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PEOPLE STATE NEW YORK v. SALVATORE COLASCIONE (05/15/68)

COURT OF APPEALS OF NEW YORK 1968.NY.41632 <http://www.versuslaw.com>; 238 N.E.2d 699; 22 N.Y.2d 65 decided: May 15, 1968. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.SALVATORE COLASCIONE, AUSTIN HAGEWOOD, KELLY KAY HAGEWOOD AND JOSEPH VITO, APPELLANTS, ET AL., DEFENDANTS People v. Colascione, 27 A.D.2d 645, reversed. People v. Hagewood, 27 A.D.2d 645, reversed. People v. Vito, 27 A.D.2d 646, reversed. James G. Starkey and Eugene G. Lamb for Salvatore Colascione, appellant. Eugene G. Lamb for Austin P. Hagewood, appellant. James P. Edstrom for Kelly Kay Hagewood, appellant. Joseph Lonardo and C. Albert Parente for Joseph Vito, appellant. William Cahn, District Attorney (Henry P. De Vine and Jules E. Orenstein of counsel), for respondent. Judges Burke, Scileppi, Keating, Breitel and Jasen concur with Judge Bergan; Chief Judge Fuld concurs in a separate opinion in which Judge Bergan concurs. Author: Bergan


People v. Colascione, Judges Burke, Scileppi, Keating, Breitel and Jasen concur with Judge Bergan; Chief Judge Fuld concurs in a separate opinion in which Judge Bergan concurs.

Author: Bergan

 Appellants have been convicted of conspiracy to commit extortion and to fix prices; of carrying and possession of explosive substances and, in addition, appellant Colascione has been convicted of extortion and coercion. Severe sentences have been imposed. The theory of the prosecution was that in order to coerce some dissenting barbers to join a barbers' guild in Nassau County which intended to fix minimum prices, defendants joined into a conspiracy to dynamite two specific barber shops, each defendant playing some effective role in the planning and execution of the purposes of the conspiracy and the plan being that the defendants Hagewood were imported from Michigan to do the actual dynamiting.

The trial was very long and complicated. It occupied almost four months. A large number of legal errors are assigned on appeal by defendants, each adopting most of the arguments of the others and adding them to his own, but only one appellant, Vito, argues the record is insufficient in law to sustain a conviction.

Three grounds are considered by the court to be of sufficient gravity to require a new trial: (a) an ex parte inquiry directed by the Judge to the jury concerning a purported prejudicial statement claimed to have been made in their presence; (b) the receipt of hearsay evidence on substantial issues in the case; (c) the acceptance of proof of a plea of guilty by a co-defendant under instructions to the jury which permitted an inference the plea could be binding on appellants as coconspirators.

A fourth ground, the invalidity of the eavesdropping orders pursuant to which the police overheard and recorded meetings charged to be in furtherance of the conspiracy, is considered error by a minority of this court, but is not so regarded by the majority on the view that no invasion of privacy was involved.

The main frame of the People's case is the testimony of Bob Meyer, described by the People as a "confederate" and "key witness". At one point in the record there is extensive cross-examination of Meyer as to where he and his family had been staying during the trial. Among other things, he had stated, "I don't wish to divulge that right now". There were long colloquies on this subject, including whether the District Attorney had arranged for a place for Meyer to stay. At this point a luncheon recess was taken.

The record shows that immediately after the recess a motion for a mistrial was made by defendants based on an incident purported to have occurred after the Judge had left the bench. Somebody had told the Judge that Mr. Lewis, an assistant district attorney, said to defendants' lawyers, possibly in the presence of some jurors, "You can call off your triggermen now, we have two cars of detectives going up to take care of Meyer's family". The relevancy of this to the inquiry which had been going on immediately before recess concerning where Meyer was staying is apparent.

The Judge stated that "Word was conveyed to me by the clerk" and that he had made inquiry from the District Attorney. There was further discussion during which Mr. Lewis conceded he made the remark, but had made it to Mr. Edstrom (one of counsel) "in a very low voice" and "I believe" after the jury had left the box. He "repeated it" to the rest of counsel and, he noted, "that's when the commotion started".

Mr. Blake (one of defense counsel) told the Judge that he asked Mr. Lewis if he did not realize "the jury is still here" because "there were eight of them standing right here". And Mr. Lamb (also one of defense counsel) told the court he "tried to get Mr. Lewis's attention to the fact that the jurymen had not left the box at this point".

It is obvious that this kind of a statement, following immediately upon attempts by counsel to find out where Meyer was staying -- that the witness' family was being protected from counsel's "triggermen" -- would have been prejudicial if heard by some or any of the jurymen.

The Judge was told by three of the lawyers that what was said was loud enough and in the presence of enough jurors to be heard by some of them. The Judge told counsel "I am getting all of the facts on it". It is not clear whether he meant he was getting the facts at that time by the statements of counsel as to what had happened or through his previous inquiry made by the clerk. Since he did nothing more, he probably referred to what counsel could then tell him.

This is all the record discloses about the scope and procedure of the Judge's inquiry: "I directed the clerk to ask the jury one specific question." The question was: "Did they hear any remark passing between counsel after the Court adjourned for the luncheon recess and, specifically, did they hear anything Mr. Lewis said." The Judge: "And, the jury unanimously said no. So that settles the matter for the record and the motion is denied." It would be a departure from traditional procedure for a Judge himself ex parte and in camera to ask this kind of a question against the possible prejudice to a fair trial, even though a record were made of exactly what he said and exactly what the jurors replied. But when a Judge sends an official emissary, representing him and apparently making inquiry on the announced authority of the Judge, to ask this kind of a question with no record made as to just what he said or just what answer he got, the record presents almost insuperable obstacles to appellate review and leaves quite open the possibility that appellants have been prejudiced.

Having made this ex parte direction without knowledge of counsel, the duty of the Judge on the motion for mistrial seems clear. He should have conducted an inquiry on the record and under oath from counsel or other nonjurors who could have heard what had been said and from the clerk as to the facts of his questioning. This should have been adversary in nature and have permitted cross-examination and the calling of any witness who could testify to relevant events.

As a result of such an adversary inquiry it could have been determined as a fact, in a form in which it could be adequately reviewed, whether or not the jury heard what was said. This might possibly have been determined without questioning the jurors themselves. But it might well have developed on such an inquiry that the only adequate way to decide this motion would be to question the jurors and, if so, it would have to be faced up to, with counsel taking such measures as they deemed right to protect themselves. The unilateral ...


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