|THE OFFICIAL FRANCIS E. DEC FANCLUB PRESENTS:|
"A VICIOUS CONSPIRACY"
- THE NASSAU COUNTY RESPONDENT'S BRIEF
|- A LEGAL DOCUMENT WRITTEN BY MANUAL W. LEVINE. TRANSCRIBED BY zer0.|
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To be argued by
Henry P. DeVine
State of New York
The People of the State of New York,
Francis E. Dec,
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Defendant appeals from an order of the Supreme Court, Appellate Division, First Department, affirming unanimously a judgment of the Nassau County Court wherein defendant was convicted after a jury trial of Forgery in the Second Degree (two counts), Grand Larceny in the Second Degree and a violation of Section 1820-a, subdivision 2 of the Penal Law (Fraud or Deceit by Notary Public). The indictment was returned by the Grand Jury on February 11, 1958 and trial was held in the Nassau County Court on November 5, 6, 12, 13, 14, 17, 18, 19, and 20, 1958 in the Nassau County Court before the Hon. William J. Sullivan, County Judge of Nassau County, and a jury and the accused was convicted by a verdict of the jury as charged in the pleading.
On December 23, 1958, the appellant was sentenced upon each of his convictions for the crimes of Forgery in the Second Degree (two counts) and Grand Larceny in the Second Degree to Sing Sing Prison to indeterminate terms, the maximum of each term being five years and the minimum two and one-half years, which the direction that such sentences were to run concurrently. Execution of each of these sentences was suspended and the apellant was placed upon probation for the maximum period allowed by law. Upon his conviction for the crime of violation of Section 1820-a, subdivision 2, of the Penal Law (Fraud or Deciet by Notary Public) The Apellant recieved a suspended sentence.
Leave to appeal to the Court of Appeals was granted by Hon. Adrian P. Burke of this Court by certificate dated February 17, 1961 and a notice of appeal, dated February 27, 1961 was served and filed.
This Court granted permission to appeal on the original record and typewritten briefs on or about April 20, 1961.
trial and upon the appeal, the appelant represents himself. The
People are represented
by Manuel W. Levine, District Attorney of Nassau County (Arthur V.
Nixon, Assistant District
Attorney, on the trial and Henry P. DeVine, Assistant District
Attorney, on this appeal).
Elizabeth Wirschning, involved in an automobile accident in Westbury, New York (s.m. pp. 33-34)* on January 9, 1956, retained the appellant that day for her claim against the operator of the other car (s.m. pp. 36-39). Mrs. Wirschning was neither hospitalized for her injuries (s.m. p. 41) nor treated nor examined by any physician other than her family doctor, Dr. Azzara, and a doctor for the insurance company (s.m. pp. 39-43). She was never treated nor examined by a Dr. Milton E. Robbins (s.m. p. 43).
After retaining the appellant as her attorney she only saw him once again - sometime in February of 1956 (s.m. p. 44). However, a few months later she telephoned the appellant about a possible separation action against her husband. The appellant declined to handle such action and referred Mrs. Wirschning to "another lawyer" (s.m. p. 45).
Mrs. Wirschning never recieved any money for the injuries she sustained in the accident (s.m. p. 46). At all times since the accident she lived at the same adress and had a telephone (s.m. p. 46). She telephoned the appellant "quite a few times" in 1956 and 1957 as to the status of her claim (s.m. pp. 47-48) but the appellant told her that it was a "nuisance claim" and he never disclosed that it had been settled (s.m. p. 48).
The signature on a general release [People's Exhibit 2] was never signed by her (s.m. p. 56) nor had she authorized anybody to sign it for her (s.m. p. 57). In fact, the letter "c" was omitted from the handwritten signature of her last name which appeared on this instrument. She never appeared before the appellant to acknowledge that she signed this general release nor did she authorize her husband to sign on her behalf (s.m. pp. 57-58).
