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COURT OF APPEALS STATE OF NEW YORK
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THE PEOPLE OF THE STATE OF NEW YORK,
Plaintiff-respondent,
against
FRANCIS E. DEC,
Defendant-Appellant.
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APPELLANT’S BRIEF
 This is an appeal from a judgment rendered by the
Nassau County Court December 23, 1958, after
a jury
trial convicting
the defendant of two counts of Forgery
in the Second Degree, one
count of
Grand Larceny in
the Second Degree and violating section
1820A sub. 2
of the Penal Law and
sentencing defendant to 2½ to 5
years in prison at hard labor concurrently for each of
the three
felony
counts and suspending sentence on
the misdemeanor last count
with execution of sentences
suspended on the felony counts and
defendant ordered
to serve probation for the maximum period
allowable
under law. Defendant did not apply for a certificate of
Reasonable Doubt. The defendant was
automatically
disbarred because
of the felonious convictions on
January 19, 1959. Defendant has
been
released from jail and is presently serving probation.
Appeal was
taken by defendant pro se to
the Appellate Division of the Supreme
Court for the Second
Judicial Department. Said Appellate Court
upon
defendant’s motion [obscured] with the printing of the
original appeal papers and thereafter
ordered the appeal transferred for
hearing and determination to
the Appellate Division of the Supreme
Court for the First Judicial Department, which said latter court
unanimously affirmed the judgment of
the trial [obscured] on October
11, 1960. This appeal to this
Court was taken by grace of the
Certificate Granting Leave, granted on February 17, 1961 by the
Hon.
[obscured]ian P. Burke, a
justice of this Court and by order of this
Court graciously granting
defendant’s Notion to Dispense
with
Printing this case on Dismissal.
^^^TOP
The
Indictment; The Convicted charges
The four count indictment filed February 11, 1958 accuses
defendant as the party who during a
period from October to November,
1956 committed:
Grand Larceny in the Second Degree (third count): Defendant
took, [obscured]e, from Allstate
Insurance Company a certain sight
draft for $400 by [obscured]e and fraudulent representations and
pretenses, namely, that Mrs. Elizabeth Wirschning received certain
medical treatments from a Dr.
Milton Robbins who treated Mrs.
Wirschning for her complained injuries of Bursitis of her right
shoulder
and a bruised right thigh and that the general release of
Mrs. Wirschning was a good and valid general
release said claim.
Forgery in the Second Degree (first count): Defendant
feloniously signed, uttered and disposed of
a forged sight draft of
Allstate Insurance Company made to the order of defendant and Mrs.
Elizabeth
Wirschning for the amount of $400.
Violation of Section 1820A Sub. 2 of the Penal Law (fourth
count): defendant deceitfully made a
certificate upon a general
release set forth [obscured]he first count of the indictment that
Mrs.
Elizabeth Wirschning acknowledged that she executed said
release, thereby committed a
misdemeanor.
^^^TOP
Introduction
The prosecution called 10 witnessed during the trial from November
5th to 20th, 1958, inclusively.
In my 50
page typewritten lower court appeal brief in the Appellate
Division of the Supreme Court,
laboriously I abstracted from the 991
pages extant in the Court Reporter’s record of the trial and the
lengthy criminal prosecution along with related motivating facts and
presented these facts in a narrative
form, coordinating the direct
and cross examinations of the trial for clarity. The questions
presented in
this brief shall generally follow the sequence of
presentation in the lower appellate court brief.
^^^TOP
Outline of the People’s Case from People’s
Opening
Mrs. Elizabeth Wirschning on January 9, 1956 was a
passenger in an automobile in an accident
“that evening consulted
her own family physician, Dr. Azzara, and as a matter of fact, that
was the
only treatment that Mrs. Wirschning had received.” (15-16)
Mr. and Mrs. Wirschning now admit
sometime thereafter they retained
defendant as their lawyer for Mrs. Wirschning’s injury claim and Mr.
Wirschning’s loss of services claim. During defendant’s prosecution
of their claims Mrs. Wirschning in
May, 1956 went to the Allstate
Insurance Company doctor and was examined for her claimed injuries
and medical treatments for such injuries. “Thereafter in October of
’56 defendant started to negotiate a
settlement of the case with Mr.
Charles Martino, who at the time was an examiner for the Allstate
Insurance Company and based on the false representations made by Mr.
Dec” (17) that Mrs.
Wirschning’s claim for injuries and medical
treatments for Bursitis of the right shoulder and bruises of
her
right thigh were listed in the bill of $48 from Dr. Milton E.
Robbins to Mrs. Elizabeth Wirschning.
Dr. Martino settled the case
with Mr. Dec for the sum of $400”. (17) Thereafter Mr. Dec sent the
necessary general release in … together with the doctor bill” (17)
“and he notarized that” (general
release acknowledgement) (18).
Defendant “received the $400 settlement check” from Allstate
Insurance Company addressed to himself and Elizabeth Wirschning
“presented that check with those
two signatures on them and he
received the $400, that is in November, 1956.” (18) “Now up until
this
time neither Mr. and Mrs. Wirschning has not signed any general
release … she doesn’t know any-
thing about this case … she hasn’t
signed the reverse side of that check … nor have them (Mr. and
Mrs.
Wirschning) authorized anybody to affix their signatures on any
document.” (19) Later in
February ’57 “Allstate Insurance Company
sends out investigators just to check on settlements and
Mrs.
Wirschning has a conversation with an investigator … and she says
she didn’t know anything
about any settlement … (and does not know)
how the case developed” (19). Further Dr. Milton E.
Robbins knows
nothing until many months after the case was settled on “July 5 of
’57 as this case is
now investigated, on a Friday nite (defendant)
goes down to see Dr. Robbins and he says he has a
typewritten
statement of this bill that was sent to Allstate to settle the case,
and he says to the
doctor, ‘I want you to copy this statement
exactly as I have it in your handwriting, because I need a
copy for
my files’ and the doctor foolishly, in July (5’th) ’57 gives Francis
E. Dec that requested
medical statement. Thereafter and on July 6,
1957 that is a Saturday, Detective Becker sees Dr.
Robbins and
thereafter on the following Monday which would be July 8, 1957
Francis E. Dec again
visits Dr. Robbins and that time there is a
discussion about X-Rays because the original bill that
Francis E.
Dec sent the insurance company mentioned the fact that there were
X-Rays and foolishly
Dr. Robbins, who is panicky gives several
hundred X-Rays to Francis E. Dec … takes these
X-Rays and … to get
rid of them … he gives them to a garbage man. (20-21) The
defendant,
“he knew the general release which purportedly was signed
by Elizabeth Wirschning was not her
signature; That he notarized is
as a notary public knowing that she never signed it; knowing it was
a forged instrument and he forwarded it to the Allstate Insurance
Company which was the document
upon which the settlement was based.”
(21) Defendant received the settlement check and “he knew
the
signature, the endorsement of Elizabeth Wirschning on the back of
the check was not Elizabeth
Wirschning’s signature he knew it was a
forget document.” (21) “Thereafter he signed his name on it
and
received $400 and he is being charged with the larceny of the $400
based on this false and
fraudulent representations that this woman
was injured, that she was treated and had valid medical
bills.”
(22)
^^^TOP
Outline of
Defendant’s Opening
Defendant is innocent of the crimes charged and that the
criminal charges were fabricated
through the assistance and coercion
of the District Attorney and his staff with the connivance
of other
important members of the Nassau County judiciary and government.
After a decade
long period of persecution through illegal
prosecution by the said various officials because
of defendant’s
righteous complaints of corruption of acme of said officials the
indictment of
defendant, a lawyer, in secret, without notification
to the defendant as promised by Frank
Gulotta, the District
Attorney personally to the defendant, constitutes an unprecedented
fanatical effort by the various officials to gain revenge by
falsely, feloniously convicting the
defendant and thereby ruin
defendant on the ridiculous contradictory complaint of one
perjurous
young neurotic woman client. Defendant duly entered into
written retainer with Mr. and
Mrs. Wirschning to persecute Mrs.
Wirschning’s injury claim and Mr. Wirschning’s claim for loss of
services due to his wife’s injury. Further shortly after being
retained by Mr. and Mrs. Wirschning, Mrs.
Wirschning began
consulting the defendant as to her marital troubles based on her
husband’s
infidelity and physical abuse of her. Thereafter Mrs.
Wirschning retained the defendant as her lawyer
for a legal separation action against her husband. The defendant contacted Mr. Urso, the Allstate
Insurance Company Adjuster in April of 1956 and
notified Mr. Urso that defendant was withdrawing
from Mr. Fred
Wirschning’s loss of services claim relative to his wife’s injury
claim because defendant
was retained by Mrs. Wirschning as her
lawyer in reference to her marital difficulties with her husband.
