
    The People of the State of New York, Respondent, v. Anthony Portelli and Jerome Rosenberg, Appellants.
    Argued January 14, 1965;
    decided March 11, 1965.
    
      William Sonenshine and Gustave H. Newman for Anthony Portelli, appellant.
    I. It was prejudicial error and a violation of due process of law to allow the jury to consider the coerced testimony of the witness Melville as to the alleged confession of appellant Portelli. (Carter v. Texas, 177 U. S. 442; Rogers v. Alabama, 192 U. S. 226; Mooney v. Holohan, 294 U. S. 103; Jackson v. Denno, 378 U. S. 368; People v. Barbato, 254 N. Y. 170; Spano v. New York, 360 U. S. 315; Blackburn v. Alabama, 361 U. S. 199; Payne v. Arkansas, 356 U. S. 560; Warrickshall's Case, 1 Leach’s Cr. L. [4th ed.] 263; Regina v. Mansfield, 14 Cox’s C. C. 639; Commonwealth v. Morey, 1 Gray [Mass.] 461; People v. McMahon, 15 N. Y. 384; People v. Valletutti, 297 N. Y. 226; People v. Jung Hing, 212 N. Y. 393; People v. Lytton, 257 N. Y. 310; Rochin v. California, 342 U. S. 165; McNabb v. United States, 318 U. S. 332; Hysler v. Florida, 315 U. S. 411; People v. Mummiani, 258 N. Y. 394; Malinski v. New York, 324 U. S. 401; Lisenba v. California, 314 U. S. 219; Brown v. Mississippi, 297 U. S. 278; Chambers v. Florida, 309 U. S. 227.) II. The taking of Portelli’s fingerprints, after he was arrested and in custody, for the explicit purpose of using the evidence thereof against him at the trial was a deprivation of his constitutional right to counsel. III. The evidence applicable to appellant Portelli was insufficient to warrant his conviction. IV. It was prejudicial error to deny appellant Portelli’s motion for a mistrial in view of the granting of defendant Dellernia’s motion for a mistrial. V. The nature of the posttrial recantation by Linda Manzione fairly entitled appellant Portelli to a new trial. VI. The failure of the court to direct the District Attorney to provide Portelli’s counsel with statements made by witnesses constituted reversible error. VII. The introduction into evidence of a newspaper picture of defendant Portelli together with a descriptive caption was inflammatory, prejudicial and constituted reversible error. VIII. Defendant was deprived of a fair trial by virtue of the extensive publicity attendant to the case.
    
      Maurice Edelbaum for Jerome Rosenberg, appellant.
    I. There was insufficient evidence of defendant-appellant Rosenberg’s guilt for submission to the jury or for conviction under the rule of reasonable doubt. Rosenberg was denied a fair trial on the issue of identification. II. Defendant-appellant Rosenberg was denied a fair trial by errors in the instructions to the jury which, taken as a whole, were prejudicially unfair and indeed were seemingly designed to militate in favor of a conviction. III. Defendant-appellant Rosenberg was denied a fair trial by reason of the. admission in evidence and the rulings of the trial court relating to the testimony of the witness Richard Melville. (People v. Glen, 173 N. Y. 395; People v. Sexton, 187 N. Y. 495; People ex rel. Hirschberg v. Supreme Court of State of N. Y., 269 N. Y. 392.) IV. Defendant-appellant Rosenberg was denied a fair trial by the court’s submission to the jury of the question of .whether he was guilty of common-law first degree murder with premeditation. There was, absolutely and undisputedly, no factual basis in the record for the submission to the jury of this dread alternative. The submission to the jury of this alternative had an inevitable tendency to prejudice Rosenberg’s chance for acquittal on the primary charge of felony murder. V. It was error to deny the motion for a new trial based upon the recantation of the testimony of the witness Linda Manzione. VI. Defendant-appellant Rosenberg respectfully adopts, insofar as pertinent to his case, the contentions advanced by defendant-appellant Portelli in regard to the denial of the motion for change of venue. VII. Defendant-appellant Rosenberg respectfully adopts, insofar as pertinent to his case, the contentions advanced by defendant-appellant Portelli relating to the prejudice which is claimed to have resulted to Rosenberg (and Portelli) from the refusal of the trial court to grant the motions for mistrial of the other defendants when mistrial was ordered as to defendant Dellernia. VIII. Defendant-appellant Rosenberg was denied his rights under the State and Federal Constitutions and under the statutes of the State to be tried by a fair and impartial jury, and to have a fair due process opportunity to receive a jury recommendation of mercy upon a conviction of felony murder;- The trial jury in this case was selected by an unconstitutional and illegal procedure aimed at excluding persons who might have a truly objective attitude about a recommendation of mercy and, specifically, to exclude persons of the same racial background as the respective defendants.
    
