Dec’s appeal brief is long and for the most part quite dry (as it in legalese details his opinions that a mistrial took place), so I have made little effort to illustrate it. Parts of it do however contain definite humor, like the references to a giant conspiracy, Dec’s savage hatred against certain judges and the doctor threatening to commit suicide with a syringe! To make it easier for the reader I have highlighted the funny parts in bold to enhance the reading experience. Dec was given an extremely severe sentence (2½ - 5 years in prison at hard labor, maximum probation) for his crimes on top of losing his license to practice law, so it comes as no surprise that he would litigiously try to get the ruling overturned. However; the rambling, schizoid nature inherent in his writing probably must have pretty much doomed his attempts from the start. Before he sent in this appeal brief, an earlier application sent in by Dec to the US Supreme Court was a whopping 320 pages in length!

To see the original scans of this Appeal Brief, look towards the bottom of the page! After reading Dec's Appeal, I have actually come to doubt whether Dec was guilty or whether he really was the victim of some kind of mistrial or conspiracy. His sentence, at the very least, seems unusually severe for a crime of this nature, even if he did actually commit it. However, I’ll ultimately leave this up to each reader to decide. When viewing his Appeal Brief, however, you can definitely notice Dec’s slow and gradual descent into madness, as well as make out many of the same themes which would later come to be included in his rants. It's fascinating! Dig the brief's last part, too: "A facade for a dynamic labyrintical, omnipotent, judicial dictatorship!" Can you say "Proto-Worldwide Mad Deadly Gangster Computer God", boys and girls?

    QUICK LINKS TO CONTENTS
      ●APPELLANT'S BRIEF
      ●THE INDICTMENT; THE CONVICTED CHARGES
      ●INTRODUCTION
      ●OUTLINE OF THE PEOPLE'S CASE
      ●OUTLINE OF DEFENDANT'S OPENING
      ●DEFENDANT'S PRE-TRIAL CHALLENGE OF THE INDICTMENT
      ●JUDGMENT CONTRARY TO WEIGHT OF EVIDENCE
      ●MOTIONS FOR MISTRIAL
      ●DEFENDANT'S OBJECTION AND EXCEPTION TO THE
        ADMISSION OF THE FRADULENTLY ALTERED HEARSAY
        STENOGRAPHIC NOTES OF NATHAN BIRCHALL
      ●THE FINAL SUMMATION OF ARTHUR NIXON
      ●THE JUDGE'S CHARGE TO THE JURY
      ●THE EXTANT RECORD OF DEFENDANT'S REQUESTS
        TO THE JUDGE TO CHARGE THE JURY
      ●DEFENDANT'S POST TRIAL AND APPEAL MOTIONS
      ●JUDGMENT PROCURED BY FRAUD AND IN
        VIOLATION OF CONSTITUTIONAL RIGHTS
      ●CONCLUSION
      ●SCANS OF ORIGINAL BRIEF

COURT OF APPEALS  STATE OF NEW YORK
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THE PEOPLE OF THE STATE OF NEW YORK,
                                         Plaintiff-respondent,
                                 against
FRANCIS E. DEC,
                                        Defendant-Appellant.
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                      APPELLANT’S BRIEF
     This is an appeal from a judgment rendered by the Nassau County Court December 23, 1958, after a jury trial convicting the defendant of two counts of Forgery in the Second Degree, one count of Grand Larceny in the Second Degree and violating section 1820A sub. 2 of the Penal Law and sentencing defendant to 2½ to 5 years in prison at hard labor concurrently for each of the three felony counts and suspending sentence on the misdemeanor last count with execution of sentences suspended on the felony counts and defendant ordered to serve probation for the maximum period allowable under law. Defendant did not apply for a certificate of Reasonable Doubt. The defendant was automatically disbarred because of the felonious convictions on January 19, 1959. Defendant has been released from jail and is presently serving probation. Appeal was taken by defendant pro se to the Appellate Division of the Supreme Court for the Second Judicial Department. Said Appellate Court upon defendant’s motion [obscured] with the printing of the original appeal papers and thereafter ordered the appeal transferred for hearing and determination to the Appellate Division of the Supreme Court for the First Judicial Department, which said latter court unanimously affirmed the judgment of the trial [obscured] on October 11, 1960. This appeal to this Court was taken by grace of the Certificate Granting Leave, granted on February 17, 1961 by the Hon. [obscured]ian P. Burke, a justice of this Court and by order of this Court graciously granting defendant’s Notion to Dispense with Printing this case on Dismissal.

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                      The Indictment; The Convicted charges
     The four count indictment filed February 11, 1958 accuses defendant as the party who during a period from October to November, 1956 committed:

     Grand Larceny in the Second Degree (third count): Defendant took, [obscured]e, from Allstate Insurance Company a certain sight draft for $400 by [obscured]e and fraudulent representations and pretenses, namely, that Mrs. Elizabeth Wirschning received certain medical treatments from a Dr. Milton Robbins who treated Mrs. Wirschning for her complained injuries of Bursitis of her right shoulder and a bruised right thigh and that the general release of Mrs. Wirschning was a good and valid general release said claim.

     Forgery in the Second Degree (first count): Defendant feloniously signed, uttered and disposed of a forged sight draft of Allstate Insurance Company made to the order of defendant and Mrs. Elizabeth Wirschning for the amount of $400.

     Violation of Section 1820A Sub. 2 of the Penal Law (fourth count): defendant deceitfully made a certificate upon a general release set forth [obscured]he first count of the indictment that Mrs. Elizabeth Wirschning acknowledged that she executed said release, thereby committed a misdemeanor.

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                      Introduction
     The prosecution called 10 witnessed during the trial from November 5^th to 20^th, 1958, inclusively. In my 50 page typewritten lower court appeal brief in the Appellate Division of the Supreme Court, laboriously I abstracted from the 991 pages extant in the Court Reporter’s record of the trial and the lengthy criminal prosecution along with related motivating facts and presented these facts in a narrative form, coordinating the direct and cross examinations of the trial for clarity. The questions presented in this brief shall generally follow the sequence of presentation in the lower appellate court brief.

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                      Outline of the People’s Case from People’s Opening
     Mrs. Elizabeth Wirschning on January 9, 1956 was a passenger in an automobile in an accident “that evening consulted her own family physician, Dr. Azzara, and as a matter of fact, that was the only treatment that Mrs. Wirschning had received.” (15-16)  Mr. and Mrs. Wirschning now admit sometime thereafter they retained defendant as their lawyer for Mrs. Wirschning’s injury claim and Mr. Wirschning’s loss of services claim. During defendant’s prosecution of their claims Mrs. Wirschning in May, 1956 went to the Allstate Insurance Company doctor and was examined for her claimed injuries and medical treatments for such injuries. “Thereafter in October of ’56 defendant started to negotiate a settlement of the case with Mr. Charles Martino, who at the time was an examiner for the Allstate Insurance Company and based on the false representations made by Mr. Dec” (17) that Mrs. Wirschning’s claim for injuries and medical treatments for Bursitis of the right shoulder and bruises of her right thigh were listed in the bill of $48 from Dr. Milton E. Robbins to Mrs. Elizabeth Wirschning. Dr. Martino settled the case with Mr. Dec for the sum of $400”. (17) Thereafter Mr. Dec sent the necessary general release in … together with the doctor bill” (17) “and he notarized that” (general release acknowledgement) (18). Defendant “received the $400 settlement check” from Allstate Insurance Company addressed to himself and Elizabeth Wirschning “presented that check with those two signatures on them and he received the $400, that is in November, 1956.” (18) “Now up until this time neither Mr. and Mrs. Wirschning has not signed any general release … she doesn’t know anything about this case … she hasn’t signed the reverse side of that check … nor have them (Mr. and Mrs. Wirschning) authorized anybody to affix their signatures on any document.” (19)  Later in February ’57 “Allstate Insurance Company sends out investigators just to check on settlements and Mrs. Wirschning has a conversation with an investigator … and she says she didn’t know anything about any settlement … (and does not know) how the case developed” (19). Further Dr. Milton E. Robbins knows nothing until many months after the case was settled on “July 5 of ’57 as this case is now investigated, on a Friday nite (defendant) goes down to see Dr. Robbins and he says he has a typewritten statement of this bill that was sent to Allstate to settle the case, and he says to the doctor, ‘I want you to copy this statement exactly as I have it in your handwriting, because I need a copy for my files’ and the doctor foolishly, in July (5’th) ’57 gives Francis E. Dec that requested medical statement. Thereafter and on July 6, 1957 that is a Saturday, Detective Becker sees Dr. Robbins and thereafter on the following Monday which would be July 8, 1957 Francis E. Dec again visits Dr. Robbins and that time there is a discussion about X-Rays because the original bill that Francis E. Dec sent the insurance company mentioned the fact that there were X-Rays and foolishly Dr. Robbins, who is panicky gives several hundred X-Rays to Francis E. Dec … takes these X-Rays and … to get rid of them … he gives them to a garbage man. (20-21)  The defendant, “he knew the general release which purportedly was signed by Elizabeth Wirschning was not her signature; That he notarized is as a notary public knowing that she never signed it; knowing it was a forged instrument and he forwarded it to the Allstate Insurance Company which was the document upon which the settlement was based.” (21)  Defendant received the settlement check and “he knew the signature, the endorsement of Elizabeth Wirschning on the back of the check was not Elizabeth Wirschning’s signature he knew it was a forget document.” (21) “Thereafter he signed his name on it and received $400 and he is being charged with the larceny of the $400 based on this false and fraudulent representations that this woman was injured, that she was treated and had valid medical bills.” (22)

