
    The People of the State of New York, Respondent, v. Gabriel Genovese, Appellant.
    Argued November 27, 1961;
    decided January 18, 1962.
    
      
      Vernon C. Rossner and Edward H. Levine for appellant.
    Appellant was denied due process of law and his constitutional right to a fair trial under our State and Federal Constitutions. (People v. Shapiro, 308 N. Y. 453; People v. Levan, 295 N. Y. 26; People v. Malkin, 250 N. Y. 185; People v. Marendi, 213 N. Y. 600; People v. Becker, 210 N. Y. 274; People v. Wolf, 183 N. Y. 464; People v. Dovico, 6 A D 2d 457; People v. Swanson, 278 App. Div. 846; People v. Betts, 272 App. Div. 737, 297 N. Y. 1000; People v. Kepner, 267 App. Div. 838; People v. Herman, 255 App. Div. 314; People v. Rafkind, 254 App. Div. 742; People v. De Martino, 252 App. Div. 476; People v. Evans, 224 App. Div. 415; People v. MeLaughlin, 150 N. Y. 365; Marshall v. 
      United States, 360 U. S. 310; United States v. Montgomery, 42 F. 2d 254; Coppedge v. United States, 272 F. 2d 504.)
    
      Frank S. Hogan, District Attorney (Robert O. Lehrman and H. Richard Uviller of counsel), for respondent.
    Defendant’s attack upon the impartiality of the jury is unfounded. (People v. Lubin, 190 App. Div. 339; People v. Gaffney, 14 Abb. Prac. [N. S.] 36, 50 N. Y. 416; People v. Brindell, 194 App. Div. 776; Marshall v. United States, 360 U. S. 310; Coppedge v. United States, 272 F. 2d 504; United States v. Montgomery, 42 F. 2d 254.)
   Fuld, J.

The record leaves not the slightest doubt as to the defendant Genovese’s guilt of the crime of acting as a fight manager without having procured the required license (State Athletic Commission Law [L. 1920, ch. 912, as amd.], §§ 7, 33, as amd. and renum. by L. 1952, ch. 666) and, were it not for certain newspaper publicity attending the opening of the trial, we would affirm the judgment without comment. After a jury had been selected to try the defendant, several articles appeared in New York City dailies concerning him which revealed a callous disregard for fair trial requirements, and the question which we must decide is whether the publication of these items, 2 of which were read by some of the jurors, influenced them and prejudiced the defendant. If they did, then, we would reverse even though the defendant’s guilt is clearly established.

Defense counsel brought the articles to the attention of the trial judge before any evidence had been offered and, on the strength of their contents, moved for a mistrial. The judge denied the motion, but stated that he would interrogate the jurors to ascertain whether any of them had read the newspaper accounts and, if they had, whether they had been influenced by them.

The ensuing examination, in which both the prosecution and the defense participated, revealed that of the 4 articles which had been published only 2 had been read by any of the jurors and that of the regular jurors and the 2 alternates 6 had not read either of them. It also appeared, however, that the other 8 jurors had read all or part of one of the articles, though with varying degrees of care and attention. Of these 8, the court excused 2 when it appeared that what they had read might affect their thinking and influence their verdict. **The remaining 6 jurors all declared, and unequivocally, that they had not been influenced by anything they had read and that they were able to arrive at a fair and impartial verdict. Although the defendant renewed his motion for a mistrial after the examination had been concluded, he noted a specific objection, in the course of the voir dire, only to the continued presence of Juror No. 10 on the jury.

