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July 6, 1967

UNITED STATES of America ex rel. Joseph GALLO, Relator-Petitioner,
Harold W. FOLLETTE, Warden, Green Haven Prison, County of Dutchess, State of New York, Respondent

The opinion of the court was delivered by: WEINFELD

WEINFELD, District Judge.

 Petitioner, presently confined in Green Haven Prison, serving sentences of from seven years and three months to fourteen years and six months imposed pursuant to judgments of conviction entered in the former Court of General Sessions, New York County, for conspiracy and attempt to commit extortion, *fn1" seeks a writ of federal habeas corpus upon the ground that his rights under the Sixth and Fourteenth Amendments were abridged at his trial. He claims he was (1) denied the right to be represented by counsel of his own choice, and (2) deprived of a fundamentally fair trial by an impartial jury when the trial court "required" the selection of a single juror, which action, under New York law, precluded a ruling of a pending motion before the Appellate Division based on alleged prejudicial publicity.

 Petitioner, following his indictment on May 26, 1961, retained the law firm of Price & Iovine, of which firm David Price was to act as trial counsel. The case was moved for trial on June 21, 1961, at which time the prosecution announced it was ready, but defense counsel pleaded another engagement. An adjournment was granted to August 7, when the state again was prepared to proceed and pressed for a prompt trial, but again an adjournment was granted because petitioner's trial counsel was away on a three-week vacation under his doctor's orders. The trial court postponed the trial to August 30, when it set October 23 as a firm trial date, to which all counsel were committed. Notwithstanding, on October 23 still another adjournment was sought on the ground that petitioner's trial counsel was engaged in another matter. Also urged in support of the adjournment was that petitioner intended to move in the Appellate Division for a change of venue on the ground of prejudicial publicity. *fn2" Once again the state resisted and pressed for trial. The court, however, adjourned the case for another week to October 30, but advised petitioner's counsel that any motions for change of venue were to be made during that week.

 Petitioner's counsel, instead of moving forthwith, waited until the very morning of the trial, October 30, when for the first time he applied in the Appellate Division for a transfer, returnable November 8; he failed, however, to apply for a stay of trial pending the determination of the motion, *fn3" a matter of singular importance, since, under New York's statute, an order transferring a prosecution is of no effect unless filed before a juror is sworn to try the indictment. *fn4"

 The state, having been served with motion papers at the very moment the case was to have proceeded to trial on October 30, pressed that it begin but the defense, based upon its just-filed motion in the Appellate Division, sought a further adjournment. Despite disregrad of its previous admonition that any motion for a change of venue was to have been made during the preceding week, the court again adjourned the trial until 2:30 p.m. that afternoon to enable petitioner to apply to the Appellate Division for a stay of the trial. The application was heard on the merits by Associate Justice McNally of the Appellate Division, to whom were submitted affidavits and original newspaper clippings in support thereof. Decision was reserved, and on the following day, October 31, the stay was denied, thus seemingly clearing the way for an immediate trial. But it did not get started. Petitioner, undeterred by the denial of the stay, again applied for an adjournment, this time upon representations that trial counsel was then in Florida, that he was ill, that his wife was ill, that his physician had ordered him to take a month's vacation, and that "he had no intention of returning to New York before December the 4th." No affidavit or physician's certificate was then submitted. Once again the court granted an adjournment, this time until November 6, instructing petitioner to "immediately make arrangements for another lawyer," and admonishing him that no further delay would be tolerated.

 On November 3 petitioner's counsel renewed and reargued his motion for a stay of the trial, and again Justice McNally denied it on the merits. In these various applications before the trial court for adjournments and before the Appellate Division for a stay of the trial, petitioner was represented by Robert I. Weiswasser, Esq., an attorney associated with the law firm of which trial counsel was a senior partner, and of which, incidentally, petitioner's uncle also was a senior partner and who on several occasions appeared in support of adjournment applications.