      Aaron E. Koota, District Attorney (Aaron Nussbaum of counsel), for respondent.
    I. The guilt of each appellant was established beyond a reasonable doubt. (People v. Razezicz, 206 N. Y. 249; People v. Harris, 306 N. Y. 345; People v. Eckert, 2 N Y 2d 126; People v. Deitsch, 237 N. Y. 300; People v. Reddy, 261 N. Y. 479.) II. The due process requirement of full and fair disclosure of all the facts pertaining to a witness’ testimony has been fully satisfied at bar. (Mooney v. Holohan, 294 U. S. 103; Pyle v. Kansas, 317 U. S. 213; Napue v. Illinois, 360 U. S. 264; People v. Savvides, 1 N Y 2d 554; People v. Zimmerman, 10 N Y 2d 430; People v. Mangi, 10 N Y 2d 86; People v. Robertson, 12 N Y 2d 355; People v. Fazio, 14 N Y 2d 716; People v. Lane, 10 N Y 2d 347.) III. Appellant’s right against self incrimination had not been violated. (Blackburn v. Alabama, 361 U. S. 199; Brown v. Mississippi, 297 U. S. 278.) IV. Appellant is without legal standing. (On Lee v. United States, 343 U. S. 747; People v. Gallo, 12 N Y 2d 12; People v. Kelly, 12 N Y 2d 248; People v. Coffey, 11 N Y 2d 142; People v. O'Neill, 11 N Y 2d 148; People v. Friola, 11 N Y 2d 157; Jones v. United States, 362 U. S. 257; Ker v. California, 374 U. S. 23.) V. The talcing of Portelli’s fingerprints violated no constitutional rights of this appellant. VI. The granting of a mistrial as to codefendant Dellernia did not in any way prejudice appellants’ rights to a fair trial. VII. No error was committed in the order denying a motion for a new trial. VIII. No error was committed regarding the court’s direction to defense counsel to subpoena any statement of the People’s witnesses from the Police Department. IX. The motion for a change of venue was properly denied in the sound judicial discretion of the court below. X. The police sketch of Portelli was properly received into evidence. XI. There was no error in the court’s instructions to the jury. XII. Appellants received a fair and impartial trial. XIII. The court’s charge of the degrees of homicide as requested by the defense was in accord with the evidence. Appellants were fairly and properly convicted of felony murder. XIV. Appellants were convicted by a fair and impartial jury chosen by the standards of due process of law.
   Per Curiam.

The proof adduced upon the trial is more than sufficient to support the jury’s verdict that the defendants are guilty of felony murder and, since we find no errors of law, we would have no occasion to write were it not for the testimony of police brutality which the record before us contains.

On May 18, 1962 two police officers, Detectives Luke Fallon and John Finnegan, were shot and killed in Brooklyn during the course of a holdup when they sought to apprehend the robbers. Upon the trial, held in January of 1.963, one of the principal witnesses against the defendant Portelli was a small-time criminal by the name of Richard Melville. Called by the People, he testified that the defendant Portelli came to his home (with two other men) on May 20 and completely implicated himself in the homicides, describing how he participated in the robbery, how he shot the police officers and how he managed to get away. On cross-examination, Melville stated that later the same day several detectives took him to a police station for questioning and that, although he first denied knowing Portelli or anything about the crime, he finally told the police the story which he gave in court. But he declared that he did so only after he had been held in custody overnight and severely beaten and tortured and that he would not have talked to the police had they not coerced him in this manner. However, he insisted from the witness stand that the pretrial statement which he made to the police, as well as his testimony, implicating Portelli was completely true.

It is the defendants’ contention that the witness’ testimony should have been stricken once it appeared that his statement, although given some eight months before the trial, had been coerced by the police.

Although we deprecate official lawlessness with all the emphasis at our command, we do not believe that such conduct warrants a holding that Melville’s testimony should have been stricken and excluded from the record. Testimony given from the witness stand by a witness who was, some eight months earlier, compelled by police brutality to give a statement implicating a defendant stands on a footing very different from an out-of-court confession coerced from a defendant and sought to be used against him on the trial. While the latter will be excluded as a matter of law, the testimony of a witness who, although previously forced to make a pretrial statement, asserts that his testimony at the trial is truthful is for the consideration and appraisal of the jury. (See 3 Wigmore, Evidence [3d ed., 1940], § 815, pp. 230-231.) The requirements of law are met if the fact of such earlier coercion or other official lawlessness is disclosed to the jurors so that they may pass upon the witness ’ veracity and credibility and determine whether the testimony given in open court is truthful and worthy of consideration.

In reaching the conclusion we do, we cannot condemn too strongly the shocking and reprehensible conduct on the part of the police about which Melville testified and we simply note that an appropriate forum is available for these charges of misconduct.

The judgments of conviction should be affirmed.

Chief Judge Desmond and Judges Dye, Fold, Van Vooehis, Burke, Scileppi and Bergan concur.

Judgments of conviction affirmed.  