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December 30, 1968

UNITED STATES of America ex rel. Vincent CERULLO, Petitioner,
Harold W. FOLLETTE, Warden of Green Haven Prison, Respondent

The opinion of the court was delivered by: TYLER

TYLER, District Judge.

 For the previous history of this protracted litigation, see, most recently, United States ex rel. Cerullo v. Follette, 393 F.2d 879 (2d Cir. 1968); People v. Cerullo, 18 N.Y.2d 839, 275 N.Y.S.2d 845, 222 N.E.2d 605 (1966) and cases therein cited.

 After the mandate came down following the above-mentioned decision of the Court of Appeals for this circuit dated May 8, 1968, a further hearing as directed therein was held before me on September 25, 26, 27, October 4 and October 14, 1968. Briefs and proposed findings were submitted to the undersigned by November 27, 1968. Essentially, the ultimate issue to be decided here is whether or not Cerullo's confession *fn1" which was used at his trial by the prosecution was voluntary beyond a reasonable doubt as required by Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); see also Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963).

 As a practical matter, after all of the hearings and litigation in this case, this issue in turn rests most importantly on the question of Vincent Cerullo's physical condition on the morning of October 5, 1962 and on the previous day, October 4, 1962, when Cerullo signed the written statements which were used against him during his trial. Unfortunately, the man theoretically capable of rendering the best testimony in this area, one Dr. Alexander A. Vivona, who was the prison physician in the Nassau County Jail for a period of about 15 years and who examined Vincent Cerullo on the morning of October 5, 1962, is now deceased. More than that, as will appear hereinafter, there are other witnesses who, though still alive and available, have had a complete failure of recollection regarding events which are or may be relevant here.

 In any event, I have considered the testimony which evolved at the hearing and, as well, by agreement of counsel, the testimony which took place before me a year ago this past fall on October 18 and 19, 1967. Finally, I have considered the trial record before Mr. Justice Farley in the Supreme Court of New York, Nassau County, which, by agreement of the parties, was considered to be the record of the hearing held in accordance with the mandate of People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965).

 Without extended discussion, it is clear that the Court of Appeals of New York and the Court of Appeals for the Second Circuit have been principally concerned, for understandable reasons, with the testimony of Dr. Vivona at the trial of Cerullo. This testimony, or perhaps more accurately, selected portions of it, if believed, would tend to support the proposition that on October 5, 1962 Dr. Vivona found objective evidence of contusions of the right chest, lower anterior, upper abdomen and right side of the head. Dr. Vivona also testified that Cerullo's condition on October 5th "could have been produced by someone smashing their fist against his rib cage, but he was unable to say when and how the injuries occurred". 393 F.2d at 881.

 For convenience, analysis can be best made of the conflicting positions of relator and the state by discussing Cerullo's version of police coercion and brutality and, to the extent that it casts light on Cerullo's contentions, the testimony of his trial codefendant, Carmine Moccio, on the subject of his treatment the medical evidence; and the testimony of those officers who saw Cerullo during the crucial hours when he was being interrogated on October 4, 1962.

 Including the testimony taken before me on the limited hearing in October, 1967, a total of twenty witnesses have appeared in this court to give evidence. In addition, stipulations were entered into by counsel to the effect that if they were called as witnesses, Detective Anthony Miraval and Mrs. Claudette Cerullo would testify as they did at the criminal trial before Mr. Justice Farley. It should be noted in this connection that during the hearing before me, counsel communicated with former state senator Irving Mossberg, now a civil court judge in Queens, with a view toward obtaining his testimony at the hearings this fall. It was stipulated by counsel that Judge Mossberg stated and would state if called as a witness that he has absolutely no recollection of this case or any of the significant events here in issue. Finally, it should be observed that Vincent Cerullo himself did not testify in the hearings before this court and thus presumably relied on the transcript of his testimony at his trial before Mr. Justice Farley and the jury.

 Cerullo's Arrest and the Events Thereafter.

 Just prior to 3:00 a.m. on October 4, 1962, Nassau County Detectives Beirne and Skulnick went to petitioner's apartment in Brooklyn with two New York City Police Department detectives. They knocked on the door and, after being admitted to the Cerullo apartment, placed Cerullo under arrest. They then took Cerullo by automobile to the 71st Precinct in Brooklyn where he was interrogated very briefly and booked. At about 3:30 a.m., the two Nassau County officers placed Cerullo in the left rear seat of their automobile and drove from Brooklyn to the 4th Precinct station located in Hewlett, Nassau County. Detective Skulnick drove the car; Beirne sat in the rear seat on the right of Cerullo. Despite Cerullo's testimony to the contrary, I specifically find that he was not handcuffed during this ride.

 Prior to leaving the Cerullo apartment, Officer Beirne gave to Mrs. Cerullo the telephone number of the 4th Precinct in Hewlett.

 The automobile arrived at the 4th Precinct at about 4:30 a.m. on October 4th. Cerullo was brought upstairs immediately to the commanding officer's squad room. He was offered coffee and sandwiches. He refused everything but coffee. Beirne thereupon questioned Cerullo off and on during the early morning. At about 5:00 a.m., Skulnick took over for Beirne and sat with Cerullo, questioning him from time to time. Again Cerullo drank some coffee.

 On several occasions before 7:00 a.m. and after that hour, Captain Reeves W. Tuthill of the Nassau County police, who was the senior officer present during this investigation and the interrogations on October 4 and 5, spoke to Cerullo and asked several questions. At about 6:45 a.m. or 7:00 a.m., Detective Holmes spoke to Cerullo for the first time. Holmes' interview of petitioner lasted about 45 minutes. At about 7:45 a.m., Officer Carmine Altomare went into the room with Cerullo and told him that codefendant deFiore had implicated him in the crime. Sergeant Leo Ferrandis was in and out of the room briefly at about this point. Cerullo told Altomare that he would like to cooperate with the police but expressed concern as to what would happen to his wife if he did. Altomare said that he, Cerullo, should have thought of this before the robbery. Cerullo then agreed to talk, and he and Altomare got to work on the first statement which was finished later that morning. After the first statement was typed but before 11:00 a.m., Cerullo identified a piece of pipe brought in by another officer. He signed a second brief statement typed by Altomare and containing essentially his identification of the pipe. Toward the end of this process, Holmes came in and witnessed these two statements as signed by Cerullo.

 At about 11:00 a.m. on October 4th, a lineup was conducted in which both Cerullo and Moccio were present, together with certain police officers and attendants in the building.

 Cerullo was taken by automobile to the police headquarters in Mineola where he arrived at 12:50 p.m. on October 4th. He was processed and photographed by Detective Raymond Chmiel. Cerullo was logged out of Chmiel's office at 1:20 p.m. Detectives Holmes and McCartney then drove Moccio and Cerullo together to the First District Court of Nassau County in Mineola for arraignment. After some delay, apparently due to absence of court officials at lunch, the arraignment finally took place somewhere between 3:00 and 4:00 p.m.

 After arraignment, Cerullo and Moccio were taken by automobile to the Nassau County Jail. Cerullo was booked in by Sergeant Tringali at 6:25 p.m. Moccio was booked in by the same officer at 6:33 p.m. Cerullo informed Tringali during the booking process that he had fallen in the police station and had sustained possible fractured ribs. *fn2" Tringali noted this on the pedigree sheet which he was filling out. Because the Nassau County Jail was unusually crowded that day, Cerullo and Moccio were not placed in cells. Rather, they were placed in an open bullpen known as the southeast cell block area where cots had been placed for a number of prisoners. ...

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