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UNITED STATES EX REL. KAYE v. ZELKER

November 13, 1972

UNITED STATES of America ex rel. Marvin KAYE, Petitioner,
v.
John L. ZELKER, Warden, Green Haven Prison, Respondent


Tenney, District Judge.


The opinion of the court was delivered by: TENNEY

MEMORANDUM

Petitioner, Marvin Kaye, is presently incarcerated in Green Haven Correctional Facility, Stormville, New York, pursuant to a judgment of conviction rendered in Supreme Court, New York County. Kaye, indicted for murder in the first degree in August 1965, pleaded guilty to manslaughter in the first degree on October 11, 1966, and was sentenced to imprisonment for a term of ten to fifteen years.

 Petitioner alleges as the basis for his application for writ of habeas corpus: (1) that his confession, which was adjudged voluntary, was in fact inadmissible; (2) that his plea of guilty was not a valid plea due to his mental incompetency at the time of the plea; and (3) that the facts to which he admitted on the occasion of his plea did not constitute the crime of manslaughter in the first degree.

 The undisputed facts are as follows: On the evening of July 5, 1965, William Gold, an attorney, received an urgent phone call from Kaye, who requested that Gold meet him at his (Kaye's) hotel room. When Gold arrived at the hotel, he found the room in disarray, Kaye in a distraught condition, and the lifeless body of a young boy. After several hours of "discussion" with Kaye, Gold was able to convince the petitioner to accompany him to the Bellevue Psychiatric Ward.

 Early in the morning of July 6, 1966, Gold telephoned the New York City Police Department, 20th Precinct, and informed the desk sergeant that he wished to surrender his client, Marvin Kaye, in connection with a murder. The desk sergeant, in turn, telephoned the 20th Detective Squad and spoke to a Detective McNally. As a result of this call, McNally and his partner, Detective Maline, proceeded to the Stratford Arms Hotel at 117 West 70th Street and there discovered the body of a thirteen-year-old boy later identified as one Harry Bernstein. The boy apparently had been strangled. McNally then called Gold, who was at the Bellevue Hospital Psychiatric Ward, and told Gold he was on his way over. When the detective arrived, Gold introduced himself as Kaye's attorney.

 It is at this point that the petitioner's and the police's version of the facts (as recounted at the Huntley hearing) begin to differ. Gold testified that he had informed Kaye of his right to remain silent and that he had not wanted the petitioner to say anything to the police. Gold then had informed the police detectives McNally and Maline that he did not want his client questioned in his absence, either en route to the precinct house or by the Assistant District Attorney at the precinct house. Gold further testified that he had expressed a desire to accompany Kaye to the precinct house but had been advised by the detectives that it was not necessary because Kaye was not going to be questioned. After having given the detectives his card and having asked that they call him if the petitioner was to be questioned, Gold had gone home. When he appeared in court the next day for Kaye's arraignment, he discovered that Kaye had made an incriminating statement the night before.

 Detective McNally testified that he had asked Gold if he wished to accompany his client to the station house, but that after being assured that Kaye would not be mistreated, he had declined the invitation. McNally also recalled that he had been informed by Gold that Kaye had been apprised of his rights and that Kaye probably would not make a statement. Detective Maline's testimony was to the same effect, except that Maline testified he had been the one who had invited Gold to accompany them to the station house.

 The detectives then testified that almost immediately after entering the police car, Kaye had begun to blurt out incriminating statements; that they had informed him that he did not have to make any statements; and that, nonetheless, Kaye had continued making the statements until he had confessed to the murder of the boy. All of this was said to have taken place without any questioning or coercion by either of the detectives.

