The opinion of the court was delivered by: FRANKEL
On December 9, 1960, petitioner was sentenced as a second offender to a term of not less than six nor more than ten years on a third degree burglary charge. On direct appeal, the Appellate Division affirmed, 13 A.D.2d 410, 217 N.Y.S.2d 176 (1st Dep't 1961), and the Court of Appeals withheld determination of the appeal while petitioner was permitted to assert a claim under Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), in a post-trial hearing on a motion to suppress, People v. Coffey, 11 N.Y.2d 142, 227 N.Y.S.2d 412, 182 N.E.2d 92 (1962). That motion to suppress was denied, 36 Misc.2d 67, 232 N.Y.S.2d 545 (Sup.Ct. 1962); and the denial was affirmed by the Appellate Division, 18 A.D.2d 794, 236 N.Y.S.2d 1021 (1st Dept's 1963), and the Court of Appeals, 12 N.Y.2d 443, 240 N.Y.S.2d 721, 191 N.E.2d 263 (1963). The Supreme Court denied certiorari, Coffey v. New York, 376 U.S. 916, 84 S. Ct. 671, 11 L. Ed. 2d 612 (1964).
Then, petitioner applied to this court for habeas corpus. In United States ex rel. Coffey v. Fay, 234 F.Supp. 543 (S.D.N.Y. 1964), Judge Weinfeld sustained petitioner's claim that he had been denied a fair trial on the issue of probable cause of arrest by the State's refusal to disclose the identity of an informer. That conclusion was reversed, 344 F.2d 625 (2d Cir. 1965), and the case was remanded for consideration of the other issues raised in the petition. These remaining claims -- (a) whether the New York police in fact had probable cause to arrest, (b) whether cooperative efforts of federal and state authorities rendered the arrest invalid, and (c) whether the arresting officers complied with New York Code of Criminal Procedure 180 (notification of arrest) -- were rejected, 242 F.Supp. 382 (S.D.N.Y. 1965), aff'd, 356 F.2d 460 (2d Cir. 1966).
Petitioner has now filed a second habeas petition. This one alleges a violation of the privilege against self-incrimination because of the testimony of a New York City detective at petitioner's trial that at police headquarters he said, 'I am not going to answer any question.' The error thus asserted is said to have been compounded by the trial court's refusal to charge suitably on the right of silence. The court concludes that the petition cannot be sustained.
1. Respondent first urges that the petition should be dismissed because it 'constitutes an abuse of the writ.' While the contention is not without substance, it is not accepted as a basis for denial of the petition. It is not disputed that this application 'alleges and is predicated on a * * * ground not adjudicated on the hearing of the earlier application * * *.' 28 U.S.C. § 2244(b) (Supp. IV, 1969). The State has made no showing that the petitioner 'on the earlier application deliberately withheld the newly asserted ground * * *.' Id. (emphasis added.) There is no indication that at a monstrous cost of long years in prison the petitioner has 'abused the writ' by postponing the issues now posed.
2. On its merits, however, petitioner's claim must be rejected. The error or errors of which he complains do not amount to a denial of due process.
Detective Egner, a police officer for eighteen years and a detective for ten, was one of the officers who took petitioner into custody. He testified that in the car on the way to FBI headquarters, he questioned petitioner as to his name, his address, and his brother's ownership of the vehicle in which he was driving when arrested (Tr. 1043). From FBI headquarters petitioner was taken to the police station, where he participated in a lineup. Sometime later in the afternoon, Detective Egner questioned him again and received, inter alia, the answer now complained of. At the trial, Egner testified as follows and without objection, on direct (Tr. 1051-52):
'Q What questions did you put to him and what answers did he make to those questions?
'A I asked him where he had been that evening.
'Q What answer did he make to that question?
'A He said that he just came down from Harlem and that this fellow DeNormand had asked him to give him a lift up to 116th Street and that they were returning downtown 'when you fellows grabbed us.'
'Q What was the next question you put to him after that?
'A I then asked him, 'What about the trip in Brooklyn?' He said, 'What do you mean Brooklyn? I wasn't in Brooklyn.' I then said to him, 'I saw you in Brooklyn. I have been following you for the best part of an hour, tailing you. You haven't been in Brooklyn?' He said 'Not me; I was never in Brooklyn. I didn't ...