After conforming with the regular requirements of Allstate Insurance
Company in such matters
defendant was allowed to proceed ahead with
only Mrs. Wirschning’s injury claim in that Mrs.
Wirschning was
separating from her husband. Further, the defendant undertook all
negotiations and
settled only Mrs. Elizabeth Wirschning’s injury
claim in that Mrs. Wirschning was separating from
her husband and
retained defendant as her lawyer for a legal separation action
against her husband.
Further, the defendant undertook all
negotiations and settled only Mrs. Elizabeth Wirschning’s injury
claim, only with a Mr. Urso, the Allstate Insurance Company
Adjuster, whose sole duty as an
Adjuster, according to the rules of
business established by said Allstate Insurance Company, was to
investigate, negotiate and settle such tort claims against Allstate
Insurance Company. The dis-
honorably discharged supervising employee
of Allstate Insurance Company, Charles Martino, did
not negotiate or
settle the said injury claim of Mrs. Wirschning with defendant as
claimed by the
prosecution. Charles Martino was an Examiner, a
supervising officer of Allstate Insurance Company,
whose duty was
that of an overseer of Adjusters and the appointed officer who
approved the Adjuster’s
suggested money offers in settlement of
claims against Allstate Insurance Company. Defendant’s
negotiations
of Mrs. Wirschning’s injury claim with Mr. Urso were stalled because
of her marital
difficulties and defendant’s refusal to move ahead
with negotiations until Mrs. Wirschning obtained a
written medical
bill from Dr. Milton E. Robbins for the injuries the claimed Dr.
Robbins treated her.
Mr. Fred Wirschning admitted during the
defendant’s questioning of Fred Wirschning in the District
Attorney’s office in July of 1957, that, he, Fred Wirschning, after
defendant’s refusal to proceed ahead
with negotiations until his
wife’s medical bill was forwarded to defendant; he, Fred Wirschning
went to
Dr. Milton E. Robbins and obtained Dr. Robbins’ hand written
medical bill in order that defendant
proceed ahead with the injury
claim of his wife. Further that this hand written medical bill
obtained
from Dr. Milton E. Robbins by Fred Wirschning stating the
injuries and treatments of Mrs. Wirschning
by Dr. Robbins was used
by Mrs. Elizabeth Wirschning later on May 24, 1956 to state her
personal
injury claims and her claim of medical treatments when Mrs.
Wirschning was examined by Dr. Joseph
Rosenheck, the Allstate
Insurance company doctor; who examined her claimed injured portions
of her
body to evaluate her total injury claim against Allstate
Insurance Company. Further, Mrs. Elizabeth
Wirschning never denied
her stated original claims of injuries and doctor treatments listed
on her
medical bill from Dr. Milton E. Robbins, namely, Mrs.
Wirschning repeatedly stated that her total
injuries were Bursitis
of her right shoulder and bruises of her right thigh as listed and
stated in her
medical bill her husband obtained from Dr. Robbins.
Throughout the settlement of her injury claim
and in her later
statements to the Allstate Insurance Company investigators in
February of 1957, Mrs.
Wirschning claimed these injuries that are
identical with those claimed by the indictment as false.
Further,
that the claim of the prosecution that Mrs. Wirschning was treated
for no injuries and that
she only “consulted her own family
physician, Dr. Azzara about the accident, the nite of the accident”
(15-16, 40) and she had only a slightly hurt wrist are completely
false claims. Further that Dr. Azzara
was as Mrs. Wirschning stated
to defendant “only a baby doctor” a specialist in reference to her
pregnancy, who was not the Wirschning’s family doctor, nor did he
treat Mrs. Wirschning for her
injuries she claimed she sustained in
said auto accident. Further the claims of the prosecution that
Dr.
Robbins knew nothing until July, 1957 are completely false and
contradictory with the above
stated facts and Dr. Robbins admissions
while he was present in the District Attorney’s office when
Fred
Wirschning began to break down and admitted obtaining his wife’s
medical bill from Dr. Robbins.
Dr. Robbins is a perjurer and liar
and must admit these facts when he testifies. Further Dr. Robbins
will admit that when he first went to the District Attorney’s office
without any lawyers and gave his
unpremeditated, impromptu,
extemporaneous answers to the District Attorney he stated in detail
his
treatments to Mrs. Wirschning for the injuries stated in his
medical bill which the indictment claims
false; Dr. Robbins also
admitted that in order to collect the medical payments from another
insurance
company he, Dr. Robbins, forwarded defendant stationary to
make a copy of his bill because he, Dr.
Robbins kept no records of
his bills. Dr. Robbins will admit that he did not conspire with the
defendant.
Dr. Robbins will admit that he knew that defendant was
retained by Mrs. Wirschning for an impending
separation action and
that the defendant in accordance with an agreement with Mrs.
Wirschning, as
her lawyer for an impending legal separation action
from her husband, defendant was holding her
$200 share of her
settlement money in escrow as part payment towards a legal
separation action.
Dr. Robbins’ story of knowing nothing until July,
1957 is completely false and a concoction of Dr.
Robbins, his
brother in law, who is a lawyer, and J. D. C. Murray, a Nassau
County Lawyer
and friend of Frank Gulotta, ex-District Attorney of
Nassau County; that this story of knowing
nothing was concocted in
concert with these two lawyers during a period of weeks after Dr.
Robbins stated his first extemporaneous true statements and answers
to the District Attorney.
Further that the defendant’s only
visit to Dr. Robbins’ office was on Monday, July 8, 1957; after
Detective Becker saw Dr. Robbins and that Dr. Robbins telephoned the
defendant and frantically
begged the defendant to come to his
office. During said visit Dr. Robbins informed defendant that
Detective Becker saw Dr. Robbins on the weekend and he, Dr. Robbins
repeatedly telephoned
defendant until he contacted defendant;
further that during defendant’s visit
Dr. Robbins was
constantly
raving
and in hysterics explaining to
defendant that New York City
doctors and
lawyers were being
investigated for
ambulance chasing
and that Dr. Robbins feared that he
and his
long time brother in law,
lawyer, both who had offices
in New York
City, were under
investigation by an Arkwright
Committee, a judicial investigating
committee. Dr.
Robbins
ravingly
petitioned to get back his hand
written medical bill Dr. Robbins
gave
to Fred Wirschning for
 his
wife’s injury claim. Further that only
because of Dr. Robbins’
increased
hysteria and threats of
immediate
suicide with a hypodermic needle,
defendant did in panic adhere to Dr.
Robbins’
commands and petitions to
dispose of several hundred X-Rays
from his office in order that no record
be found in his office of
Dr. Robbins’
lengthy association with his lawyer,
brother in law.
As a final
effort to
prevent Dr. Robbins from com-
mitting suicide
defendant quickly
took the X-Rays into
his car and left
and upon exiting from the Southern
State Parkway, in Hempstead,
during
his
return trip to his office,
defendant gave the X-Rays to a passing
garbage man; putting
the X-Rays in the garbage
truck. Further,
that Mr. and Mrs. Wirschning’s statements to the
Allstate Insurance Company
investigators of knowing nothing about Mrs. Wirschning’s
injury claims
are completely false and her
claim of seeing defendant
only once is false and ridiculous. Further that
after defendant withdrew from
Mr. Fred Wirschning’s claim of loss of services
because of defendant’s
retainer by Mrs. Wirschning to
be her lawyer
in a legal separation action, Mrs. Wirschning approved
the $400 settlement check in
defendant’s presence. Mrs. Elizabeth Wirschning
signed both her
general release and settlement
check, misspelling
her name and including her middle initial. None of
defendant’s many
records and
none of the Allstate Insurance Company records misspell
her name or
include her middle initial,
unknown mistakes only Mrs.
Elizabeth Wirschning could make. Defendant
was informed by Mrs.
Wirschning after many consultations with her while retained as her
lawyer for
her legal separation
action that she had no financial
means to pay defendant his $450 legal fee. Upon
repeated petitions
of Mrs. Wirschning defendant accepted her $200 share of her injury
settlement
money as part pay-
ment toward the $450 separation action
fee, providing, the money was to be held
in escrow until Mrs.
Wirschning paid the entire $450 and further should she decide to
discontinue the
legal separation
action at any time, defendant was
guaranteed a minimum fee of $150 for works
already completed in
reference to her marital troubles; further that until Mrs.
Wirschning paid the
defendant the balance of
$250 the defendant was
allowed to negotiate either a separation agreement
with her husband
or bring
about an amicable settlement of her matrimonial
difficulties in order to
mitigate the financial expense
and mental
and physical hardships upon Mrs. Wirschning and her
baby. For some
weeks thereafter
the defendant attempted to amicably settle Mrs.
