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September 22, 1980

UNITED STATES of America ex rel. Mario ARENA, Petitioner,
The PEOPLE OF the STATE OF NEW YORK and Eugene Gold, as District Attorney of Kings County of the State of New York, Respondents

The opinion of the court was delivered by: PLATT


On February 22, 1979, Mario Arena was convicted of four counts of second degree grand larceny, in violation of New York Penal Law § 155.05(1) (McKinney's 1975) *fn1" in Supreme Court, Kings County. He was sentenced to four concurrent terms of three years' imprisonment and fined $ 28,000.00. Without opinion, the Appellate Division, Second Department, entered an order dated December 31, 1979, modifying the judgment of the trial court by vacating the sentence of imprisonment and substituting a sentence of sixty days' imprisonment and a probation term of four years and ten months. The New York Court of Appeals (Meyer, J.) denied leave to appeal on April 23, 1980.

Mr. Arena now petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1976), alleging that he is entitled to relief on three grounds of constitutional magnitude. First, he argues that he was denied due process of law in violation of the Fourteenth Amendment by the prosecution's knowing use of perjured testimony in its direct case. Second, he contends that he suffered a separate denial of due process in that the trial judge delivered a "woefully inadequate charge", omitting critical elements of the offense charged and failing to accommodate a complex factual context with proper elaboration. Third, he alleges that the evidence adduced at trial was insufficient as a matter of law to sustain a finding of guilt beyond a reasonable doubt on each and every element of the offense charged.

 The record before us indicates that Mr. Arena has satisfied both the jurisdictional predicate *fn2" and the exhaustion of State remedies requirement *fn3" of § 2254, and the petition is thus properly before this Court. For the reasons stated below, we determine that Mr. Arena is entitled to independent relief on the second of his three grounds; we do not pass on the third and we question his right to relief on the first. Accordingly, we grant the petition and order that the writ issue, subject to the State's right to re-try Mr. Arena within 90 days.


 The evidence in this case was, as Mr. Arena contends, fairly complicated. The following brief summary of the facts has been gleaned from the 1234-page record on appeal, the parties' appellate briefs, and the papers filed in this Court for and against the petition.

 Since 1950 Mr. Arena has been a custodian for the Board of Education of the City of New York (hereinafter, "the Board"). During the period in issue in his prosecution, September 1975 through December 1976, he was the custodian at John Jay High School in Brooklyn. Mr. Arena describes the position as that of a "quasi-independent contractor", Petition at 3; Petitioner's Memorandum of Law at 3, who receives an annual budget from the Board to run his assigned school facilities. The custodian's budget is not strictly related to the actual operating expenses of the school, but is based on a formula including such factors as square footage and projected use by its usual occupants and community organizations. The custodian is responsible for using his budget, which is paid to him in bi-monthly installments, to hire his own staff and to heat, clean, and maintain the facility. The custodian derives his compensation each year by retaining the difference between his allotment from the Board and his expenses.

 The State contended that a contract negotiated in 1965 between the Board and the Custodians' Union limited a custodian's earnings to a maximum of $ 31,000 per year. Any amounts retained by the custodian exceeding $ 31,000 had to be remitted to the Board. Proceeding from this limitation, the State based its prosecution on the theory that Mr. Arena intentionally retained an excess during the period in question by employing at various times within the period four part-time "firemen" who actually did not appear for work at all their scheduled times. These employees then allegedly "kicked back" all or a portion of their salaries to Mr. Arena, resulting in a retention by Mr. Arena of an amount in excess of the custodians' contractual limitation.

 The State relied wholly on circumstantial evidence to prove its case at trial. To establish the nature of the alleged contractual relationship between Mr. Arena and the Board, the State relied on the testimony of a former Director of Plant Operations for the Board, but did not introduce the 1965 contract nor did it offer proof that Mr. Arena was a signatory thereto or legally bound by the contract in any other way. To prove that the four employees were indeed "no-shows", the State adduced testimony from some other custodial staff employees to the effect that they had never seen the employees working at the High School. As the defense points out, however, the State never called the foreman of the four employees. The State also produced an expert witness who testified about methods of fabricating time cards, in order to raise the inference that the four employees' time cards had been fabricated to conceal the fact that they had not punched in and out on a daily basis.

 To link the arrangement to Mr. Arena, and presumably to raise the inference of the requisite intent, the State introduced evidence to show that some of the four employees' payroll checks had been endorsed over to Mr. Arena and deposited in various accounts under the names of Mr. Arena and his wife. The State further adduced rather technical accounting evidence to show that the result of the alleged arrangement was to leave Mr. Arena with an amount in excess of the contractual limitation for the fifteen-month period. The latter proof was made more complex than it might otherwise have been because other evidence showed that the Board was often late with its allotment payments to Mr. Arena. This necessitated testimony relating to the proper accounting method-cash or accrual-with which to compute the amounts actually retained by Mr. Arena. The prosecution claimed that the accrual method was proper, but this, of course, gave rise to the claim that no larceny could occur until refunds on a cash basis were due.

 The defense rested at the close of the prosecution's case without calling any witnesses. The trial court then granted a defense motion to dismiss eleven counts of third degree grand larceny which related to smaller, specific amounts allegedly retained by Mr. Arena within the overall fifteen-month period. Following the Court's charge, described more fully infra, the four remaining second degree counts were submitted to the jury. The jury returned a verdict of guilty on each of the four counts, finding that Mr. Arena had stolen funds in the requisite amount by acting in concert with the four "no-show" employees.


 The United States Supreme Court, in the case of In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), stated:

"Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."

 397 U.S. at 364, 90 S. Ct. at 1073. Similarly, in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, at 2788, 61 L. Ed. 2d 560 (1979), the Court said:

". . . In short, Winship presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof-defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense."

 It is axiomatic that unless the jury is informed as to each element of the offense it will not be in a position to make the requisite findings so required by the Supreme Court.

 In the case at bar, while the Court read § 155.05(1) of the New York Penal Law to the jury and defined property in accordance with § 155.00(1), it did not set forth the essential elements of the crime which the Government was required to prove beyond a reasonable doubt, and, in particular, it did not define for the jury the meaning of the words "deprive", "appropriate" and "owner", ...

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