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                                            Outline of Defendant’s Opening
     Defendant is innocent of the crimes charged and that the criminal charges were fabricated through the assistance and coercion of the District Attorney and his staff with the connivance of other important members of the Nassau County judiciary and government.  After a decade long period of persecution through illegal prosecution by the said various officials because of defendant’s righteous complaints of corruption of acme of said officials the indictment of defendant, a lawyer, in secret, without notification to the defendant as promised by Frank Gulotta, the District Attorney personally to the defendant, constitutes an unprecedented fanatical effort by the various officials to gain revenge by falsely, feloniously convicting the defendant and thereby ruin defendant on the ridiculous contradictory complaint of one perjurous young neurotic woman client.  Defendant duly entered into written retainer with Mr. and Mrs. Wirschning to persecute Mrs. Wirschning’s injury claim and Mr. Wirschning’s claim for loss of services due to his wife’s injury. Further shortly after being retained by Mr. and Mrs. Wirschning, Mrs. Wirschning began consulting the defendant as to her marital troubles based on her husband’s infidelity and physical abuse of her. Thereafter Mrs. Wirschning retained the defendant as her lawyer for a legal separation action against her husband. The defendant contacted Mr. Urso, the Allstate Insurance Company Adjuster in April of 1956 and notified Mr. Urso that defendant was withdrawing from Mr. Fred Wirschning’s loss of services claim relative to his wife’s injury claim because defendant was retained by Mrs. Wirschning as her lawyer in reference to her marital difficulties with her husband. After conforming with the regular requirements of Allstate Insurance Company in such matters defendant was allowed to proceed ahead with only Mrs. Wirschning’s injury claim in that Mrs. Wirschning was separating from her husband. Further, the defendant undertook all negotiations and settled only Mrs. Elizabeth Wirschning’s injury claim in that Mrs. Wirschning was separating from her husband and retained defendant as her lawyer for a legal separation action against her husband. Further, the defendant undertook all negotiations and settled only Mrs. Elizabeth Wirschning’s injury claim, only with a Mr. Urso, the Allstate Insurance Company Adjuster, whose sole duty as an Adjuster, according to the rules of business established by said Allstate Insurance Company, was to investigate, negotiate and settle such tort claims against Allstate Insurance Company. The dishonorably discharged supervising employee of Allstate Insurance Company, Charles Martino, did not negotiate or settle the said injury claim of Mrs. Wirschning with defendant as claimed by the prosecution. Charles Martino was an Examiner, a supervising officer of Allstate Insurance Company, whose duty was that of an overseer of Adjusters and the appointed officer who approved the Adjuster’s suggested money offers in settlement of claims against Allstate Insurance Company. Defendant’s negotiations of Mrs. Wirschning’s injury claim with Mr. Urso were stalled because of her marital difficulties and defendant’s refusal to move ahead with negotiations until Mrs. Wirschning obtained a written medical bill from Dr. Milton E. Robbins for the injuries the claimed Dr. Robbins treated her. Mr. Fred Wirschning admitted during the defendant’s questioning of Fred Wirschning in the District Attorney’s office in July of 1957, that, he, Fred Wirschning, after defendant’s refusal to proceed ahead with negotiations until his wife’s medical bill was forwarded to defendant; he, Fred Wirschning went to Dr. Milton E. Robbins and obtained Dr. Robbins’ hand written medical bill in order that defendant proceed ahead with the injury claim of his wife. Further that this hand written medical bill obtained from Dr. Milton E. Robbins by Fred Wirschning stating the injuries and treatments of Mrs. Wirschning by Dr. Robbins was used by Mrs. Elizabeth Wirschning later on May 24, 1956 to state her personal injury claims and her claim of medical treatments when Mrs. Wirschning was examined by Dr. Joseph Rosenheck, the Allstate Insurance company doctor; who examined her claimed injured portions of her body to evaluate her total injury claim against Allstate Insurance Company. Further, Mrs. Elizabeth Wirschning never denied her stated original claims of injuries and doctor treatments listed on her medical bill from Dr. Milton E. Robbins, namely, Mrs. Wirschning repeatedly stated that her total injuries were Bursitis of her right shoulder and bruises of her right thigh as listed and stated in her medical bill her husband obtained from Dr. Robbins. Throughout the settlement of her injury claim and in her later statements to the Allstate Insurance Company investigators in February of 1957, Mrs. Wirschning claimed these injuries that are identical with those claimed by the indictment as false. Further, that the claim of the prosecution that Mrs. Wirschning was treated for no injuries and that she only “consulted her own family physician, Dr. Azzara about the accident, the nite of the accident” (15-16, 40) and she had only a slightly hurt wrist are completely false claims. Further that Dr. Azzara was as Mrs. Wirschning stated to defendant “only a baby doctor” a specialist in reference to her pregnancy, who was not the Wirschning’s family doctor, nor did he treat Mrs. Wirschning for her injuries she claimed she sustained in said auto accident. Further the claims of the prosecution that Dr. Robbins knew nothing until July, 1957 are completely false and contradictory with the above stated facts and Dr. Robbins admissions while he was present in the District Attorney’s office when Fred Wirschning began to break down and admitted obtaining his wife’s medical bill from Dr. Robbins. Dr. Robbins is a perjurer and liar and must admit these facts when he testifies. Further Dr. Robbins will admit that when he first went to the District Attorney’s office without any lawyers and gave his unpremeditated, impromptu, extemporaneous answers to the District Attorney he stated in detail his treatments to Mrs. Wirschning for the injuries stated in his medical bill which the indictment claims false; Dr. Robbins also admitted that in order to collect the medical payments from another insurance company he, Dr. Robbins, forwarded defendant stationary to make a copy of his bill because he, Dr. Robbins kept no records of his bills. Dr. Robbins will admit that he did not conspire with the defendant. Dr. Robbins will admit that he knew that defendant was retained by Mrs. Wirschning for an impending separation action and that the defendant in accordance with an agreement with Mrs. Wirschning, as her lawyer for an impending legal separation action from her husband, defendant was holding her $200 share of her settlement money in escrow as part payment towards a legal separation action. Dr. Robbins’ story of knowing nothing until July, 1957 is completely false and a concoction of Dr. Robbins, his brother in law, who is a lawyer, and J. D. C. Murray, a Nassau County Lawyer and friend of Frank Gulotta, ex-District Attorney of Nassau County; that this story of knowing nothing was concocted in concert with these two lawyers during a period of weeks after Dr. Robbins stated his first extemporaneous true statements and answers to the District Attorney. Further that the defendant’s only visit to Dr. Robbins’ office was on Monday, July 8, 1957; after Detective Becker saw Dr. Robbins and that Dr. Robbins telephoned the defendant and frantically begged the defendant to come to his office. During said visit Dr. Robbins informed defendant that Detective Becker saw Dr. Robbins on the weekend and he, Dr. Robbins repeatedly telephoned defendant until he contacted defendant; further that during defendant’s visit Dr. Robbins was constantly raving and in hysterics explaining to defendant that New York City doctors and lawyers were being investigated for ambulance chasing and that Dr. Robbins feared that he and his long time brother in law, lawyer, both who had offices in New York City, were under investigation by an Arkwright Committee, a judicial investigating committee. Dr. Robbins ravingly petitioned to get back his hand written  medical bill Dr. Robbins gave to Fred Wirschning for his wife’s injury claim. Further that only because of Dr. Robbins’ increased hysteria and threats of immediate suicide with a hypodermic needle, defendant did in panic adhere to Dr. Robbins’ commands and petitions to dispose of several hundred X-Rays from his office in order that no record be found in his office of Dr. Robbins’ lengthy association with his lawyer, brother in law. As a final effort to prevent Dr. Robbins from committing suicide defendant quickly took the X-Rays into his car and left and upon exiting from the Southern State Parkway, in Hempstead, during his return trip to his office, defendant gave the X-Rays to a passing garbage man; putting the X-Rays in the garbage truck. Further, that Mr. and Mrs. Wirschning’s statements to the Allstate Insurance Company investigators of knowing nothing about Mrs. Wirschning’s injury claims are completely false and her claim of seeing defendant only once is false and ridiculous. Further that after defendant withdrew from Mr. Fred Wirschning’s claim of loss of services because of defendant’s retainer by Mrs. Wirschning to be her lawyer in a legal separation action, Mrs. Wirschning approved the $400 settlement check in defendant’s presence. Mrs. Elizabeth Wirschning signed both her general release and settlement check, misspelling her name and including her middle initial. None of defendant’s many records and none of the Allstate Insurance Company records misspell her name or include her middle initial, unknown mistakes only Mrs. Elizabeth Wirschning could make. Defendant was informed by Mrs. Wirschning after many consultations with her while retained as her lawyer for her legal separation action that she had no financial means to pay defendant his $450 legal fee. Upon repeated petitions of Mrs. Wirschning defendant accepted her $200 share of her injury settlement money as part payment toward the $450 separation action fee, providing, the money was to be held in escrow until Mrs. Wirschning paid the entire $450 and further should she decide to discontinue the legal separation action at any time, defendant was guaranteed a minimum fee of $150 for works already completed in reference to her marital troubles; further that until Mrs. Wirschning paid the defendant the balance of $250 the defendant was allowed to negotiate either a separation agreement with her husband or bring about an amicable settlement of her matrimonial difficulties in order to mitigate the financial expense and mental and physical hardships upon Mrs. Wirschning and her baby. For some weeks thereafter the defendant attempted to amicably settle Mrs. Wirschning’s marital difficulties or arrange for a separation agreement through negotiation with her husband but that her husband repeatedly threatened to beat his wife and leave her and return to living with negro prostitutes and running stolen cars down south if his wife did not forget about the separation action. Defendant was later informed by the wife that during an argument with her husband, Fred Wirschning learned of the $400 settlement of his wife’s injury claim and that his wife deposited her $200 in escrow with the defendant as part payment for a legal separation action. Thereafter for several weeks Fred Wirschning, on several occasions, visited the defendant’s law office and demanded the $200 being held in escrow, claiming that the $200 belonged to him as husband and as head of the household even though defendant only settled his wife’s claim; Fred Wirschning further claimed that any agreement that his wife entered into with the defendant as her lawyer was none of his business and that the defendant should collect from her and not from his $200. Later Fred Wirschning claimed his wife was no longer interested in having a separation therefore the defendant must return the $200 to him. Defendant then wrote Mr. and Mrs. Wirschning a letter which Mrs. Wirschning received; the letter stated the husband’s contentions; Mrs. Wirschning telephoned the defendant after receiving the letter and told the defendant her husband was not telling the truth. Thereafter during the early months of 1957 Mrs. Wirschning’s husband visited the defendant’s office and also telephoned defendant demanding the entire $200 and threatening the defendant to forget about the separation. During several such visits and telephone calls Fred Wirschning promised to bring his wife into defendant’s office to settle the matter in that Fred Wirschning claimed his wife was no longer interested in a separation action. Finally in the Spring of 1957 Fred Wirschning informs defendant that he does not have to do anything the defendant tells him and further threatened the defendant and demands that defendant return the $200 if “he knows what’s good for him”. Defendant tries to contact Mrs.Wirschning by telephone on several occasions but is unable to do so. Thereafter during one of the visits of Fred Wirschning to defendant’s office the defendant tells Fred Wirschning of his many legal works for his wife and in an argument that followed defendant accuses the husband of coercing his wife into discontinuance with the legal separation action in a scheme to defraud the defendant out of his legal fee by coercing the defendant into giving him the $200 being held in escrow. Shortly thereafter the defendant was called down to the District Attorney’s office and the defendant stated these facts to the District Attorney and demanded to be notified of any Grand Jury hearing of the matter; which the District Attorney agreed to do and immediately after visiting the District Attorney’s office, defendant was taken in custody to his law office wherein defendant showed Detective Becker the $200 escrow money in a titled letter size envelope in Mrs. Wirschning’s titled separation file sized tie envelope and the various papers and copies of statements of account mailed to Mr. and Mrs. Wirschning in reference to defendant’s legal works as Mrs. Wirschning’s retained lawyer for her legal separation action; defendant also showed Detective Becker the titled tie file sized envelope for Mrs. Wirschning’s injury claim and the various papers in said envelope including Mr. and Mrs. Wirschning’s written retainer which Detective Becker purloined claiming as did the District Attorney, namely, that the written retainer was false like all the documents and that the defendant ambulance chased the Wirschning injury claim and that defendant had no retainer from either Mr. and Mrs. Wirschning because they swear they never signed any retainer with the defendant and never retained the defendant and know nothing about the injury claim case.

