15 VARIN ERIS HENAN» BAHN ASHMAN o ss Sipe wens acen shine
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nICAN COMM Ittee UN ATTICA
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S-be August 27, 1981
Derothy J. Samuels Cost 2
Executive Director /$s ”
New York Civil Liberties Union —
84 5th Avenue a
New York, N.Y. 10011
Dear Ms. Samuels:
I am enclosing a statement we have issued in response to your
letter to Mayor Koch concerning the proposed use of Downing Sta-
dium by the South African nationa! rugby team, the Springboks.
We believe you have made a tragic mistake in this matter in creat-
ing a false "free speach" issue, when the rea! issue is the orac-
tice of racia! discrimination. We believe there is no right for
a team which has been organized strictly on the basis of race.
excluding the vast majority of South Africans, to use a public
stadium.
The Springbok team is chosen by race, not merit. It is hardly
accidenta’ that out of 30 players, 29 are white and 1 is "“eolourec. "
A former mamber of the Springboks, "Cheeky" Watson, left the team
to protest its racist character.
At least 99% of all sporting events in South Africa are strickt y
segregated. Team mambers must al] belong to the same racial group.
Spectators must also be segregated. on august 2, while the Spring-
boks were playing in New Zealand, a srominent "coloured" ragby
player, Gavin Van Eyk, was arrested in Port Elivabett, for try-
ing to attend a match in a "black" area. This is the reality of
sports in South Africa, and this is the issue in the Springboks
tour.
If the Mets or the Yankees vracticed the same type of racial
discrimination I doubt that the NYCLU would dafend the:r “Fight”
to lease a publicly owned stadium. { am sure that the NYCLU wou Ic
not consider this a free speech issue,
In your letter to Mayor Koch you cal’ for the city "to follow
neutra’l criteria in granting the use of City proverty, aot to im-
ec pose a political litmus test." We believe the consistent and lang
standing practice of racial! discrimination is such a "neutra!"
Frecutive Director: (.corge M Houser/Associate Director: Pau! 1is>/Research Director fennite: Davis Literature: Richar th nipl ie
AR perrevinanyey oo
*
criteria. We do not urge the exclusion of the Springboks for
their ideas, but for their deeds. If other countries can ba
shown to practice the same kind of discrimination, let us exc luce
these teams as well, regardless of their political ideology.
Over the years we have had great respect for the work of the
NYCLU. We hope that in the light of this information you will
reconsider your unfortunate stand on the Springbok tour. I would
be happy to meet with you to discuss this further.
oad Sincerely,
Pas! | ae LX...
William Booth,
president,
American Cpmnittee on Africa
C)
WB ‘br
American Committee On Africa
198 Broadway * New York, N.Y. 10038 © Telephone: (212) 962-1210
NEWS
for further information
Contact: William obinson (21259621710
FREEDOM OF SPEECH Of KR. CISM IN SPORT
New York, N.Y. dugust 27, 1981.,., “illiom H. Booth, president of the /merican
Committee on ‘frica (.CO.>), today issued the following statement in response
to a letter from the New York Civil Liberties Union (NYCLU’ on the issue of
the South African rugby team playing in New York,
The NYCLU in a letter from their executive director, Dorothy Samuels,
‘ugust 11, opposed liayor Edward “och's decision to cancel the permit for
the rugby team to play on a public facility, Downing stadium in New York City.
On .ugust 21, Mayor Erasmus Corning of . lbany issued a statement supporting
his decision to allow the South African rugby team use of Bleeker Stadium in
-lbany, citing “constitutional guarantees,,. to espouse an unpopular cause,!'
The text of the statement follows:
“The NYCLU is unfortunately, dead wrong on the issue of the South © frican
rugby team playing in ilew York,
The heart of the issue, quite simply, is racial discrvimination, Lacial dis-
crimination is enshrined in South ‘frican law, and is official government policy
in sport, The Springbok rugby team was not selected on merit, but on a blatantly
racist basis, {tf such a team were selected on the same basis in the U,S,, the
NYCLU would be among the first to take the issue to court,
{t is the practice of racial discrimination, not just the abhorrent policies
of apartheid, that is being opposed,
The mejority of athletes in South ..fricz, who scek to compete on a nonrocial
basis, are denied the right to do so, Those publicly supporting nonracial sport
in South . frica have been harassed, banned and jailed, They have no legal
recourse for ending discrimination such as the U,S, constitution,
it is decause of South ‘frica's legalized racism in sport, and in support of
the rights of South ..frican athletes to compete without discrimination, that
South frica has been expelled from virtually 11 amateur competition by inter-
national sporting bodies,
Would the NYCLU have opposed anyone seeking to stop Hitler from hosting the
1936 Olympics because of blatent religious discriminetion? 1 would certainly
hope not,
Competiion free from vacial discrimination is a cardinal principle of
Olympic competition, ‘nd in the United States, it is the law,
The NYCLU supports legislation which bars government officials from awarding
contracts to corporations which practice racial discrimination, How then can one
argue that public officials have a constitutional obligation to provide facilities
to a team formed on the basis of racial discrimination? Indeed, there can be no
more commendable action by a public official than to refuse to host 2 team
selected on a racist basis,
{ hope the HYCLU will reconsider their position,"
more, cy
ovr
x
4
“illiem Booth, presidmt of the ACOA since 1972, is justice of the
New York State Supreme Court and former chairman of the New York City
Human .ighte Commission, He chairs the national Stop the Aparhcied Rugby
Tour (8°"T) coalition of over eighty groups opposed to the planned tour
of the Springbok rugby team in Chicago, Albany, and New York City on
September 19, 22, and 26, respectivley,
S:RT has issud in New York a joint public-tion ith the South - frican
Nonracial Olympic Committee which details the practice of discrimination
in South \frican sport, which is enclosed,
EWAN inners Ai inenase rete
Notice of Claim against a Public A Purauant to §50
(a 4 shi ote Municipal Law: Not fos an the Gourtan Claims: 477. JULIUS BLUMOERG. Inc.. Law Bian Pussntie” A.
