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COURT OF APPEALS OF NEW YORK 1969.NY.40079 <>; 245 N.E.2d 194; 23 N.Y.2d 439 decided: January 9, 1969. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.ABRAHAM J. MIRENDA AND JOSEPH M. BIELAWA, APPELLANTS People v. Mirenda, 28 A.D.2d 1208, reversed. Counsel Joel Martin Aurnou for Abraham J. Mirenda, appellant. John Preston Phillips for Joseph M. Bielawa, appellant. Counsel Carl A. Vergari, District Attorney (James J. Duggan of counsel), for respondent. Keating, J. Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel and Jasen concur. Author: Keating

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

Author: Keating

 At 1:30 p.m. on September 11, 1964, a Friday, Anthony Williams was fatally wounded-by a shotgun blast in the chest. Mr. Williams, an employee of the A. R. P. Excavating Company, was standing just outside the doorway of the company's field office trailer when the fatal shot was fired. It was payroll day and, at the time of the shooting, there was a substantial amount of cash in the trailer. The killer never attempted to enter the trailer, however, and fled with another man after apparently discharging the shotgun by mistake. Defendants Mirenda and Bielawa were observed in their flight by a number of persons, but only two witnesses, a truck driver and his assistant, could testify that these defendants were the men they had seen running to a car as their truck approached the scene of the crime. These two men observed the defendants for only 15 seconds. There is no identification testimony that places either of the defendants at the trailer site. The prosecution's other identification witnesses were only able to testify to general descriptions of the fleeing men. However, three accomplices testified that Mirenda and Bielawa had planned and committed the crime.

After the two men escaped in a car, a motorist, passing the scene of the crime, noticed a pair of sunglasses lying in the roadway. The motorist stopped his vehicle and picked them up. He observed a congregation of people standing near the construction trailer and brought the glasses over to ask if one of these persons had dropped them. When none of the spectators acknowledged ownership of the glasses, the driver turned them over to a police officer investigating the crime.

Five persons were arrested by the New Rochelle and New York City Police Departments for the crime. On November 7 and 8, 1964 officers arrested Grigg, Heller, DiBerardino, Mirenda and Bielawa for their participation in the crime. Grigg, Heller and DiBerardino made statements in which they fully acknowledged their involvement. Mirenda and Bielawa denied having any part in the crime.

The Westchester County Grand Jury indicted all five of the suspects. The indictment originally contained four counts. The first three were against Mirenda, Bielawa and DiBerardino only. The indictment charged these three with attempted robbery, premeditated murder and felony murder. The fourth count was against all five, charging a conspiracy to commit robbery.

While the defendants were detained in the Westchester County Jail, Mirenda spoke with Grigg and DiBerardino and made certain admissions concerning the death of Williams. At the time Mirenda made these statements he did not know that Grigg had testified before the Grand Jury.

The District Attorney notified DiBerardino that he expected to use his confession at trial. DiBerardino requested a Huntley hearing but never notified his co-defendants of his request. At the hearing DiBerardino was the only defendant present. The Judge at the conclusion of the hearing found the confession was made voluntarily.

Prior to trial the fourth count of the indictment was severed. The trial commenced on September 15, 1965 on the first three counts. Heller and Grigg both testified on behalf of the prosecution and parts of their testimony disclosed admissions made by defendant Mirenda while all of them were incarcerated. In general, their testimony was extremely damaging to the defendants' position. On September 29, 1965, after the trial had proceeded before the jury for eight court days, DiBerardino decided to turn State's evidence. At the request of the District Attorney, DiBerardino's prosecution was severed from that of Mirenda and Bielawa.

Neither Mirenda nor Bielawa took the witness stand in their own defense. Co-conspirators DiBerardino, Heller and Grigg all testified that Mirenda and Bielawa were the perpetrators of the crime and that they were only accomplices in planning and stealing the getaway car. DiBerardino also testified that he escorted the defendants to New Rochelle where he left them only two blocks from the scene of the crime shortly before the specified hour. Both defendants were identified fleeing from the scene of the crime. If the two eyewitnesses' observations are believed the evidence in the record is sufficient to connect the defendants with the commission of the crime in such a way as may "reasonably satisfy the jury that the [accomplices] [are] * * * telling the truth" (People v. Dixon, 231 N. Y. 111, 116; People v. Morhouse, 21 N.Y.2d 66, 74; People v. Fiore, 12 N.Y.2d 188, 201-202; People v. Malizia, 4 N.Y.2d 22, 27).