No one will question the necessity for maintaining the inviolability of jury trials and our duty to assure them in the administration of justice. This, quite obviously, may be achieved only by having disinterested jurors whose judgments are based solely upon a consideration of competent proof received in open court. (See, e.g., Irvin v. Dowd, 366 U. S. 717; Matter of Murchison, 349 U. S. 133, 136; People v. Sprague, 217 N. Y. 373, 380; People v. McLaughlin, 150 N. Y. 365, 375.) Unfortunately, our problem is made more difficult in a society where crime and corruption are exploited by the press, and jurors are likely to be exposed and influenced, consciously or unconsciously, by the emotional impact of the exploitation. (See, generally, Note, Community Hostility and The Right to an Impartial Jury, 60 Col. L. Rev. 349; Note, Free Press; Fair Trial—Rights in Collision, 34 N. Y. U. L. Rev. 1278.)

This does not mean, though, that a juror is to be held partial or prejudiced and disqualified merely because he has read accounts in newspapers which reflect, even seriously, upon the defendant and his conduct. In recognition of the fact that few persons enter the jury box, at least for the trial of a well-publicized case, without knowing something about it, it has long-been the rule in this State that even one who has formed an opinion or impression of the defendant’s guilt or innocence may be selected to sit if he swears that he believes that it ‘ ‘ will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied, that he does not entertain such a present opinion or impression as would influence his verdict.” (Code Crim. Pro., § 376, subd. 2; see People v. Wolter, 203 N. Y. 484, 491; People v. McGonegal, 136 N. Y. 62, 66 et seq.; People v. Lubin, 190 App. Div. 339, 340, affd. 229 N. Y. 601; see, also, Irvin v. Dowd, 366 U. S. 717, 722-723, supra; Reynolds v. United States, 98 U. S. 144, 155-156; Commonwealth v. McGrew, 375 Pa. 518, 525-526; O’Mara v. Commonwealth, 75 Pa. 424, 427-428; Klinedinst v. State, 159 Tex. Cr. Rep. 510, 513-514, cert. den. 347 U. S. 930.)

The Code provision is clear and we have frequently had occasion to consider it. The McGonegal case (136 N. Y. 62, supra) reviews its history and the Wolter case (203 N. Y. 484, supra) illustrates its application. Indeed, the need for a rule such as that provided by our statute is indicated by what the Supreme Court stated in Irvin v. Dowd (366 U. S. 717, 722-723, supra):

“It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. [Cases cited.] ” (Emphasis supplied.)

In the present case, as is apparent from the above analysis of the examination of the jurors, 2 were excused, 6 had not read the news articles and the remaining 6 who had read them declared that they could arrive at an impartial verdict based solely on the evidence received in court. The trial judge is vested with a broad discretion in ruling on the issue of prejudice in such a situation and, having in mind all of the relevant factors, it is clear that he did not abuse that discretion when he denied the defendant’s motion for a mistrial. (See People v. Lubin, 229 N. Y. 601, affg. 190 App. Div. 339, supra; Reynolds v. United States, 98 U. S. 144, 156, supra; People v. Malmenato, 14 Ill, 2d 52, 62-65; State v. Cunningham, 173 Ore. 25, 58-74; Ann., 31 A. L. R. 2d 417; cf. Marshall v. United States, 360 U. S. 310, 312.) In reaching this conclusion, it is of some significance that the trial judge informed the jurors that they were to avoid any newspaper accounts of the trial and that they were to base their verdict solely on the evidence.

Although there is no need to discuss any particular juror, we add a few words concerning Juror No. 10, since the defendant voiced a specific objection to his continued sitting. He had read only one of the articles, was not sure which it was and remembered very little about it. What is of consequence is that he said that he understood that the account was simply a reporter’s product and that he was to consider nothing except the evidence presented and, in addition, he declared, without reservation, that what he had read would not influence him in any way.

