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UNITED STATES EX REL. YOUNG v. FOLLETTE

January 6, 1970

UNITED STATES of America ex rel. Ronald A. YOUNG, Petitioner,
v.
Hon. Harold FOLLETTE, Warden, Green Haven Prison, and the State of New York, Respondents


Cooper, District Judge.


The opinion of the court was delivered by: COOPER

COOPER, District Judge.

Petitioner, Ronald Young, was convicted of robbery in the first degree in Supreme Court, New York County, on October 4, 1967. His conviction was affirmed by the Appellate Division, First Department, 31 A.D.2d 527, 295 N.Y.S.2d 593 (1968); leave to appeal to the New York Court of Appeals was denied on February 26, 1969. Petitioner now seeks a writ of habeas corpus based upon three claims.

 He first claims a violation of his Fifth Amendment right to remain silent in that the prosecuting attorney, in an attempt to impeach petitioner's credibility at trial, brought to light his silence at the time of arrest.

 Petitioner at trial sought to establish that he had never participated in the alleged robbery and that in fact such robbery had not occurred. Young testified that on March 2, 1967 he accompanied a friend, Johnny Perez, to a store owned by a Mr. Fleischman, located at 23 East 125th Street (Tr. 122) *fn1" ; that the store's business was to buy and sell used merchandise (Tr. 9), and Perez was planning to sell Fleischman a ring. (Tr. 129-30); that after entering the store, he remained near the front while Perez walked towards the rear to speak with Fleischman; that Perez and Fleischman began arguing, and he approached the two merely to see what the altercation was about (Tr. 137); that as he reached Fleischman's side, a Benjy Derby entered the store, and Fleischman unwarrantedly "yelled to Benjy, 'Hey, these guys are robbing me.'" (Tr. 135). At this point, Young stated, "I turned to leave the store and Mr. Fleischman grabbed me." (Tr. 136). He further testified the two grappled and Fleischman tripped over a chair injuring his head. (Tr. 139-41); that freed from Fleischman's grasp, he ran out of the store (Tr. 144), fell on the sidewalk and was there held and detained by a Mr. Dennis until Patrolman Bellamy arrived. (Tr. 145-6).

 On cross-examination, the following occurred: (Tr. 141-4)

 
Q. Did you ever report to the police that Mr. Fleischman attacked you?
 
MR. POVERSTEIN [defense counsel]: Your Honor, I am going to object to that question.
 
THE COURT: Overruled. What is the answer, sir?
 
THE WITNESS: No.
 
MR. POVERSTEIN: Your Honor:
 
THE COURT: Yes?
 
MR. POVERSTEIN: May I state the reason for my objection? At this point we are coming into an area - we don't even know if the police questioned him at this point, if they asked him that question.
 
THE COURT: Objection is overruled, sir.
 
MR. POVERSTEIN: Exception, your Honor.
 
THE COURT: You have an exception to my ruling.
 
Q. Did you ever volunteer to the police that Mr. Fleischman attacked you?
 
A. They never gave me the chance.
 
Q. You never had the chance?
 
A. No.
 
THE COURT: You were in custody, were ...

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