In the Matter of the Claim of
COUNTY OF ALBANY
SIR(s): PLEASE TAKE NOTICE that the claimant herein hereby make claim and demand against COUNTY OF
ALBANY as follows:
we
1, The name and post-office address of each claimant and of his att Ore
i and Racism and its members,
Claimant: Capiteél District Coalition Aga st- Ape
Box 3002. , Albany, New York \FR6PRO
Attorney: Walter & Thayer, 69 Columbia Stree a + New York 12207
pea“
Fourth and Fou senth Amendments of United
is of New York State Constitution, and
2. The nature of the claim: Violation of First, |
States Constitution, and of corresponding]!
libel and slanded,. Y j y
i Hl if
VY) WA
J. The time when, the place where and the manner in wnierl cd lala arose: Claim arose on September 22, 1981
> Or about 3:00 a.m. at 400 Central Avenue, Apt. 7K, and thereafter when documents, .
4. The items of damage or injuries claimed are: Mental and emotional distress and anxiety by members
of Claimant coalition, fear of harassment and intimidation, econanic repraisals,
ee by ai.
The undersigned therefore present this claim and demand $
Jor adjustment and payment, and notify
you that unless the same is adjusted and paid within the time provided by law from the date of its presentation to you, it is the
intention of the undersigned to commence an action thereon.
Dated:
December //) , 1981
Mn
THETA EMORRENEH YH HOSEN EOE RME NEU he hdd CNEL Od eer eubinweneehcsenene
Attorney(s) for Clai
Office and Post Office Address,
WALTER & THAYER
69 Columbia Street
Albany, New York 12207
(518) 462-6753
eee <weetrreaten were aren nestnnena nn eee
State of New York, County of Albany
_ ANITA THAYER
being duly sworn, deposes and says that deponentis attorney
for we claimant <n the within action; that she has read the
foregoing Notice of Claim and knows the contents thereof ;
that the same is true to deponent’s own knowledge, except
as to the matters therein stated to be alleged on informa-
tion and belief, and that as to those matters deponent
believes it to. be true.
Th,
Sworn to before me, this / rj
day of December, 1981
EL
Hat 'r
‘ fe
Vom
Wishes we md >F
WEY Show, Bn wei dls
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In the Matter of the Claim of
‘Notice of Claim Agatust the
mr
vows
CORPORATE VERIFICATION
State of bey 3 ork, County of Albany $3.2
haye
being duly Akaike deen and “that deponent is the
Attorney: f Capital Dist. . Ag. Aparthei
corporate claimant named in the within action; that depo-
nent has read the foregoing Notice of Claim and knows
the contents thereof, and the same is true to depo-
nent's own knowledge, except as to the matters therein
stated to be alleged upon information and belief, and as
to those matters deponent believes it to be true.
This verification is made by deponent because so’”
~ claimant is aft ABSOCIaLe / @na deponer.
an officer thereof, to wit its attorn
The grounds of deponent’s belief us tu all matters not
stated upon deponent’s knowledge are as follows:
itn th
Sworn to before me, this jm i ewes
day of
December, 1948
a
res;
sa?
Attorney(s) for Claimant(s)
Office and Post Office Address
COUNTY OF ALBANY
69 Columbia Street
Albany, New York 12207
(518) 462-6753
WALTER & THAYER
Ba oP a |
BO Le GHAN GH ML, ap Te EWAN, VOC. POO
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hens Capi . WP we ee ae BW PEG 9% i HO Eee ee
COURT ae
ALBANY Index No.