Wirschning’s
marital difficulties or arrange for a
separation
agreement through negotiation with her husband but that
her husband
repeatedly
threatened to beat his wife and leave her and return
to living with
negro prostitutes and
running stolen cars down south
if his wife did not forget about the
separation action.
Defendant was later informed by the wife that during an argument
with her
husband, Fred Wirschning
learned of the $400 settlement of
his wife’s injury claim and that his wife
deposited her $200 in
escrow
with the defendant as part payment for a legal separation
action.
Thereafter for several weeks Fred
Wirschning, on several
occasions, visited the defendant’s law office
and demanded the $200
being
held in escrow, claiming that the $200 belonged to him as
husband
and as head of the household
even though defendant only
settled his wife’s claim; Fred Wirschning
further claimed that any
agreement that his wife entered into with the defendant as her
lawyer was
none of his business and
that the defendant should
collect from her and not from his $200. Later Fred
Wirschning
claimed his
wife was no longer interested in having a separation
therefore the defendant
must return the $200 to
him. Defendant then
wrote Mr. and Mrs. Wirschning a letter which Mrs.
Wirschning
received; the letter
stated the husband’s contentions; Mrs.
Wirschning telephoned the
defendant after receiving the letter
and
told the defendant her husband was not telling the truth.
Thereafter
during the early months of 1957
Mrs. Wirschning’s husband visited
the defendant’s office
and also telephoned defendant demanding
the
entire $200 and threatening the defendant to forget
about the
separation. During several such visits
and telephone calls Fred
Wirschning promised to
bring his wife into defendant’s office to settle the
matter in that Fred Wirschning claimed his wife was
no
longer interested in a separation action.
Finally in the Spring
of 1957 Fred Wirschning informs
defendant that he does not have to
do
anything the defendant tells him and further
threatened the
defendant and demands that
defendant return the $200 if “he knows
what’s
good for him”. Defendant tries to contact
Mrs.Wirschning
by telephone on several occasions but is
unable to do so. Thereafter
during one of
the visits of Fred Wirschning to defendant’s office
the
defendant tells Fred Wirschning of his many
legal works for his
wife and in an argument that followed
defendant accuses the husband
of coercing
his wife into discontinuance with the legal separation
action in a scheme to defraud the defendant out
of his legal fee by
coercing the defendant into giving
him the $200 being held in
escrow. Shortly there-
after the defendant was called down to the
District
Attorney’s office and the defendant stated these
facts to the District Attorney and demanded to be
notified of any Grand Jury
hearing of the matter;
which the District Attorney agreed to do and
immediately after visiting the District Attorney’s office,
defendant was taken in custody to his law
office wherein defendant showed
Detective Becker the
$200 escrow money in a titled letter size
envelope in Mrs. Wirschning’s titled separation file sized tie
envelope and the various papers and
copies of statements of account
mailed to Mr. and Mrs.
Wirschning in reference to defendant’s legal
works as Mrs. Wirschning’s retained lawyer for her
legal separation action; defendant also showed
Detective Becker the titled tie file
sized envelope for
Mrs. Wirschning’s injury claim and the various
papers in said envelope including Mr. and Mrs.
Wirschning’s written retainer which Detective Becker
purloined claiming as did the
District Attorney,
namely, that the written retainer was false
like all
the documents and that the defendant
ambulance chased the
Wirschning injury claim and
that defendant had no retainer from
either
Mr. and Mrs. Wirschning because they swear they never
signed
any retainer with the defendant and
never retained the defendant and
know nothing about the
injury claim case.
^^^TOP
Defendant’s Pre-Trial Challenge of the
Indictment
Motion to Inspect The Grand Jury Minutes And Dismiss The
Indictment; in Supreme Court on May
13, 1958. Decision: Justice H.
Hogan denied the inspection of the Grand Jury Minutes and refused to
rule on the merits of the Motion To Dismiss The Indictment without
prejudice allowing the defendant to
renew the motion in County
Court.
Motion To Dismiss The Indictment; in County Court, May 26, 1958.
Decision: Judge C.
Brown decided said motion to be a
Demurrer and disallowed his
Demurrer.
Motion To Resettle Erroneous Demurrer Order; in County Court,
July 24, 1958. Judge C.
Brown again ordered defendant’s Motion to
Dismiss the Indictment to be a Demurrer and
disallowed the Demurrer.
Motion To Dismiss the Indictment For Lack Of Prosecution; in
County Court, October 8, 1958.
Judge P. Widlitz dismissed motion on
affidavit of District Attorney that the trial would commence
shortly.
In said three motions defendant repeatedly stressed the
statutory rights of section 250 of the Code
of Criminal Procedure
(formerly section 257 and so stated as section 257 in defendant’s
original appeal
brief). Defendant objected that although defendant
appeared at the District Attorney’s office voluntarily
and
thereafter by illegal subpoena and on both occasions the District
Attorney and his assistant
agreed to notify the defendant of any
preliminary hearing by a Grand Jury prior to indictment as set
down
in section 250 of the Code of Criminal Procedure titled “Grand Jury
not bound to hear evidence
for the defendant but may order
explanatory evidence to be produced; defendant may appear in his
own
behalf under certain circumstances.”
The defendant not only relied on the promises of the District
Attorney and his assistant, namely,
to notify the defendant of a
preliminary hearing by a grand jury, but also the defendant
cooperated with
the District Attorney and appeared voluntarily at
the District Attorney’s office for such hearing and
thereafter
appeared at the District Attorney’s office under an illegal and void
subpoena for a
non-existent Grand Jury hearing. Thereafter the
defendant had no knowledge nor did he suspect that
there would be a
Grand Jury hearing of the matter. The Grand Jury hearing was held
in secret
without notice eight months later. Thereby the defendant
was unable to challenge the Grand
Jury, nor the nature and substance
of the Grand Jury hearing, nor the segregated witnesses;
which
challenges are statutory rights of any defendant present at a Grand
Jury hearing.
Further, defendant’s two pretrial Motions to Dismiss the
Indictment were both not entertained. The
first Motion to Dismiss
the Indictment was not entertained by Justice Hogan but without
prejudice to a
renewal in the County Court. Defendant’s second
Motion to Dismiss the Indictment in County court
was ordered to be a
Demurrer by Judge C. Brown and Judge Brown disallowed his Demurrer.
Judge
Brown’s decision on defendant’s later Motion to Resettle the
Erroneous disallowed Demurrer order
was ordered resettled by Judge
Brown again as a disallowed Demurrer. The Basic concepts of a
Demurrer is that an Indictment is defective in form or in facts as
enumerated and defined in section
323, Code of Criminal Procedure.
Whereas a Motion to Dismiss the Indictment as defined through
judicial interpretation of section 313, Code of Criminal Procedure
is substantially an attack upon the
legality of the indictment.
^^^TOP
Judgment Contrary to Weight of Evidence
Judgment below standard of rebutting the presumption of
Innocence as set forth in section 389 Code of Criminal
Procedure.
Defendant’s lower appeal court brief stressed in detail the
repeated lengthy judicial admissions of
the witnesses for the
prosecution which confirmed the defendant’s contentions and more
important
confirmed defendant’s innocence. The judicial admissions
of important witnesses and especially, the
chief witnesses, Mrs.
Elizabeth Wirschning and Dr. Milton E. Robbins were laboriously
culled from
extant record furnished by the Court Reporter. These
extant lengthy or repeated admissions during
direct and cross
examination were then inserted in narrative form in defendant’s
appeal brief in order
to stress the falseness of the four count
indictment and the prosecution’s case.
Mrs. Elizabeth Wirschning testified that she and her husband
knew the defendant who was an
attorney, fairly well known by them
and their friends and family. In direct contradiction to her
original
complaints she admits that defendant had undertaken other
legal works for their family beside his legal
works in reference to
her injury claim case; which she admits she signed a written
retainer with
defendant for her injury claim case.(16) Mrs.
Wirschning admits what “we made preparations to have
an appointment
set up to go to an insurance company doctor for an examination” as
to Mrs.