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                      Defendant’s Pre-Trial Challenge of the Indictment
     Motion to Inspect The Grand Jury Minutes And Dismiss The Indictment; in Supreme Court on May 13, 1958. Decision: Justice H. Hogan denied the inspection of the Grand Jury Minutes and refused to rule on the merits of the Motion To Dismiss The Indictment without prejudice allowing the defendant to renew the motion in County Court.

     Motion To Dismiss The Indictment; in County Court, May 26, 1958. Decision: Judge C. Brown decided said motion to be a Demurrer and disallowed his Demurrer.

     Motion To Resettle Erroneous Demurrer Order; in County Court, July 24, 1958. Judge C. Brown again ordered defendant’s Motion to Dismiss the Indictment to be a Demurrer and disallowed the Demurrer.

     Motion To Dismiss the Indictment For Lack Of Prosecution; in County Court, October 8, 1958. Judge P. Widlitz dismissed motion on affidavit of District Attorney that the trial would commence shortly.

     In said three motions defendant repeatedly stressed the statutory rights of section 250 of the Code of Criminal Procedure (formerly section 257 and so stated as section 257 in defendant’s original appeal brief). Defendant objected that although defendant appeared at the District Attorney’s office voluntarily and thereafter by illegal subpoena and on both occasions the District Attorney and his assistant agreed to notify the defendant of any preliminary hearing by a Grand Jury prior to indictment as set down in section 250 of the Code of Criminal Procedure titled “Grand Jury not bound to hear evidence for the defendant but may order explanatory evidence to be produced; defendant may appear in his own behalf under certain circumstances.”

     The defendant not only relied on the promises of the District Attorney and his assistant, namely, to notify the defendant of a preliminary hearing by a grand jury, but also the defendant cooperated with the District Attorney and appeared voluntarily at the District Attorney’s office for such hearing and thereafter appeared at the District Attorney’s office under an illegal and void subpoena for a non-existent Grand Jury hearing. Thereafter the defendant had no knowledge nor did he suspect that there would be a Grand Jury hearing of the matter. The Grand Jury hearing was held in secret without notice eight months later. Thereby the defendant was unable to challenge the Grand Jury, nor the nature and substance of the Grand Jury hearing, nor the segregated witnesses; which challenges are statutory rights of any defendant present at a Grand Jury hearing.

     Further, defendant’s two pretrial Motions to Dismiss the Indictment were both not entertained. The first Motion to Dismiss the Indictment was not entertained by Justice Hogan but without prejudice to a renewal in the County Court. Defendant’s second Motion to Dismiss the Indictment in County court was ordered to be a Demurrer by Judge C. Brown and Judge Brown disallowed his Demurrer. Judge Brown’s decision on defendant’s later Motion to Resettle the Erroneous disallowed Demurrer order was ordered resettled by Judge Brown again as a disallowed Demurrer. The Basic concepts of a Demurrer is that an Indictment is defective in form or in facts as enumerated and defined in section 323, Code of Criminal Procedure. Whereas a Motion to Dismiss the Indictment as defined through judicial interpretation of section 313, Code of Criminal Procedure is substantially an attack upon the legality of the indictment.

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                      Judgment Contrary to Weight of Evidence
     Judgment below standard of rebutting the presumption of
     Innocence as set forth in section 389 Code of Criminal
                                            Procedure.
     Defendant’s lower appeal court brief stressed in detail the repeated lengthy judicial admissions of the witnesses for the prosecution which confirmed the defendant’s contentions and more important confirmed defendant’s innocence. The judicial admissions of important witnesses and especially, the chief witnesses, Mrs. Elizabeth Wirschning and Dr. Milton E. Robbins were laboriously culled from extant record furnished by the Court Reporter. These extant lengthy or repeated admissions during direct and cross examination were then inserted in narrative form in defendant’s appeal brief in order to stress the falseness of the four count indictment and the prosecution’s case.

     Mrs. Elizabeth Wirschning testified that she and her husband knew the defendant who was an attorney, fairly well known by them and their friends and family. In direct contradiction to her original complaints she admits that defendant had undertaken other legal works for their family beside his legal works in reference to her injury claim case; which she admits she signed a written retainer with defendant for her injury claim case.(16) Mrs. Wirschning admits what “we made preparations to have an appointment set up to go to an insurance company doctor for an examination” as to Mrs. Wirschning’s injuries that she claimed as damages against Allstate Insurance Company. That on May 24, 1956, the defendant, she, her husband and her baby drove to the Allstate Insurance Company doctor, Joseph Rosenheck, as to her claims of doctor treated injuries received in auto accident. (77) That then on May 24, 1956, a few months after the accident when Mrs. Wirschning’s injuries and medical treatments were fresh in her mind; she, Mrs. Elizabeth Wirschning stated all her injuries and medical treatments for these injuries to Dr. Joseph Rosenheck, the Allstate Insurance Company doctor and Dr. Joseph Rosenheck examined her claimed injured portions of her body (80-81) and that she knew that Dr. Joseph Rosenheck made a typewritten report of her injury claim and evaluated her injury claim in this said report for the Allstate Insurance Company. Mrs. Wirschning breaks down and testifies in cross examination that the prosecution’s claims and her direct short answer testimony of not receiving any medical treatments for a slightly hurt right wrist (15-16, 36, 40) are in complete contradiction to her original detailed repeatedly stated claims, namely, her claims of eight treatments by a doctor for Bursitis of her right shoulder and bruises of her right thigh; which claims by her are recorded correctly in the typewritten report of Dr. Joseph Rosenheck based upon his personal examination of the portions of her body she claimed were injured and she received a doctor’s treatments for said injuries. (79) and defendant’s Exhibit I in Evidence)

