question of fact. It is contended that reversible error was’committed since the trial court should have charged that the delay in arraignment of the defendant was “ unnecessary ” as a matter of law (Code Grim. Pro., § 165).

At the very outset, we need only point out, aside from the fact that no exception was taken to the charge on that ground — which of course in a capital case is not conclusive upon this court — one of defendant’s written requests was an instruction that the court leave this matter to the jury as a factual question. The court refused to charge this request only because it was “ adequately covered in the charge ”. Under these circumstances, defendant has no cause for complaint (see People v. Higgins, 5 N Y 2d 607, 629, 635). At all events, we are of the opinion that failure of the trial court to charge in a manner as now urged on this appeal did not constitute reversible error.

In a proper case, of course, a defendant is entitled to the charge that his arraignment was unnecessarily delayed as a matter of law. Even then, illegal delay is but one circumstance to be considered along with any other evidence bearing on the question of the voluntary character of the admissions. Under all the circumstances of this case — especially in light of the fact that defendant could not have been arraigned before the morning of February 14th, when the Felony Court opened — it could hardly be claimed that a delay in arraignment until the afternoon of that day would have been unnecessary and unreasonable as a matter of law. The period of delay which continued thereafter until the actual time of defendant’s arraignment during the next morning was unreasonable as a matter of law.

However, this latter period of delay had absolutely no bearing upon the voluntariness of defendant’s admissions to the police. As the Supreme Court stated in United, States v. Mitchell (322 U. S. 65, 70), the “ illegality ” of that period of delay did not “ retroactively change the circumstances under which he made the disclosures ”. The crucial period in this case as to the alleged illegal delay in arraignment which might bear on the voluntariness of defendant’s admissions extends from the earliest time he could have been arraigned — on the morning of the 14th — to the afternoon of that day. Even though the court in its charge lumped the two periods together and did not charge that the subsequent period was one of illegal delay, no reversible error is here present, since, as we have indicated, the delay which took place during the subsequent period (until the next day) had absolutely no bearing on the voluntariness of defendant’s admissions.

In answer to defendant’s third contention on this appeal, we are satisfied that defendant’s guilt was established beyond a reasonable doubt. In addition to defendant’s inculpatory admissions and the presence of bloodstains in his room and on his clothing, there was additional evidence in this record for the jury to consider in connecting defendant with the crime. There is the matter of a metal signet ring belonging to the brother Richard, which was found adhering to the neck of the deceased girl. The brother testified that only he and the defendant knew that this ring was kept in a certain box in the brother’s bureau drawer. There was also evidence that defendant knew that certain keys to the Mojica house, taken at the time of the homicide, were missing, although allegedly never told of their absence.

There was further evidence tending to show that the girl was killed well before 9:00 a.m. when defendant arrived at the hospital, thus affording him ample time to commit the crime during the period from 6:15 a.m. when he was left alone with the girl in the house. Relative to the time of death, a neighbor of the Mojicas testified at the trial that she smelled burning cloth between 7:10 and 7:20 o ’clock on the morning of February 13th; and, in addition, a zippered outer jacket which the girl wore to school — she customarily left between 7:00 and 7:30 a.m. — was found on the body. This latter proof is to be contrasted with the wholly indefinite medical proof as to the time of death.

Defendant contends that, in light of certain allegedly ‘ ‘ white ’ ’ hairs found by the medical examiner on the hand of the deceased girl, she was murdered by an outside white-haired assailant. The medical examiner’s testimony as to the hair was most inconclusive and was in fact substantially refuted. These hairs only “ appeared like ” white hairs in a poorly illuminated basement. The medical examiner’s assistant testified that he was given only a “hair” — as opposed to several — by the medical examiner. In addition, the laboratory man who examined the hair under a microscope testified that it was brown, not white. At all events, this alleged white hair was not found underneath the girl’s fingernails, which fact might have betokened a struggle, but was rather ‘1 adhering ’ ’ to her fingers. It is conceivable, in light of defendant’s admissions, that the hair came in contact with her fingers and “ adhered ” to them as she lay on the bathroom floor, or during the course of her being dragged down the carpeted stairs to the cellar, or while covered with the old mattress.

The jury had a right to find that defendant’s claim about the early morning mysterious telephone call was false ,• that defendant’s explanation of the bloodstains as having been caused by shaving was likewise false; that he felled the deceased, thereby causing the laceration on her head; that he raped the deceased, with the consequences described by the medical examiner; that he dragged her downstairs causing contusions and abrasions to her protruded tongue and a discoloration over the bridge of her nose — as described by the medical examiner; that he set fire to her clothing, causing her to be burned; and that his admissions to the police were voluntary and true. On the basis of all of the evidence, the jury had the right to find beyond a reasonable doubt that this defendant strangled the deceased and thereby murdered her.

We have examined the several additional points argued by defendant on this appeal, and find that they are without substance.

Accordingly, the judgment appealed, from should be affirmed.