Wirschning’s injuries that she claimed as damages against
Allstate Insurance Company. That on
May 24, 1956, the defendant,
she, her husband and her baby drove to the Allstate Insurance
Company
doctor, Joseph Rosenheck, as to her claims of doctor treated
injuries received in auto accident. (77)
That then on May 24, 1956,
a few months after the accident when Mrs. Wirschning’s injuries and
medical treatments were fresh in her mind; she, Mrs. Elizabeth
Wirschning stated all her injuries
and medical treatments for these
injuries to Dr. Joseph Rosenheck, the Allstate Insurance Company
doctor and Dr. Joseph Rosenheck examined her claimed injured
portions of her body (80-81) and that
she knew that Dr. Joseph
Rosenheck made a typewritten report of her injury claim and
evaluated her
injury claim in this said report for the Allstate
Insurance Company. Mrs. Wirschning breaks down and
testifies in
cross examination that the prosecution’s claims and her direct short
answer testimony of
not receiving any medical treatments for a
slightly hurt right wrist (15-16, 36, 40) are in complete
contradiction to her original detailed repeatedly stated claims,
namely, her claims of eight treatments
by a doctor for Bursitis of
her right shoulder and bruises of her right thigh; which claims by
her are
recorded correctly in the typewritten report of Dr. Joseph
Rosenheck based upon his personal
examination of the portions of her
body she claimed were injured and she received a doctor’s
treatments
for said injuries. (79) and defendant’s Exhibit I in Evidence)
The injuries and treatments claimed by Mrs. Wirschning and
recorded in Dr. Rosenheck’s typed
report as to his medical
examination of her for the Allstate Insurance Company (Defendant’s
Exhibit I
in Evidence) are identical to Dr. Milton E. Robbins’
handwritten medical bill to Mrs. Wirschning
(Defendant’s Exhibit H
in Evidence) and both are identical to the doctor treated injuries
claimed false
by the indictment. Confirming these admissions by Mrs.
Elizabeth Wirschning are the up to date of
trial records of the
Allstate Insurance Company file on Mrs. Elizabeth Wirschning, which
the
prosecution’s witness, Charles Martino, testified that all
records of the Allstate Insurance Company
indicate that Mrs.
Elizabeth Wirschning throughout the negotiations and settlement of
her injury claim
and during her later complaining signed statements
of 1957 claimed only the doctor treated injuries
listed on Dr.
Milton E. Robbins’ handwritten medical bill to her (Defendant’s
Exhibit H in Evidence)
which are identical to Dr. Joseph Rosenheck’s
typewritten evaluation report of Mrs. Wirschning’s
stated doctor
treated injuries she stated to Dr. Joseph Rosenheck (456) and also
identical to the
doctor treated injuries claimed false by the
indictment (440) and that Mrs. Wirschning never dis-
claimed any of
these injuries and further that Mrs. Elizabeth Wirschning never made
any claim of any
wrist injuries. (459-461)
Mrs. Wirschning admits on direct examination that she consulted
the defendant concerning a
possible separation from her husband,
(44-45) because of troubles at home, (64) and further that out
of
the various matrimonial legal actions Mrs. Wirschning admits that
she called the defendant “about
the separation case”. Further, that
she, Mrs. Wirschning, at the time of the separation case, had no
money and no employment and that her husband had a bank account only
in his name. (68, 218) The
copies of defendant’s detailed letters
and statements of account mailed to Mrs. Wirschning during
defendant’s works for her legal separation from her husband state in
detail many of her trial court
judicial admissions and said copies
of defendant’s letters were submitted in evidence producing much
evidence of defendant’s extended knowledge in reference to Mrs.
Wirschning’s matrimonial troubles,
her family life and background.
(Defendant’s Exhibits D and E in Evidence)
Dr. Milton E. Robbins’ direct testimony confirms Mrs.
Wirschning’s judicial admissions stating that
Mr. Dec, “he was angry
at Mrs. Wirschning. There was something to do with a separation or
other and
that he (Mr. Dec) decided to retain some money in this
particular case.” (345) Charles Martino, the
prosecution’s witness
testified that the Allstate Insurance Company has a requirement that
in all
settlements of claims by married women the husband must join
with the wife in a general release for
his loss of services, unless
the married woman is separated from her husband or is a widow. Mr.
Martino further testified that only Mrs. Elizabeth Wirschning’s
claim was settled therefore the Allstate
Insurance Company must have
been properly notified as to Mrs. Wirschning’s separation from her
husband (481-482) Mr. Martino repeatedly admits that the defendant
did not negotiate nor settle Mrs.
Elizabeth Wirschning’s injury
claim; (411) and that he, Charles Martino, was the Examiner, the
supervising officer who only approved Mr. Urso’s suggested money
settlement offer. (411, 470-471).
Mr. Martino’s testimony confirms
defendant’s contentions that because of Mrs. Wirschning’s retainer
of defendant to represent her in an impending legal separation
action from her husband, the defendant
properly notified Mr. Urso
that the defendant was withdrawing from Mrs. Wirschning’s husband’s
loss
of services claim and only prosecuting Mrs. Wirschning’s injury
claim in that she was separating from
her husband and had retained
the defendant as her lawyer to represent her in an impending
separation
action. (411, 752, 812, 470-471)
The many admissions of the prosecution’s
witnesses corroborate defendant’s detailed testimony
as to his legal works and services in
references to Mrs. Wirschning’s retaining defendant to represent
her
in a legal separation action and how finally defendant agreed and
accepted Mrs. Wirschning’s $200
share of the settlement money from
her injury claim based upon the agreement with Mrs. Wirschning
that
the $200 would be held in escrow (which escrow money and two files
in titled file sized file
envelope, one for Mrs. Wirschning’s
separation action and the other for her injury claim case file
Detective Becker inspected when he took the defendant in custody to
defendant’s office in July of 1957
and Detective Becker purloined
defendant’s written retainer with the Wirschning’s). The $200 would
be
held in escrow as part payment toward a legal separation action
and also in order to guarantee
defendant’s minimum fee of $150 for
defendant’s completed legal works should Mrs. Wirschning
decide not
to go ahead with the legal separation action. The judge charges, as
a matter of law, in his
charge to the jury, that the defendant was
entitled to some legal fee for such legal services performed
with
respect to a legal separation action. (970)
In reference to contradicting Mrs. Elizabeth Wirschning’s
indefinite and short answer direct
testimony in reference to her
denial of signing her general release and $400 Allstate Insurance
Company settlement check, the defendant commenced cross examination
in reference to her
indefinite and short answer direct testimony.
Mrs. Wirschning not only disproved her original direct
testimony by
contradicting it but Mrs. Wirschning also further contradicted her
original direct testimony
in detailed statements during her cross
examination. Repeatedly Mrs. Wirschning admitted the she
misspelled
her new married name for some period of time after being married and
that she usually left
out the letter c in her new married name and
that upon her close examination of her general release
she testified
that the c is left out of her married name and that it is the usual
mistake she made in
signing her new married name. (222) While still
examining her signature on her general release Mrs.
Wirschning then
further admits that although she does not remember leaving out the c
in her last
name when she signed her general release, “that far
back”, it is her signature and she signed it as she
usually signed
her name at that time when she was first married. (222) Thereafter
the defendant refers
Mrs. Wirschning to her $400 settlement check
from Allstate Insurance Company. The defendant
points out items on
said check in detail. While Mrs. Elizabeth Wirschning is still
examining her $400
settlement check, the defendant points out in
detail that the check is made out to Elizabeth
Wirschning and it is
endorsed on its rear Elizabeth A. Wirschning and what explanation
can Mrs.
Wirschning offer to this improper endorsement on the rear
of the check, when all of defendant’s
records and all of Allstate
Insurance Company records do not include her middle initial, nor is
her
name misspelled in said records. Mrs. Elizabeth Wirschning
admits that when she was first married
for a period of time, during
which period of time she signed her $400 settlement check, she
always
signed her name that way with her middle initial included.
(218-226, 858-859 )
Defendant then attempts to further cross examine Mrs. Elizabeth
Wirschning and have her completely
confirm her signing of her $400
Allstate Insurance Company settlement check. The Court immediately
interrupted the defendant and prevented Mrs. Wirschning from
answering defendant; the Court stated:
“Just a minute.” And the
prosecutor quickly interrupts with his often repeated objection “A.
Nixon: I
object, your honor. That is the ultimate for this jury to
decide (in) this case.” The Court sustains the
objection and even
the extant trial record indicates the defendant objecting and taking
“exception for
purposes of appeal.” (227) This is an example of the
concerted efforts of judge and prosecutor which
stifled defendant’s
cross examination and prevented Mrs. Wirschning from making further
repeated
unrestrained detailed judicial admissions that she signed
her $400 Allstate Insurance Company
settlement check. Such
repeated concerted efforts of judge and prosecutor illegally and
wantonly stifling the judicial confessions of the prosecution’s
chief witnesses evidence not
only a prearranged simple worded
format, used by judge and prosecutor to stifle the
defendant’s cross
examinations but also wantonly and intentionally repeatedly the
judge
and prosecutor concertedly override the basic concept of any
fair trial, namely, cross
examination, “universally recognized as
the principal and most efficacious test for discovery
of truth”.