The present case bears no resemblance to Irvin v. Dowd (366 U. S. 717, supra), upon which the defendant relies in urging a denial of Federal, as well as State, due process (U. S. Const., 14th Amdt.; N. Y. Const, art. I, § 6). Six murders had been committed in the neighborhood of Evansville, Indiana, between December, 1954 and March, 1955. Shortly after Irvin’s arrest, the law enforcement officials issued press releases, which were highly publicized, stating that Irvin had confessed to all six of the murders. He was indicted for the murder of one victim and, upon the trial, defense counsel unsuccessfully sought a change of venue from the adjoining county to which the court had removed the trial. It appeared (1) that an exceedingly high percentage of the panel had been excused for cause on the ground that they had fixed opinions as to the defendant’s guilt; (2) that the “minds [of the jurors] were saturated by press and radio for months preceding [the trial] by matter designed to establish the guilt of the accused ” (366 U. S., at p. 730, per Frankfurter, J., concurring); and (3) that 8 of the 12 jurors selected to serve had acknowledged that they believed that the defendant was guilty—though, at the same time stating that they could render an impartial verdict. The Supreme Court, reversing the conviction, held that Irvin was denied the fair trial to which he was entitled under the Due Process Clause. “No doubt”, wrote the court (366 U. S., at p. 728), “ each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one’s fellows is often its father. Where so many, so many times, admitted prejudice, such a statement of impartiality can he given little weight. ’ ’ (Emphasis supplied.)

The situation presented by Irvin v. Dowd is, as already noted, thoroughly different from the one we are now considering. Here, there were 4 articles, only 2 of which had been read, and with varying degrees of attention, by 6 jurors, whereas in Irvin the jurors’ minds had been “ saturated * * * for months preceding” the trial by newspaper and radio reports to the effect that the accused had committed five murders in addition to the one for which he was tried.

Perhaps a day will come when either the courts will find a way to achieve a real balance between “ fair trial ” and “ free press ” or newspaper publishers will assume responsibility in the matter and see to it that their employees refrain from publishing accounts reflecting upon a defendant whose trial is imminent or actually in progress. (See Mueller, Problems Posed by Publicity to Crime and Criminal Proceedings, 110 IT. of Pa. L. Rev. 1, 10-12, 22-26.) Until such time, however, we must assess each case on its own facts. The ultimate and vital question for decision is whether the jurors were capable of rendering an impartial verdict and of deciding the case solely on the proof received during the trial. On the record before us, we are convinced that the trial judge was justified in concluding that no juror was influenced against the defendant by any of the newspaper items and that each juror was able to render a fair and objective verdict according to the evidence. There is, therefore, no warrant for the defendant’s claim of prejudice.

The judgment appealed from should be affirmed.

Chief Judge Desmond (dissenting).

Selection and swearing in of this jury was completed on May 19, 1959 and the trial was adjourned until May 25. Meanwhile there appeared variously in 3 different New York newspapers 4 articles and column items making these statements:

That defendant was a cousin of Gabriel Genovese, “ convicted narcotics boss, and reportedly chief lieutenant of Frankie Garbo, the ‘ underworld boxing commissioner ’ who is under indictment and being sought.”
That defendant was barber by royal appointment to Frankie Garbo ”.
That there were 18 charges against defendant but that he could be indicted on 2 only since the Statute of Limitations had run as to the others.
That the manager of a certain boxer had stated and was prepared to testify that his fighter could not get bouts until he ‘ ‘ cut in ’ ’ defendant; that the fighter got 18 engagements when he did so “ cut in ” defendant and that he got no more when he “ cut out ” defendant.

These inflammatory writings were read by all but 6 of the 14 jurors (12 plus 2 alternates). Of the 8 who did read them, 2 were excused when they admitted that “ some impression ” had been left in their minds and that their verdicts might be interfered with. The other 6, on questioning by the court, asserted that they had not been influenced by their reading and that they could despite the reading arrive at a fair verdict. A motion by the defense for a mistrial on this ground was denied and the trial proceeded before a jury including 6 members who recalled seeing the articles, or some of them.