The record also amply demonstrates that the perpetrators proceeded far enough in the execution of their plan for an attempted robbery to have taken place. The fortuitous discharge of the shotgun was the only superseding event which prevented the two suspects from completing the robbery. The unexpected discharge caused their plan to be aborted. The abandonment of the criminal intent, however, occurred too late in the stage of preparation for the law to conclude that no attempt occurred (People v. Sullivan, 173 N. Y. 122, 134).

Nevertheless, we have concluded that a number of errors occurred, the cumulative effect of which requires that the judgment of conviction be reversed. (People v. Carborano, 301 N. Y. 39, 42 [1950]; People v. Mantesta, 27 A.D.2d 748; cf. People v. Gould, 25 A.D.2d 160.) We realize that in the course of a protracted criminal prosecution it is almost inevitable that certain errors will occur. Our court and the Federal courts have always acknowledged this fact and have held many errors harmless (Code Crim. Pro., ยง 542; see, e.g., People v. Kingston, 8 N.Y.2d 384; Chapman v. California, 386 U.S. 18; Fahy v. Connecticut, 375 U.S. 85). However, we cannot shirk our obligation to uphold the rule of law simply because the record discloses ample evidence of the defendants' guilt when numerous errors have been committed which in their totality substantially prejudice the defendants' right to a fair trial. It should be remembered that "The worst criminal, the most culpable individual, is as much entitled to the benefit of a rule of law as the most blameless member of society. To disregard violation of the rule because there is proof in the record to persuade us of a defendant's guilt would but lead to erosion of the rule and endanger the rights of even those who are innocent". (People v. Donovan, 13 N.Y.2d 148, 154 [Fuld, J.]; see People v. Adams, 21 N.Y.2d 397, 402; People v. Rosenfeld, 11 N.Y.2d 290, 300; People v. Mleczko, 298 N. Y. 153, 162.)


A. Notice To Other Co-defendants

The defendants claim it was prejudicial error that they were not informed that co-defendant DiBerardino was having a Huntley hearing. Section 813-h of the Code of Criminal Procedure requires that, "If more than one defendant is named in the indictment, information, complaint or charge, the moving party shall serve the notice of motion and all papers upon which it is made, upon each co-defendant, or upon his counsel if the co-defendant is represented by counsel. The trial shall not be commenced until the motion has been determined." The District Attorney claims that his office committed no error in failing to inform the co-defendants of DiBerardino's Huntley hearing. He points to the language of the statute which requires the moving party, the defendant, to inform all other defendants. The District Attorney is technically correct. However, it would be desirable for courts, before the hearing proceeds, to determine whether other co-defendants were notified. In People v. Anderson (16 N.Y.2d 282) we determined that a Huntley hearing could not be held without the presence of the aggrieved defendant. In that opinion we indicated that the Huntley hearing was for certain purposes regarded as a stage in the trial. (But see People v. Cefaro, 21 N.Y.2d 252.) Though in Anderson the indictment only charged a single defendant, its reasoning is equally applicable to joint trials. This is not to say that other co-defendants must be present in order to proceed with the hearing, but only that the Judge should inquire whether the proper notice to these defendants has been given.

Even though it was preferable to have inquired whether other co-defendants were notified of DiBerardino's Huntley hearing, no prejudice arose from the failure in this case because the confession was never introduced. After DiBerardino's prosecution was severed he testified at the trial.

B. When Does A Defendant Have To Be Informed Of Admissions Or Confessions

A second alleged error stems from the District Attorney's failure to inform defendant Mirenda that the prosecution intended to introduce admissions Mirenda made to co-conspirator Grigg while in jail.

Mirenda asserts that section 813-f of the Code of Criminal Procedure requires the District Attorney to notify the defendant if the People intend to offer a confession or admission in evidence. The language of the statute does not distinguish, for the purpose of notice, between confessions and admissions made to the police or private individuals. We do not, however, interpret the legislative intent as requiring the District Attorney to notify defendants of admissions made to private parties who were not police agents. In People v. Huntley (15 N.Y.2d 72) we adopted the Massachusetts rule for determining voluntariness of admissions and confessions made to police officers. Our decision was in direct response to the Supreme Court's decision in Jackson v. Denno (378 U.S. 368) finding the procedure employed in New York to test voluntariness constitutionally infirm, thus overruling their prior decision in Stein v. New York (346 U.S. 156).

When an admission is made to a private person the procedure established by section 813-f is inapplicable. As we said in People v. Ross (21 N.Y.2d 258) "the obvious purpose of the statute is to give a defendant adequate time to prepare his case for questioning the voluntariness of a confession or admission" (id., p. 262). The present procedure is ill suited to be a pretrial discovery device. We do not believe the Legislature intended it to be such. Therefore, if no ...

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