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June 3, 1971

UNITED STATES of America ex rel. Edmund Allen ROSNER on behalf of Dominic Carbonaro, Petitioner,

Zavatt, District Judge.

The opinion of the court was delivered by: ZAVATT


ZAVATT, District Judge.

 This is a petition for a writ of habeas corpus submitted by a prisoner in state custody. The petitioner was convicted of murder, first degree, after a trial by jury in County Court, Nassau County, New York. The charge against him was premised on his participation in an armed robbery of a jewelry store in Manhasset, Long Island, during which the proprietor of the store was shot to death by a co-defendant. On appeal to the New York Court of Appeals from the judgment of conviction, decision was reserved and the case remanded to the County Court for a hearing pursuant to People v. Huntley, 15 N.Y. 2d 72, 255 N.Y.S. 2d 838, 204 N.E. 2d 179 (1965), on the voluntariness of two confessions made by the petitioner before arraignment and admitted into evidence at trial. People v. Sher, 15 N.Y. 2d 798, 257 N.Y.S. 2d 595, 205 N.E. 2d 691 (1965). After said hearing, at which the facts and circumstances surrounding the arrest, detention and interrogation of the petitioner were developed in great detail, the County Court (Oppido, J.) held the two inculpatory statements to have been given voluntarily. People v. Carbonaro, (Carbonaro I), 48 Misc. 2d 115, 264 N.Y.S. 2d 469 (1965). Thereafter, the New York Court of Appeals affirmed the judgment of conviction. People v. Carbonaro (Carbonaro II), 21 N.Y. 2d 271, 287 N.Y.S. 2d 385, 234 N.E. 2d 433 (1967). Although it does not appear from the petition whether petitioner has sought his release from custody through state habeas corpus, for purposes of the exhaustion requirement of 28 U.S.C. § 2254, it is sufficient that the claims raised in the instant petition have been passed upon by the state courts in the conventional appellate procedure. United States ex rel. Carafas v. LaVallee, 334 F.2d 331 (2d Cir. 1964), cert. denied, 381 U.S. 951, 85 S. Ct. 1798, 14 L. Ed. 2d 725 (1965).

 The Facts

 The facts material to a determination of the issues raised by petitioner, gleaned from the instant petition, the transcript of the Huntley hearing and the two Carbonaro decisions hereinabove referred to (where the facts are set forth in extenso), may be summarized as follows:

 The petitioner, Dominic Carbonaro, and one Walter Sher, were arrested at the latter's apartment in New York City in the early morning hours of Saturday, April 7, 1962 (two days after the robbery in question) by officers of the Nassau County Police Department. After a search of the apartment by the arresting officers, petitioner was taken to a police station on Long Island, where, for the remainder of the morning, he appeared in several line-ups and was questioned intermittently. On two occasions during that period, petitioner's requests to telephone his wife were denied, allegedly to enable the police to complete their investigation. There is no claim, however, that during the custodial period petitioner was denied food, sleep or any other physical necessities.

 Formal interrogation of Carbonaro began at 12 noon, and, shortly thereafter, petitioner acknowledged his participation in the robbery. This admission gave rise to the first of the above-referenced inculpatory statements, ultimately signed by the petitioner at 6 P.M. The second such statement was taken at 8 P.M. and reduced to writing within one hour. Carbonaro was arraigned the following morning, Sunday, April 8, 1962, some 28 hours after being apprehended, although it is undisputed that, had the police so requested, the arraignment could have taken place the preceding day.

 Petitioner's Contentions

 In support of his application for relief, petitioner makes the following claims:

 (1) The statements made by petitioner during his "illegal" detention are inadmissible "as a matter of law";

 (2) The delay in arraigning petitioner was a denial of his right to counsel and deprived him of due process of law, thereby rendering his statements inadmissible "as a matter of law";

 (3) The totality of circumstances indicate that petitioner's confessions were elicited in violation of the Due Process clause of the Fourteenth Amendment.

 Before proceeding to a detailed discussion of the petitioner's claims, two points are worthy of note at this juncture, neither of which can be dispositive of said claims, but both of which may be considered in passing upon their merit. First, it is conceded that prior to making his statements to the police, petitioner was not warned of his constitutional rights. However, since both the interrogation and trial of the petitioner took place prior to the decisions of the United States Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) and Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), petitioner was not entitled to the protections required by those decisions. Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966). Nevertheless, the failure to afford such safeguards may be considered on the question of whether a confession is given voluntarily. Davis v. State of North Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966); see People v. McQueen, 18 N.Y. 2d 337, 274 N.Y.S. 2d 886, 221 N.E. 2d 550 (1966).

 Second, although both the New York Court of Appeals and the County Court found an unnecessary delay in petitioner's arraignment, see N.Y. Code Crim. Proc. § 165, such detention does not, ipso facto, render statements made by the individual so detained involuntary or inadmissible, Brown v. Allen, 344 U.S. 443, 476, 73 S. Ct. 397, 417, 97 L. Ed. 469 (1953); United States ex rel. Glinton v. Denno, 309 F.2d 543 (2d Cir. 1962), cert. denied, 372 U.S. 938, 83 S. Ct. 886, 9 L. Ed. 2d 769 (1963), unless, of course, the conditions of the detention are such that the confession is not "the product of an essentially free and unconstrained choice," and is thereby violative of Due Process. Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 1879, 6 L. Ed. 2d 1037 (1961). Moreover, the Supreme Court has also held that a delay in arraignment may be considered as a factor in the "totality of circumstances" relied upon in assessing voluntariness. Stroble ...

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