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January 11, 1963

UNITED STATES of America ex rel. John Joseph BERRY, Relator,

The opinion of the court was delivered by: MISHLER

The petitioner filed a petition for a writ of habeas corpus, for permission to proceed in forma pauperis and for assignment of counsel.

Permission was granted petitioner to proceed in forma pauperis. A writ was issued to the Warden, Queens House of Detention, directing the production of the prisoner. The Court assigned counsel.

 Upon ascertaining that no issue of fact was before the Court, the presence of the prisoner at the adjourned hearing date was dispensed with. Minnec v. Hudspeth, 1941, 10 Cir., 123 F.2d 444, 445, cert. denied, 315 U.S. 809, 62 S. Ct. 797, 86 L. Ed. 1207. The Court examined the transcript of trial minutes, consisting of two volumes and an affidavit captioned 'United States Supreme Court' and described as a petition.

 Petitioner claims that he is held in state custody in violation of the Constitution of the United States. (See 28 U.S.C.A. ┬ž 2241(c)(3)). The claim is based on the admission into evidence of petitioner's post arraignment confession.

 The undisputed facts are that petitioner was arraigned in Felony Court, Queens County, on charges of felonious assault, malicious mischief, conspiracy and assault, and robbery, on December 4, 1958. At that time, the presiding magistrate advised the petitioner of his rights, including his right to counsel. Petitioner made no request for counsel and none was assigned. Prior to the arraignment, petitioner had complained to the District Attorney's Office of an attempted extortion by two detectives attached to the New York Police Department. On the evening of the day of arraignment, Assistant District Attorney Bernard Patten visited petitioner at the Queens House of Detention, where he was lodged. Mr. Patten testified that the interview was part of his investigation of the charges made by petitioner. He had learned that petitioner had recanted the charges made, and, wanted to confirm that fact, and determine whether such recantation was voluntary, and further, whether the original charges made by petitioner were baseless. During this interview, petitioner made a confession of the robbery with which he had been charged that day.

 At the trial, Mr. Patten's testimony concerning petitioner's admissions were offered without objection by petitioner. On cross examination, petitioner's counsel examined at length on possible physical injury inflicted upon petitioner by police, threats made by police, or other possible unlawful acts committed by the police against petitioner. (Transcript p. 743-755.) Petitioner's counsel referred to the claim frequently in his summation. (Trans. 976-990.) At the end of the entire case, petitioner's counsel moved for dismissal of the indictment 'on the ground that the confessions in this case were involuntary'.

 Other written and oral confessions were introduced into evidence over the objection of counsel. Before admitting them into evidence, the trial court conducted a preliminary hearing to determine their voluntariness. The reference to involuntary confessions did not refer to the subject matter of this petition. Petitioner was found guilty of robbery in the first degree and sentenced to a term of not less than 15 years and not more than 30 years. The conviction was unanimously affirmed by the Appellate Division, Second Department (People v. Berry, 14 A.D.2d 553, 218 N.Y.S.2d 983). Application was made for leave to appeal to the New York Court of Appeals. While application was pending in the Court of Appeals, petitioner moved for reargument in the Appellate Division, citing People v. Meyer, 14 A.D.2d 241, 220 N.Y.S.2d 438. Upon affirmance of People v. Meyer by the Court of Appeals in 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103, the Appellate Division denied reargument to petitioner in 16 A.D.2d 790, 228 N.Y.S.2d 34. Leave to appeal to the Court of Appeals was then denied by Hon. Stanley H. Fuld on June 13, 1962. Application for certiorari was made to the United States Supreme Court more than 90 days after entry of the order denying leave to appeal and the application was denied for that reason.

 Petition states that the federal question is raised by defendant's motion to dismiss at the trial herein referred to, and the reference thereby that the confessions were involuntary.

 Were this petition to rest solely on the claim of the involuntariness of the statements, it would fail, for it was obviously the strategy of the defense, to use statements as a vehicle to establish beatings and other police brutality, and to buttress the claim of involuntariness of the confessions admitted over defense counsel's objections. See Application of Jackson, 1962, S.D.N.Y., 206 F.Supp. 759, affirmed Nov. 2, 1962, United States ex rel. Jackson v. Denno, 2 Cir., 309 F.2d 573. Here as in Application of Jackson, supra, the issue of voluntariness was submitted by the Court in its charge, fully, adequately and fairly (Trans. 1091-1097). Voluntariness has been the sole test of the admissibility of confessions; all other facts surrounding the confession have heretofore been considered bearing on voluntariness. In McHenry v. United States, 10 Cir., 1962, 308 F.2d 700, 703, the Court stated the principle as follows:

 'An involuntary confession or one obtained by means of threats or promises which subject the mind of the accused to the torture of fear or flattery of hope is inadmissible * * *. By the same token, an admission or confession made by the accused in a criminal case if freely and voluntarily given without inducements or coercion, is admissible in evidence and this is true even though it is made after arrest or while the accused is in lawful custody.'

 There is little doubt that the statements of the petitioner, made to Mr. Patten, were voluntary. This tacit concession is evident in petitioner's testimony (Trans. p. 847); it is expressed in the petition (affidavit) addressed to the United States Supreme Court verified September 17, 1962. *fn1"

 The argument advanced by petitioner for the inadmissibility of the confession is found in People v. Mayer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103. In this case, the Court of Appeals of New York affirmed 4 to 3 the decision of the Appellate Division, First Department, the reversal of a conviction based upon a post arraignment statement made by a defendant who had not retained counsel at the time such statement was made. The Court said 11 N.Y.2d at pages 164-165, 227 N.Y.S.2d at page 428, 182 N.E.2d at page 104:

 'A statement so taken necessarily impinges on the fundamentals of protection against testimonial compulsion, since the jury might well accord it weight beyond its worth to reach a verdict of guilty. While an accused may waive a fundamental right, he did not do so here, nor is he estopped because he had made no request when informed of his rights. We thus conclude that any statement made by an accused after arraignment not in the presence of counsel as in Spano, DiBiasi and Waterman (supra) is inadmissible.'

 Petitioner's appeal was pending in the Appellate Division, Second Department of the New York State Supreme Court at the time the Court of Appeals announced its decision in People v. Meyer, supra. In affirming the conviction of petitioner in the County Court, the Appellate ...

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