(Wigmore on Evidence, 3rd Ed., sec. 1367). “Cross
examination of adverse witnesses is
a matter of right in every trial
of a disputed issue of fact.”(Matter of Friedel v. Board of Regents,
296
N.Y. 347, 252, 73 N. E. (2d) 545) If cross examination is
prevented by accident or design, the direct
examination is rendered
incompetent. ([obscured]. v. Vole, 43 N. Y. 508) the Court of
Appeals granted
a new trial where through unusual accident the
witness was not able to complete cross examination.
Dr. Milton E. Robbins testified on direct examination that Dr.
Milton E. Robbins knew nothing until
after the investigation of the
matter was commenced by the District Attorney in July of 1957.
During
cross examination Dr. Milton E. Robbins admits that he is a
perjurer and liar. During further cross
examination Dr. Milton E.
Robbins admits that his present story of knowing nothing is a story
concocted during a two week period in July of 1957, while consulting
with his lawyer, brother in law
and also another lawyer from Nassau
County, J. D. C. Murray. (390-391) Dr. Milton Robbins further
admits that shortly prior to concocting his present story of knowing
nothing with his lawyer, brother in
law (so related for 25 years)
(360-361) and lawyer J. D. C. Murray that he, Dr. Milton E. Robbins,
went
to the District Attorney’s office without consulting any lawyer
and that he, Dr. Milton E. Robbins, gave
an extemporaneous,
unpremeditated statement as to his treatments to Mrs. Wirschning as
indicated
on his medical bill (390-391) that he gave to her husband
to forward to defendant. Dr. Milton E.
Robbins also admits that it
was he, who, on Monday, July 8, 1957, telephoned the defendant and
begged defendant to come to Dr. Robbins’ office in order to get back
his hand written medical bill for
his treatments to Mrs. Wirschning,
which bill defendant sent to the Allstate Insurance Company when
settling Mrs. Wirschning’s injury claim (344-345, 383) On direct
examination Dr. Robbins also admits
that at the time he, Dr.
Robbins, was in hysterics and that the defendant said “he was
angry at
Mrs. Wirschning. There was something to do with a
separation or other and that (defendant)
he decided to retain some
money in this particular case.” (345) After the defendant arrived
at his office, Dr. Robbins admits that he gave defendant many
hundreds of his X-Rays not
related to the Wirschning case, to be
destroyed. (383)
These are some of the important admissions of these chief
witnesses for the prosecution which
contradict the total claims of
the prosecution’s case and more important contradict the claims of
the
four count indictment and substantiate the defendant’s innocence
of the crimes convicted and in no
way prove guilt beyond a
reasonable doubt and the evidence falls below the standard of
rebutting the
presumption of innocence as set forth in section 389
of the Code of Criminal Procedure.
^^^TOP
Motions for Mistrial
The defendant made several motions for mistrial. The
defendant stated a lengthy multi-motion for
mistrial based upon the
near week long interruption adjournment of the defendant’s trial two
days after
commencement. On the afternoon of November 6, 1958 the
trial was adjourned until November 12,
1958.(130) Said motion
included the fact that without notification to defendant the Court
ordered the
defendant to discontinue the cross examination of both
Nathan Birchall and Mrs. Elizabeth Wirschning
and especially after
Mrs. Elizabeth Wirschning had judicially admitted that she
repeatedly personally
stated and claimed all of the injuries and
treatments the indictment claimed false and she admitted
she signed
her general release and her $400 Allstate Insurance Company
settlement check;
misspelling her name and including her middle
initial, improperly, which she usually did when she was
first
married when she signed her general release and settlement check.
This surprise interruption of
the defendant’s trial for
approximately a week by order of the trial judge shortly after
defendant was
ordered to alternate his cross examination between
the completely faltering and breaking down
chief witness for the
prosecution, Mrs. Elizabeth Wirschning, and the speechless,
stupefied
Nathan Birchall, District Attorney stenographer, were
irregularities strenuously objected to by the
defendant “instead
of adjourning the trial so there would be a complete trial and not a
haphazard hodgepodge the court did not inform me” (131) and
defendant petitioned the trial
court to declare a mistrial (131) the
motion was denied and defendant took exception. (135)
 Included in
this motion for Mistrial the
defendant enumerated several of the
many prejudicial statements the
judge stated against the defendant
showing complete “prejudice
against me and favoritism for the
District Attorney.” (131) The defendant
also included
restatements of some of
the judge’s actual prejudicial
state-
ments,
namely, that the
defendant
was the cause of wasting
the Court’s
day and the jury’s day
on Thursday
and the day that the
defendant
wasted was a beautiful
day the jury
could have spent
playing golf.
(128)
and that the
defendant was warned by
the Court that
the Court
was giving the
defendant additional time to read the lengthy notes
of Nathan Birchall being
offered into evidence,
out of generosity of
the Court and that no such further generosity would be
extended to
defendant to
any items offered into evidence because defendant
refused to glance through
the hearsay notes of
Nathan Birchall and
accept them in spite of the fact of the judge’s own testimony
as to
the lengthy
and exemplary career of Nathan Birchall, the District
Attorney’s stenographer. The
said character
testimony of the judge
was restated in defendant’s detailed motion for Mistrial. (129)
The
complained
character testimony of the judge was, namely that, Nathan
Birchall had been a stenographer for over
thirty years in the Courts
of Nassau County and that from personal knowledge
of the judge there
could
be no reason for the defendant to object to the admission of
N. Birchall’s
stenographic notes into
evidence. (128, 132-133) To
confirm this character testimony by the judge,
the defendant
positioned
the judge to have the Court Reported reread the
stenographic minutes of the
trial prior to adjournment
to confirm
the defendant’s statements of the judge’s prejudicial character
testimony for Nathan
Birchall. The Court refused to so do and then
defendant repeatedly petitioned
the judge to call
members of the
jury to testify and confirm the truth of defendant’s said statements
in
further support
of defendant’s multi-motion for Mistrial and the
defendant took exception for purpose
of appeal. (135)
After completion of defendant’s above motion for Mistrial, the
defendant petitioned the Court that
the stenographer reread the
trial minutes for the last few minutes of the trial to the
approximately week
long interruption, surprise adjournment ordered
by the judge two days after the commencement of the
trial and
shortly after the Court ordered the defendant to alternate his
partially completed cross
examination of Mrs. Elizabeth Wirschning
with Nathan Birchall. The Court denies defendant this
request although the defendant stresses the lengthy one week
surprise adjournment. The Court states
that because of the fact that a
different stenographer is recording the trial after the adjournment,
the
present stenographer cannot read back any part of the trial
because he has no notes available. The
defendant requests that a
recess be called for the new stenographer to obtain the original
stenographers stenographic notes from the Custodian of the Court who
keeps such trial records
while the trial is in session. The Court
attempts to dissuade the defendant but finally orders the
defendant
to proceed with the trial without and read back of the trial minutes
after refusing
the requests of the defendant. (155-159) The
defendant takes exception and makes a motion
for mistrial. Defendant’s Motion for mistrial is disallowed and
defendant takes exception.(159)
The defendant is ordered to go ahead; defendant
takes objection but the Court reorders the
defendant to move ahead
and defendant stresses that “under our law I am forced to proceed
when your Honor denies me the right to object.” (159) The Court
states: “The Court feels that
everybody here is well advised of
what we are contending with … proceed from that point.”
(160)
Substantially, the judge states that, he, the judge, the
prosecution, and the jury are well advised
and are agreed in their
opinion of the defendant that defendant’s trial is but a required
formality
before convicting the defendant feloniously. What
possible other interpretation of this
dastardly, but revealing
remark by the judge can be properly applied to the said remark?
Under the circumstances created by the many other statements and
remarks of the trial judge partially
enumerated in defendant’s
Motions for Mistrial, there can be no other interpretation of
such
highly prejudicial remarks by the trial judge. Each of the
items mentioned in the defendant’s
Motions for Mistrial are
sufficient for reversible error. Comments by a judge during a trial
or in his
charge to the jury which assume the falsity of the
testimony of a witness are not allowed. A judge
should not by his
attitude or comments force upon a jury his opinion as to the guilt
or innocence of
the defendant. To do so would be an error as matter
of law. (Peo v. Chanian, 245 N.Y. 227. In the
cited case the trial
judge later instructed the jury to disregard his irregular remarks
but still the Court
of Appeals unanimously reversed the judgment of
the trial court, saying,
“We cannot escape the conclusion that the
judge made himself
the trier of the facts and acted as a
self-appointed substitute
for the jury. Such conduct is a violation of
section 419 of the
Code of Criminal Procedure and as such
constitutes an error of
Law.” (Peo. V. Chanian 245 N.Y. 227, 231,
233, 157 N. E. 94)
^^^TOP
Defendant’s objection and exception to the admission of the
Fraudulently altered hearsay stenographic notes of Nathan Birchall,
the
District Attorney’s stenographer, said notes consisting principally
of conversations of people such
as Edward Robinson, Frank Gulotta,
Detective Alva Becker, and lawyer J. D. C. Murray, none of
whom were
witnesses during the trial.
