The opinion of the court was delivered by: BONSAL
Petitioner, presently incarcerated in Green Haven Prison, Stormville, New York, seeks a writ of habeas corpus claiming that his Federal constitutional rights were violated in the New York courts.
In February 1963 petitioner and a co-defendant, Preston Smith, were tried together before a jury in Suffolk County Court, and on February 19 they were found guilty of rape, attempted robbery, grand larceny, and carrying and using dangerous weapons. The petitioner and Smith were represented at trial by the same attorney. On May 20, 1964 petitioner was sentenced to imprisonment for 15 to 35 years, which sentence he is now serving.
Following their arrest on the charges on which they were convicted, both petitioner and Smith made oral statements to the police and signed written confessions. Smith's statements and his confession incriminated the petitioner as well as himself and at the trial, Smith's statements and confession were received in evidence and his confession was read to the jury. Petitioner took the stand in his own defense and denied that he made the statements attributed to him by the police, denied the truth of the confession attributed to him, and claimed that the police coerced him to sign the confession. Smith did not take the stand.
Petitioner contends that under the Sixth and Fourteenth Amendments to the United States Constitution his right to confront the witnesses against him was violated by the use of Smith's statements and confession since petitioner did not have the opportunity to cross examine Smith. See Douglas v. State of Alabama, 380 U.S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); Pointer v. State of Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); United States ex rel. Floyd v. Wilkins, 367 F.2d 990 (2d Cir. 1966). The trial judge did not instruct the jury that Smith's statements and confession could be used only against Smith and not against the petitioner, and no portions of Smith's confession were deleted. When Smith's statements and confession were offered in evidence, petitioner's attorney objected to their introduction only on the ground that the confessions were involuntary.
He did not request that the jury be instructed that the statements and confessions of each defendant could be considered only against the defendant who made them and not against the other defendant, nor did he object to the judge's charge which contained no such instruction. No motion was made on behalf of either the petitioner or Smith for a severance or for the deletion of incriminating references in the confessions, or for a new trial, and petitioner did not call Smith to the witness stand.
Petitioner appealed his conviction to the Appellate Division, Second Department, which held his appeal in abeyance while the trial court conducted a hearing to determine the voluntariness of petitioner's and Smith's confessions (People v. Walker, 22 A.D.2d 927, 255 N.Y.S.2d 507 (1964)). See Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). The trial court found that both confessions were voluntary and, thereafter, the Appellate Division affirmed petitioner's conviction without opinion. People v. Walker, 24 A.D.2d 1079, 265 N.Y.S.2d 609 (1965). On February 4, 1966, Judge Burke of the New York Court of Appeals denied leave to appeal, and on October 10, 1966, the United States Supreme Court denied a petition for certiorari. Walker v. New York, 385 U.S. 864, 87 S. Ct. 121, 17 L. Ed. 2d 91. Thereafter, petitioner moved four times in the New York Court of Appeals for reargument, which motions were denied. In answer to letters addressed by petitioner to Chief Judge Fuld of the New York Court of Appeals, Chief Judge Fuld's law clerk stated in a letter to petitioner dated January 26, 1967 that,
"The Chief Judge requests me to advise you that it is only necessary for a defendant to have exhausted his state remedies before seeking Federal habeas corpus relief. Such exhaustion of remedies is accomplished when a judge of this court denies leave to appeal from a determination of the Appellate Division - as happened in your case when Judge Burke denied leave to appeal on February 4, 1966."
Petitioner again moved for reargument, which motion was denied by Judge Burke on April 14, 1967, who wrote petitioner:
"I have also read the decision in ex rel Fred Floyd v. Wilkins, Second Circuit Court of Appeals [367 F.2d 990 (2d Cir. 1966)]. * * *
"I find there is no question of law which ought to be reviewed by the Court of Appeals, and therefore your application for reargument is denied.
"I have considered your argument that there is a constitutional question on the issue of confrontation, but find that even if there were such an issue, on the facts of this case it is not a question of law which would call for a reversal."
Although it may be that petitioner has not exhausted his available state remedies (see People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 273 N.Y.S.2d 897, 220 N.E.2d 653 (1966)), petitioner's application will be treated as if his state remedies have been exhausted (see Fay v. Noia, 372 U.S. 391, 419-420, 425-426, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963)), and is denied.
When Smith's statements and confession were offered in evidence at his trial, no objection was made on the ground that their introduction would violate petitioner's Sixth Amendment right to confront the witnesses against him. In New York, as in the Federal courts (see Rule 51, F.R.Crim.P.; United States v. Indiviglio, 352 F.2d 276 (2d Cir. 1965), cert. denied, 383 U.S. 907, 86 S. Ct. 887, 15 L. Ed. 2d 663 (1966)), objection to the introduction of evidence must be made at or before trial, even where the objection is based on Constitutional grounds. See People v. De Renzzio, 19 N.Y.2d 45, 277 N.Y.S.2d 668, 224 N.E.2d 97 (1966); People v. Friola, 11 N.Y.2d 157, 227 N.Y.S.2d 423, 182 N.E.2d 100 (1962). But see People v. McLucas, 15 N.Y.2d 167, 256 N.Y.S.2d 799, 204 N.E.2d 846 (1965); People v. Kelly, 12 N.Y.2d 248, 238 N.Y.S.2d 934, 189 N.E.2d 477 (1963). Had petitioner been tried in Federal court, the absence of an objection at trial would preclude him from raising his Sixth Amendment claim on appeal (see, e.g., United States v. Indiviglio, supra) or on collateral attack in a motion under 28 U.S.C. § 2255. United States v. Re, 372 F.2d 641 (2d Cir. 1967). It would be anomalous ...