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April 7, 1972

UNITED STATES of America ex rel. Albert CURTIS, Petitioner,
Hon. Nelson H. OTIS, Acting Warden of Green Haven Prison, Respondent. UNITED STATES of America ex rel. Albert CURTIS, Petitioner, v. Hon. John ZELKER, Superintendent of Green Haven Correctional Facility, Stormville, New York, Respondent. UNITED STATES of America ex rel. Albert CURTIS, Petitioner, v. Hon. John ZELKER, Warden of Green Haven State Prison, Stormville, New York, Respondent

Lasker, District Judge.

The opinion of the court was delivered by: LASKER

LASKER, District Judge.

Albert F. Curtis, a New York State prisoner confined in Green Haven Correctional Facility, Stormville, New York, seeks a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. Curtis is serving an indeterminate sentence of twenty years to life, imposed by the New York Supreme Court, Bronx County, following his plea of guilty on October 16, 1963, to the charge of murder in the second degree. At a hearing on a writ of error coram nobis held September 8, 1969, before Supreme Court Justice Starke, it was determined that Curtis had not been advised of his right to appeal. He was then resentenced nunc pro tunc, as of November 21, 1963, and given the opportunity to appeal. The conviction was affirmed without opinion by the Appellate Division (People v. Curtis, 34 A.D. 2d 739, 310 N.Y.S. 2d 996 (1st Dept. 1970)). Leave to appeal to the Court of Appeals was denied.

 Three petitions have been consolidated before us. The first, 70 Civ. 3347, asserts that the resentencing nunc pro tunc deprived petitioner of his right to an effective appeal and thus violated due process and equal protection of the law. The second, 71 Civ. 321, alleges on grounds discussed extensively below that his plea was neither voluntary nor intelligently made. The third, 71 Civ. 4069, claims that petitioner's resentence was without due process because the New York Penal Law had been revised after the date of petitioner's conviction and he was not resentenced under the new law.

 Finding that issues of fact were raised by the first two petitions, counsel was appointed for Curtis and an evidentiary hearing held as to those two petitions pursuant to Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). The record now before us establishes that petitioner's plea was not intelligently and knowingly made. Petitioner's second application (70 Civ. 321) is therefore granted and he shall be released from custody unless the State proceeds to retry him. This grant renders the other petitions moot, and they are accordingly dismissed.

 The first petition may be construed to raise the question whether the passage of time now renders it impossible for Curtis to prove his incompetence at the time of the crime. However, at the evidentiary hearing no evidence was submitted on the issue, nor has it been otherwise pressed. We make no determination of fact or law regarding the question presented, which it would appear can be appropriately raised in the further state court proceedings mandated below.


 Curtis was indicted on May 3, 1963, for the crime of murder in the first degree. He had been arrested April 19, 1963, and detained for the killing of a card game participant during a robbery at the Aces Up Social Club.

 On May 6, 1963, Justice Martines in Supreme Court, Bronx County, appointed Herbert Feuer and Anthony Masciarelli as defense counsel. Four days later Curtis saw his lawyers for the first time in the "bull pen" of the courthouse for a few minutes prior to his arraignment. At that time he reviewed his past, telling his attorneys that a good part of his life had been in institutions for the delinquent or mentally ill, and that only two weeks before the crime took place he had been committed to Bellevue Hospital's psychiatric ward. Curtis' record is such that he had reason to press the question of his competence and responsibility. His treatment began at the age of eleven under psychiatrists associated with Johns Hopkins Hospital. At fifteen, his parents committed him to Boys Village in Maryland for truancy and misconduct which the parents could not control. Within the year he was sentenced to three years in the Maryland State Reformatory for Males for storehouse breaking, and was transferred from there to Patuxent Institute.

 His history includes repeated violations of the law, confinements, and psychiatric examinations and treatments with each confinement. In 1957, the Patuxent doctors concluded that Curtis was a defective delinquent, that "he demonstrates a propensity toward anti-social behavior and is emotionally unstable to a severe degree. He cannot apparently restrain his impulses and he lacks sufficient judgment to abide by the rules of society." (Petitioner's Exh. 11 at p. 70). Petitioner was committed to Patuxent for an indefinite term as a result of these findings, and not finally released until November 2, 1962. Within three months, petitioner was examined by court-appointed psychiatrists following an assault on his wife, and declared to be a sociopsychopath. (Petitioner's Exh. 11 at p. 131). *fn1"