THE PEOPLE OF THE STATE OF NEW YORK
EX REL. VERA MICHELSON,
Petitioner
against . WRIT OF HABEAS CORPUS
GEORGE INFANTE, Sheriff of Albany County
Respondent
(ido
B Che Peuple of the State of Nem York
f Dhetat AL ¥
upon the relation of VERA MICHELSON
7O GEORGE INFANTE, Sheriff of Albany County, State of New York Greeting:
WE COMMAND YOU, That you have and produce the body of
VERA MICHELSON
by you imprisoned and detained, as it is said, together with your full return to this writ and the time and cause
of such imprisonment and detention, by whatsoever name the said person shall be called or charged before
Hon, JOSEPH HARRIS
one of the Judges of the County Courtof the State of New York
county of Albany at Special Term Part I
in the courthouse thereof on the 24th day ofSeptember 24 198) at 9;30A M.
to do and receive what shall then and there be considered concerning the said person and have you then and
there this writ,
WITNESS, Hon. EDWARD S. CONWAY one of the Justices of our said Court
the 24th dayof September 22 19 8) .
Clerk &
A ANITA, a RAE Panes
oO doe ite Rest Bt PR a ie
196 Mount Hope Drive
Albany, New York 12202
The within writ is hereby allowed this 24th day of September 19 9).
he S SAuad Conne ae
3. S, eé
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T 272-—Petition for Writ of Habeas Corpus. COPYRIGHT 1074 BY JULIUS BLUMBERG, ING. LAW BLANK PUBLISHERS
80 ExcHance 1. at BRoaowar, N.Y. C. 10004
SUPREME COURT
COUNTY OF ALBANY Index No.
THE PEOPLE OF THE STATE OF NEW YORK
EX REL. VERA MICHELSON,
Petitioner PETITION FOR WRIT OF
against HABEAS CORPUS
GEORGE INFANTE, Sheriff of Albany County,
Respondent
To: Honorable Edward S, Conway, Justice of the Supreme Court
The petitionof VERA MICHELSON, by her attorney, ANITA THAYER shows that:
1. This petition is made on behalf of VERA MICHELSON
who is detained by Albany County Sheriff George Infante
at Albany County Jail
2. The cause or pretense of the detention, according to the best knowledge and belief of the petitioner is,
A mandate from Albany County Jail attached hereto as "Exhibit A"
and "B",
3, That a court or judge of the United States does not have exclusive jurisdiction to order the release of said
person.
4. This writ is sought because of an illegal detention, the nature of the illegality being
See attached,
5. An appeal has not been taken from the order by virtue of which said person is detained. The
result of said appeal is
No previous application has been made for this relief
Wherefore your petitioner prays that a writ of habeas corpus issue, directed to the respondent, requiring the
respondent to produce the said petitioner, VERA MICHELSON before a justice of this
court at Special Term, Part ‘1 thereofon September 24, 198r\at 9:30 a.m,
Dated: September 22, 1981 | — th
__- Petitioner—print name beneath a
VERA MICHELSON
Mb Mndy s THAR Boner
Office and Post Office Address
WALTER AND THAYER
196 Mt. Hope Drive
Albany, New York 12202
AUPE INLET RN ONAN COP ediioil RS oi AVANT TLL NES ar Oe RY
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STATE OF NEW YORK _
COUNTY OF ALBANY re
a bo ne for ANITA THAYER , being duly sworn, deposes and says that
She is the pe teaoe Yn the within proceeding; that S he has read the foregoing petition and knows the contents thereof :
that the same is true to h OY own knowledge, except as to the matters therein stated to be alleged on information and
belief, and that as to those matters ‘She believes it to be true.
Sworn to before me, this = 2 4 th
day of September w 81
Mv Commission Expires Mrach 30, 19 64>-—
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| Attachment for Petition for Writ of Habeas Corpus
MICHELSON V. INFANTE
4,
a. On the morning of 9/22/81 petitioner was arrested in her
home and subesquently charged with violating the following
laws: (1) Penal Law § 221.05, a violation [Possession of
a quantity of marijuana]; (2) Penal Law § 270.00, a Class
B misdemeanor [Possession of fire works].
b. On or about 9:30 a.m. on the 22nd day of September 1981
petitioner was arraigned before the Honorable Thomas Ww.
Keegan in Albany Police Court on the charges described above.
c. Bail was not set and petitioner was remanded to the
Albany County Jail.
ad. § 530.20 of the New York State Criminal Procedure Law
requires that "when the defendant is charged, by information,
prosecutor's information, or misdemeanor complaint, with ;
an Offense or offenses less than felony grade only, the
court must order recognizance or bail." (emphasis added)
eerie rpms sepa PAR an NR aie vase denne nin
@e. Petitioner's incarceration is unlawful because she was
not accorded recognizance or bail as was her Statutory right.
f. Furthermore, the court's discretion should require
petitioner to be released on her own recognizance as the
charges against her are very minor, there is no previous
arrest record, she is gainfully employed, and has been
a resident of the Capital District area for 15 years.