Similarily, she had never endorsed, nor signed in any manner, her name on a settlement check in the sum of $400 [People's Exhibit 4] (s.m. pp. 58-59). In fact, she had never known, prior to June, 1957, that her claim had been settled (s.m. pp. 62, 63).
On cross-examination, Mrs. Wirschning insisted that she only visited Dr. Azzara, on approximately four occasions, for treatment of her wrist injury (s.m. pp. 71-73). The appellant, together with her husband and her child, accompanied her to the physical examination conducted by the insurance carrier's physician (s.m. pp. 76-78). She didn't remember whether or not she told the physician for the insurance carrier of visits to her family doctor or of injuries other that those she had described on her direct examination (s.m. pp. 81-83).
She had "probably made mistakes in spelling [her] new married name" at first (s.m. pp. 218-219). Her name had not been misspelled on any of the five places it had been typewritten on the general release (s.m. pp. 220-221). She could have left out the letter "c" when she signed her name when first married (s.m. p. 222). The hand-written endorsement of Mrs. Wirschning's signature on the settlement check bore the middle initial "A" but this initial did not appear on the face of the check (s.m. pp. 226-227). Mrs. Wirschning had not been treated for any nervous condition, nor was she recieving any sedation, at the time she consulted the appellant with reference to a possible separation from her husband (s.m. p. 239).
examination, Mrs. Wirschning again testified that she had never
signed either People's
Frederick P. Wirschning retained the appellant on January 9, 1956 in connection with the accident earlier that day (s.m. p. 263). He took his wife to Dr. Azzara on four or five occasions (s.m. p. 268). He never took his wife to a Dr. Milton Robbins nor had he ever heard of Dr. Robbins until May, 1957 (s.m. pp. 268-270). He had not signed his wife's name to People's Exhibit 2 [the general release] nor ever authorized the appellant to do so (s.m. pp. 273-274). He had not endorsed his wife's name on People's Exhibit 3 [the check], nor ever authorized the appellant to do so (s.m. p. 274). He did not recieve any money as a result of the accident (s.m. p. 274).
Mr. Wirschning telephoned the appellant "a few times" and went to his office in 1956 and 1957 concerning the status of the case (s.m. pp. 274-275). The appellant never revealed that the case had been settled nor that $400 had been received in November, 1956 (s.m. pp. 275-276).
cross-examination Mr. Wirschning admitted that he had not been
informed by his wife that
she had consulted the appellant in a separation action (s.m. p 280).
Mr. Wirschning also consulted
the appellant about income tax matters (s.m. p. 282) and as to a
claim for property damage to his
Mr. Wirschning never recieved any bill or statement from the appellant for services rendered to Mrs. Wirschning in connection with the proposed separation (s.m. p. 330) nor any letter from the appellant concerning the separation (s.m. p. 332)
Nathan Birchall, Nassau County Court Reporter, testified that People's Exhibits 5 and 6 were true and correct transcripts of the question and answer statements made by the appellant to Assistant District Attorney Edward Robinson on July 2nd and July 22nd, 1957 (s.m. pp. 108, 109).
Dr. Milton E. Robbins testified that the appellant, prior to July 5, 1957, had referred accident cases to him (s.m. pp. 336-337). On July 5, 1957 the appellant requested Dr. Robbins to copy "in his own handwriting" a typewritten bill "on a Mrs. Wirschning" (s.m. p. 338). Dr. Robbins did so even though he had never seen Mrs. Wirschning, nor treated her, nor X-rayed her (s.m. pp. 339-340).
On July 8, 1957 the appellant visited Dr. Robbins and told him that he "decided to retain some money in this particular case" (s.m. p. 345). The appellant told Dr. Robbins that he, the appellant, had made out a false bill because "I had to get the money" (s.m. p. 345). When Dr. Robbins "became panic-stricken" as to the possible consequences of the false bill, he acquiesced in the appellant's suggestion to destroy all of the doctor's X-rays to conceal the fact that he had never X-rayed Mrs. Wirschning (s.m. pp. 346-348). He delivered several hundred X-rays to the appellant (s.m. p. 349). After consulting his brother-in-law, an attorney (s.m. p. 352), Dr. Robbins told the full facts, in the appellant's presence, to Assistant District Attorney Edward Robinson (s.m. p. 355).