 How much of this record Curtis told to Feuer at their first meeting is unclear. Feuer stated: "I believe I spoke to him on May 7th and he told me about his record, his background of being in a mental institution and I think prior arrests." (Tr., at p. 80). However, Feuer evidently had enough information to request that Curtis be examined before proceeding further:

"Mr. Feuer: Your Honor, on behalf of the defendant Curtis I ask that he be sent to Bellevue Hospital for examination. Mr. Curtis has advised me of psychiatric trouble relating back to the time he was eleven years old. He was treated at Johns Hopkins Hospital and two other hospitals in Manhattan, and recently at Bellevue. I think that this case should require hospitalization of this type and a report sent back to the Court.
"The Court: You have no objection?
"Mr. McCarthy (Assistant District Attorney): No objection.
"The Court: All right. So Ordered."
(Petitioner's Exh. 1; Transcript of Proceedings held May 10, 1963, Supreme Court, Bronx County).

 Curtis was accordingly committed to Bellevue for observation. During the two-month period of commitment he had no contact with his lawyers. While Curtis was in Bellevue, Feuer met with his wife (Tr., at p. 79) and his mother and stepfather (Id., at p. 95). Feuer made some effort to obtain the Patuxent records, without success. (Id., at p. 106). He never sought to examine the file at Bellevue. (Id., at pp. 106-107).

 It is reasonable to believe that Curtis' wife gave Mr. Feuer a thorough and intelligent description of Curtis' severe psychiatric problems. The record of Curtis' stay at Dannemora (see Transcript of Petitioner's Hearing of September 16, 1971 -- hereinafter cited as "Tr." -- at pp. 116-117) includes a letter from Mrs. Curtis to the director of Dannemora dated October 29, 1965. From the excerpt which we set out in the margin, *fn2" it will be seen that Mrs. Curtis, who had worked as a nurse in a state hospital for three years, was greatly concerned about the state of her husband's mental health; was exceptionally capable in recalling and describing his history and symptoms, and expressed her love for him despite abuse by him. It is difficult to believe that Mrs. Curtis, who was so careful, concerned and detailed in her letter to Dannemora which involved treatment, would not have given Mr. Feuer an equally complete and impassioned presentation at a time when Curtis' life was at stake.

 By letter of July 17, 1963, Bellevue Hospital reported (in accordance with the New York statutory formula) that Curtis, while "not in such a state of idiocy, imbecility or insanity as to be incapable of understanding the charge . . . or of making his defense," nevertheless evidenced "rather fragile paranoid type defenses, with underlying psychosis." (Petitioner's Exh. 3).

 Curtis next saw Feuer on August 7, 1963 (again in the "bull pen" of the courthouse) before appearing in court for motions and pleading not guilty. Feuer told Curtis that he did not agree with the Bellevue report because, as petitioner put it, "it was his opinion that I was insane" (Tr., at p. 29). Feuer's testimony, while not specifically addressed to this talk with his client, was that, while he doubted Curtis was "psychotic" (Tr., at p. 100), he believed "there was a possibility" of such a condition (Tr., at p. 105). Feuer did not show petitioner the Bellevue report, although he had it in his possession. Curtis testified that he told Feuer that one of the psychiatrists examining him at Bellevue had expressed the belief Curtis was "insane."

 In court that day, Feuer sought to have Curtis examined further. He came prepared with motion papers seeking the appointment of two psychiatrists to examine Curtis as to his mental condition at the time of the crime. The Assistant District Attorney suggested that one psychiatrist was sufficient since the state could retain its own without court order. Questioned by the Court on this point, Feuer agreed with the Assistant District Attorney. The colloquy led up to an order for appointment of a psychiatrist to explore both Curtis' present competence and his mental condition at the time of the crime:

"The Court: The application now then is for appointment of a psychiatrist in behalf of the defendant and in behalf of the People to examine this defendant to ascertain, if they can, the state of his, the mental state, rather, as of the date of the crime. Is that the point.
"Mr. Goldsmith (Assistant District Attorney): That's right.
"Mr. Feuer: Yes, sir.
"Mr. Goldsmith: So that we can take action on the Bellevue report. It wouldn't affect the thought that counsel has.
"The Court: What was your objection to taking action on the Bellevue report.
"Mr. Feuer: Because if the psychiatrists that examined him now feel that they would contravert the Bellevue report by their report, I feel we couldn't confirm.
"The Court: Very well, that's a different reason. Your psychiatrist, you feel, should advise you first.
"Mr. Feuer: Yes, sir.
"The Court: With respect to their examination and whether or not you will then ...

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