POLICE COURT
CITY OF ALBANY
Complaint, Informatio: for Misdemeanar.
or Violation
vt
Tnechok is a police officer
Joan
Street in the City of Albany
‘People of the State of New York against !'ichacl R, YOU.G, Vora MIUiel.c » “aron sOTIS
at the City of Albany in the County aforesaid on the 22nd day of
| Septecber 19 &1 , did knowingly violate subdivision of
section <21.05 of the penal law of the State of New York, in that hedid I-nowin ly and unlaw-
c5.. 2t 400 Central
(caily possess marijuane. IC dIT: On 9/22/51 at abcut 332 ivenue
(in apartment 7K while the officers were oveeutine a csareh imrrart the csfendants
“ere four: to am uncer their contro! cive ol.stic con
pieiner: esc containin, a quantity of marijuana,
/ THE SOURCES OF DEPONENT’S INFORMATION AND THE GROUNDS FOR HIS BELIEF ARE ORAL ST ATEMENTS MADE TO
i DEPONENT BY THE DEFENDANT THAT HE COMMITTED THE FOREGOING ACTS AT THE TIME, PLACE AND IN THE
‘ MANNER ABOVE SET FORTH; AND/OR FROM INFORMATION OBTAINED FROM WITNESSES WHOSE DEPOSITIONS ARE
=
i
|
helene 5 FALSE STATEMENTS CONTAINED HEREIN ARE
| Sworn to methis = 22nd PUNISHABLE AS A CLASS A MISDEMEANOR
| PURSUANT TO SECTION 216.45 OF THE PENAL
dayof September 19 81 QF THE TE OF NEW YORK.
= | 3
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POLICE COURT
QUEL CITY OF ALBANY i,
People of the State of New York against
aaron +5 IS
3 lee St., Somerville Imss,
Michael YCULG
611 Ccean .ve., Brooklyn, lew York
Vera 1100 (L330:
4.0 untral ive Ti, Albany lew York
Address
violate subdivision
The defendant, immediately on being brought before
the Court, was informed of the charge against him and
NOT GUILTY.
Bail fixed in the sum of Wer ane 2
the sum of $ .. cash deposit.
In default of Bail defendant committed.
Eag., Atty.
‘te ee ae:
ISa\retAtodes ian Pmt cee
wbancrnmperen nin tty
RRR RAAB cepa yas
POLICE COURT Complaint, Information for Misdemeanor.
v« ti
CITY OF ALBANY er Viclation
Officer ©0.in Tanchak is a police officer
Deponent
Street in the City of Albany
People of the State of New York against cichac] 30° 6, A-ron J32Is, ‘3s iT.
at the City of Albany in the County aforesaid on the aond day of
a
+ Ser 1921, did knowingly violate subdivision © (b) {4 ) of
section «= 770." of the penal law of the State of New York, inthat “hédid ‘ccoc°cr,
pac. OF Gruss to exolode any Tircwres, “Uo uses mm focje. at votut 7225... whale
b+ ~ waerel svete in acarwest 75, hans, arr feck whtis the eo "Plecra: y
ex.” .i%- 2 search warrant it wes Sound that the derendact: «ere in wssecsion of
cei-kt 3:21 em red firecrackers.
THE SOURCES OF DEPONENT'S INFORMATION AND THE GROUNDS FOR HIS BELIEF ARE ORAL STATEMENTS MADE TO
DEPONENT BY THE DEFENDANT THAT HE COMMITTED THE FOREGOING ACTS AT THE TIME, PLACE AND IN THE
MANNER ABOVE SET FORTH; AND/OR FROM INFORMATION OBTAINED FROM WITNESSES WHOSE DEPOSITIONS ARE
ATTACHED HERETO AND MADE A PART HEREOF.
FALSE STATEMENTS CONTAINED HEREIN ARE
PUNISHABLE AS A CLASS A MISDEMEANOR
PURSUANT TO SECTION 210.45 OF THE PENAL
LAW-OF THE STATE OF NEW YORK.
oe.
ee Z
: . ae f ye
Al ng J nhl = jf i t teed Se peaks =
Deponent |
Clerk of the Police Court
POLICE COURT !)
CITY OF ALBANY
People of the State of New York against
9 og! oo ES lig a a
noe al
409 Ventral avenue 7K albany (Yi
Ssaron 2 TIS
3 les ., Sommerville lpes,
Mt ewMel FOG
O11 (econ .venie Brooklyn Hew York
Address
: ga)
violate subdivision A J
. of section F 7O. 0 PLL.
Class
Complaint, Information for Misdemeanor
or Violation
Warrant Rew 2
The defendant, immediately on being brought before
the Court, was informed of the charge against him and
his right to the aid of counsel im every stage of the
proceedings, and before any further proceedings were
had, plead
NOT GUILTY.
Bail fixed im the um of 2, Or i
the sum of $ ene CSH deposit.
In default of Bail defendant committed.
Eoq., Aity.
STATE OF NEW YORK APPELLATE DIVISION
SUPREME COURT THIRD DEPARTMENT
eg ee i ee a eee
VERA MICHELSON and AARON ESTIS,
Petitioners,
- against - | REPLY AFFIRMATION
HON. JOHN CLYNE, HON, THOMAS W. KEEGAN,
and HON. SOL GREENBERG,
Respondents.
