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PEOPLE STATE NEW YORK v. BENEDICT X. DIPIAZZA (04/10/69)

COURT OF APPEALS OF NEW YORK 1969.NY.41094 <http://www.versuslaw.com>; 248 N.E.2d 412; 24 N.Y.2d 342 decided: April 10, 1969. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.BENEDICT X. DIPIAZZA, APPELLANT People v. DiPiazza, 27 A.D.2d 903, affirmed. Counsel John E. Shaffer for appellant. Albert W. Schneider, District Attorney, for respondent. Chief Judge Fuld. Judges Burke, Scileppi, Bergan, Keating, Breitel and Jasen concur. Author: Fuld


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

Author: Fuld

 Indicted for murder in the first degree in September of 1964, the defendant pleaded not guilty by reason of insanity and, upon motion by his counsel, he was committed to Marcy State Hospital for a mental examination pursuant to section 658 of the Code of Criminal Procedure. The two psychiatrists who examined him, pursuant to section 662, found him capable of understanding the charges against him and making his defense.*fn1 In February, 1965, the defendant moved in the Appellate Division, unsuccessfully, for a change of venue of his trial from Herkimer to another county. At the trial, which got under way two months later, the jury returned a verdict of first degree murder against him, and he was sentenced to imprisonment for life. The Appellate Division unanimously affirmed the resulting judgment and, upon the present appeal, the principal arguments advanced by the defendant are (1) that he was deprived of a fair trial by reason of the publicity attending it and by denial of his motion for a change of venue and (2) that he was insane at the time of the commission of the crime.

Little purpose is to be served by detailing more than an outline of the sad story revealed by the record. The defendant was 20 years old at the time of the killing, his victim, Noreen Jones, was 17. Unable to win her liking, the defendant had subjected the girl and her family to continual harassment and abuse over a three-year period. In February, 1964, several months before the homicide, after a meeting which the District Attorney had arranged between the girl's parents and the defendant's father -- who was the local police judge -- the defendant violently assaulted Noreen and her father. This incident resulted in his being charged with third degree assault, committed to a hospital and, upon his return to court and entry of a guilty plea, his being placed on probation and ordered to obtain medical counseling and guidance assistance.

On the day of the shooting, August 27, 1964, the defendant had twice bothered Noreen and members of her family -- the second time by driving past her and calling, "You. You're next. You. You're next." When she walked on to the police station to seek help, he followed her and, in the presence of four witnesses, shot her seven times. According to one witness, he said, "There, you son of a bitch, you have made all the trouble you will ever make for me." To police officials who questioned him soon after he was apprehended he said, "I had to do it. She was getting me in trouble. They were bugging me. I couldn't take it any more."

Change of Venue

As indicated above, the defendant sought a change of venue. It is his contention that it was impossible to assemble, from the relatively small population of Herkimer County, a jury uninfluenced by the assertedly prejudicial pretrial newspaper publicity surrounding the case.

Twenty-two days were spent in selecting the jury. Three hundred and fifty jurors were impaneled. Two hundred and fifty-six were examined as to their qualifications and 222 actually interrogated in obtaining the trial jury. Ninety-four were excused for legal cause and 51 peremptorily -- 29 on peremptory challenges by the People and 22 by the defense. Of all the talesmen examined, less than 25% expressed an opinion as to the guilt or innocence of the defendant. Many sought to be excused either because they knew one or both of the parties involved or had children of the same age. All of the jurors accepted to serve underwent a thorough examination with respect to their qualifications, including possible bias and prejudice by reason of any publicity and its effect upon them, and each of those selected asserted that he would render a fair and impartial verdict based solely on the evidence presented. We merely note at this point that the defense used eight less peremptory challenges than the 30 allowed by statute and that the defendant's counsel stated that he was satisfied with each and every one of the jurors selected.

It has long been settled that, to entitle a defendant to removal of a criminal action to another county because of pretrial publicity (or for any other reason), it must appear that he cannot obtain a fair and impartial trial in the county where the indictment is pending. (See, e.g., People v. McLaughlin, 150 N. Y. 365, 375; People v. Hyde, 149 App. Div. 131, 134; see, also, People v. Genovese, 10 N.Y.2d 478, 481-482; Matter of Murphy v. Supreme Ct., 294 N. Y. 440, 456.) Whether or not a change of venue should be granted rests in the sound discretion of the trial court (see, e.g., People v. Buchalter, 289 N. Y. 244; People v. Hyde, 149 App. Div. 131, 134, supra), and a number of cases have held that newspaper comment alone, even though extensive, "does not establish inability to get a fair trial." (People v. Broady, 195 Misc. 349, 350; see People v. Hyde, 149 App. Div. 131, supra.) Moreover, the court's discretion will not be disturbed unless the newspaper articles are of such a sensational character as to excite local popular passion and prejudice so that the defendant will not be able to have the fair trial to which he is entitled.