Dr. Robbins had not signed or written the bill for alleged services rendered to Mrs. Wirschning which was submitted to the insurance company [People's Exhibit 9] (s.m. pp. 356-357) and had never seen Mrs. Wirschning at all prior to the trial (s.m. p. 359).
On cross-examination Dr. Robbins testified that he made out the bill for the alleged professional services to Mrs. Wirschning "as a favor to the appellant" (s.m. p. 361) but had never done so for any other lawyer. He reiterated that he made out the bill on July 5, 1957 - a year and a half after the time when the alleged services had been rendered (s.m. pp. 365-366) - but that he kept no records of bills he had made (s.m. pp. 368-369). He never recieved any money for these alleged services even though he marked the bill "paid" (s.m. p. 374). Dr. Robbins admitted that he had previously lied to the District Attorney (s.m. p 385), but told the truth after consulting two lawyers (s.m. p. 391).
Joseph Rubacka, operator of a garbage truck, testified that the appellant asked him, on July 8, 1957, to take some X-rays from the appellant (s.m. pp. 393-395). The appellant paid him a dollar for carting them away (s.m. p. 395).
Charles Martino, who had been employed as a claim examiner by the Allstate Insurance Company, kept the files of all claims against the company which were handled by him (s.m. pp. 399-402). He worked on the file, until it was settled, of Mrs. Wirschning's claim against one of the company's insured (s.m. pp. 406-408). On September 24, 1956 the appellant telephoned Martino and told Martino that he had a $48 medical bill for Mrs. Wirschning (s.m. p. 413). The amount of the medical bill was a material consideration in Martino's offer to settle the claim for $400 (s.m. p. 415). On October 26, 1956 the appellant forwarded to Martino four general releases and some medical bills with a covering letter (s.m. pp. 415-417). After reciept of these documents, Allstate Insurance Company drew a check for $400 to the order of Mrs. Wirschning and appellant (s.m. p. 419). Martino ascertained that the general release was properly acknowledged and relied on the genuineness of the signature on the release before authorizing payment of the settlement (s.m. p. 422). Martino would not have issued the settlement check for $400 if he knew that Dr. Robbin's bill was false (s.m. p. 428).
On cross-examination Martino testified that the report made by the physician for the insurance carrier showed that there were "no objective findings" of the claimed injuries sustained by Mrs. Wirschning (s.m. pp. 448-449), but that Mrs. Wirschning claimed, to this doctor, that she suffered bursitis of the right shoulder and bruises of the right thigh (s.m. p. 456). Moreover, the doctor's report did not indicate that Mrs. Wirschning made any complaint of a wrist injury (s.m. pp. 459-460). As the report made by the physician for the insurance carrier revealed no objective findings, Martino relied more than usually on the doctor's bill submitted by the appellant as to the fact of the claimed injuries (s.m. p. 484).
Russell K. Casey, claim manager for Allstate Insurance Company, had custody and control of all claims filed in the Flushing office during 1956 (s.m. pp. 497-498). The file involving the claim made by Mrs. Wirschning remained in the custody of the Allstate Insurance Company until it was turned over to the District Attorney in 1957 (s.m. p. 499).
George W. Young, the Treasurer of the Island Savings and Loan Association in Hempstead, New York, testified that People's Exhibit 3 [the settlement check] was cashed at his bank on November 14, 1956. He had compared the endorsement of appellant's name with the appellant's signature on file with the bank and it was his opinion that the appellant personally endorsed this check.