MICHAEL KATZER, a duly licensed and practicing attorney of
the State of New York, affirms as follows under penalty of per-
jury:
1. That he is an Assistant District Attorney of Albany
County, New York, and that in such capacity, your affiant is
fully familiar with the facts and circumstances of this action.
2. That he submits this Reply Affirmation to the Verified
Petition in Support of a Writ of Prohibition of Lewis B. Oliver,
Esq., and Anita Thayer, Esq., dated November 19, 1981.
3. That this Affirmation is made upon information and
belief, the source of your affiant's information and the basis
for his belief are an examination of the files maintained by the |
District Attorney's Office, :
|
é
FACTUAL STATEMENT
4. Petitioners Vera Michaelson and Aaron Estis, along with
one Michael Young are charged in Albany Police Court with the
offenses of Possession of a Quantity of Marijuana and Possession
of Fireworks. Additionally, Michael Young and one John Spearman
Stand indicted in Albany County Court for the crime of Criminal
Possession of a Weapon in the Third Degree.
5. Evidence that the People intend to offer at the trial of
petitioners Michaelson and Estis, and Young, on the one hand, in
Police Court, and at the trial of Young and Spearman, on the other
hand, in County Court, was seized by the Albany Police Department
while conducting a search of Michaelson's apartment on
September 22, 1981 pursuant tos Search warrant issued earlier
that day by the Hon. Thomas Keegan, Albany Police Court Judge.
6. All of the above named defendants have moved to suppress
the evidence so seized. Rather than have two separate suppression
hearings, one in Police Court with respect to Michaelson, Estis
and Young, and one in County Court with respect to Young and
Spearman, -- both of which will involve the same issues and will
call for the presentation of the same witnesses--~the People have
proposed, in the interest of justice, judicial efficiency and
without prejudice to any of the defendants, that a Single, joint
Suppression hearing be held. In such joint hearing, the Hon. John
Clyne, Albany County Court Judge, will act in such capacity with
respect to Young and*Spearman, and will act as a “superior court
judge Sitting as a local Criminal court" with respect to the
petitioners herein. It is this procedure which the petitioners
Oppose and seek to prohibit.
STATEMENT OF THE ISSUE
7. Criminal Procedure Law 810.10(3) (g) authorizes a county
court judge to sit as a local criminal court. When a county
court judge does sit as a local criminal court he can exercise
"preliminary jurisdiction" only with respect to an offense, not
“trial jurisdiction", C.p.L. $10.30(3).
8. "Preliminary jurisdiction" is defined as follows in
C.P.L. 81.20(25):
a5. "Preliminary jurisdiction.” A Criminal court
has “preliminary jurisdiction" of an offense when,
thereof, a criminal action for such offense may
be commenced therein, and when such court may
conduct proceedings with respect thereto which
lead or may lead to Prosecution and final dis-
Position of the action in a court having trial
jurisdiction thereof.
Bi 'Peiet Jurisdiction" is defined as follows in C.P.L.
$1.20(24):
4. "Teied jurisdiction." A Criminal court has
"trial jurisdiction" of an offense when an indict-
ment or an information Charging such offense may
properly be filed with such Court, and when such
court has authority to accept a plea to, try or
10. The issue in this matter is whether the conduct of a
Suppression hearing and determination of a Suppression motion is
within the realm of preliminary jurisdiction or trial jurisdiction
If it is a matter of preliminary jurisdiction, then Judge Clyne,
Sitting as a local criminal court is authorized to determine the
Suppression motion brought by the petitioners. The People
assert that a suppression issue is Clearly a matter of "prelimin-
ary jurisdiction". |
A SUPPRESSION HEARING IS A MATTER
OF "PRELIMINARY JURISDICTION", AS
DEFINED BY THE STATUTE.
ll. The very definitions of "preliminary jurisdiction" and
“trial jurisdiction" make it plain that a suppression hearing is a
matter of preliminary jurisdiction, see C.P.L. §1.20(24), (25),
set out above.
12. The essence of the concept of “preliminary jurisdiction"
is the conduct of proceedings which lead or may lead to prosecu-
tion and final disposition in a court having trial jurisdiction.
13. The essence of the concept of trial jurisdiction is the
ultimate or final disposition of a criminal case,
14. A suppression hearing does not, of course, result in
the final disposition of a criminal action. Instead, it is a
proceeding which "leads or may lead to...final disposition". As
such, a suppression hearing is within “preliminary jurisdiction"
not “trial jurisdiction".
,
IT HAS BEEN JUDICIALLY DETERMINED THAT
A SUPPRESSION HEARING IS NOT PART OF A
TRIAL, AND IS THUS NOT A MATTER OF
__"TRIAL JURISDICTION".
15. In addition to reliance on the definitions contained in
the statute, the People gain Support for their position from
judicial declarations that a suppression hearing is not part of
& trial.
16. In Gannett v. DePasquale, 43 N.Y. 2d 370 (1970), the
Court of Appeals directly stated that "...a Suppression hearing...
of course, is ‘not within the specific meaning of "trial"'", at
578.
