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People v. Marilla

7 N.Y.2d 319 Court N.Y. Decision date 1960-01-14 English

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p. 319
The People of the State of New York, Respondent, v. Louis Marilla, Appellant.
Argued January 4, 1960;
decided January 14, 1960.
p. 320
Herald P. Fahringer, Jr., for appellant.
I. The mandatory provisions of section 433 of the Code of Criminal Procedure are applicable to Courts of Special Sessions. (People v. Wallens, 297 N. Y. 57 ; People v. Giles, 152 N. Y. 136 ; People v. Omans, 306 N. Y. 375 .) II. Section 433 deals with an aspect of trial procedure separate and distinct from that of section 714. III. Noncompliance with section 433 of the Code of Criminal Procedure deprives a defendant of an important and fundamental right and results in an incomplete verdict. (People v. Light, 285 App. Div. 496 ; People ex rel. Meers v. Martin, 4 A D 2d 659 ; People v. Zambounis, 251 N. Y. 94 .)
Carman F. Ball, District Attorney (Leonard F. Walentynowics of counsel), for respondent.
I. A Court of Special Sessions does not have to comply with section 443 of the Code of Criminal Procedure. (People v. Wallens, 297 N. Y. 57 ; People v. Light, 285 App. Div. 496 ; People v. Albro, 8 Misc 2d 670 .) II. No substantial right of defendant was violated. (People v. Light, 285 App. Div. 496 ; People ex rel. Mault v. Jackson, 3 A D 2d 688 .)

This court has several times held — contrary to the view expressed in People v. Light ( 285 App. Div. 496 ) — that a defendant, prosecuted by indictment, may not on appeal avail himself of the trial court’s alleged failure to comply with section 433 of the Code of Criminal Procedure if he did not call such omission to the court’s attention. (See, e.g., People v. Manfredi, 1 N Y 2d 743 ; People v. Baumgart, 5 N Y 2d 874 ; see, also, People ex rel. Meers v. Martin, 4 N Y 2d 898 .) The rationale underlying these decisions is that, if the defendant had alerted the trial judge to the possibility that a juror was missing or that the verdict announced was not that of all the jurors, the judge, so alerted, could have readily removed any doubt on these scores by having a roll call and a polling of the jury (Code Crim. Pro., §§ 433, 450).

p. 321
Consequently, even if we were to assume that section 433 of the Code applies to proceedings in courts of special sessions, and this is extremely doubtful (Code Crim. Pro., §§ 712-714), the defendant herein may not now raise the question in view of the fact that at the trial he neither voiced an objection nor requested that the jury be polled or their names called.

The judgment of conviction should be affirmed.

Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster concur.

Judgment affirmed.

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