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COURT OF APPEALS OF NEW YORK 1969.NY.40191 <>; 245 N.E.2d 688; 23 N.Y.2d 527 decided: January 16, 1969. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.LEROY MILES, BRADY HOWARD, HENRY HOPKINS AND SANDRA HALL, APPELLANTS People v. Miles, 29 A.D.2d 844, affirmed. Counsel Daniel R. Solin and Anthony F. Marra for Sandra Hall, appellant. William P. McCooe for Leroy Miles, appellant. Counsel Jonathan L. Rosner for Brady Howard, appellant. Counsel Arthur Goldstein for Henry Hopkins, appellant. Counsel Frank S. Hogan, District Attorney (Michael R. Stack and Michael R. Juviler of counsel), for respondent. Breitel, J. Judges Burke, Scileppi, Bergan, Keating and Jasen concur; Chief Judge Fuld concurs in result only. Author: Breitel

People v. Miles, Breitel, J. Judges Burke, Scileppi, Bergan, Keating and Jasen concur; Chief Judge Fuld concurs in result only.

Author: Breitel

 Defendants were charged with the kidnapping of one Charles Brooks, aged 22, of nondescript occupation and an epileptic with a criminal and mental hospital record. They had really sought to kill him by injecting a lye solution into his circulatory system with a makeshift hypodermic needle. The tourniquet device, an ordinary belt, used to dilate his veins and make them visible, probably saved his life by preventing the spread of the toxic solution throughout his body. The attempt to kill was made in New Jersey and hence not prosecutable in this State. But as their efforts to kill their victim aborted, defendants sought to dispose of his life, and eventually his body, in New Jersey and then finally in this State. Here the frustrated would-be killers were caught by the New York City police, with their victim bound and confined in an automobile trunk, and with three revolvers in their possession. Because of the meandering travels with their confined victim, they were charged with the kidnapping, as well as the illegal possession of the revolvers. The victim attributed the motive for this bizarre crime, among other things, to his having been a witness to a homicide committed by some of the defendants. During the trial Brooks was being held as a material witness in an otherwise unidentified New Jersey homicide case.

As the prosecutor noted in summation, there was limited proof of motive. But he did quote from the prosecutor's abstract of Grand Jury testimony, offered in evidence by defendants and received, which stated: "Defendant Howard asked complainant [that is Brooks] how complainant was going to pay for the six and a half loads of narcotics which Howard had given the complainant in the beginning of June. The complainant was supposed to hold the narcotics for Howard. He claims to have thrown them down the sewer."*fn1 On this basis and upon what was otherwise just barely revealed in the evidence, the prosecutor argued in trial summation that there were two reasons for the attempted murder, namely, that Brooks had been a witness to a murder and that he had deprived defendants of a quantity of heroin.

Defendants Miles and Howard were sentenced for 50 years to life on the kidnapping charge, and 10 to 14 years on the weapons charge. Defendant Hopkins was sentenced for 25 years to life on the kidnapping charge, and for 3 to 7 years on the weapons charge. Defendant Hall was sentenced for 20 years to life on the kidnapping charge, and for 2 to 4 years on the weapons charge. The sentences of each defendant were to be served concurrently.

Defendants contend that the verdict of kidnapping was contrary to the weight of the evidence. They contend also that defendants believed their victim to be dead, so that they could not be guilty of kidnapping; and that the alleged kidnapping was incidental to, and a culmination of an attempt to murder the victim or dispose of his body, and hence was not a true kidnapping. They urge error on the trial in that the prosecutor failed to give defendants copies of the prosecutor's resume of the victim's testimony before the Grand Jury, or alert the defense to the existence of a pretrial statement of the victim given to an agent of the Federal Bureau of Investigation. Defendants Miles and Howard also argue that it was reversible error to admit into evidence post-indictment statements made by each of them to an agent of the Federal Bureau of Investigation while in custody and without the presence of their lawyers. On appeal, defendants do not raise directly or seriously any issues on the weapons charges.

Although there was error in one aspect of the trial, the effect overall was harmless, and the convictions should be affirmed.

All the events that follow occurred in the State of New Jersey until, according to the prosecution evidence, the persons involved are found in the City of New York. Under the statute, a kidnapping occurring elsewhere provides venue in this State, if the victim is carried here (old Penal Law, ยง 1250, subd. 3). Hence, no jurisdictional issue is tendered.