Chief Judge Desmond and Judges Dye, Fuld, Van Voorhis, Burke and Foster concur.

Judgment of conviction affirmed.


author: Burke, J.

text:
    The People of the State of New York, Respondent, v. Myron E. Wilson, Appellant.
    Argued March 1, 1960;
    decided April 21, 1960.

      Robert J. Edelman for appellant.
    I. The dismissal of defendant’s appeal by the Appellate Division deprived defendant of a substantial right guaranteed by the Constitution of the United States. (Griffin v. Illinois, 351 U. S. 12; People v. Pride, 3 N Y 2d 545.) II. The dismissal of defendant’s appeal deprived defendant of a substantial right, i.e., a right to an appellate review (Code Crim. Pro., § 517) and amounted to a denial of his constitutional rights (N. Y. Const., art. I, §§ 6, 11). (Griffin v. Illinois, 351 U. S. 12; Johnson v. United States, 352 U. S. 565; People v. Pride, 3 N Y 2d 545; People v. Kalan, 2 N Y 2d 278; People v. Pitts, 6 N Y 2d 288; People v. Breslin, 4 N Y 2d 73.)

      Joseph F. Gagliardi, District Attorney (Arthur V. Praete of counsel), for respondent.
    I. Sufficient matter was submitted by defendant and the Assistant District Attorney in their respective affidavits to apprise the Appellate Division of the utter lack of merit and the frivolity of defendant’s appeal to that court. (People v. Breslin, 4 N Y 2d 73.) II. There is substantial difference in an appeal from a judgment of conviction and an appeal from an order denying relief by coram nobis.

   Burke, J.

Defendant contests the dismissal of his appeal subsequent to a denial of a motion to appeal as a poor person.

In 1924 at the age of 16, he was convicted upon a plea of guilty of the crime of burglary in the third degree, and is now serving a sentence of 15 years to life, imposed by the "Westchester County Court on April 14, 1941, following his current conviction as a fourth felony offender.

On November 19, 1956 defendant made an application for a writ of error coram nobis alleging that he was not advised of his right to, nor represented by, counsel at the time of his arraignment and sentence in 1924. On April 1, 1958 a hearing was held and the application was denied. Both the original sentencing Judge and the then Assistant District Attorney testified at this hearing.

On June 3, 1958 defendant filed a notice of appeal from the order denying his application for the writ. He subsequently made a motion for an enlargement of time and for leave to appeal as a poor person. His supporting affidavit alleged that he was incarcerated, without funds and unahle to perfect or consummate his appeal or submit a brief because of his poverty. The District Attorney’s opposing affidavit merely denied knowledge of appellant’s financial status and averred that the appeal had no merit.

On March 23, 1959 the Appellate Division granted the motion for enlargement of time but denied, however, the motion for leave to appeal as a poor person. A subsequent letter from the appellant, reiterating that the appeal was dependent upon his being allowed to proceed as a poor person, was treated as a motion for reconsideration of the original motion, and was also denied.

On September 9, 1959 the Appellate Division dismissed the appeal on the oral motion of the District Attorney on the call of the calendar upon the ground that no record has been filed and there was no appearance for the appellant.

Since the controversy now before us necessarily involves appellate procedure for a post-conviction legal proceeding, the merits of the coram nobis proceeding and the appeal below dismissed are obviously not before us. The sole issue to be here decided is whether or not appellant has been accorded the appellate review guaranteed by section 517 of the Code of Criminal Procedure.

Section 517 of the code provides that an appeal may be taken as of right from a judgment of conviction or from an order denying a motion to vacate a judgment of conviction (coram nobis proceeding). The right in either case is equally protected. The statute makes no distinction and it seems that none was intended.

In Griffin v. Illinois (351 U. S. 12, 19) the United States Supreme Court held that once the right to appeal has been granted “ [destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.” Any deprivation of such solely because of poverty is a denial of the United States constitutional guarantee of due process and equal protection. • In the past we have annulled any such interference with appeals from judgments of conviction. (People v. Pitts, 6 N Y 2d 288; People v. Pride, 3 N Y2d 545; People v. Kalan, 2 N Y 2d 278; see, also, People v. Breslin, 4 N Y 2d 73.) Since under section 517 (supra) an appellant’s right to appeal from a coram nobis proceeding is coterminous with his right to appeal from a judgment of conviction, what may be prejudicial in the latter case is no less detrimental in the former case.

In our view, the order appealed from should be reversed. In People v. Pitts (supra), as here, an incarcerated and indigent appellant was denied the right to appeal as a poor person. There too his appeal was subsequently dismissed when neither the record nor brief was filed, and there was no appearance on his behalf. To say that the appellant was given an “ adequate appellate review ”, or that merit was shown to be lacking, solely upon a submission of affidavits on the motion for leave to appeal as a poor person, ignores completely the fact that the appellant was denied the means (e.g., a record or attorney) necessary to present the case to an appellate court.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for further proceedings in accordance with the opinion herein.

Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis and Foster concur.

Order reversed, etc.