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COURT OF APPEALS OF NEW YORK 1968.NY.43710 <>; 244 N.E.2d 29; 23 N.Y.2d 262 decided: November 27, 1968. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.CHRISTOPHER LYNCH, APPELLANT People v. Lynch, 29 A.D.2d 1050, affirmed. Counsel Kenneth Kaplan for appellant. Aaron E. Koota, District Attorney (Stanley M. Meyer of counsel), for respondent. Breitel, J. Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Keating and Jasen concur. Author: Breitel

People v. Lynch, Breitel, J. Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Keating and Jasen concur.

Author: Breitel

 Defendant, Christopher Lynch, appeals from a judgment of the Appellate Division, Second Department, unanimously affirming, without opinion, a judgment of conviction for the crime of murder in the first degree, after a jury trial in Supreme Court. Defendant was sentenced to life imprisonment.

Defendant assigns as reversible error that the trial court incorrectly charged on the issue of intoxication; refused to recall the jury after its verdict and discharge because of the publication of a prejudicial newspaper article during the trial, and refused to allow discovery of a statement made by a prosecution accomplice witness to his lawyer. Defendant also argues that it was error to refuse defendant's pretrial request for the names and statements of all witnesses; that an improper lineup and showup violated due process; that pretrial newspaper publicity prevented a fair trial and a motion for change of venue was improperly denied, and that the verdict is against the weight of the evidence. It is concluded that the defendant's claims are of insufficient merit, and that the judgment below should be affirmed.

Defendant, 17-years old, was charged with the fatal knifing on March 12, 1965 of one Andrew Mormile, also 17, on an IND subway train. The principal evidence against him was given by Terry Toomer, a friend and accomplice of the defendant. Toomer was given immunity before he testified.

Toomer testified that he and the defendant had been together from time to time on March 12, 1965, and continuously from 8:00 p.m. through the events involved in the killing. They, during these times, had drunk various alcoholic beverages. Sometime after 10:00 p.m., on their way from Brooklyn to Manhattan by subway, they entered a middle car of an IND subway train. They accosted three teen-age girls who were moving through the train, and followed them into the first car. In that car the deceased sat in a corner looking out the window. Alongside him was another youth. While Toomer spoke to one of the three girls, defendant entered the first car and stood over deceased. When deceased started to rise, the defendant grabbed him by the collar. The defendant then pulled a knife from his trousers and stabbed deceased three or four times about the head. When the stabbing started the three girls began screaming and ran from the car. The train pulled into the Franklin Avenue Station, and Toomer and defendant left the train. The defendant dropped the knife between the platform and the car as he left.

Toomer admitted, under cross-examination, that during his interrogation one police officer had threatened him with a beating unless he talked about the stabbing. He denied however that any police officer threatened to hold him responsible for the murder if he did not speak. The police told him they would help him if he told the truth, and that he would get consideration "if [he] had nothing to do with it".

Toomer's evidence on the crucial issue of the identity of the killer was corroborated by other passengers in the subway car. The three girls confirmed that they had been walking towards the front of the train, and had met the defendant and Toomer. Eleanor Daniels heard Toomer ask deceased for cigarettes and money. After her court identification of defendant, she testified that she had seen the defendant kick the deceased and strike him both with his fist and with a knife. She described the assailant as a "tall boy" (defendant is 6 feet, 4 inches and weighs 200 lbs.), and said she had seen the assailant's face at this time. Janice Rapelyea testified that Toomer took money and cigarettes handed to him by deceased. A "real tall" youth then entered the car. The tall youth asked deceased for something, then took out his knife and started stabbing him. Deceased fell to the floor and Toomer started to kick him. Miss Rapelyea admitted that she had not seen the assailant's face, and could only identify him by his size and clothing. The third girl, Camelia Hurd, testified that Toomer tried to get some money from deceased. When the tall youth with Toomer asked for money, too, deceased said that he had given all he had to Toomer. The tall youth then struck deceased; Toomer joined him, picking up their victim and throwing him against a pole in the car. She did not see a knife.

Another occupant of the first car was Frank Magon. He testified that three fellows entered the car, two short ones followed a minute later by a tall one. The first two were already pushing deceased before the third entered. The tall one had a knife and proceeded to stab deceased. Magon identified defendant as the one who had done the stabbing.

The prosecution also produced a subway employee who had found a red-stained knife on the tracks of the Franklin Avenue Station. The stain on the knife was human blood. Toomer identified it as one he had seen in the defendant's possession on an earlier occasion, and as the one which defendant had used the night of the killing. The knife was then received in evidence. Two other witnesses, Serkanic and Sharko, who had been present in the second car of the train, testified that they had seen defendant in the subway that evening.

The defendant testified in his own defense. He and Toomer had been drinking heavily that day. He described in detail their activities before they started out on their subway trip. On a train they met a friend of Toomer, whose identity is never disclosed, and who accompanied them throughout the rest of the trip. On the IND train to which they had transferred they accosted the girls and followed them into the first car. In that car the third youth, Toomer's friend, started a fight with deceased. The deceased knocked his assailant to the floor. Toomer ran over and started pushing deceased. Defendant then pushed deceased, but neither punched, kicked, nor stabbed him. Toomer and the third youth were still punching deceased when the defendant left the train at the Franklin Avenue Station. He saw no stabbing. Deceased was never on the floor while defendant was in the train. As he walked up the steps of the station he was joined by Toomer and Toomer's friend.

Defendant contends that the charge to the jury dealing with intoxication improperly shifted the burden of proof. He also argues that the charge required that the intoxication be so great as to destroy all volition, and that the defense would not be made out even if the jury found intoxication had negatived the specific intent for first degree murder. The charge, although certainly imperfect as to clarity and consistency, when read in its entirety, belies these assertions. The court repeatedly charged the jury that the prosecution must prove guilt beyond a reasonable doubt not only as to the killing but also as to premeditation, deliberation, and intent. Defendant isolates phrases in the charge which, taken alone, might appear superficially to shift the burden on the issue of intoxication, or require stronger proof of intoxication than does the law. The pertinent part of the charge reads as follows:

"Gentlemen, in view of the fact that there has been some testimony about intoxication, whether that testimony was strong or weak on the issue of intoxication is not important, but it becomes necessary for me as the Judge to charge you on the law of intoxication, the moment that the issue is put into the trial, no matter in what form it comes out, as I said, whether it be weak testimony or strong testimony; the law mandates me to tell you about the law of intoxication.

"And so I charge you on intoxication. And must warn you, as I have before, this does not mean that I have any opinion for your guidance that the defendant was or was not intoxicated. The law simply requires that when an issue of intoxication is raised during the trial of a case, the Court must tell the jury what the law is as to that issue, because the Judge does not know what view the jurors will take as to that particular factual issue, weak or strong, or how the jury will view it.

"So, gentlemen, I must tell you that voluntary intoxication is never a defense to crime. A person can't go out and get himself drunk and then come out and stab and kill somebody and say, 'Well, I should be excused because I ...

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