The prosecutor’s brief says that “ the four newspaper accounts cannot be categorized as inherently harmful to the defendant.” This remarkable statement expresses the idea that jurors would not be influenced against the defendant by disclosures that he was a cousin of a convicted narcotics boss and chief lieutenant of an underworld boxing commissioner who had been indicted and was a fugitive, and that there were 18 charges against the defendant of which, because of technicalities, 2 only could be brought to trial. This is a new, strange and dangerous doctrine quite at war with our good old rule that the right of every person accused of crime to have a fair and impartial trial before an unbiased court and an unprejudiced jury, is a fundamental principle of criminal jurisprudence ” (People v. McLaughlin, 150 N. Y. 365, 375). Jurors who would not be influenced by accusations such as those made in the newspapers against this defendant would either be of a sort whose minds for some reason do not react at all to what they read, or those whose existing’ prejudices had already hardened to a point where nothing could worsen them.

In his concurring opinion of last June in Irvin v. Dowd (366 U. S. 717, 729-730) Justice Frankfurter wrote this:

“ One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure. These rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him. How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding by matter designed to establish the guilt of the accused. A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception. ’ ’

If we change the second last sentence of that quotation so as to make it speak of saturation of jurors’ minds by the press after they have been sworn as jurors, the applicability of the quotation is perfect. Elsewhere in the Irvin opinion Justice Frankfurter spoke of the difficulty or impossibility of getting an unaffected jury when pressures have been exerted before trial and during the trial. Earlier, in Marshall v. United States (360 U. S. 310, 312-313), the Supreme Court had said as to damaging information about a defendant which cannot be put into evidence: ‘ ‘ The prejudice to the defendant is almost certain to be as great when that evidence reaches the jury through news accounts as when it is a part of the prosecution’s evidence.”

Exercising its supervisory powers over criminal cases tried in the Federal courts, the Supreme Court in Marshall {supra) reversed the conviction and granted a new trial because during the trial there had come before “ a substantial number of jurors ” information not nearly as destructive as that before us in this record. The court held that a reversal was required in the interests of justice even though all of the jurors had told the Trial Judge that they would not be influenced by the news articles and that they would decide the case on the record evidence only and felt no prejudice against defendant as a result of reading the articles. Our duty to our State and to our people requires us to hold to standards no lower than those supported in Irvin and Marshall. It is not that we are trying to protect this particular defendant or to punish or censor journalists. We are defending an institution fundamental to our society and our court system.

Under our constitutional free press guarantees it is probably impossible to prevent or punish these newspaper assaults on the minds of jurors. I refuse to concede, however, that the courts of this State are incapable of providing 12 jurors who have not been so exposed or that we must be satisfied by the incredible statements of jurors that they can read such stuff and then wipe it off their minds.

The judgment should be reversed and a new trial ordered.

Judges Froessel, Van Voorhis, Burke and Foster concur with Judge Fuld; Chief Judge Desmond dissents in an opinion in which Judge Dye concurs.

Judgment affirmed. 
      
      . One story in particular, written by a widely read columnist, strongly reflects the latter’s opinion that the defendant was guilty not only of the crimes charged against him, but also that he was an underworld character who, with others, had engaged in a criminal conspiracy to control the fight game.
     
      
      . Juror No. 7 stated that the articles left “ some impression ” on him adverse to the defendant, and No. 2 admitted that they would “ interfere * 9 * a little bit” with his being a fair and impartial juror — and both were excused.
     
      
      
        . Since “ prejudice ” is a question of degree and its existence necessarily turns upon the particular facts of each case, nothing is to be gained from a discussion of Marshall v. United States (360 U. S. 310, supra) or other decisions (People v. Hryciuk, 5 Ill. 2d 176; State v. Bowden, 62 N. J. Super. 339, 360-363; State v. Claypool, 135 Wash. 295, 297-299) in which the newspaper accounts were held so grossly prejudicial as to render futile the juror’s assertion that he would not he influenced by what he had read and could and would decide the case solely on the basis of the evidence adduced.
     
      
      . The defendant’s present claim that Juror No. 10 had declared that, in reaching a verdict, he would compare the trial testimony with the news items is not borne out by the record; as noted above, he stated that he would consider nothing but the evidence received in court.
     