Defendant repeatedly objected to the admission into evidence
of
the fraudulently altered hearsay typed copies of the stenographic
notes of Nathan Birchall,
the District Attorney’s stenographer. The said Nathan Birchall testified that he did not see the person
who actually typed the copies of his hand written stenographic notes
from his dictated tape recordings.
Further, Nathan Birchall
testified that the person who typed the typewritten copy of his
stenographic
notes never saw his original stenographic notes and
further that even if anyone saw his original
stenographic notes, no
one could understand his stenographic notes because he had
improvised a
secret shorthand code over the years that he, Nathan Birchall, alone could decipher. The defendant
objected to the gestapo like notes and requested to inspect them. The court
refused the
defendant’s request on the ground that it is afainst
public policy. The defendant objected to the ruling
and took
exception. (183-184) The defendant stressed in detail his
objections to the admission of
the fraudulently altered hearsay
copies, principally of hearsay conversations of people such as
Edward
Robinson, Detective Alva Becker, and J. D. C. Murray, a lawyer for Dr. Robbins, into evidence.
Defendant objected further
that he had no means to inspect the original notes because of the
judge’s
refusal to permit the defendant to do so and most important, because the stenographer, Nathan
Birchall, had his own secret
shorthand code whereby no one could check the veracity of his
shorthand
notes. The judge overruled defendant’s objections and
allowed the said typed copies of the said
stenographic noted into evidence over the defendant’s exception.
(197-199) (re: infra:And
admission
written or oral, Richardson on Evidence 8th Ed.
Secs. 305-306)
^^^TOP
The final summation of Arthur Nixon, the prosecutor for
the District Attorney, was an
incoherent, muddled, simple
language outline of non-existent evidence based upon
people who were
not witnesses and who the prosecution refused to call as witnesses.
The
Court Reporter’s record of said A. Nixon’s final outline is
found conveniently on pages 901 to 935 and
even this said record
produces over 35 objections and exceptions by the defendant to the
raving,
incoherent, muddled, simple language outline of
non-existent evidence based upon such
people as, those listed in
detail below:
Frank Gulotta: District Attorney of Nassau County, later
automatically elected Supreme
Court Judge, who was present during
the non-existent Grand Jury hearing in his office wherein
Dr. Milton
E. Robbins and Fred Wirschning broke down and admitted that the
defendant
refused to proceed ahead with the negotiations of Mrs.
Wirschning’s injury claim because Mr.
And Mrs. Wirschning produced
no medical bill for Mrs. Wirschning’s claimed injuries and that
finally Fred Wirschning broke down in the presence of Frank Gulotta
and admitted that
because of defendant’s refusal to go ahead with
the negotiations of his wife’s injury claim, he,
Fred Wirschning,
went over to Dr. Robbins and obtained his wife’s medical bill for
her treatments
for her injuries and gave it to defendant. Wherein
immediately Frank Gulotta quickly stepped in
front of defendant
urging Edward Robinson Jr. to compose himself and discontinue all
questioning, at which time Frank Gulotta waived his hand as a form
of stopping motion and
took hold of Edward Robinson Jr. and tapped
Fred Wirschning on the shoulder instructing him
not to answer and stating that the matter was small and quite unimportant to waste
time
about it. (909)
Edward Robinson Jr. : An Assistant District Attorney of Nassau
County: later automatically
elected a Supreme Court Judge; whose
incoherent, simple ravings to the defendant and
other people during
the above mentioned non-existent Grand Jury hearing were
completely
fraudulently altered in the records of Nathan Birchall, which
said hearsay
records were admitted into evidence over defendant’s
many objections and Motion for Mistrial.
These said recordings of
conversations of Edward Robinson were read at length during A.
Nixon’s final summation and the henchman works of Edward
Robinson, Jr. were stressed
by A. Nixon as important evidence of the prosecution’s case.
(911-913, 916-917, 920-930)
A. Nixon and
the Court in the final summations imply that the fraudulently
altered hearsay
notes of N. Birshall constitute a confession.
Whereas not even the said fraudulently
altered hearsay notes
produce any statements that defendant implicated himself in the
crimes charged.
This is irreversible error. An Admission Written or
Oral (Peo. v. Giro 197 N. Y. 152,
160) as
distinguished from a confession, is not direct, but circumstantial ecidence (Peo v.
Bretagna, 298 N.Y. 323, 326; Peo.
v. Koslow, 2nd Dept. 6 A. D. 2nd 713.
Three doctrines control it:
(1.) Like a confession, it must be found not only voluntary, but
true in fact, else it is ineffectual.
(cf. Peo v. Elmore,
277 N.Y. 397, 404; Gangi v. Fraudus, 227, N.Y. 452);
The fraudulent
alteration the Nathan Birchall notes by the District
Attorney’s office was specifically stressed
by the defendant by
objection and Motion for Mistrial.
(2.) “all circumstances surrounding its making are material thereon”
(Elmore Case, p404) which
here meant the asserted non-existent Grand
Jury hearing and the wanton fraudulent
alteration of said notes
by the District Attorney’s office to implicate the defendant from
the said records and fraudulently alter the felonious incriminating
admissions of Fred
Wirschning and Dr. Milton E. Robbins.
(3.) Where a statement is exculpatory and open to a construction
favoring innocence --
Defendant even in these fraudulently altered records is
not in any way claimed to state
any incriminating fact or admission
of guilty knowledge, instead defendant, even in the said
records,
disclaims the accusations and tells of his legal work and services
in reference to the
impending legal separation action of Mrs.
Elizabeth Wirschning and her retainer of him for such
legal
separation action and her depositing her $200 share of her injury
claim settlement money
with defendant which the defendant was
holding in escrow as part payment for her legal
separation fee and
also to guarantee the defendant his minimum fee of $150 for
completed legal
services. The said fraudulent records also produce
the admissions of Detective Becker that he
immediately took the
defendant’s statements to be true. Mrs. Wirschning’s titled injury
claim
file and written retainer which both Mr. and Mrs. Wirschning
signed (but claimed and swore they
never retained the defendant and
never signed anything for the defendant) along with said file
was
Mrs. Wirschning’s separation file titled envelope with the many
legal papers, and copies
of statements of account for defendant’s
services in reference to his works for Mrs. Wirschning’s
legal
separation action, which said papers Detective Becker inspected and
read along with his
opening the titled letter sized envelope holding
Mrs. Wirschning’s $200 in escrow.
-- defendant is entitled “to
whatever benefit such statement affords” (III
Wigmore on Evidence 3rd
ed. Sec. 821; Richardson on Evidence 8th Ed. Secs.
305-306;2Wh.
Grim. Evid., 11th ed. Sec 840; Peo v.
Reilly 224 N.Y. 90, 96; Gangi v. Fraudus,
supra), and the
Court is under duty to make plain to the jury its
exculpatory features (cf. Peo v. Doria, 3rd Dept.
281
A.D. 918).
None of these doctrines were charged, instead the Court and
especially A. Nixon implied
that the said notes were a confession or
admission of guilt by the defendant. The Law prohibits
such a
construction of statements (Peo. v. Reilly, supra) or testimony (Peo.
v. Gorbisiero, 290
N.Y. 191, 194) intended and definitely showing
the opposite.
Dr.
Azzara: the doctor the prosecution and Mrs. Wirschning claimed
was the “Wirschning
family doctor” but later Mrs. Wirschning
admitted that Dr. Azzara was “a baby doctor”, a
specialist. Many
months after Mrs. Wirschning’s last repeated statement of her doctor
treated
injuries; which are identical to the doctor treated injuries
claimed by the defendant to be false,
Mrs. Wirschning forgets these
doctor treated injuries she repeatedly personally stated to
constitute her entire injury claim and Mrs. Wirschning testifies on
trial that her entire injury
claim was a slightly hurt wrist, not
treated by any doctor but only looked at once by a Dr.
Azzara. This
is the Dr. Azzara that the prosecution refursed to produce as a
witness although
the defendant stressed that Mrs. Wirschning broke
down under cross examination and
admitted she personally stated and
claimed the doctor treated injuries claimed by the
indictment to be false; therefore Dr. Azzara was a necessary witness for the
prosecution.