In the case before us, there was no such proof of passion or prejudice. Although the community was small and the defendant's crime and the events leading up to it widely known, the pretrial newspaper accounts were surprisingly objective. The victim's funeral and the members of her family were sympathetically portrayed and the defendant's action was described as having caused a widespread reaction and aroused deep feeling. But there was very little written that could be said to be affirmatively hostile to him. The newspapers brought out his father's position as Village Police Judge and member of the school board and the fact that his grandfather -- whom he had visited shortly before the killing -- had been convicted of murder in Herkimer County many years previously. The hospital's finding that the defendant was sane and able to stand charges was also given prominent coverage. In addition, there were newspaper accounts of an investigation by the Grand Jury and the Board of Supervisors into the conduct of the District Attorney and other officials in connection with their handling of the defendant and of the incidents leading up to the shooting. Commentators and textwriters have noted the difficulty of maintaining a balance between the defendant's right to a fair trial and the guarantees of freedom of the press. (See, e.g., Goldfarb, Public Information, Criminal Trials and the Cause Celebre, 36 N.Y.U.L. Rev. 810; Note, Free Press; Fair Trial -- Rights in Collision, 34 N.Y.U.L. Rev. 1278.) Trials cannot, of course, be held "in a vacuum, hermetically sealed against rumor and report" Baltimore Radio Show v. State, 193 Md. 300, 330, cert. den. 338 U.S. 912; cf. Marshall v. United States, 360 U.S. 310) and, in light of the widespread coverage given to so-called "newsworthy" trials -- by the press, radio and television, Justice Holmes' observation in Holt v. United States (218 U.S. 245) is even more relevant and apt today than when he made it (p. 251):

"If the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain a jury trial under conditions of the present day."

In short, the record demonstrates that the publicity was not of such a character as to require a change of venue. Indeed, a comparison of the news accounts in the present case with the publicity attending the trials of those in which a change of venue was held mandated is persuasive that the court was thoroughly justified in denying the defendant's application. (See People v. Sepos, 16 N.Y.2d 662, affg. 22 A.D.2d 1007; People v. Luedecke, 22 A.D.2d 636; Estes v. Texas, 381 U.S. 532; Rideau v. Louisiana, 373 U.S. 723; see, also, Sheppard v. Maxwell, 384 U.S. 333.) As bearing on the matter, it is highly significant that defense counsel found it unnecessary to use all of the peremptory challenges available and declared himself satisfied with each of the jurors selected. In such a situation, it is established, the defendant will not be heard to complain of the denial of a motion for a change of venue. (See, e.g., People v. Bonier, 189 N. Y. 108, 110-111; People v. Warder, 231 App. Div. 215, 221.)

The Defendant's Sanity

The psychiatric experts of the defense and the prosecution gave contradictory views as to whether the shooting took place during a "psychotic episode," that is, during a period when the defendant was not responsible for his actions. We anticipate by observing that, despite the conflict, there was more than sufficient evidence from which a jury was privileged to conclude that the defendant was sane and able to premeditate the crime and intend to kill Noreen.*fn2 Controversy arises, primarily, with respect to the defendant's claim that error was committed in admitting certain evidence regarding his mental condition and in keeping other evidence bearing thereon from the jury.

The defendant undoubtedly suffered from a "psychopathic personality". There was a long history of defiance of authority and anti-social behavior with "psychopathic trait disturbance" in his childhood and youth. A psychologist (Dr. Sidney Orgel), who testified in the defendant's behalf, declared that he had superior intelligence but an immature, anti-social, psychopathic character. It was his opinion that the defendant did not know the nature and quality of his actions and was not able to distinguish right from wrong or to form a conscious, deliberate intent to kill Noreen. He said that the defendant experienced "a very acute psychotic episode" in which he was "under conditions of extreme rage, that he [had no] control" and that this condition began before the shooting and lasted several hours, although he was uncertain about when it began. He described the episode as involving a "kind of amnesia" during which the defendant would be incapable of thinking rationally. Another expert for the defendant (Dr. Eugene Boudreau) expressed himself in similar fashion, observing, in addition, that the defendant was "possibly" "amnesic" for much of the whole period. In rebuttal, the People called two doctors from Marcy State Hospital (Dr. Irving Jacobs and Dr. Newton Bigelow) who had examined the defendant there. It was the opinion of both of them that the defendant was a ...


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