     The injuries and treatments claimed by Mrs. Wirschning and recorded in Dr. Rosenheck’s typed report as to his medical examination of her for the Allstate Insurance Company (Defendant’s Exhibit I in Evidence) are identical to Dr. Milton E. Robbins’ handwritten medical bill to Mrs. Wirschning (Defendant’s Exhibit H in Evidence) and both are identical to the doctor treated injuries claimed false by the indictment. Confirming these admissions by Mrs. Elizabeth Wirschning are the up to date of trial records of the Allstate Insurance Company file on Mrs. Elizabeth Wirschning, which the prosecution’s witness, Charles Martino, testified that all records of the Allstate Insurance Company indicate that Mrs. Elizabeth Wirschning throughout the negotiations and settlement of her injury claim and during her later complaining signed statements of 1957 claimed only the doctor treated injuries listed on Dr. Milton E. Robbins’ handwritten medical bill to her (Defendant’s Exhibit H in Evidence) which are identical to Dr. Joseph Rosenheck’s typewritten evaluation report of Mrs. Wirschning’s stated doctor treated injuries she stated to Dr. Joseph Rosenheck (456) and also identical to the doctor treated injuries claimed false by the indictment (440) and that Mrs. Wirschning never disclaimed any of these injuries and further that Mrs. Elizabeth Wirschning never made any claim of any
wrist injuries. (459-461)

     Mrs. Wirschning admits on direct examination that she consulted the defendant concerning a possible separation from her husband, (44-45) because of troubles at home, (64) and further that out of the various matrimonial legal actions Mrs. Wirschning admits that she called the defendant “about the separation case”. Further, that she, Mrs. Wirschning, at the time of the separation case, had no money and no employment and that her husband had a bank account only in his name. (68, 218) The copies of defendant’s detailed letters and statements of account mailed to Mrs. Wirschning during defendant’s works for her legal separation from her husband state in detail many of her trial court judicial admissions and said copies of defendant’s letters were submitted in evidence producing much evidence of defendant’s extended knowledge in reference to Mrs. Wirschning’s matrimonial troubles, her family life and background. (Defendant’s Exhibits D and E in Evidence)

     Dr. Milton E. Robbins’ direct testimony confirms Mrs. Wirschning’s judicial admissions stating that Mr. Dec, “he was angry at Mrs. Wirschning. There was something to do with a separation or other and that he (Mr. Dec) decided to retain some money in this particular case.” (345) Charles Martino, the prosecution’s witness testified that the Allstate Insurance Company has a requirement that in all settlements of claims by married women the husband must join with the wife in a general release for his loss of services, unless the married woman is separated from her husband or is a widow. Mr. Martino further testified that only Mrs. Elizabeth Wirschning’s claim was settled therefore the Allstate Insurance Company must have been properly notified as to Mrs. Wirschning’s separation from her husband (481-482) Mr. Martino repeatedly admits that the defendant did not negotiate nor settle Mrs. Elizabeth Wirschning’s injury claim; (411) and that he, Charles Martino, was the Examiner, the supervising officer who only approved Mr. Urso’s suggested money settlement offer. (411, 470-471). Mr. Martino’s testimony confirms defendant’s contentions that because of Mrs. Wirschning’s retainer of defendant to represent her in an impending legal separation action from her husband, the defendant properly notified Mr. Urso that the defendant was withdrawing from Mrs. Wirschning’s husband’s loss of services claim and only prosecuting Mrs. Wirschning’s injury claim in that she was separating from her husband and had retained the defendant as her lawyer to represent her in an impending separation action. (411, 752, 812, 470-471)

     The many admissions of the prosecution’s witnesses corroborate defendant’s detailed testimony as to his legal works and services in references to Mrs. Wirschning’s retaining defendant to represent her in a legal separation action and how finally defendant agreed and accepted Mrs. Wirschning’s $200 share of the settlement money from her injury claim based upon the agreement with Mrs. Wirschning that the $200 would be held in escrow (which escrow money and two files in titled file sized file envelope, one for Mrs. Wirschning’s separation action and the other for her injury claim case file Detective Becker inspected when he took the defendant in custody to defendant’s office in July of 1957 and Detective Becker purloined defendant’s written retainer with the Wirschning’s). The $200 would be held in escrow as part payment toward a legal separation action and also in order to guarantee defendant’s minimum fee of $150 for defendant’s completed legal works should Mrs. Wirschning decide not to go ahead with the legal separation action. The judge charges, as a matter of law, in his charge to the jury, that the defendant was entitled to some legal fee for such legal services performed with respect to a legal separation action. (970)

     In reference to contradicting Mrs. Elizabeth Wirschning’s indefinite and short answer direct testimony in reference to her denial of signing her general release and $400 Allstate Insurance Company settlement check, the defendant commenced cross examination in reference to her indefinite and short answer direct testimony. Mrs. Wirschning not only disproved her original direct testimony by contradicting it but Mrs. Wirschning also further contradicted her original direct testimony in detailed statements during her cross examination. Repeatedly Mrs. Wirschning admitted the she misspelled her new married name for some period of time after being married and that she usually left out the letter c in her new married name and that upon her close examination of her general release she testified that the c is left out of her married name and that it is the usual mistake she made in signing her new married name. (222)  While still examining her signature on her general release Mrs. Wirschning then further admits that although she does not remember leaving out the c in her last name when she signed her general release, “that far back”, it is her signature and she signed it as she usually signed her name at that time when she was first married. (222) Thereafter the defendant refers Mrs. Wirschning to her $400 settlement check from Allstate Insurance Company. The defendant points out items on said check in detail. While Mrs. Elizabeth Wirschning is still examining her $400 settlement check, the defendant points out in detail that the check is made out to Elizabeth Wirschning and it is endorsed on its rear Elizabeth A. Wirschning and what explanation can Mrs. Wirschning offer to this improper endorsement on the rear of the check, when all of defendant’s records and all of Allstate Insurance Company records do not include her middle initial, nor is her name misspelled in said records. Mrs. Elizabeth Wirschning admits that when she was first married for a period of time, during which period of time she signed her $400 settlement check, she always signed her name that way with her middle initial included. (218-226, 858-859 ) Defendant then attempts to further cross examine Mrs. Elizabeth Wirschning and have her completely confirm her signing of her $400 Allstate Insurance Company settlement check. The Court immediately interrupted the defendant and prevented Mrs. Wirschning from answering defendant; the Court stated: “Just a minute.” And the prosecutor quickly interrupts with his often repeated objection “A. Nixon: I object, your honor. That is the ultimate for this jury to decide (in) this case.” The Court sustains the objection and even the extant trial record indicates the defendant objecting and taking “exception for purposes of appeal.” (227)  This is an example of the concerted efforts of judge and prosecutor which stifled defendant’s cross examination and prevented Mrs. Wirschning from making further repeated unrestrained detailed judicial admissions that she signed her $400 Allstate Insurance Company settlement check. Such repeated concerted efforts of judge and prosecutor illegally and wantonly stifling the judicial confessions of the prosecution’s chief witnesses evidence not only a prearranged simple worded format, used by judge and prosecutor to stifle the defendant’s cross examinations but also wantonly and intentionally repeatedly the judge and prosecutor concertedly override the basic concept of any fair trial, namely, cross examination, “universally recognized as the principal and most efficacious test for discovery of truth”. (Wigmore on Evidence, 3^rd Ed., sec. 1367). “Cross examination of adverse witnesses is a matter of right in every trial of a disputed issue of fact.”(Matter of Friedel v. Board of Regents, 296 N.Y. 347, 252, 73 N. E. (2d) 545) If cross examination is prevented by accident or design, the direct examination is rendered incompetent. ([obscured]. v. Vole, 43 N. Y. 508) the Court of Appeals granted a new trial where through unusual accident the witness was not able to complete cross examination.

     Dr. Milton E. Robbins testified on direct examination that Dr. Milton E. Robbins knew nothing until after the investigation of the matter was commenced by the District Attorney in July of 1957. During cross examination Dr. Milton E. Robbins admits that he is a perjurer and liar. During further cross examination Dr. Milton E. Robbins admits that his present story of knowing nothing is a story concocted during a two week period in July of 1957, while consulting with his lawyer, brother in law and also another lawyer from Nassau County, J. D. C. Murray. (390-391)  Dr. Milton Robbins further admits that shortly prior to concocting his present story of knowing nothing with his lawyer, brother in law (so related for 25 years) (360-361) and lawyer J. D. C. Murray that he, Dr. Milton E. Robbins, went to the District Attorney’s office without consulting any lawyer and that he, Dr. Milton E. Robbins, gave an extemporaneous, unpremeditated statement as to his treatments to Mrs. Wirschning as indicated on his medical bill (390-391) that he gave to her husband to forward to defendant. Dr. Milton E. Robbins also admits that it was he, who, on Monday, July 8, 1957, telephoned the defendant and begged defendant to come to Dr. Robbins’ office in order to get back his hand written medical bill for his treatments to Mrs. Wirschning, which bill defendant sent to the Allstate Insurance Company when settling Mrs. Wirschning’s injury claim (344-345, 383)  On direct examination Dr. Robbins also admits that at the time he, Dr. Robbins, was in hysterics and that the defendant said “he was angry at Mrs. Wirschning. There was something to do with a separation or other and that (defendant) he decided to retain some money in this particular case.” (345)  After the defendant arrived at his office, Dr. Robbins admits that he gave defendant many hundreds of his X-Rays not related to the Wirschning case, to be destroyed. (383)

     These are some of the important admissions of these chief witnesses for the prosecution which contradict the total claims of the prosecution’s case and more important contradict the claims of the four count indictment and substantiate the defendant’s innocence of the crimes convicted and in no way prove guilt beyond a reasonable doubt and the evidence falls below the standard of rebutting the presumption of innocence as set forth in section 389 of the Code of Criminal Procedure.