(910, 911)
Dr.
Joseph Rosenheck: of Allstate Insurance Company, the doctor who
personally examined
Mrs. Wirschning for her detailed personally
stated injuries and medical treatments claimed by
Mrs. Wirschning in
order to completely evaluate Mrs. Elizabeth Wirschning’s total claim
for
damages against Allstate Insurance Company; said Dr. Rosenheck
in the usual course of his
business of examining doctor for Allstate
Insurance Company made the usual typewritten report
of his physical
examination of Mrs. Wirschning in reference to her claimed injured
portions of
her body. This typed report was the sole basis the
offenders of Allstate Insurance Company
evaluated the total cash
value of Mrs. Wirschning’s claim for damages against Allstate
Insurance Company and established a cash reserve for said claim.
Although the prosecution
refused to call Dr. Rosenheck as a witness,
the prosecution repeatedly made mention of Dr.
Rosenheck in its final summation. An example of such highly irregular statements
follows:
“Yuh hear any proof” … “Now if Mrs. Wirschning told Dr. Rosenheck
these things, ***
why wasn’t he called by the defendant?” (906)
***
“these things” refers to “this copy of Dr. Rosenheck’s
report” (905) the prosecutor
was waving at the jurors during his
summation and specifically “these things” are the
detailed
typewritten repeated listings if the personal injuries and doctor
treatments
Mrs. Wirschning stated to Dr. Rosenheck to be her total
claim for damages against
the Allstate Insurance Company typed on
the typewritten report of Dr. Rosenheck in
reference to Mrs.
Wirschning’s physical examination By Dr. Rosenheck; who
specifically
examined the portions of her body she claimed were injured and that
constituted her total claim for damages against Allstate Insurance
Company, namely
Bursitis of the right shoulder and bruises of the
right thigh. (Defendant’s Exhibit I in
Evidence)
Throughout the trial and especially during his final summation the
prosecutor stated
the defendant was guilty because the defendant did
not produce any witnesses to disprove the
indictment, which
is ground for reversal (Peo. v. Carbonaro 301 N.Y. 39,42; Peo. v.
Manning
278 N.Y. 40, 43).
 Detective Alva Becker: was
emphasized by the prosecution
as an
extremely important
witness; who took part in all the
important
steps in the lengthy
prosecution of the defendant.
A. Nixon’s
opening address
stressed that for these reasons
the important, key,
witness, Alva
Becker would be called by the
prosecution as a
witness. Alva
Becker was the detective who
was present at the above
mentioned non-existent Grand
Jury hearing wherein Frank
Gulotta
openly displayed his
fanatic, frantic henchman
efforts to
prevent the
prosecution’s tutored perjurous complaints from breaking
down
and confessing their
perjuries under the questioning of them by
the defendant. Alva
Becker was the detective
who immediately
after defendant’s first visit to the District Attorney’s
office took the defendant
in custody to defendant’s office to disprove the
defendant’s detailed
statements that Mrs.
Wirschning did retain
defendant for her injury claim and that Mrs.
Wirschning retained the
defendant as her lawyer to represent her in an impending separation
action and as part payment for her agreed fee for her separation
Mrs. Wirschning deposited her
$200 share of her
settlement money
with the defendant and in accordance with her agreement
the
defendant
was holding the $200 in escrow as part payment toward her
separation action fee
and also to
guarantee his minimum fee of $150
for defendant’s completed works should Mrs.
Wirschning
decide not to
go ahead with the separation action. This is the Detective Becker
who
saw the
two titled file sized envelopes in defendant’s filing
cabinet; one file size envelope titled
Mrs.
Wirschning’s injury claim and the other file sized envelope titled for Mrs. Wirschning’s
separation case. Even the fraudulently altered Nathan Birchall’s
notes produce records of Alva
Becker’s admissions that he, Alva
Becker, opened the two said file envelopes and inspected
the various
papers and copies of the statements of account sent to Mrs.
Wirschning in
reference to her impending separation action; it is
this Alva Becker, who also admitted that he
opened the small letter
sized envelope and saw the $200 Mrs. Wirschning deposited with
defendant being held in escrow in said titled envelope as the
defendant stated to the District
Attorney; it was this Alva Becker,
who, while inspecting the other file envelope on Mrs.
Wirschning’s
injury claim and reading the various papers in said file, he, Alva
Becker purloined
the written retainer of Mr. and Mrs. Wirschning. This is the Detective Becker who sat at the
prosecution’s table
through the trial but repeatedly the prosecution refused to call him
as a
witness. In final summation the prosecution repeatedly mentions
the important works of this
Detective Becker and warned the jury
that the defendant should have called Detective Becker
as a witness
to disprove the charges against the defendant, the prosecutor even
demanded to
know why the defendant did not call so important a
witness. (904-905) These promises by the
prosecution to call the
important witness Detective Alva Becker are unkept promises of proof
of material facts, and constitute reversible error because the
prosecutor is chargeable with
knowledge that it is not available, or
that it cannot be legally produced. (Peo. v. Wolf 183
N.Y.
464; Peo. v. Distefano 2nd D., 276 AD
852; Peo v. Simmins id., 125 A.D. 234).
Dr.
Milton H. Robbins’ lawyer brother in law: the often mentioned
unnamed lawyer brother in
law of Dr. Milton E. Robbins, who Dr.
Robbins admitted was his brother in law for over 25 years
and that
Dr. Robbins testified that he contacted his lawyer brother in law
and concocted a new
story of knowing nothing about everything during
the two week period after Dr. Robbins volun-
tarily appeared at the
District Attorney’s office and gave a detailed statement as to Mr.
and Mrs.
Wirschning and the Wirschning’s background and his
treatments to her for the injuries stated
in his hand written bill
he gave to her husband. The prosecution did not call Dr. Robbins’
lawyer
brother in law to impeach these admissions of Dr. Robbins and
refused to call him to impeach
the admissions of Dr. Robbins that he
under threats of suicide made defendant remove
hundreds of Dr.
Robbins X-Ray records from Dr. Robbins’ office; which said admission
tended
to confirm defendant’s detailed testimony that Dr. Robbins
ordered the defendant to destroy the
many X-Rays in order to destroy
the many year illegal activities with his lawyer brother in law.
(918, 920-921)
J.D.C. Murray: an old Nassau County lawyer and friend of Frank
Gulotta. The same lawyer
that Dr. Robbins admitted assisted him and
his brother in law in concocting a new story for
him during a two
week period after Dr. Robbins gave his first unpremeditated
statement to the
District Attorney without the assistance of any
lawyer. This is the J.D.C Murray the prosecutor
refusedto call as a
witness but emphasized J.D.C Murray’s important works in the case in
his
final summation stating that J.D.C. Murray did not state:
“Look, go in tell a pack o’ lies …
an’ I will come down there with yuh an’ yuh tell a pack o’ lies an’ then yuh get on the
stand an’ yuh commit perjury.” (920) Although J.D.C Murray was not called
as a witness, A.
Nixon explains how J.D.C. Murray “comes in with Dr.
Robbins and he tells the truth.” (919-920)
In spite of defendant’s repeated objections and exceptions A.
Nixon outlined the entire
prosecution’s case in his final summation
upon the non-existent evidence of these seven above
mentioned people
who were never called as witnesses in the entire trial and who the
prosecution
repeatedly refused to call as witnesses during the
trial. (901-935) This is in complete
contradiction with the Code of
Criminal Procedure; the statutory law governing criminal trials,
namely:
Section 388 sub. 3: “The District Attorney, or other counsel for the
people shall
then offer the evidence in support of the indictment.”
Section 389: “Defendant presumed innocent until contrary
proved.”
14th
Amendment, N.Y. Constitution Art, 1, Sec. 6.
Under due process of law an accused is not required to establish his
innocence.
(Peo. v. Pinder 170 Misc. 345, 9 NYS 2nd 311).
^^^TOP
The judges charge to the jury.
The judge’s charge to the jury consisted of a lengthy reading of the
indictment and primarily of a
fabricated story of the evidence as
“it is my recollection of the important phases of the testimony.”
(959) Even the judge’s warped memory admits some of the detailed
testimony and evidence of the
defendant, namely;
“he gave her $200 in
accordance with the retainer agreement and
that
she returned this $200 as part payment or as a
part of an arrangement for payment in
connection
with services in a separation action which he
stated he was handling for her.” (958)
The important contentions of the prosecution were that Mrs.
