The opinion of the court was delivered by: COOPER
Defendant was convicted of first degree murder on January 21, 1957 after a jury trial in the New York Court of General Sessions. On appeal defendant for the first time contended, inter alia, that his confession was involuntary. The Appellate Division of the New York Supreme Court affirmed the conviction without opinion. People v. Moore, 8 A.D.2d 599, 185 N.Y.S.2d 222 (1st Dept.1959). Leave to appeal to the New York Court of Appeals was denied. On February 26, 1965 defendant sought coram nobis in the New York Supreme Court, contending that his confession was involuntary. On April 7, 1965 his petition was denied, the defendant having failed to object to the admissibility of the confession at trial. The denial was based upon the established New York rule enunciated in People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965). The Appellate Division affirmed without opinion. People v. Moore, 25 A.D.2d 955, 270 N.Y.S.2d 378 (1st Dept.1966). Leave to appeal to the Court of Appeals was denied.
In this pro se petition for habeas corpus defendant once again contends that his confession was involuntary.
Exhaustion of State Remedies
The District Attorney's threshold argument is that defendant has not exhausted his presently available state remedies. The contention is that a recent decision, People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 273 N.Y.S.2d 897, 220 N.E.2d 653 (1966), significantly expanded the availability of the writ of habeas corpus in New York and defendant "might well" now have a remedy in the state courts.
We agree that the Keitt decision has apparently expanded the availability of habeas corpus in New York. The Court of Appeals, however, also stated:
* * * we are not holding that habeas corpus is either the only or the preferred means of vindicating fundamental constitutional or statutory rights (e. g., People v. Huntley, 15 N.Y.2d 72, 76-77, 255 N.Y.S.2d 838, 204 N.E.2d 179). 18 N.Y.2d at 262, 273 N.Y.S.2d at 900, 220 N.E.2d at 655.
People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965) was New York's delineation of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) wherein the Supreme Court held that New York's procedure for determining the voluntariness of a confession was unconstitutional. In Huntley the Court of Appeals determined that coram nobis was a more appropriate remedy than habeas corpus for determining the voluntariness of a confession in a collateral proceeding. In addition, that court held that in order to be entitled to a hearing the defendant must have objected to the voluntariness of his confession at trial or the trial judge must have charged the jury thereon.
The reasoning in Huntley that coram nobis is the most appropriate post-conviction remedy for determining the voluntariness of a confession and the language in Keitt indicating that the procedure enunciated in Huntley is still to be followed, leads us to believe that there is little likelihood that the New York courts would consider the question of the voluntariness of defendant's confession in any collateral proceeding. Since defendant has presented the issue to the New York courts both on direct appeal and on coram nobis, he has practically exhausted his presently available state remedies. See, e.g., Brown v. Allen, 344 U.S. 443, 448, 73 S. Ct. 397, 97 L. Ed. 469 (1953); United States ex rel. West v. LaVallee, 335 F.2d 230 (2d Cir. 1964). Defendant is not required to present the issue again to the New York courts. See United States ex rel. Floyd v. Wilkins, 367 F.2d 990, 993 (2d Cir. 1966).
Defendant was arrested at approximately 4:00 a.m. on May 9, 1956 for robbery and murder. He was questioned by several officers at the police station, one of whom testified as to the substance of defendant's oral confession.
A second confession was transcribed at 1:30 p.m. the same day. Not the slightest intimation appears that it was improperly procured; the questions and answers therein are clear cut. In fact, at trial copies of the transcript were handed to defense counsel before it was offered into evidence. Counsel appears to have carefully reviewed the confession, agreed with the prosecutor to the deletion of certain portions thereof, and stated for the record that there was no objection to its receipt into evidence.
Defense counsel attempted to show that defendant was a drug addict by proof that at the time of his arrest, there were on the bureau top in defendant's room a hypodermic needle, a syringe and a "cooker" (used for preparation of heroin for consumption); further, by introducing a hospital record showing that defendant was treated for withdrawal symptoms at Harlem Hospital on May 9, 1956 (after his confession earlier that day) and was given 100 mg. of demerol. A co-defendant, Elizabeth McCormick, testified that she observed the defendant weak and sick while in the police station on the morning of his arrest.
At no time during the course of the trial did counsel for defense directly or indirectly put in issue the issue of voluntariness of the confession. Even on summation defense counsel did not argue that the confession was involuntary; rather he ascribed drug addiction as the reason for defendant's arrest. At no time did defense counsel request, and the judge did not charge, the jury on the question of voluntariness.
Now comes defendant's present claim that his confession was involuntary - it was induced while he was undergoing withdrawal symptoms during the course of which he was informed by the police that he would ...