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UNITED STATES EX REL. BURKE v. MANCUSI

April 15, 1971

UNITED STATES ex rel. William J. BURKE, Petitioner,
v.
Vincent R. MANCUSI, Warden of Attica State Prison, Attica, New York, Respondent


Lasker, District Judge.


The opinion of the court was delivered by: LASKER

LASKER, District Judge.

Petitioner seeks a writ of habeas corpus, alleging that he was induced to give evidence against himself on the basis of promises of a limited sentence made by the District Attorney's Office, that the promises were not kept, and that his guilty plea to the indictment against him was therefore involuntary. Petitioner further asserts that he was inadequately represented by counsel. *fn1"

 On this application he seeks to vacate the judgment of conviction based upon his guilty plea, and a direction that, on any retrial for the offenses in the indictment here, the State of New York be precluded from using any evidence which resulted from his cooperation.

 While the application was initiated pro se, the petitioner requested that the court appoint counsel, and Robert B. Fiske, Jr., Esq., consented to represent petitioner pro bono publico. In order to clarify the factual issues raised here, a full evidentiary hearing was held. 28 U.S.C.A. ยง 2243; Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). *fn2"

 THE FACTS

 In July of 1966, while petitioner was incarcerated (bail not having been met) under a 1965 indictment for conspiracy and extortion, he was approached by officers of the New York Police Department seeking his cooperation in providing information on certain "shakedown" activities allegedly involving a man named Sherman Kaminsky and officers of the police departments in Chicago and New York. Petitioner expressed a willingness to cooperate and requested that he be provided with an attorney. The New York District Attorney's Office secured for him the services of Martin Erdmann, Esq., of the New York Legal Aid Society.

 Petitioner met with Erdmann for the first time in the office of Richard H. Wynn, Esq., an Assistant District Attorney for New York County. He there told Erdmann:

 
"* * * the District Attorney wanted me to go with them to a few locations here in the city and locate some people that have been victimized by Kaminsky, and one in particular that I and Mr. Kaminsky were involved, and I wanted some assurance as to what the disposition of this whole thing would be before I gave any information." [sic] (Transcript of Hearing, December 9, 1970, at 24).

 On July 11, 1966, the District Attorney's Office conveyed to petitioner through his attorney, Erdmann, its decision that no immunity would be given, but that (1) if petitioner cooperated in the investigation by providing information, "if any indictment were returned, as the result of my cooperation, they wouldn't be held against me." [sic] (Id. at 24); and (2) if the cooperation were substantial, petitioner could expect that all the New York charges "would be disposed of on the basis of a couple of misdemeanors." (Id.)

 Petitioner then accompanied New York police officers and provided them with information as to the locations and other facts relating to certain extortions. He claimed to be unable to recall the names of the individuals victimized, but described them. Petitioner stated that his role in the extortions was that "I acted in concert, I drove the car back, Kaminsky stayed out there, and went with this individual to the bank and so forth, and I drove the car back." (Id. at 28).

 The record established that Kaminsky and petitioner were indicted on July 19, 1966 (Indictment No. 2796-66), and that the information provided by petitioner was relied upon in bringing the indictment. While there appears to be some dispute in the record whether petitioner was capable of providing further evidence such as the names of the victims or other matters, he did provide extensive information to the Federal Bureau of Investigation (Plaintiff's Exhibit No. 4 at 13) and he states that he gave the District Attorney all that he had beyond what was told to the federal authorities. Prior to entering his plea, petitioner was told by the New York police that they felt his cooperation was insufficient and that he had not given them information desired as to a specific case. (Transcript of Hearing, December 9, 1970, at 36).

 On November 21, 1966, petitioner was called upon to plead to both the 1956 and the 1966 indictments. The District Attorney's Office offered to reduce the charges to attempted grand larceny in the second degree as to the 1966 indictment, and the misdemeanor of coercion as to the 1956 indictment. The cooperation which petitioner did give was a factor considered by the District Attorney's Office in making this offer. (Id. at 72). Petitioner then withdrew his earlier pleas of not guilty and responded to the court's inquiry as follows:

 
"THE COURT: Has anyone given you any promise or indication that you would be sentenced on your conviction of the misdemeanor of coercion rather than on your conviction of the felony of attempted grand larceny in the second ...

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