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                                            Motions for Mistrial
     The defendant made several motions for mistrial. The defendant stated a lengthy multi-motion for mistrial based upon the near week long interruption adjournment of the defendant’s trial two days after commencement. On the afternoon of November 6, 1958 the trial was adjourned until November 12, 1958.(130)  Said motion included the fact that without notification to defendant the Court ordered the defendant to discontinue the cross examination of both Nathan Birchall and Mrs. Elizabeth Wirschning and especially after Mrs. Elizabeth Wirschning had judicially admitted that she repeatedly personally stated and claimed all of the injuries and treatments the indictment claimed false and she admitted she signed her general release and her $400 Allstate Insurance Company settlement check; misspelling her name and including her middle initial, improperly, which she usually did when she was first married when she signed her general release and settlement check. This surprise interruption of the defendant’s trial for approximately a week by order of the trial judge shortly after defendant was ordered to alternate his cross examination between the completely faltering and breaking down chief witness for the prosecution, Mrs. Elizabeth Wirschning, and the speechless, stupefied Nathan Birchall, District Attorney stenographer, were irregularities strenuously objected to by the defendant “instead of adjourning the trial so there would be a complete trial and not a haphazard hodgepodge the court did not inform me” (131) and defendant petitioned the trial court to declare a mistrial (131) the motion was denied and defendant took exception. (135) Included in this motion for Mistrial the defendant enumerated several of the many prejudicial statements the judge stated against the defendant showing complete “prejudice against me and favoritism for the District Attorney.” (131) The defendant also included restatements of some of the judge’s actual prejudicial statements, namely, that the defendant was the cause of wasting the Court’s day and the jury’s day on Thursday and the day that the defendant wasted was a beautiful day the jury could have spent playing golf. (128) and that the defendant was warned by the Court that the Court was giving the defendant additional time to read the lengthy notes of Nathan Birchall being offered into evidence, out of generosity of the Court and that no such further generosity would be extended to defendant to any items offered into evidence because defendant refused to glance through the hearsay notes of Nathan Birchall and accept them in spite of the fact of the judge’s own testimony as to the lengthy and exemplary career of Nathan Birchall, the District Attorney’s stenographer. The said character testimony of the judge was restated in defendant’s detailed motion for Mistrial. (129) The complained character testimony of the judge was, namely that, Nathan Birchall had been a stenographer for over thirty years in the Courts of Nassau County and that from personal knowledge of the judge there could be no reason for the defendant to object to the admission of N. Birchall’s stenographic notes into evidence. (128, 132-133)  To confirm this character testimony by the judge, the defendant positioned the judge to have the Court Reported reread the stenographic minutes of the trial prior to adjournment to confirm the defendant’s statements of the judge’s prejudicial character testimony for Nathan Birchall. The Court refused to so do and then defendant repeatedly petitioned the judge to call members of the jury to testify and confirm the truth of defendant’s said statements in further support of defendant’s multi-motion for Mistrial and the defendant took exception for purpose of appeal. (135)

     After completion of defendant’s above motion for Mistrial, the defendant petitioned the Court that the stenographer reread the trial minutes for the last few minutes of the trial to the approximately week long interruption, surprise adjournment ordered by the judge two days after the commencement of the trial and shortly after the Court ordered the defendant to alternate his partially completed cross examination of Mrs. Elizabeth Wirschning with Nathan Birchall. The Court denies defendant this request although the defendant stresses the lengthy one week surprise adjournment. The Court states that because of the fact that a different stenographer is recording the trial after the adjournment, the present stenographer cannot read back any part of the trial because he has no notes available. The defendant requests that a recess be called for the new stenographer to obtain the original stenographers stenographic notes from the Custodian of the Court who keeps such trial records while the trial is in session. The Court attempts to dissuade the defendant but finally orders the defendant to proceed with the trial without and read back of the trial minutes after refusing the requests of the defendant. (155-159) The defendant takes exception and makes a motion for mistrial. Defendant’s Motion for mistrial is disallowed and defendant takes exception.(159)  The defendant is ordered to go ahead; defendant takes objection but the Court reorders the defendant to move ahead and defendant stresses that “under our law I am forced to proceed when your Honor denies me the right to object.” (159) The Court states: “The Court feels that everybody here is well advised of what we are contending with … proceed from that point.” (160) Substantially, the judge states that, he, the judge, the prosecution, and the jury are well advised and are agreed in their opinion of the defendant that defendant’s trial is but a required formality before convicting the defendant feloniously. What possible other interpretation of this dastardly, but revealing remark by the judge can be properly applied to the said remark? Under the circumstances created by the many other statements and remarks of the trial judge partially enumerated in defendant’s Motions for Mistrial, there can be no other interpretation of such highly prejudicial remarks by the trial judge. Each of the items mentioned in the defendant’s Motions for Mistrial are sufficient for reversible error. Comments by a judge during a trial or in his charge to the jury which assume the falsity of the testimony of a witness are not allowed. A judge should not by his attitude or comments force upon a jury his opinion as to the guilt or innocence of the defendant. To do so would be an error as matter of law. (Peo v. Chanian, 245 N.Y. 227. In the cited case the trial judge later instructed the jury to disregard his irregular remarks but still the Court of Appeals unanimously reversed the judgment of the trial court, saying,

                      “We cannot escape the conclusion that the judge made himself
                       the trier of the facts and acted as a self-appointed substitute
                       for the jury. Such conduct is a violation of section 419 of the
                       Code of Criminal Procedure and as such constitutes an error of
                       Law.” (Peo. V. Chanian 245 N.Y. 227, 231, 233,  157 N. E. 94)

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     Defendant’s objection and exception to the admission of the
Fraudulently altered hearsay stenographic notes of Nathan Birchall,
the District Attorney’s stenographer, said notes consisting principally of conversations of people such as Edward Robinson, Frank Gulotta, Detective Alva Becker, and lawyer J. D. C. Murray, none of whom were witnesses during the trial. Defendant repeatedly objected to the admission into evidence of the fraudulently altered hearsay typed copies of the stenographic notes of Nathan Birchall, the District Attorney’s stenographer. The said Nathan Birchall testified that he did not see the person who actually typed the copies of his hand written stenographic notes from his dictated tape recordings. Further, Nathan Birchall testified that the person who typed the typewritten copy of his stenographic notes never saw his original stenographic notes and further that even if anyone saw his original stenographic notes, no one could understand his stenographic notes because he had improvised a secret shorthand code over the years that he, Nathan Birchall, alone could decipher. The defendant objected to the gestapo like notes and requested to inspect them. The court refused the defendant’s request on the ground that it is afainst public policy. The defendant objected to the ruling and took exception. (183-184)  The defendant stressed in detail his objections to the admission of the fraudulently altered hearsay copies, principally of hearsay conversations of people such as Edward Robinson, Detective Alva Becker, and J. D. C. Murray, a lawyer for Dr. Robbins, into evidence. Defendant objected further that he had no means to inspect the original notes because of the judge’s refusal to permit the defendant to do so and most important, because the stenographer, Nathan Birchall, had his own secret shorthand code whereby no one could check the veracity of his shorthand notes. The judge overruled defendant’s objections and allowed the said typed copies of the said stenographic noted into evidence over the defendant’s exception. (197-199) (re: infra:And admission written or oral, Richardson on Evidence 8^th Ed. Secs. 305-306)

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     The final summation of Arthur Nixon, the prosecutor for the District Attorney, was an incoherent, muddled, simple language outline of non-existent evidence based upon people who were not witnesses and who the prosecution refused to call as witnesses. The Court Reporter’s record of said A. Nixon’s final outline is found conveniently on pages 901 to 935 and even this said record produces over 35 objections and exceptions by the defendant to the raving, incoherent, muddled, simple language outline of non-existent evidence based upon such people as, those listed in detail below:

Frank Gulotta:     District Attorney of Nassau County, later automatically elected Supreme Court Judge, who was present during the non-existent Grand Jury hearing in his office wherein Dr. Milton E. Robbins and Fred Wirschning broke down and admitted that the defendant refused to proceed ahead with the negotiations of Mrs. Wirschning’s injury claim because Mr. And Mrs. Wirschning produced no medical bill for Mrs. Wirschning’s claimed injuries and that finally Fred Wirschning broke down in the presence of Frank Gulotta and admitted that because of defendant’s refusal to go ahead with the negotiations of his wife’s injury claim, he, Fred Wirschning, went over to Dr. Robbins and obtained his wife’s medical bill for her treatments for her injuries and gave it to defendant. Wherein immediately Frank Gulotta quickly stepped in front of defendant urging Edward Robinson Jr. to compose himself and discontinue all questioning, at which time Frank Gulotta waived his hand as a form of stopping motion and took hold of Edward Robinson Jr. and tapped Fred Wirschning on the shoulder instructing him not to answer and stating that the matter was small and quite unimportant to waste time about it. (909)

