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November 12, 1968

UNITED STATES of America ex rel. Melvin GERALDS, Petitioner,
John T. DEEGAN, Warden, Sing Sing Prison, Ossining, New York, Respondent

The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

 Petitioner, presently confined at Sing Sing Prison, moves for a writ of habeas corpus under 28 U.S.C. § 2254, attacking collaterally a conviction for robbery, grand larceny and assault and the sentence imposed upon him by the Nassau County Court on May 7, 1965 after a jury trial. Allegedly, the conviction was obtained in violation of petitioner's constitutional rights under the fifth, sixth and fourteenth amendments.

 Specifically, petitioner claims (1) failure to prove a prima facie case, (2) failure to prove petitioner's guilt beyond a reasonable doubt, (3) double jeopardy, (4) denial of counsel at pre-trial identification and (5) suggestive pre-trial confrontation by the victims which was conducive to mistaken identification.

 Claims (1) and (2) fail to raise a federal question. *fn1" As to claim (3), petitioner argues that dismissal of the complaint by the Nassau County District Court and his subsequent indictment for the same crime violated his constitutional protection against double jeopardy. Petitioner is referring to a preliminary felony examination by that court functioning as a magistrate on the question of probable cause to detain the prisoner pursuant to §§ 186 through 207 of the New York Code of Criminal Procedure. Dismissal of a complaint and discharge of a prisoner for want of probable cause by an examining magistrate or commissioner does not bar subsequent indictment or conviction on the same charge. This is both New York *fn2" and federal law. *fn3" Thus, petitioner's claim (3) is without merit.

 Claim (4) also must be rejected since petitioner was convicted prior to the decisions holding that pre-trial identification is a "critical stage" of a criminal proceeding actuating the right to counsel. *fn4"

 This leaves for consideration the question of whether petitioner is entitled to relief on claim (5) - that the identification at trial in his case was so infected with an unfair pre-trial confrontation for identification that he was denied due process. This is a recognized ground of attack independent of the claim of right to counsel. *fn5"

 Whether petitioner was denied due process depends on (a) whether, under all the circumstances, the pre-trial confrontation was so unnecessarily suggestive and conducive to mistaken identification *fn6" that it offends the fundamental standards of decency, fairness and justice; *fn7" (b) whether the identification at trial had an independent origin; *fn8" and (c) whether, in any event, the introduction of the evidence was harmless error. *fn9"

 Our inquiry is directed first to whether the conduct of the confrontation was unnecessarily suggestive and conducive to mistaken identification. The answer depends upon the totality of the surrounding circumstances. We look now to those circumstances.


 The owners of the Azzarone Construction Corporation, O'Neil Bouknight and George Bock, were assaulted and robbed of more than $12,000 by two armed Negroes on May 23, 1963, at the office of their company in Mineola, Nassau County, New York, in the evening between 5:30 P.M. and 5:50 P.M. It was daylight, and the office was illuminated with fluorescent lights. Bouknight and Bock were alone, all other employees having left for the day.

 Immediately prior to the incident, Bock was in an office called "the estimating room," and Bouknight was in an adjoining toilet. Earlier that day, the office manager had withdrawn money for the firm's payroll, placed it into envelopes, put the envelopes into night deposit bags, and set the bags on a shelf in a closet located in the estimating room. Bock had $100 on his person, and Bouknight had $70.

 The incident happened as Bock was at a desk talking on the telephone. A Negro man with a gun approached the desk and told Bock to hang up and get down on the floor. *fn10" Bock then noticed a second Negro man, armed with a knife, enter the doorway and, hearing a flush, went to the toilet door. As Bouknight opened the toilet door, the man with the knife, standing five or six feet away, said: "This is a stickup. Get in the other room on the floor." The man then grabbed Bouknight by the shoulder, stepped behind him, and shoved him into an adjoining room where the other man pushed him to the floor. When Bock and Bouknight were facedown on the floor, the man with the knife tied their hands behind their backs, taped their mouths, and tied their feet. The man with the knife asked, "Where's the money?," went into a back room, and kept repeating "Where's the money?" Bouknight tried to tell him, but when he moved to do so was slapped on his face. The man with the gun then took the wallets from the back pockets of both victims. He then walked into the front room, said to the man with the knife, "Come on, I have it," and then both left. The victims freed themselves, and Bouknight telephoned the police. The entire incident lasted from five to seven minutes.


 Within five minutes after the occurrence, police officers came to the premises. The victims gave detailed descriptions of the robbers which were written down by the police. According to the victims, the man with the knife was a very light complexioned Negro, with a round shaped face and brown eyes "wide open." He was about six feet tall and weighed about 170 pounds. He ...

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