George E. Vincent, in charge of the Notary Department in the Nassau County Clerk's Office, testified that the records of his office showed that the appellant was qualified as a Notary Public during the years 1956 and 1957 (s.m. pp. 505-506).
Scott, a detective of the Nassau County Police Department, was
qualified as an expert
in questioned documents (s.m. pp. 507-508). He gave, as his opinion,
that Mrs. Wirschning did not
write the signatures which appeared on either the general release or
the settlement check (s.m. p.
513). Moreover, it was his opinion that Frederick Wirschning had not
written his wife's signature on
either the general release or the endorsment on the settlement check
(s.m. pp. 518-519). The
appellant conceded that Dr. Robbins had not signed the medical bill
for the alleged services rendered
Mrs. Wirschning which was sent to the insurance company (s.m. pp.
Evidence of the defendantís guilt was overwhelming. Mrs. Wirschning testified in effect that she did not sign the general release or endorse the check and didnít authorize anyone to sign her name. She also testified that she didnít receive any money from the defendant in connection with the accident.
Mrs. Wirschningís husband, Frederick, also testified that he did not sign his wifeís name to the general release and he didnít endorse his wifeís name on the check, and he did not authorize the defendant to sign his wifeís name to either of the two instruments.
Detective Russell Scott, the handwriting expert for the Nassau County Police Department, testified that in his opinion, Mrs. Wirschning did not sign either the general release or the settlement check and neither did her husband, Frederick.
Defendant contended that Mrs. Wirschning did, in fact, sign both instruments. He contended generally that he kept the proceeds of the settlement check because of a prior debt in relation to legal services rendered Mrs. Wirschning in a separation action and in the alternative, defendant contended that he still had the money and he had been unable to reach Mrs. Wirschning to give her her share of the proceeds of the check.
The jury, by their verdict, unanimously rejected the contentions of the defendant. The jury, by their verdict, have found as a fact that this defendant did utter the forged general release and the forged check and did, in fact, steal the money belonging to his client, Mrs. Wirschning.
The weight of the evidence was reviewed by the Appellate Division, First Department, and the Court unanimously affirmed the judgment of conviction.
most respectfully submit to this Court that the evidence was legally
a reasonable doubt.
The appellantís brief makes it somewhat difficult for this District Attorney to come squarely to grips with the errors which the defendant claims deprived him of a fair trial. We shall do our best to answer all of the objections as we understand them in connection with this trial.
The first two pages of the appellantís brief would correspond to the statement.
Pages 3 to 5 represents an outline of the opening to the jury by the trial Assistant District Attorney.
Pages 5 through 13 are devoted to a summary of the defendantís opening to the jury.
Pages 13 through 15 make reference to certain pre-trial motions. In one instance, the defendant made a motion in the Supreme Court to inspect the Grand Jury minutes and to dismiss the indictment. The order denying the motion to inspect the Grand Jury minutes is not appealable. (People v. Howell  3 N.Y. 2d 672) The motion to dismiss the indictment was made in the Supreme Court but the indictment had already been transferred by order of the Supreme Court to the County Court so the motion to dismiss the indictment was not properly made in the Supreme Court (Matter of Scheider v.Aulisi  307 N.Y. 376) and so it was properly denied.
Thereafter, the defendant made a motion to dismiss the indictment in the County Court which the Court treated as a demurrer. The demurrer was disallowed. The Court will have a copy of the indictment before it on the appeal and it is readily ascertainable that the indictment adequately identifies the crime so as to permit this defendant to know the offense he is charged with and to enable him to prepare for trial. Nowhere does the defendant demonstrate that any of the pretrial orders in relation to the indictment were improperly decided.
On page 15 the defendant commences a discussion under the heading "Judgment contrary to the weight of evidence". Of course, the weight of evidence is a question for the trial jury and the Appellate Division and is not open for consideration by this Court. (Art. VI, Sec. 7, Const, N.Y.).