Edward Robinson Jr. :     An Assistant District Attorney of Nassau County: later automatically elected a Supreme Court Judge; whose incoherent, simple ravings to the defendant and other people during the above mentioned non-existent Grand Jury hearing were completely fraudulently altered in the records of Nathan Birchall, which said hearsay records were admitted into evidence over defendant’s many objections and Motion for Mistrial. These said recordings of conversations of Edward Robinson were read at length during A. Nixon’s final summation and the henchman works of Edward Robinson, Jr. were stressed by A. Nixon as important evidence of the prosecution’s case. (911-913, 916-917, 920-930) A. Nixon and the Court in the final summations imply that the fraudulently altered hearsay notes of N. Birshall constitute a confession. Whereas not even the said fraudulently altered hearsay notes produce any statements that defendant implicated himself in the crimes charged.
            This is reversible error.  An Admission Written or Oral (Peo. v. Giro 197 N. Y. 152, 160) as distinguished from a confession, is not direct, but circumstantial ecidence (Peo v. Bretagna, 298 N.Y. 323, 326; Peo. v. Koslow, 2^nd Dept. 6 A. D. 2^nd 713. Three doctrines control it: (1.) Like a confession, it must be found not only voluntary, but true in fact, else it is ineffectual. (cf. Peo v. Elmore, 277 N.Y. 397, 404; Gangi v. Fraudus, 227, N.Y. 452); The fraudulent alteration the Nathan Birchall notes by the District Attorney’s office was specifically stressed by the defendant by objection and Motion for Mistrial. (2.) “all circumstances surrounding its making are material thereon” (Elmore Case, p404) which here meant the asserted non-existent Grand Jury hearing and the wanton fraudulent alteration of said notes by the District Attorney’s office to implicate the defendant from the said records and fraudulently alter the felonious incriminating admissions of Fred Wirschning and Dr. Milton E. Robbins. (3.) Where a statement is exculpatory and open to a construction favoring innocence --

            Defendant even in these fraudulently altered records is not in any way claimed to state any incriminating fact or admission of guilty knowledge, instead defendant, even in the said records, disclaims the accusations and tells of his legal work and services in reference to the impending legal separation action of Mrs. Elizabeth Wirschning and her retainer of him for such legal separation action and her depositing her $200 share of her injury claim settlement money with defendant which the defendant was holding in escrow as part payment for her legal separation fee and also to guarantee the defendant his minimum fee of $150 for completed legal services. The said fraudulent records also produce the admissions of Detective Becker that he immediately took the defendant’s statements to be true. Mrs. Wirschning’s titled injury claim file and written retainer which both Mr. and Mrs. Wirschning signed (but claimed and swore they never retained the defendant and never signed anything for the defendant) along with said file was Mrs. Wirschning’s separation file titled envelope with the many legal papers, and copies of statements of account for defendant’s services in reference to his works for Mrs. Wirschning’s legal separation action, which said papers Detective Becker inspected and read along with his opening the titled letter sized envelope holding Mrs. Wirschning’s $200 in escrow.

             -- defendant is entitled “to whatever benefit such statement affords” (III Wigmore on Evidence 3^rd ed. Sec. 821; Richardson on Evidence 8^th Ed. Secs. 305-306;2Wh. Grim. Evid., 11^th ed. Sec 840; Peo v. Reilly 224 N.Y. 90, 96; Gangi v. Fraudus, supra), and the Court is under duty to make plain to the jury its exculpatory features (cf. Peo v. Doria, 3^rd Dept. 281 A.D. 918

             None of these doctrines were charged, instead the Court and especially A. Nixon implied that the said notes were a confession or admission of guilt by the defendant. The Law prohibits such a construction of statements (Peo. v. Reilly, supra) or testimony (Peo. v. Gorbisiero, 290 N.Y. 191, 194) intended and definitely showing the opposite.

Dr. Azzara:     the doctor the prosecution and Mrs. Wirschning claimed was the “Wirschning family doctor” but later Mrs. Wirschning admitted that Dr. Azzara was “a baby doctor”, a specialist. Many months after Mrs. Wirschning’s last repeated statement of her doctor treated injuries; which are identical to the doctor treated injuries claimed by the defendant to be false, Mrs. Wirschning forgets these doctor treated injuries she repeatedly personally stated to constitute her entire injury claim and Mrs. Wirschning testifies on trial that her entire injury claim was a slightly hurt wrist, not treated by any doctor but only looked at once by a Dr. Azzara. This is the Dr. Azzara that the prosecution refursed to produce as a witness although the defendant stressed that Mrs. Wirschning broke down under cross examination and admitted she personally stated and claimed the doctor treated injuries claimed by the indictment to be false; therefore Dr. Azzara was a necessary witness for the prosecution. (910, 911)

Dr. Joseph Rosenheck:     of Allstate Insurance Company, the doctor who personally examined Mrs. Wirschning for her detailed personally stated injuries and medical treatments claimed by Mrs. Wirschning in order to completely evaluate Mrs. Elizabeth Wirschning’s total claim for damages against Allstate Insurance Company; said Dr. Rosenheck in the usual course of his business of examining doctor for Allstate Insurance Company made the usual typewritten report of his physical examination of Mrs. Wirschning in reference to her claimed injured portions of her body. This typed report was the sole basis the offenders of Allstate Insurance Company evaluated the total cash value of Mrs. Wirschning’s claim for damages against Allstate Insurance Company and established a cash reserve for said claim. Although the prosecution refused to call Dr. Rosenheck as a witness, the prosecution repeatedly made mention of Dr. Rosenheck in its final summation. An example of such highly irregular statements follows:

“Yuh hear any proof” … “Now if Mrs. Wirschning told Dr. Rosenheck these things, *** why wasn’t he called by the defendant?” (906)

*** “these things” refers to “this copy of Dr. Rosenheck’s report” (905) the prosecutor was waving at the jurors during his summation and specifically “these things” are the detailed typewritten repeated listings if the personal injuries and doctor treatments Mrs. Wirschning stated to Dr. Rosenheck to be her total claim for damages against the Allstate Insurance Company typed on the typewritten report of Dr. Rosenheck in reference to Mrs. Wirschning’s physical examination By Dr. Rosenheck; who specifically examined the portions of her body she claimed were injured and that constituted her total claim for damages against Allstate Insurance Company, namely Bursitis of the right shoulder and bruises of the right thigh. (Defendant’s Exhibit I in Evidence)

             Throughout the trial and especially during his final summation the prosecutor stated the defendant was guilty because the defendant did not produce any witnesses to disprove the indictment, which is ground for reversal (Peo. v. Carbonaro 301 N.Y. 39,42; Peo. v. Manning 278 N.Y. 40, 43).

Detective Alva Becker:     was emphasized by the prosecution as an extremely important witness; who took part in all the important steps in the lengthy prosecution of the defendant. A.  Nixon’s opening address stressed that for these reasons the important, key, witness, Alva Becker would be called by the prosecution as a witness. Alva Becker was the detective who was present at the above mentioned non-existent Grand Jury hearing wherein Frank Gulotta openly displayed his fanatic, frantic henchman efforts to prevent the prosecution’s tutored perjurous complaints from breaking down and confessing their perjuries under the questioning of them by the defendant. Alva Becker was the detective who immediately after defendant’s first visit to the District Attorney’s office took the defendant in custody to defendant’s office to disprove the defendant’s detailed statements that Mrs. Wirschning did retain defendant for her injury claim and that Mrs. Wirschning retained the defendant as her lawyer to represent her in an impending separation action and as part payment for her agreed fee for her separation Mrs. Wirschning deposited her $200 share of her settlement money with the defendant and in accordance with her agreement the defendant was holding the $200 in escrow as part payment toward her separation action fee and also to guarantee his minimum fee of $150 for defendant’s completed works should Mrs. Wirschning decide not to go ahead with the separation action. This is the Detective Becker who saw the two titled file sized envelopes in defendant’s filing cabinet; one file size envelope titled Mrs. Wirschning’s injury claim and the other file sized envelope titled for Mrs. Wirschning’s separation case. Even the fraudulently altered Nathan Birchall’s notes produce records of Alva Becker’s admissions that he, Alva Becker, opened the two said file envelopes and inspected the various papers and copies of the statements of account sent to Mrs. Wirschning in reference to her impending separation action; it is this Alva Becker, who also admitted that he opened the small letter sized envelope and saw the $200 Mrs. Wirschning deposited with defendant being held in escrow in said titled envelope as the defendant stated to the District Attorney; it was this Alva Becker, who, while inspecting the other file envelope on Mrs. Wirschning’s injury claim and reading the various papers in said file, he, Alva Becker purloined the written retainer of Mr. and Mrs. Wirschning. This is the Detective Becker who sat at the prosecution’s table through the trial but repeatedly the prosecution refused to call him as a witness. In final summation the prosecution repeatedly mentions the important works of this Detective Becker and warned the jury that the defendant should have called Detective Becker as a witness to disprove the charges against the defendant, the prosecutor even demanded to know why the defendant did not call so important a witness. (904-905)  These promises by the prosecution to call the important witness Detective Alva Becker are unkept promises of proof of material facts, and constitute reversible error because the prosecutor is chargeable with knowledge that it is not available, or that it cannot be legally produced. (Peo. v. Wolf 183 N.Y. 464; Peo. v. Distefano 2^nd D., 276 AD 852; Peo v. Simmins id., 125 A.D. 234).