 On the same day that petitioner's renewed motion for a stay was denied by Justice McNally, the trial court inquired of petitioner whether he had retained substitute counsel so that the trial could proceed on its then scheduled date, November 6. He advised the court that he had not, and thereupon the court assigned Mr. Weiswasser and Irving Mendelson, a former Assistant District Attorney and an eminent and highly respected member of the Bar with many years of experience as defense counsel in criminal matters. The court announced that in view of the extensive adjournments already granted and the two rulings by Appellate Division Justice McNally, no further delays or maneuvers would be tolerated, and that the case was to proceed to trial on November 6.

 The state's insistence upon the trial getting underway was grounded upon a number of factors. The petitioner had a record of four prior convictions; the indictment which charged conspiracy and attempted extortion included allegations of assaults upon and threats of grave injury to the complaining witness by petitioner. The witness was in protective, round-the-clock custody, requiring the daily services of ten city detectives at considerable cost to the city. The witness nevertheless was "extremely nervous," in "great fear," and wanted "to run." The petitioner and his counsel knew of this protective custody as early as May 1961. Moreover, the prosecution claimed that despite the protective custody, various persons had approached the witness in efforts to induce him to repudiate his charges. Accordingly, on November 6, by which time the witness had been in protective custody for six months, the prosecution continued to press for an immediate trial, and in order to forestall any further attempt to delay the trial based upon contentions by petitioner's codefendants, consented to severances, leaving petitioner as the sole defendant.

 Mr. Mendelson, who upon his appointment had been designated as lead counsel, informed the court that following his appointment petitioner refused to confer with him or co-counsel, Mr. Weiswasser, and consequently he was not ready for trial. The trial court, after reviewing the various moves by petitioner and his privately retained counsel, observed that the due administration of justice was at issue and ordered the case to proceed. Mr. Mendelson stated he was prepared to pick a single juror to get the trial started, if a continuance were granted to December 4. The adjournment to that date was denied, but Mr. Mendelson, still seeking to gain a postponement of the trial proper, stated he was prepared then and there to select "one juror." A single juror was selected. The court thereupon granted an eight-day continuance, to November 14, to enable Mr. Mendelson and associate counsel to prepare for trial and alternatively to afford privately retained trial counsel the opportunity to return from Florida and defend petitioner.

 On November 14 assigned counsel informed the court that petitioner still refused to cooperate with them, that he rejected their representation, that he wished only to be represented by Mr. Price, that upon petitioner's instructions they were to remain mute; moreover, that Mr. Price from Florida had likewise issued instructions that court-appointed counsel were not to participate in the trial. Under the circumstances, assigned counsel also remained mute but sat with him throughout the entire trial.

 Other factors need be noted. At the time trial counsel was retained he was seventy-three years of age, and for the preceding year had been under a physician's care because of ill health and advancing years; he had been advised to take protracted rests and vacation periods, and as a result was in semi-retirement. On October 23, when, notwithstanding it had been fixed as a firm trial date, a week's adjournment was granted to October 30 to permit petitioner to move for a change of venue, the trial court was not informed that Mr. Price would be unavailable for trial on that day, or, as appears from an affidavit subsequently filed, that he had planned to leave for Florida on October 26, *fn5" there to remain until December 4.


 Petitioner first contends that the court's refusal to grant an additional continuance to December 4 for the return of Mr. Price violated his right to counsel of his choice under the Sixth Amendment. But petitioner's right to private counsel is not without limitation; it does not include the right to defeat or impede the orderly processes of due administration of justice. *fn6" His right to counsel of his own choice is limited by the state's right to proceed to trial upon an indictment after he has been afforded a fair opportunity to engage his own counsel and adequate time to prepare his defense - and the record here abundantly shows this right was afforded to him in liberal, if not excessive degree.

 The determination of a continuance is within the discretion of the trial court, and absent a clear abuse of discretion, a denial affords no basis for a claim of deprivation of the right to counsel. *fn7" There is no abuse of discretion and no constitutional error where a continuance is denied to retain counsel on the ground that "the inability of retained counsel to serve gives the promise of unreasonable delay or inconvenience in completing the trial," *fn8" ...

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