17. This ruling was affirmed by the United States Supreme
Court, see 443. U.S. 368 (1979), in an opinion which emphasized
the distinction between pretrial proceedings, such as a suppres-
Sion hearing, and the “actual trial".
18. Again, this leads to the conclusion, on the basis of the
highest court in our judiciary, that a suppression hearing is not
part of a trial or within a court's"trial jurisdiction" but is,
instead, a matter of “preliminary jurisdiction".
A TRIAL CAN ONLY BE
CONDUCTED BY ONE JUDGE.
19. Another approach towards resolution of the issue before
this court is reliance on the established rule of law that only
one judge can preside over a trial. See e.g. N.Y. Judiciary
Law $21.
EINER aR Maia PALiS iA its apelcinnalpilcieadiosron
20. It is common, accepted and lawful practice for one judge
to conduct a suppression hearing and determine a motion to sup-
press, while a different judge presides over the trial in the
Same case.
21. If a suppression hearing was part of a trial or within
“trial jurisdiction" then such practice would be unlawful.
Obviously, it is not unlawful, thereby reinforcing the conclusion
that a suppression hearing is a preliminary matter, not within
"trial jurisdiction".
A JOINT SUPPRESSION HEARING PROMOTES
JUDICIAL ECONOMY AND EFFICIENCY.
—
22. There is a line of cases which hold that it is proper for
a lower court judge to review a search warrant issued by a judge
of a higher court. People v. Fusco, 75 Misc. 2d 981 (Nassau Co.
Ct. 1973), People v. Sossa, 77 Misc. 2d 98 (NYC Crim. Ct., 1974},
People v. Kissinger, 40 Misc. 2d°273 (Dist. Ct., Nassau C6.
1963).
23. The rationale supporting these decisions is that per-
mitting a lower court judge to review a warrant issued by a
higher court would avoid a multiplicity of motions in different
courts at different times and would promote the efficient adminis-
tration of justice. See e.g. People v. Sossa, People v. Kissinger
supra.
24. Such a goal, as espoused by the above courts, iS the
Same goal that the People seek to achieve by the conduct of a
joint suppression hearing: the avoidance of a multiplicity of
motions in different courts at different times, and the promo-
tion of the efficient administration of justice.
PETITIONERS ARE NOT PREJUDICED
BY HOLDING A JOINT SUPPRESSION HEARING
25. The benefits that redound to the administration of
justice by conducting a joint suppression hearing will be achieved
without any prejudice to the petitioners.
26. Petitioners' claim that they will be harmed by associa-
tion with persons charged with more serious offenses ignores the
fact that both the suppression hearing and their potential trial
will be conducted by a court alone, Sitting without a jury.
Certainly both the suppression court and the trial court will be
capable of overlooking any claimed prejudice caused by the joint
procedure. In point of fact, no prejudice or irreparable harm
will result to the petitioners as a result of the proposed
joint hearing, while the efficient administration of justice will
be greatly advanced.
WHEREFORE, the Respondent Hon. Sol Greenberg, respectfully
requests this court not grant the extraordinary relief of a writ
of prohibition, preventing the Hon. John J. Clyne from sitting as
a local criminal court with respect to the Suppression motion
Michael Katzer
Assistant District Attorney
brought by the petitioners.
DATED: Albany, New York
November 23, 1981.
STATE OF NEW YORK)
) ss. AFFIDAVIT
COUNTY OF ALBANY ) cs
FRAWK T. FITZGERALD, being duly sworn deposes |
and says: |
1. THAT he is a professor of the College of |
St. Rose, a resident of the City of Albany, and member of the
Albany Coalition Against Apartheid since its formation in
August of 1981.
* ines ant ee
2. THAT on the afternoon of September 24, 1981
deponent spent 2 to 3 hours with defendant Michelson at her i
apartment. |
3. On information and belief, defendant had
been released from the Albany County Jail for an amount of hours
and was just beginning to survey the incredible mess that had
been created in her apartment by the circumstances of September
22, 1961. |
4. During the course of his stay in |
defendant's apartment, defendant told him of certain items
missing from her apartment that she believed had been confiscated
by the Albany Police Department.
|
5. THAT the items which defendant reported
to him as missing on the 24th day of September 1981 were:
a. two personal telephone books
b. several sets of keys including two
sets of defendant's keys
c. a clipboard containing Coalition Against
Apartheid documents, names of Coalition
members, and other mailing lists.
ee one
ARON a to MEPS yen NEN Pope tawesmugnatone
et i crs
approximately 7 p.m. at the request.v!
naant and Dr.
