Lumbard, Chief Judge, Waterman, Circuit Judge, and Jameson, District Judge.*fn*
Dominick Sabella appeals from the denial of his petition for a writ of habeas corpus by the Southern District of New York.
Sabella was separately tried and convicted in Suffolk County on two indictments, one for robbery and the other for issuing a fraudulent check and for grand larceny. He was sentenced to from 15 to 30 years imprisonment for the robbery, and from 2 1/2 to 5 years for the fraudulent check offense. Sabella alleges constitutional error in each of these trials. He claims that the robbery conviction is vitiated because: (1) his rights under the Fifth and Sixth Amendments were violated by the use of oral statements which were both involuntary and inadmissible under Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964); (2) he was denied effective assistance of counsel because the trial court insisted that he proceed to trial without allowing his appointed counsel adequate time to prepare the case; and (3) he was denied due process by the trial court's arbitrary limitation of his right of allocution. The fraudulent check conviction allegedly is invalid because Sabella was denied his right to a speedy trial. Judge Ryan denied all of Sabella's claims. He found that the evidence fairly supported the county judge's conclusions that the confession was voluntary, and that Sabella had not requested the assistance of counsel during questioning. Judge Ryan rejected petitioner's claim that he was denied effective assistance of counsel, noting that a lengthy hearing of this issue was held in the state court in 1967, and that the record amply supported the conclusions reached there. Judge Ryan further found that there was no denial of petitioner's right of allocution. We affirm.
On January 3, 1964, Sabella was picked up by the police and questioned regarding a robbery which had taken place in Deer Park in December, 1963. Sabella was subsequently indicted for his participation in the robbery. Thereafter, the county court held a full and complete hearing on his motion to suppress his confession and the following facts were brought out: About 1:30 P.M. on January 16, 1964, two detectives called Sabella's home and told his wife that they wanted to talk with him when he came home. About 3:00 P.M. Sabella returned the call and said he did not have transportation to the station house and would like to be questioned at home. The detectives replied that they would bring him to the station house; they arrived at Sabella's home about 3:15. Sabella testified that in the presence of the two detectives he told his wife to call his lawyer, Bernard F. Kass, Esq. He then accompanied the detectives to the police station, where he was told that he had been named as a participant in a robbery and that he could now tell his side of the story. The trial court found that Sabella was formally arrested at about 4:30 P.M., after orally admitting that he had driven a car to and from the scene of the robbery.
Kass, Sabella's attorney at his first and second trials, testified that he had returned to his office about 5:00 on January 16, and was told by his secretary that Mrs. Sabella had called to say that her husband was at the police station and wanted his assistance. Kass attempted to contact Sabella by telephone, but to no avail.
The county court held a full evidentiary hearing on the voluntariness of the confession. These findings are presumed to be correct unless petitioner can establish one of the eight statutory exceptions in 28 U.S.C. § 2254(d), which limits the scope of review on habeas corpus of questions arising after a state court hearing. Sabella rests his claim that the standards of Escobedo, supra, were violated on § 2254(d) (8), which provides that the state court findings shall be presumed to be correct unless the record, considered as a whole, does not fairly support such factual determinations. He asserts that the trial court only found that he had not requested an attorney "during the evening" of January 16, and that we should remand for a further hearing. If Sabella had requested an attorney in the presence of the detectives, Escobedo, supra, would require that the detectives refrain from questioning him until his attorney had arrived. This is also the law of New York. People v. Gunner, 15 N.Y.2d 226, 257 N.Y.S.2d 924, 205 N.E.2d 852 (1965).
Contrary to Sabella's assertions, the county judge, Thomas M. Stark, made full and complete findings, covering over 15 pages in the record, to support the conclusions that Sabella's statements were voluntarily made and that there had been no deprivation of the right to counsel. The court found:
"Thirteen. That while the defendant was in the company of Detectives Barcellona, Hirsch, Biscardi and Friend on January 16, 1964, between 3:15 p.m. and 4:30 p.m., when he was placed under arrest, neither they or any of them or any other police officer exercised any force or violence against the defendant. * * * That at no time during this period did the defendant request to contact an attorney. * * *
"I find further from all of the foregoing that as to the defendant's oral incriminatory admissions made to Detectives Biscardi and Friend on the afternoon of January 16th, 1964, there was no deprivation of the defendant's right to the aid of counsel." Trial III, pp. 564-567.
While it is undoubtedly true that Sabella at some point told his wife to call his attorney, it is quite possible that the conversation occurred in the interim before the detectives arrived rather than in their presence. Although Sabella testified that the detectives had heard him make the request, Detective Barcellona testified that he did not hear any request for an attorney at any time during this period, and Detective Hirsch, the other officer who went to Sabella's home, was not questioned on the subject. Thus, as Judge Ryan below found, there is ample testimony to support the state court's conclusion, and Sabella has not sustained his burden of establishing "by convincing evidence that the factual determination by the State court was erroneous." 28 U.S.C. § 2254(d).*fn1
Sabella's second claim is that his counsel at the trial did not have time to prepare his case effectively. His appointed counsel was denied several requested adjournments and allegedly was not given adequate opportunity to examine the record of the first trial. All of the facts on this claim were presented to the state court in a habeas corpus petition. Judge Ryan held that the state court findings and conclusions were amply supported by the record.
We agree with the district court. Appellant's counsel at the third trial, John Frank, Esq., of Suffolk County Legal Aid, was appointed to represent Sabella on January 25, 1966, and a Huntley hearing began on March 9, 1966. Frank was given a copy of the minutes of the second trial, which should have acquainted him with everything of importance at the first trial, especially since Sabella was represented by the same counsel in both previous trials. There is no showing of any important discrepancies in the testimony of material witnesses at the first and second trials, and no reason to believe that any prejudice to Sabella did in fact arise from Frank's inability to fully study the record of the first trial. Furthermore, the record does not support appellant's contention of inadequate opportunity to study the transcript of the first trial. This is not a case where the state has arbitrarily refused to supply defense counsel with the transcript of an earlier trial. See United States ex rel. Wilson v. McMann, 408 F.2d 896 (2d Cir. 1969). The transcripts of the first trial were available at normal business hours. Also Frank was not rushed into the trial with unreasonably little time to prepare Sabella's case. On the contrary, Frank had a full six weeks to prepare his case before the hearing and trial began on March 9, 1966.
The asserted instances of prejudice arising from counsel's inadequate preparation are without merit. Sabella first claims that Frank neglected an opportunity to damage Detective Friend's credibility, in that he failed to expose an inconsistency between Friend's testimony at the first and third trials. This overlooks ...