Apparently, the first claim of error appears on page 21 if the appellantís brief wherein defendant contends there was an abusive discretion by the trial Judge whereby defendant was prevented from a thorough cross-examination of some of the Peopleís witnesses (Defendantís brief, pp. 21-24). The trial record consists of 991 pages, most of which was taken up by cross-examination. There is absolutely no proof that this defendant was deprived of a fair trial because of any ruling by the trial Judge in relation to cross-examination. Cross-examination in this connection related largely to secondary matters and consequently, the extent of the cross-examination was largely a matter of discretion for the trial Judge. (People v. Ramistella  306 N.Y. 379). In particular, the defendant claims that he was prevented a full opportunity to cross-examine his former client, Elizabeth Wirschning. The evidence shows that Mrs. Wirschningís direct examination ran from pages 33 of the record to 63, whereas the cross-examination ran from pages 63 to 249. It could hardly be said that defendant was prevented from cross-examination.
Defendant then discusses the testimony of Dr. Robbins (Defendantís brief pp. 21-23), with no apparent reason. Nowhere during this discussion does he demonstrate the he was deprived of a fair trial.
Page 23 of the defendantís brief contains a reference to certain motions for a mistrial and as best we can determine, one of the motions is based upon the representation that the trial Judge testified to the good character of Nat Birchall, who was a court stenographer. The fact of the matter is, the trial Judge did not, at any stage of the proceeding, testify as to the good character of Nat Birchall. In fact, the trial Judge did not testify in relation to any fact. Mr. Birchall was the official court reporter for the Nassau County Court with over thirty years of experience in this capacity. He has transcribed, until his retirement, all of the most important criminal cases prosecuted in the Nassau County Court, many of which have been reviewed by this Court. The unwarranted and unsupported attack on the integrity and reputation of Mr. Birchall as revealed by this record was not justifiable.
Defendant also claims that a motion for mistrial should have been granted because of an adjournment at the outset of the trial (Defendantís brief, p.25). The record shows that the trial was adjourned from Thursday, November 6th until Wednesday November 12th (124-127). Other business of the Court made the Friday adjournment necessary and Tuesday was an official holiday, so the trial Judge decided, in his wisdom, to adjourn the case until Wednesday. The adjournment was at the discretion of the trial Judge and there is absolutely no showing that there was an abuse or that the adjournment deprived this defendant of a fair trial.
Defendant once again turns his attack on Nat Birchall, the official court stenographer, and once again contends the Birchallís stenographic notes should not have been received into evidence (Defendantís brief, pp. 26-27). The substance of the defendantís claim (Defendantís brief, pp. 24-27) is that Nat Birchall forged or altered the transcript of the examination of the defendant conducted by the Assistant District Attorney, Edward Robinson. Birchall denied that he altered the minutes and there was absolutely not one scintilla of evidence to controvert this evidence except the unsupported and uncorroborated testimony of the defendant, himself. Birchallís part in the case and in particular, the authenticity or correctness of the transcript of the Question and Answer statement of the defendant was, at best, a question of fact for the jury. The trial jury have resolved this question of fact against the defendant and he has failed to demonstrate that the trial jury were in error.
The next claim of error is that Arthur Nixon, the trial Assistant District Attorney, during he summation told the jury that Birchallís recorded statements of the defendant constitute a confession (Defendantís brief, pp. 27-29). The fact is the District Attorney did not contend that the defendant had confessed his guilt and this is not a fair implication to draw from the record. The two statements of the defendant which were recorded by Birchall contain some very damaging admissions against interest by the defendant although they do not raise to the level of confession.