Charles "Cherokee" Brooks, the victim, a resident of Newark, New Jersey, a self-styled entertainer and writer of unpublished poetry, who was once convicted of a crime, testified that on July 15, 1966 the defendant Sandra Hall, 16 years old, invited him to her house in Newark to listen to records together, while she baby-sat. He met Sandra and her mother in front of a bar at 9:30 p.m. and the mother drove them to the house. Sandra unlocked the door and invited him in, saying that she would turn on the lights. As Brooks stepped inside he was hit on the head and fell to his knees. When the lights came on he saw the other three defendants standing over him with guns pointed, and was told they were going to kill him. The three began to kick and beat him, his head already bleeding from the earlier blow, and carried him into the bathroom where they tied him to the toilet. Defendant Howard said he was going to shoot Brooks but, when Sandra Hall warned of the noise, they decided to give him a "hot shot." They untied his arms while Howard went into the kitchen with another defendant and said "Boil up some lye." They tightened a belt they had placed on his arm "so his veins can pop" and injected a fluid into his arm, causing a burning sensation. Miles said, "He should be dead. May be that you didn't let the lye boil enough." They repeated the entire operation, giving him a total of four or five injections. Finally, Brooks grew dizzy and passed out.

When Brooks awakened they had him in the hallway with his hands retied and were rolling him up in a blanket. Howard said, "This is how they do dead people." Part of the time, Brooks pretended to be "dead." They began to carry him when one of the defendants said, "Well, he is getting too heavy", and another said. "Well, he is dead anyway; the heck with him; just throw him down the steps." They promptly did so. The next thing Brooks remembered was an automobile trunk closing on him and the movement of the automobile. (The automobile was one borrowed from the grandfather of defendant Hall.) He recalled a stop at a gasoline station but made no outcry because he believed it useless. While the car was moving he heard one of the occupants "say something about 'Take him to the Jersey City Meadows and burn him in gasoline; this way they wouldn't find his body.'" The car stopped, but he heard a voice say "somebody was around, that he saw something, 'Let's go'", and the car began moving again. At another point in the trip Brooks heard someone say "Since you are scared, what we should have did was just shot him over there and dumped him in the river somewhere." The next thing Brooks remembered was that the car stopped again and he heard another voice asking for a driver's license and car registration. He heard someone (a policeman) say, "One of them has got a gun. Get up against the wall." Brooks started to yell and bang on the trunk. A police officer opened it and untied him. The belt-tourniquet was still on his arm, and it was removed only after he arrived at Knickerbocker Hospital.

On cross-examination Brooks admitted that he had first told the police that he had been confined by defendants for several days before the rescue. Later, he told the New Jersey police that he had been confined since July 12th. He evidently testified to the same effect before the New York Grand Jury in this case.

Two patrolmen testified that at 2:40 a.m. on July 16, 1966 they investigated a vehicle, a three-year-old Cadillac, occupied by the defendants and parked at a fire hydrant at St. Nicholas Terrace and 131st Street, Manhattan.*fn2 One of the patrolmen saw Miles, who had left the car, place a revolver, later found to be loaded, at the curb. The defendants were searched, and a loaded .22 calibre revolver was taken from Hopkins, and still another loaded revolver was found under a seat in the vehicle. After finding the third revolver both policemen heard banging and cries of help from the vehicle. They found Brooks in the trunk, his hands and feet securely tied, a cut on his forehead and his face swollen. His first words were that they (defendants) all had guns, had tried to kill him, and had put lye in his arm. A belt was tied around the upper part of his left arm, and the skin was "coming off."

The physician who treated Brooks at Knickerbocker Hospital saw "a chemical burn over the skin on the arm and * * * along the vein * * * produced" by a "caustic agent." It appeared to be one or two hours old, but could have been as old as twelve hours. Another physician, who examined Brooks three or four months later, testified that ulcers on his arm were caused by a chemical agent, that he had never seen any like them on narcotic addicts, and that they could not have been caused merely by an unsterile needle. He further testified that the ulcers could not have been caused by the surface application of a chemical to an open wound.

Mrs. Catherine Hall, Sandra's mother, a reluctant witness, testified that she had picked up Brooks that evening in her car at 9.00 p.m. and, after driving him and her daughter, dropped them off near her home in Newark. She did not return to her home until 3:00 a.m. when no one involved in the case was there. (Mrs. Hall's testimony is critically significant. It places Brooks in Newark with one or more of the defendants, and belies their pretrial and trial accounts of first meeting Brooks in New York City.)

Defendant Sandra Hall did not testify. Her grandfather had testified that it was she who had borrowed his automobile to take a sick friend to a hospital, the same automobile that was driven to New York City from Newark by defendants. Howard, Miles, and Hopkins testified in their own defense.*fn3 Their testimony in essence was that all four defendants had left about midnight of the ...

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