Dr. Milton H. Robbins’ lawyer brother in law:     the often mentioned unnamed lawyer brother in law of Dr. Milton E. Robbins, who Dr. Robbins admitted was his brother in law for over 25 years and that Dr. Robbins testified that he contacted his lawyer brother in law and concocted a new story of knowing nothing about everything during the two week period after Dr. Robbins voluntarily appeared at the District Attorney’s office and gave a detailed statement as to Mr. and Mrs. Wirschning and the Wirschning’s background and his treatments to her for the injuries stated in his hand written bill he gave to her husband. The prosecution did not call Dr. Robbins’ lawyer brother in law to impeach these admissions of Dr. Robbins and refused to call him to impeach the admissions of Dr. Robbins that he under threats of suicide made defendant remove hundreds of Dr. Robbins X-Ray records from Dr. Robbins’ office; which said admission tended to confirm defendant’s detailed testimony that Dr. Robbins ordered the defendant to destroy the many X-Rays in order to destroy the many year illegal activities with his lawyer brother in law. (918, 920-921)

J.D.C. Murray:     an old Nassau County lawyer and friend of Frank Gulotta. The same lawyer that Dr. Robbins admitted assisted him and his brother in law in concocting a new story for him during a two week period after Dr. Robbins gave his first unpremeditated statement to the District Attorney without the assistance of any lawyer. This is the J.D.C Murray the prosecutor refused to call as a witness but emphasized J.D.C Murray’s important works in the case in his final summation stating that J.D.C. Murray did not state: “Look, go in tell a pack o’ lies … an’ I will come down there with yuh an’ yuh tell a pack o’ lies an’ then yuh get on the stand an’ yuh commit perjury.” (920) Although J.D.C Murray was not called as a witness, A. Nixon explains how J.D.C. Murray “comes in with Dr. Robbins and he tells the truth.” (919-920)

     In spite of defendant’s repeated objections and exceptions A. Nixon outlined the entire prosecution’s case in his final summation upon the non-existent evidence of these seven above mentioned people who were never called as witnesses in the entire trial and who the prosecution repeatedly refused to call as witnesses during the trial. (901-935)  This is in complete contradiction with the Code of Criminal Procedure; the statutory law governing criminal trials, namely:

Section 388 sub. 3: “The District Attorney, or other counsel for the people shall
then offer the evidence in support of the indictment.”

Section 389:     “Defendant presumed innocent until contrary proved.”

14^th Amendment, N.Y. Constitution Art, 1, Sec. 6.

Under due process of law an accused is not required to establish his innocence.
(Peo. v. Pinder 170 Misc. 345, 9 NYS 2^nd 311).

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                       The judges charge to the jury.
The judge’s charge to the jury consisted of a lengthy reading of the indictment and primarily of a fabricated story of the evidence as “it is my recollection of the important phases of the testimony.” (959) Even the judge’s warped memory admits some of the detailed testimony and evidence of the defendant, namely;

                                            “he gave her $200 in
                      accordance with the retainer agreement and that
                      she returned this $200 as part payment or as a
                      part of an arrangement for payment in connection
                      with services in a separation action which he
                      stated he was handling for her.” (958)

     The important contentions of the prosecution were that Mrs. Elizabeth Wirschning never retained defendant and never received any legal services in reference to a separation action and further that Mrs. Wirschning only visited the defendant’s office once. Finally the judge in a highly improper, prejudicial final remark in his charge to the jury implies automatic guilt to the defendant despite the fact the in law he, the judge, charges the jury that all of the above mentioned contentions of the prosecution have been proven false and that defendant’s proven contentions are true, namely,

“I further charge you that even though the defendant,
Francis E. Dec, performed some legal services for
Elizabeth Wirschning with respect to a separation action
and that by reason thereof he was entitled to some legal
fee for such services, that would not justify him in
committing the crimes, the charges alleged in the indictment
and his performance of services for the separation action
is no defense whatsoever to the counts in the indictment.
                      Gentlemen of the jury that concludes my
Instructions.”   (970)

     This was a trial lasting over two weeks with an extant trial record of 991 pages. Most of the judge’s charge, aside from the above mentioned nine pages of highly prejudicial recollections of the “important phases of the testimony” (951-959) was devoted to reading the indictment and solemnly rereading the indictment emphasizing the felonious nature of the crimes and the solemnity of the indictment. The record will disclose that it was a charge in name only, wholly failing to guide a layman on the essential elements of the defendant’s defense and in fact charging the defendant with guilt because of defendant’s defense and in fact charging the defendant with guilt because defendant’s defense was proven to be true. The charge was also wholly failing in guiding a layman on the essential elements of the crime and the specific theory of guilt. (Peo. v. Lupo 305 N.Y. 448) to assure a fair trial (Peo. v. Wallens, 297 N.Y. 57, 62, a right inherent in due process (14^th Am’t N.Y. Const’n, Art. 1 sec. 6; cf. Peo. v. Leavitt, 301 N.Y. 113,117).

     The charge completely ignored the good character of the defendant. The defendant took the stand and testified in detail as to his good background and character, and good reputation. Defendant emphasized his lengthy honorable volunteer service in World War II and his lengthy religious education in parochial school and university and defendant’s honorable service in the N.Y. State Police and Nassau County Police forces and his honorable position in his community as a practicing lawyer and the necessary good life history for these positions, especially his position as a lawyer. This is an important omission in the judge’s charge. This is reversible error even though no request was made to charge the jury. (Peo. v. Visicio 3^rd Dept. 241 AD 499). In the judge’s charge to the jury there was no mention of the prosecution’s refusal to deny or impeach the defendant’s detailed repeated statements as to Fred Wirschning’s bad character, namely, that he is a known felonious car thief, a wayward husband who resided with negro prostitutes. These statements are confirmed even in the prosecutions Nathan Birchall records of Fred Wirschning’s admissions to defendant in the District Attorney’s office. The judge refused to charge the felonious admissions of Mrs. Elizabeth Wirschning who admitted she claimed two different sets of injuries and further that she signed her general release and $400 settlement check. The judge refused to charge the jury as to the confessed bad character of Dr. Milton E. Robbins, who in open Court confessed to the felonious crime of committing perjury, namely, in swearing to a false concocted story about this matter; and further Dr. Robbins’ felonious admission of writing a fraudulent medical bill.

     The Court refused to charge the extremely extensive range of interest of these self admitted felonious chief witnesses of the prosecution; who individually actually confessed in open Court to the crimes charged against the defendant and also confessed to their felonious perjurous complaints against the defendant upon which the indictment rests. This was of extreme importance to the jury. (Peo. v. Keboe 2^nd Dept. 253 AD 762 aff’d 278 N.Y 518. The harm was intensified in leaving out the fact of the willfulness of the nature of the perjurous testimony which preceded the judicial confessions during cross examinations. The defendant later takes exception to the judges highly irregular charge to the jury which charge deviates from the requisites as set down in section 420 C.C.P. but in each instant the judge refuses to correct his charge.

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The extant record of defendant’s requests to the judge to charge the jury;
defendant requested the judge to charge:

                      “in reference to statements of Elizabeth Wirschning that she
                       was treated by a Dr. Azzara and was requested to produce
                       the bill of Dr. Azzara, and if she did not voluntarily produce the
                       bill of Dr. Azzara that such presumption in law would arise that
                       her statements were not so as she stated, and that the natural
                       inference, if the evidence was held back, because it did not
                       exist or would be unfavorable. Therefore, the presumption in
                       law arises that the facts in dispute would be undoubtedly as the
                       opposing side claims, my defense.” (971-972)

The judge refused to so charge and the defendant took exception.
The defendant further requested the Court to charge:

                       “I further request you to charge that in reference to the statement
                       of Dr. Robbins, whereas Dr. Robbins stated that he had no record
                       of Elizabeth Wirschning’s treatments in his office, and in that he
                       was requested whether the records were in his office and available
                       to prove these statements, he stated yes. He did not produce such
                       records wherein it would give proof definitely that he had no treatment
                       of Elizabeth Wirschning in a period questioned. He did not produce
                       such records, therefore the presumption is the natural inference that
                       the evidence was held back because it was not only unfavorable,
                       but decidedly in favor of the opposing side and what the opposing
                       side stated was true.” (972-973)

                      The Court refused to so charge and the defendant took exception. These two requested charges are based upon the trial testimony and defendant’s requests of the prosecution and the witnesses of the prosecution to produce the alleged real evidence. The terminology of the prepared requests to charge was abstracted directly from the text Richardson on the Law of Evidence 8^th ed. Chap: Presumptions; sec. Presumptions Arising from Withholding Evidence.