 Kaye testified that the detectives had begun to intimidate him as soon as the ride to the precinct house began. This intimidation consisted of statements such as: "You're in big trouble"; "We can help you or hurt you"; "If you're not going to make a statement, and you're going to make fools out of us, there's ways of making you have a statement made." Kaye stated that he had asked for his lawyer several times and that the detectives had never warned him of his rights. Both Kaye and Gold testified that the petitioner had been arrested several times before the arrest in question, and that on two occasions he had been physically beaten by the police. As a result of this prior treatment, Kaye said, he had been extremely frightened that the detectives, on the night in question, would do the same (particularly in the light of the intimidating remarks). Kaye testified that because of this fear, and because Gold had instructed him to talk if he thought he would be beaten, he had made the incriminating statements. *fn1"

 After taking extensive testimony at the Huntley hearing, the trial judge ruled that the statements made in the police car to the detectives were voluntary and thus admissible. More specifically, the court found "beyond a reasonable doubt that the oral statement by the defendant to the police officer was voluntary and is admissible as evidence" (H.H. at 373-74); *fn2" "that the defendant was fully apprised of his constitutional rights both by the police officers and by his retained counsel" (H.H. at 374); and "that the statement made by the defendant was a spontaneous reiteration of the facts impelled, probably, by his wanting to unburden his conscience and was not due to any coercion or fear of physical violence attributable to any action or threat on the part of the police officer." (H.H. at 374-75.) During the selection of the jury Kaye withdrew his plea of not guilty and offered a plea of guilty to manslaughter in the first degree, reserving his right to appeal the decision rendered in the Huntley hearing pursuant to N.Y.Code Crim.Proc. § 813-g (McKinney Supp.1971), as amended, N.Y.C.P.L. § 710.70(2) McKinney's Consol.Laws c. 11-A, 1971. The plea of guilty was accepted and Kaye was sentenced to a term of ten to fifteen years imprisonment.

 The Huntley hearing decision was appealed, and both the Appellate Division, People v. Kaye, 31 A.D.2d 536, 295 N.Y.S.2d 81 (1968) (one judge dissenting), and the New York Court of Appeals, People v. Kaye, 25 N.Y.2d 139, 303 N.Y.S.2d 41, 250 N.E.2d 329 (1969) (two judges dissenting), affirmed the findings of the trial court. Petitioner did not dispute that he was legally sane at the time of the crime and at trial. Moreover, the dissents in the appellate courts were not based on disagreement with the factual determination by the trial judge, but on the proposition that even a volunteered statement made in the absence of counsel is not admissible when a defendant has been arrested and taken into custody and his lawyer has informed the police that he has advised the defendant not to make any statements. Kaye then applied to this Court for a writ of habeas corpus on the grounds that his confession was involuntary, that he was incompetent to plead guilty, and that the facts which he admitted at the time of the plea did not constitute the crime of manslaughter in the first degree. A hearing was ordered and held at which Kaye, Gold, and Doctor Edward F. Falsey, a psychiatrist, testified.

 Both Kaye's and Gold's testimony added little, if anything, to their testimony at the Huntley hearing. *fn3" Dr. Falsey, who based his evaluations on two interviews with the petitioner, petitioner's Bellevue Hospital records (including psychiatric reports), and his testimony at the Huntley hearing, testified on direct examination essentially to three things: (1) that in his opinion Marvin Kaye was insane in July 1965 (the time of the murder); (2) that he thought Kaye had made the statements to the police only to avoid what Kaye had perceived as a threatening situation; and (3) that Kaye's testimony and behavior on the witness stand at the Huntley hearing would lead him (Dr. Falsey) to question Kaye's sanity at the time of the hearing. Dr. Falsey did, however, qualify the last proposition in the following exchange on direct examination:

 
"Q. Is it your further testimony, Doctor, that at the time of the Huntley hearing testimony of Mr. Kaye and, of course, shortly after that time his guilty plea, that there was enough past history and outward signs to indicate that there was a question as to whether or not Mr. Kaye could knowingly and voluntarily enter a plea of guilty?
 
A. From reviewing the record, I would suggest that it would have been appropriate to review his mental condition at that point. I was not there, and I think in retrospect I cannot recommend that something else should have been done. But in the light of the future developments and what we see today with Marvin Kaye, I think he was sick then and has continued to be." ...

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