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May 11, 1959

UNITED STATES ex rel. William C. MacLAREN, Petitioner,
Wilfred L. DENNO, Warden, Sing Sing Prison, Ossining, New York, and People of State of New York, Respondents

The opinion of the court was delivered by: BRYAN

Relator MacLaren is presently confined in Sing Sing Prison under a ten to twenty year sentence imposed by the Court of General Sessions of the County of New York. The sentence was imposed upon a judgment of conviction on a plea of guilty to the crime of burglary in the second degree as a second offender. A prior suspended sentence on the same conviction had been revoked for violation of probation.

Relator maintains that he was denied due process of law in violation of his constitutional rights under the Fourteenth Amendment in the hearing on violation of probation as a result of which his suspended sentence and probation was revoked. He therefore claims that his present sentence is invalid and void and that he is entitled to be released from confinement.

 Relator was produced before this court pursuant to a writ of habeas corpus. He asserted that he was entitled to be released as a matter of law upon the record in the State Court. He rested on that record and stated that a hearing on the facts before me would add nothing. Cf. United States ex rel. Alvarez v. Murphy, 2 Cir., 246 F.2d 871. After hearing argument I called for and received the relevant state court records which are now part of the record in this proceeding. See United States ex rel. Rogers v. Richmond, 2 Cir., 252 F.2d 807, certiorari denied with opinion sub nom Rogers v. Richmond, 357 U.S. 220, 78 S. Ct. 1365, 2 L. Ed. 2d 1361.

 On July 30, 1948 petitioner pleaded guilty to burglary, third degree, on indictment No. 1559/1948, in the Court of General Sessions. On October 21, 1948 Judge Mullen of that court sentenced MacLaren to a term of ten to twenty years, but suspended execution of the sentence and placed him on probation for an indefinite period. Probation commenced on December 12, 1949 after MacLaren had been released on parole from a two to three year sentence which had been imposed at the same time on a plea of guilty to another indictment which is not involved here. Three months after his release, on March 15, 1950, MacLaren was arrested by officers of the Safe and Loft Squad of the New York City Police Department. He was booked on a charge of burglary and the next day appeared in Magistrate's Court. No hearing was had on that day nor on the adjourned date March 23. On March 23, 1950 an indictment No. 711/1950 was returned against him charging, inter alia, attempted burglary and possession of burglar's tools.

 In the interim, on March 20, 1950, relator was brought before Judge Mullen on charges that he had violated the terms of the probation imposed when his ten to twenty year sentence on the 1948 third degree burglary conviction was suspended. After a hearing, at which testimony was taken, Judge Mullen held that the acts which led to relator's arrest on March 15, 1950 constituted a violation of probation, ordered probation and the previous suspended sentence revoked, and resentenced relator to ten to twenty years imprisonment on the 1948 third degree burglary conviction.

 The indictment of March 23, 1950 for attempted burglary and possession of burglar's tools came on for trial in June 1952. On June 2, 1952, after a jury was impaneled, the indictment was dismissed on motion of the District Attorney with the consent of defense counsel. This was done because petitioner was already serving the ten to twenty year sentence imposed upon him on the 1950 third degree burglary indictment after revocation of his probation by Judge Mullen.

 Thereafter, on September 8, 1952, relator brought on a writ of error coram nobis in the state court. This was heard by Judge Mullen, who held an extensive hearing and denied the writ. An appeal to the Appellate Division, 282 App.Div. 1012, 126 N.Y.S.2d 197, which presented, inter alia, the questions now before this court, was unsuccessful and leave to appeal to the Court of Appeals denied. The United States Supreme Court denied certiorari 348 U.S. 847, 75 S. Ct. 71, 99 L. Ed. 667, rehearing denied, on November 22, 1954, 348 U.S. 890, 75 S. Ct. 209, 99 L. Ed. 700. Thereafter relator filed a petition for a writ of habeas corpus in the New York State Supreme Court. This petition was denied and, after various steps by way of appeal were taken, the New York Court of Appeals again refused to hear an appeal from denial of the writ on June 24, 1958.

 It is conceded, and I agree, that the proceedings taken in the state court, together with denial of review by the United States Supreme Court in 1954, show that petitioner has exhausted his state post-conviction remedies on the questions raised in the present proceeding within the requirements of 28 U.S.C. § 2254.

 Relator's present contentions revolve about the finding by Judge Mullen in 1950 that he had violated his probation on the 1948 third degree burglary conviction. The nub of his contention is that 935 of the New York Code of Criminal Procedure safeguarded the constitutional right to a fair hearing of one charged with violation of probation but that he was denied due process at the 1950 hearing in violation of his constitutional right so safeguarded.

 Petitioner relies on two occurrences at the hearing to support this contention.

 Two witnesses were sworn. Detective Lieutenant Casey of the Safe and Loft Squad testified to MacLaren's apprehension with burglar's tools in his possession after leaving a building on 86th Street in New York City. Casey further testified that MacLaren admitted an attempt to burglarize an office in that building and that, upon immediate investigation, the locks on the office showed obvious signs of having been tampered with. He also stated that MacLaren admitted in some detail an attempted burglary at a building on 79th Street which he had been observed to enter earlier on the evening of his apprehension.

 Detective Fyffe, of the Safe and Loft Squad testified in detail that the tools found in MacLaren's possession (which had been identified by Lieutenant Casey) were used for picking locks and that the condition of the locks of the office in the 86th Street building showed that they had been tampered with by tools.

 MacLaren's attorney cross-examined both witnesses and the first error is asserted to have been made during the cross-examination of Lieutenant Casey. During questioning on the alleged 79th Street burglary attempt counsel was seeking to establish that MacLaren had not been observed actually tampering with any lock when the following colloquy occurred:

 '* * * did any of the other officers see him anywhere near this door containing this lock you are talking about? (Referring to the 79th Street building)

 'The Court: Just direct your attention to what Lt. Casey said. Remember this, this is not a trial. I am permitting you to ask the officer questions in order that anything may be brought out for my information that might influence me in my judgment.

 'Mr. Siegal: That is the reason for it.

 'The Court: Don't feel that you have any rights here, you have no right.

 'Mr. Siegal: I have no right, I realize that.

 'The Court: I am giving this to you as a privilege and I want you to conduct ...

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