                       The defendant further requested the judge to charge; in reference
                       to the entire indictment:
                       “there is a question of fact here for the jury to determinate, that there
                       were services here which are not denied in reference to Elizabeth
                       Wirschning as to domestic troubles, and in reference to her services
                       received from me in reference to her separation action. On the basis
                       of these services rendered there is a necessity in law to prove or for
                       the jury to decide whether it was factual or not that the escrow funds
                       were being held as stated, as I stated. I did not take her share of the
                       money to my own possession, there could be no crimes as asserted
                       in … the indictment” (974) 

                      The judge refused to so charge the jury and the defendant took exception. The
defendant further requested the judge to charge; that the if the jury finds that:

                                            “I, as Elizabeth Wirschning’s attorney acted as her agent
                      for representations that she made to representatives of the insurance
                      company, and thereafter did turn over her settlement moneys to her and
                      once again had such funds returned to me to be held in escrow (the in-
                      dictment must fall and defendant must be acquitted).” (976)

                      The Court refused to so charge and the defendant took exception.

     The defendant’s requests for the judge to charge the jury were based on the important evidenceproduced during the trial. The judge is disallowing the defendant’s requests to charge the jury actually prevented the jury from being “the exclusive judges of all questions of fact” (Sec. 420, C.C.P. Charge to the jury) in that he, the judge in his original charge to the jury removed these facts from the jury’s consideration by charging the jury that they could not consider the facts later stressed in defendant’s requests to charge the jury.

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     Defendant’s Post Trial and Appeal Motions:
     Defendant’s first post trial motion was made in the Appellate Division of the Supreme Court for the Second Judicial Department. It was a Notion for an Order Compelling the Trial Stenographers to Produce the Trial Record of this Defendant’s Trial. The motion was heard on February 2, 1959. Said motion was premises upon Section 456 of the Code of Criminal Procedure, namely,

“Where the defendant is convicted of a crime the clerk of the Court in
 which the conviction was had shall within two days after a notice of
 appeal shall be served upon him notify the stenographer that an appeal
 has been taken whereupon the stenographer shall within ten days after
 receiving such notice deliver to the clerk of the Court a copy of the
 stenographic minutes of the entire proceeding of the trial.” 

     Defendant devoted much of the 17 page motion to cogent reasons for said motion, based upon specific personal occurrences of injustice because of delays in the delivery of stenographic notes. The motion was specific and detailed in its repeated petitions for expeditious adjudication, in order to prevent or curtail possible intentional alteration of the defendant’s lengthy trial record. Due to the District Attorney’s failure to reply, the motion was put aside a week. Thereafter, a month and a half later, when one of the trial stenographers, Michael Wowk, delivered his record of the defendant’s trial, the said appellate court dismissed defendant’s motion as academic. Defendant’s said motion was later stressed in defendant’s appeal brief in reference to the somewhat similar situation in the later decided case in this Court of Peo. v. Chester Pitts. (6 N.Y. 2^nd 288)

     On October 5, 1959, the defendant made appication to the County Court to amend the trial record. Defendant submitted 794 Proposed Amendments, 320 typewritten pages in length to the County Court; said amendments substantially corrected the fraudulently altered trial minutes of defendant’s trial produced by Michael Wowk, one of the trial stenographers at the defendant’s trial. The defendant incorporated said 794 Amendments in his later motion to extend time to perfect his appeal in the Appellate Division of the Supreme Court. Defendant also incorporated said 794 Amendments by reference in his appeal brief in said Court. Defendant extracted several excerpts from the wantonly fraudulently altered trial minutes produced by Michael Wowk, the Nassau County Court stenographer and included said excerpts in defendant’s lower appeal court brief. Two of said excerpts were included in defendant’s earlier motion to extend the time in which to perfect the appeal. These two said excerpts are included below:

“And I say that Mr. and Mrs. Wirschning knew that
 the moneys was there and are being used as dupes because they
 are fearful either they prosecute me or they bring it forth, the
 insurance company, to show Mrs. Wirschning you were hurt so and
 so and so and so and you retained the lawyer. He has a retainer.
 You committed fraud and your husband automatically is guilty of
 attempt of committing a fraud on the insurance company and the
 lawyer has done his work routine according to the routine which the
 District Attorney has -- fifty per cent of the fee is mine, $200 – which
 they agreed to, but if the client knows nothing of it”     (p.31)

                      “The conversation in these records they claim that
were made is not such that I would have nor anyone would have
where direct quotations in reference to a crime. I have never acknow-
ledged these. They were admitted in evidence over my objection that
they were hearsay, as not in accordance with the best evidence rule,
as not in accordance with material and essential items, to the Court
and other objections. I have not adopted them.”     (p. 845)

                     The above excerpts of the defendant’s trial record as produced by Michael Wowk, the County Court’s Reporter are examples of the wanton fraudulent alteration of the defendant’s trial records which said record is substantially amended is defendant’s 794 Amendments to the trial record.

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      Judgment procured by fraud and in violation of Constitutional Rights.
     The above two excerpts of the trial record are examples of the wanton fraudulently altered trial record as produced by Michael Wowk, the Nassau County Court Reporter. The defendant still stresses the fact that said wanton fraudulent alteration of defendant’s trial minutes not only deprived the defendant of any semblance of due process and equal protection and statutory right to an appeal of his conviction but also even the fraudulently altered trial record substantiates defendant’s contentions that defendant’s trial was a gestapo like farce trial with dishonest fixed judge, William J. Sullivan, and fixed jury which convicted the defendant of the false four count indictment in order to create a dumb innocent scape goat out of the defendant as an example to atone for all unprosecuted notorious felonious lawyers. Defendant’s appeal brief was replete with direct excerpts from the fraudulently altered trial minutes which would create an unwavering acquiescence to this said contention in even the most prejudiced person’s mind, especially when such wanton persecution is considered from a personal aspect.

     Many excerpts of the trial judge William J. Sullivan and prosecutor, Arthur Nixon, trial statements and testimony for the completely faltering and breaking down perjurous chief witnesses were laboriously culled from the extant records of the trial minutes. Some of the almost continuous wanton, frantic, impish efforts of judge and prosecutor undertaken in concert are still extant in the said record of the extremely long trial. Substantial examples were abstracted from the trial minutes and the judge’s and prosecutor’s wanton, frantic, fanatic, kangaroo court style of stifling of the breaking down confessions of the completely faltering perjurous chief witnesses, namely, Mrs. Elizabeth Wirschning, Dr. Milton E. Robbins and especially the perverted notorious, felonious car thief, Fred Wirschning, wayward husband of Mrs. Wirschning, were incorporated in defendant’s appeal brief. Examples of these wanton actions by judge and prosecutor are included below; the first example is an excerpt from direct examination:

                      “Q.     I will repeat the question. Up to May of 1957 did you know
                      a Dr. Milton E. Robbins?
                      Fred Wirschning:     A. Could I explain it.
                      By the Court:     Can you answer the question yes or no?
                      Fred Wirschning:     A. The first time I ever heard of it --
                      The Court:     Just a minute. Just a minute. Don’t answer yet.
                      The question was, as I recall it, up to May of 1957. Is
                      that what you said Mr. Nixon?
                      Mr. Nixon:     Yes.
                      The Court:     Did you ever know a Dr. Milton E. Robbins?
                      You will have to answer that yes or no.”     (p. 270)

                      Such illegal, frantic, fanatic concerted efforts of judge and prosecutor continually stifle the defendant’s cross examinations of Fred Wirschning (pages 276 to 333). An example of the wanton efforts of judge and prosecutor in stifling the defendant’s cross examination is entered below: 

                      “Q.     Do you remember coming into my office and
                      telling me that you would return to running (stolen) cars down
                      south if your wife didn’t forget about the separation
                      action?
                      Mr. Nixon:     I object your Honor.
                      The Court:     Objection sustained.
                      Mr. Dec:     Your Honor, it is in reference to
                      a relevant point in the case.
                      The Court:     I think it is not relevant. I have
                      sustained the objection.”     (p. 322)

     The chief henchman of defendant’s persecution through illegal prosecution, such as Frank Gulotta, Edward Robinson, Jr. (presently both Supreme Court Judges) and Manual Levine, District Attorney of Nassau County, are above the law they so wantonly create and administer. The falseness of defendant’s indictment and the falseness of the prosecution’s witnesses’ complaining statements and perjurous testimony are not only known to these men such as Frank Gulotta, Edward Robinson Jr. and Manual Levine and other important members of the judiciary but in addition the said perjuries and falsehoods were frantically and fanatically, fraudulently created by and for these men. For me to overlook these wantonly impish lawless actions of these men and other men mentioned in my lower court appeal brief would not only be the undermining of my appeal rights but more important it would be a tacit resignation to the perpetuation of such wantonly impish lawless actions by important members of the judiciary.

     The aforementioned setting aside of the processes of law and order by such men as Frank Gulotta, Edward Robinson, Jr. and Manual Levine in their gestapo like persecution of this defendant through illegal prosecution resolves our entire Constitutional form of democratic government into a façade for a dynamic labyrintical, omnipotent, lawless, judicial dictatorship.

                                            Conclusion
     The judgement appealed from should be reversed and the indictment dismissed.