Defendant also contends that the trial Court committed reversible error for, like the trial Assistant, they treated Birchallís recorded statement of the defendant as a confession, when, in truth and in fact, it was not a confession (Defendantís brief, pp. 28-31). The trial Judge, during the course of instruction, did not specifically label the statements as a confession although he did say (p.949): "With respect to that type of evidence, our law provides that a statement of a defendant, whether in the course of prejudicial proceedings or given to a private person, can be introduced in evidence against him, but that statement alone is not sufficient to warrant a defendantís conviction without additional proof that the crime charged has been committed." Defendantís exceptions and requests (pp. 971-976) do not contain any exception to this direction by the trial Judge and under the circumstances of this case, it certainly could not be said that the trial instruction was prejudicial. (People v. Kingston , 8 N.Y. 2d 384).
Defendant also contends that prejudicial error was committed because the prosecution failed to call Dr. Azzara, who is the family physician of the Wirschnings and who, incidentally, examined Mrs. Wirschning as a result of the accident that led to this prosecution. Defendant also claims that prejudice occurred because the People failed to call Detective Alva Becker and finally, he was deprived of a fair trial because the People failed to call James D. C. Murray, who, according to the defendant, is "an old Nassau County lawyer and friend of Frank Gulotta" (Defendantís brief p. 35) and who, in this case, appeared to represent Dr. Robbins.
these witnesses were readily available to the defendant and if he
wanted to prove
a fact through any one of the three witnesses, he was free to call
them to testify. As the case
developed before the jury, there was no necessity for the People to
call Mr. Murray or Detective Becker
or, for that matter, Dr. Azzara. The claim that the People
represented to the jury that these witnesses
had testified for the People and proved a fact against the defendant
is not borne out by the trial record.
Defendant contends that the instruction was unlawful in that the trial Judge improperly marshaled the evidence. The People contend the trial Judge discussed the evidence and both summarized and marshaled the evidence in a way that was both complete and fair to the accused (951-959).
Defendant also claims the instruction is defective in that the trial Judge failed to instruct the jury on the effect of character evidence. In this connection the defendant contends that he took the stand and testified as to his own good character. It is our understanding of the law that a defendant does not necessarily put his character at issue by testifying (People v. Nuzzo  294 N.Y. 227; People v. Johnston  228 N.Y. 332; People v. Richardson  222 N.Y. 103), and the general rule is that if the defendant wishes to have his character weighed in determining his innocence, he may produce evidence of his good character by calling qualified witnesses who can testify to his good reputation in the community. There was no testimony in the record by the defendant himself and certainly no testimony by others called by the defendant as to his reputation in the community (People v. Van Gaasbeck 189 N.Y. 408). Accordingly, it would seem that the trial Judge made no mistake in omitting to instruct the jury in the effect of character testimony on the outcome of the trial.
In a similar vein, defendant also contends that the trial Court committed prejudicial error in failing to charge as to the bad character of the Peopleís witnesses. The People most respectfully submit the trial record reveals a slanderous attempt by this appellant to destroy by innuendo and suggestion Mrs. Wirschning and everyone else connected with the trial or the investigation. The outrageous charges made by this defendant regarding the reputation or character of the Wirschnings or the public officials are unsupported and without any basis in fact. There is not one scintilla of evidence available to prove the bad character of the Wirschnings or any other witness who testified against the accused.
Defendant also argues generally that error was committed in denying certain of the defendantís requests to charge. The People contend the trial Judge ruled properly in each case. Either the substance of the charge had already been covered or the request was clearly improper.
Finally, the defendant contends that the record of the trial was fraudulently altered by the Court reporter, who, in this instance, is Michael Wowk and that his conviction was brought about by a vicious conspiracy including District Attorney Frank Gulotta and the Chief Assistant, Edward Robinson, both of whom were paid off with a Supreme Court judgeship.
There is no support in the proof for these allegations.
This defendant had a fair trial. The trial Judge gave the accused what amounted to almost unlimited leeway in conducting his trial. His contentions were fairly presented to the jury and the issue of fact has been clearly and fairly resolved against him.
In conclusion, the judgments appealed from should be affirmed.
MANUEL W. LEVINE,
HENRY P. DEVINE,
SCANS OF ORIGINAL
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