Elizabeth Wirschning never retained
defendant and never received any
legal services in reference to a separation action and further that
Mrs. Wirschning only visited the defendant’s office once. Finally
the judge in a highly improper,
prejudicial final remark in his
charge to the jury implies automatic guilt to the defendant despite
the
fact the in law he, the judge, charges the jury that all of the
above mentioned contentions of the
prosecution have been proven
false and that defendant’s proven contentions are true, namely,
“I
further charge you that even though the defendant,
Francis E. Dec, performed some legal services for
Elizabeth Wirschning with respect to a separation action
and that by reason thereof he was entitled to some legal
fee for such services, that would not justify him in
committing the crimes, the charges alleged in the indictment
and his performance of services for the separation action
is no defense whatsoever to the counts in the indictment.
Gentlemen of the jury that concludes my
Instructions.” (970)
This was a trial lasting over two weeks with an extant trial
record of 991 pages. Most of the judge’s
charge, aside from the
above mentioned nine pages of highly prejudicial recollections of
the “important
phases of the testimony” (951-959) was devoted to
reading the indictment and solemnly rereading the
indictment
emphasizing the felonious nature of the crimes and the solemnity of
the indictment. The
record will disclose that it was a charge in
name only, wholly failing to guide a layman on the essential
elements of the defendant’s defense and in fact charging the
defendant with guilt because of
defendant’s defense and in fact
charging the defendant with guilt because defendant’s defense was
proven to be true. The charge was also wholly failing in guiding a
layman on the essential elements
of the crime and the specific
theory of guilt. (Peo. v. Lupo 305 N.Y. 448) to assure
a fair trial (Peo. v.
Wallens, 297 N.Y. 57, 62, a right inherent in
due process (14th Am’t N.Y. Const’n, Art. 1 sec. 6; cf.
Peo. v. Leavitt, 301 N.Y. 113,117).
The charge completely ignored the good character of the
defendant. The defendant took the
stand and testified in detail as
to his good background and character, and good reputation.
Defendant emphasized his
lengthy honorable volunteer service in World War II and
his lengthy religious
education in parochial school and university
and defendant’s honorable service in the N.Y. State Police
and
Nassau County Police forces and his honorable position in his
community as a practicing lawyer
and the necessary good life
history for these positions, especially his position as a lawyer.
This is an important omission in the judge’s charge. This is
reversible error even though no request was
made to charge the jury.
(Peo. v. Visicio 3rd Dept. 241 AD 499). In the judge’s
charge to the jury there
was no mention of the prosecution’s refusal
to deny or impeach the defendant’s detailed repeated
statements as
to Fred Wirschning’s bad character, namely, that he is a known
felonious car thief,
a wayward husband who resided with negro
prostitutes. These statements are confirmed even
in the
prosecutions Nathan Birchall records of Fred Wirschning’s admissions
to defendant in the
District Attorney’s office. The judge refused to
charge the felonious admissions of Mrs. Elizabeth
Wirschning who
admitted she claimed two different sets of injuries and further that
she signed her
general release and $400 settlement check. The judge
refused to charge the jury as to the confessed
bad character of Dr.
Milton E. Robbins, who in open Court confessed to the felonious
crime of
committing perjury, namely, in swearing to a false
concocted story about this matter; and
further Dr. Robbins’
felonious admission of writing a fraudulent medical bill.
The Court refused to charge the extremely extensive range
of interest of these self admitted
felonious chief witnesses of the
prosecution; who individually actually confessed in open Court to
the crimes charged against the defendant and also confessed to their
felonious perjurous complaints
against the defendant upon which the
indictment rests. This was of extreme importance to the jury.
(Peo.
v. Keboe 2nd Dept. 253 AD 762 aff’d 278 N.Y 518. The harm
was intensified in leaving out the
fact of the willfulness of the
nature of the perjurous testimony which preceded the judicial
confessions
during cross examinations. The defendant later takes
exception to the judges highly irregular charge
to the jury which
charge deviates from the requisites as set down in section 420 C.C.P.
but in each
instant the judge refuses to correct his charge.
^^^TOP
The
extant record of defendant’s requests to the judge to charge the
jury;
defendant requested the judge to charge:
“in reference to statements of Elizabeth
Wirschning that she
was treated by a Dr. Azzara and was requested to produce
the bill of Dr. Azzara, and if she did not voluntarily produce the
bill of Dr. Azzara that such presumption in law would arise that
her statements were not so as she stated, and that the natural
inference, if the evidence was held back, because it did not
exist or would be unfavorable. Therefore, the presumption in
law arises that the facts in dispute would be undoubtedly as the
opposing side claims, my defense.” (971-972)
The
judge refused to so charge and the defendant took exception.
The
defendant further requested the Court to charge:
“I further request you to charge that in
reference to the statement
of Dr. Robbins, whereas Dr. Robbins stated
that he had no record
of Elizabeth Wirschning’s treatments in his
office, and in that he
was requested whether the records were in his
office and available
to prove these statements, he stated yes. He
did not produce such
records wherein it would give proof
definitely that he had no treatment
of Elizabeth Wirschning in a period
questioned. He did not produce
such records, therefore the presumption is
the natural inference that
the evidence was held back because it was not
only unfavorable,
but decidedly in favor of the opposing side
and what the opposing
side stated was true.” (972-973)
The Court refused to so charge and the
defendant took exception. These two requested
charges are based upon
the trial testimony and defendant’s requests of the prosecution and
the
witnesses of the prosecution to produce the alleged real
evidence. The terminology of the prepared
requests to charge was
abstracted directly from the text Richardson on the Law of Evidence
8th ed.
Chap: Presumptions; sec. Presumptions Arising
from Withholding Evidence.
The defendant further requested the
judge to charge; in reference
to the entire indictment:
“there is a question of fact here for the
jury to determinate, that there
were services here which are not denied in
reference to Elizabeth
Wirschning as to domestic troubles, and in
reference to her services
received from me in reference to her
separation action. On the basis
of these services rendered there is a
necessity in law to prove or for
the jury to decide whether it was factual or
not that the escrow funds
were being held as stated, as I stated. I did
not take her share of the
money to my own possession, there could be no
crimes as asserted
in … the indictment” (974)
The judge refused to so charge the jury and
the defendant took exception. The
defendant further requested the
judge to charge; that the if the jury finds that:
“I, as Elizabeth
Wirschning’s attorney acted as her agent
for representations that she made to
representatives of the insurance
company, and thereafter did turn over her
settlement moneys to her and
once again had such funds returned to me to be
held in escrow (the in-
dictment must fall and defendant must be
acquitted).” (976)
The Court refused to so charge and the
defendant took exception.
The defendant’s requests for the judge to charge the jury were
based on the important evidence
produced during the trial. The judge
is disallowing the defendant’s requests to charge the jury actually
prevented the jury from being “the exclusive judges of all questions
of fact” (Sec. 420, C.C.P. Charge
to the jury) in that he, the judge
in his original charge to the jury removed these facts from the
jury’s
consideration by charging the jury that they could not
consider the facts later stressed in defendant’s
requests to charge
the jury.
^^^TOP
Defendant’s Post Trial and Appeal Motions:
Defendant’s first post trial motion was made in the Appellate
Division of the Supreme Court for the
Second Judicial Department. It
was a Notion for an Order Compelling the Trial Stenographers to
Produce the Trial Record of this Defendant’s Trial. The motion was
heard on February 2, 1959. Said
motion was premises upon Section 456
of the Code of Criminal Procedure, namely,
“Where the defendant is convicted of a crime the clerk of the Court
in
which the conviction was had shall within two days after a notice
of
appeal shall be served upon him notify the stenographer that an
appeal
has been taken whereupon the stenographer shall within ten days
after
receiving such notice deliver to the clerk of the Court a copy of
the
stenographic minutes of the entire proceeding of the trial.”
Defendant devoted much of the 17 page motion to
cogent reasons for said motion, based upon
specific personal
occurrences of injustice because of delays in the delivery of
stenographic notes.
The motion was specific and detailed in its
repeated petitions for expeditious adjudication, in order to
prevent or curtail possible intentional alteration of the
defendant’s lengthy trial record. Due to
the District Attorney’s
failure to reply, the motion was put aside a week. Thereafter, a
month and a half
later, when one of the trial stenographers, Michael Wowk, delivered his record of the defendant’s trial,
the said
appellate court dismissed defendant’s motion as academic.
Defendant’s said motion
was later stressed in defendant’s appeal
brief in reference to the somewhat similar situation in the
later
decided case in this Court of Peo. v. Chester Pitts.
(6 N.Y. 2nd 288)
On October 5, 1959, the defendant made appication to the County
Court to amend the trial record.
Defendant submitted 794 Proposed
Amendments, 320 typewritten pages in length to the County
Court;
said |