Teh E28 io 1: SAGO Petes whe
a SUNY Albany |
i accompanied defe Barry Sample,
'
eek the above items and others
i
4
Se. proseeee? Division II to §
ndant to be missing.
now known to the defe
Il the group spoke to
Po AS Division
Lt.
that the property room Wee closed; |
gang who advised them
s that he was familiar
in answer to question
ed by defendant and h
wolf
he further stated
e did know
with some of the items request
that there were no keys.
group |
g. THAT Lt. Wolf
e had seen 4 plastic bag with some
; dineluding deponent that h
clipboards in it.
come back |
Murray; ne then said, “There shouldn't
16, - THAT the group was
i. ;
i!
defendant could call and designate 4 representative if she
ome back during business hours. |
ant designated
'
|
1 be any problem.
| further advised that |
could not ¢
Sete. A Oe ATO,
THAT subsequently defend
i3.
ith a list of items to
deponent to return and provided him w
rom the police.
request f
12. Yo the best of his
recollection the |
nent was as follows: |
| ist provided by defendant to depo
a) keys
|
{
b) Coalition List and committees
g list
ro g
5 to 6 page mailin
|
een | ‘
Koh a EE Codie tec rita 4
Oye, ' as a ae
a tums belonging to Halon roe BPpUcsevewrs
‘
f) +e lephee bill. eT
9) Duss FOPe™ clipp ins > OA phe KKK
$3. On mid-morning I returned to Division II.
Upon asking to see "rt." Murray, I learned he was a detective.
14, 3%. 088 directed upstairs to an office
el
occupied by Lt. Murray. Soon thereafter Lt. Murray provided
deponent with a clear plastic bag containing items for
defendant Michelson and her co-defendant Aaron Ester.
bag; he then discussed in detail the items on the list from
15. DbDeponent inventoried tne contents of the |
'
|
defendant Michelson but not apparently in the bag with Detective |
|
Murray. Of the items specifically requested, deponent received gor
everything but the keySy telephan. books, relephare bill + nous elipp#9* |
i6. The extensive discussion which ensured
between Detective Murray and deponent will not be set forth
in this affidavit.
17. ° THAT subsequently deponent gave the trash |
bag to defendant and the defendant Michelson in the presence
of deponent carefully inventoried the bag- |
18. THAT the items returned to defendant are
listed on the attached list and incorporated herein by reference.|
19. THAT none of the items so taken and
then returned are listed on the Albany Police Department Receipt
and Inventory as sworn to on the 22nd day of September, 1981
by Detective Tanchak. |
ee
4,
LIST OF ITEMS RETURNED TO FRANK 7. FITZGERALD
FOR VERA MICHELSON ON OCTOBER 1, 1981
ovata cevinimioneen inom nein sence epteniannmien vain oan so ever « enn, omianirenn manenece se
Clipboard with the following on it:
a.
b.
Agenda of September 5, 1981 Coalition meeting with note
List of names with times next to names
List of petition carriers for unnamed petition
List of Coalition Schedule of Events
Flyer announcing meeting of Central Towers Committee
Against Apartheid Program at Swinburne Park (plans for
9/22/81)
Program at Capital (plans for 9/22/81)
List of names of people who will leaflet
List of names of Coalition members, lists of committee
assignments
Demonstration charts and parade route (xerox)
Demonstration flyer
Additional list of telephone numbers
CSEA folder with the following enclosed
Knickerbocker News article
Alderman Brace‘'s resolution
Coalition Agenda (10/3/81)
SART letter of appeal
Additional news clipping
Fact sheet re: Apartheid rugby
Two reel-to-reel tapes of dialogues of 4 retarded people
talking about their institutional experiences,
Other personal items belonging to co-defendant Estes
were also returned,
“ kas * iy
MAMAN TMiiiiii niente slab
. . ce a
STATE OF NEW YORK
ALBANY POLICE COURT COUNTY OF ALBANY
THE PEOPLE OF THE STATE OF NEW YORK,
Plaintiff,
- against -
VERA MICHELSON, AARON ESTIS AND MICHAEL YOUNG,
Defendants. |
|
: | seeped engines mtiniosdinaial
PROCEEDINGS in above-entitled matter |
: were held before City of Albany Police Court Judge Thomas Wee
| Keegan, Albany City Police Court, Morton Avenue, Albany, |
New York, on November 17, 1981. |
APPEARANCES: :
SOL GREENBERG, ESQ., Albany County |
District Attorney, Albany County Court House, Albany, New York,
|
on behalf of the People by (JOHN DORFMAN, ESQ., Assistant !
District Attorney. )
| LEWIS OLIVER, JR., ESQ., 31 Barclay
3treet, Albany, New York, on behalf of Defendant Aaron Estis.
ANITA THAYER, ESQ, 196 Mount Hope
Drive, Albany, New York, on behalf of Defendant Vera Michel sdn.
Uhopbsione sede ei anenianea et ticlime ses ami @eanegeiybrhemrntiy vPai tk vse ab Ratio ala AB heel hemi ir eto Aniline nina mes aheeeahad aan ann nde” ac ns een Pt rll i amg dete ig ni em +n enc: asennad
fe Bi, 3)
~*
+
4
vi
" " bs ;
ITER COUR cic hn dnbindiblcerbipdinheainpoaséaossiion
rae as trent cra et ra len immer i peer bt ii dl nine pimeesremasnizres ectninn teach enteeeeroensee rote wemsansone
THE COURT: This is the matter of the
People of the State of New York against Vera Michelson,
Aaron Estis, and Michael Young, charging on the 22nd day.
of September, 1981, a violation of Section 270 of the }
Penal Law, possession of fireworks, and Section 221.05
of the Penal Law, possession of marijuana.
The people are represented by John
i
Dorfman, Assistant District Attorney. |
Defendant Michelson is represented by |
Albany Attorney Anita Thayer. |
; Defendant Aaron Estis is represented a
| Albany Attorney Lewis Oliver. |
| Defendant Michael Young is represented
| by Bernard Bryan; neither Mr. Bryan nor Mr. Young are |
| present in courts they were not required to be here. |
Mr. Dorfman? |
MR. DORFMAN: May it please the court, |
Your Honor, as the court is aware, there are pending
: cases with relation to Mr. Young and the charges that ard
in Police Court currently are now under indictment and |
pending in County Court. Defendant Young is charged with
| possession of a weapon in County Court, a Class D felony.
i Another indictment involving a James Furman, which is not
sce selcene Sauiuasat — iia lbs cidamndabaguote mien r
Pre
WISER RORY INCIONWRD INI bead pa vshmiulenaibe my
on all fours as it relates to the present motion, which
is before the court for suppression of a search warrant,
however, the indictment involving Mr. Young and the
factual allegation contained therein, together with Item)
C, pursuant to the search warrant, and which is the
subject of this motion, are also pending in County Court.
There is a motion to suppress the
evidence seized, which was seized by way of an identical |
i search warrant, and accordingly, the people would be |
ome 7648
required to do an identical suppression hearing in County
i
H {
Court and using the identical witnesses and the people
e?es2
that were mentioned in the search warrant. It would be
identical, the suppression hearing, to the search warrant
Which is under attack.
i The people have talked to Judge Clyne
i! and have requested of Judge Clyne that he sit as the
County Court Judge relating to the search warrant, as it
relates to Mr. Young, in County Court, pursuant to his
| indictment, and also to sit as an acting Albany Police
vourt Justice pertaining to the motion which is present
before this court at this time. Judge Clyne has esnauntde
to sit in such capacity and has scheduled a hearing to :
commence on November 24, 1981, at 2 p.m. with relation to
oo : - siete a ninety ‘
$Gm~ pots
s7oa2
SA FGRAE %.Z
4
sheets (sy Styrene
Socum: a pytineeers hen ys sews intr mova 9 ayer eeayirimigen wie eh anatn sare eaman aman ssi enn ene
2 SAREE warren prey riniel Nib SEER hemimovenaneerts rsoreasanan ween
Mr. Furman, Mr. Young, Mr. Estis, and Miss Michelson,
and for that reason, the people respectfully request an
adjournment until that time so the matter can be heard
before Judge Clyne.
TI would like to point out there has
been subpoenas issued and individuals have come to court
on this date and the people have been advised they are
going to be continued under the subpoena power of the
court; they are to be at Albany County Court on Novem- |
ber 24 at 2 p.m., a Tuesday.
MR. COURT: Mr. Oliver?
MR. OLIVER: Your Honor, first of all, |
'
we would like to indicate we were notified to be ready
j
for a hearing on motions to suppress and we are prepared |
to proceed at this time and object to any adjournment.
I had an opportunity to speak with Mr. Dorfman before
the case was called and we would respectfully submit to
Your Honor that Your Honor should not give up jurisdic-
i
'
tion in this suppression hearing and that Judge Clyne
is without jurisdiction to handle the hearing. |
,
Section 10.30 of the Criminal eines
Law, Subdivision 3, covers the situation where a superior
court judge sits as a local criminal court judge states: |
sas ili inci ; wtronn
i
]
eM AIM asco asbulueeebaeaialsien ibe soiigaieatn .
ies ccopenrean nine inane lyre sree marina ih bu tynorenaus Uno 8oahinaneyeameyn—ucepY bins odo” ee ku tut sami orto
Notwithstanding the provisions of Subdivision 1, a
superior court judge sitting as a local criminal court
does not have trial jurisdiction of any offense, but
has preliminary jurisdiction only, as provided in Sub-
division 2. |
Subdivision 2 provides that: Local
criminal courts have preliminary jurisdiction of all
offenses subject to divestiture thereof in any particular
case by the superior courts and their grand juries.
roRM O46
|
|
:
Subdivision 1 of Section 10.30 provides
Local criminal courts have trial jurisdiction of all petty
offenses. What we have here, Your Honor, is two petty
offenses as defined in Section 1-20 (39), Violations or| «
traffic infractions; these offenses are of such a minor |
nature that the statute provides conclusively that a
superior court judge who is sitting as a local court
judge does not have trial jurisdiction over these
offenses, and then the question becomes whether or not
a motion to suppress is part of a trial court jurisdic-
tion or part of a court's preliminary jurisdiction as
defined in section 120, Subdivisions 24 and 25.
We submit the statute is clear that
trial jurisdiction is when an indictment or an informa-
ian nena seve he panna rem san ne eves yo tt Nn ern een erg arent cepecternenynees
