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July 15, 1974

LEON J. VINCENT, Superintendent, Greenhaven Correctional Facility, Stormville, New York, Respondent

Kevin Thomas Duffy, D.J.

The opinion of the court was delivered by: DUFFY



 William Wooden, the petitioner, seeks a writ of habeas corpus to overturn his conviction in the Nassau County Court, on May 18, 1970, after a trial by jury, of Murder, Manslaughter First Degree, Robbery First Degree and Grand Larceny, Third Degree. Wooden was sentenced to concurrent terms, the minimum providing twenty-five years to life imprisonment. The judgment was affirmed without opinion by the Appellate Division, Second Department, 38 A.D. 2d 690, 328 N.Y.S.2d 622 (1971) and by the New York State Court of Appeals, 31 N.Y.2d 753, 290 N.E.2d 436, 338 N.Y.S.2d 434 (1972); and certiorari was denied, 410 U.S. 987, 93 S. Ct. 1517, 36 L. Ed. 2d 185 (1973). It appears that state remedies have been exhausted within the meaning of Section 2254 of Title 28 U.S.C.

 The petition is grounded on two points: (1) that post-indictment, post-arrest statements of petitioner should not have been admitted at trial because they were made at a time when counsel had not yet been appointed for petitioner; and (2) that the trial court should not have forced petitioner to defend himself pro se, albeit with two able counsel sitting with him. The memorandum of law submitted by counsel also argues that the petitioner's conviction was improper because of certain evidentiary errors of the trial court. (All of these issues have been considered and will be disposed of in this opinion and order.)

 William Wooden was one of four who wantonly killed John Hartel, the station agent at the Long Island Railroad Station in Mineola, New York, on February 18, 1968, and stole some $384.00 from the station. Hartel was shot in the back while opening the ticket agent's booth on that day. After the murder the group fled and the petitioner Wooden made his way to Boston.

 On March 12, 1968, the petitioner with his accomplices was indicted by a grand jury in Nassau County.

 Some weeks after the indictment, on April 28, 1968, at about 8:00 p.m., two Nassau County patrolmen responded to a report that the A & Z Construction Company burglary alarm had been activated. Arriving at the scene the patrolmen saw the petitioner leaving the building. Patrolman Linwood Gunter recognized the defendant, and knew that there was a warrant for his arrest. The petitioner fled upon seeing the police car but was chased by the patrolman, who finally apprehended him. Patrolman Gunter immediately told petitioner "You don't have to say anything. Anything you say can be used against you in court." The petitioner, who apparently was not ignorant of the procedure, replied, "I know my rights." Patrolman Gunter continued by saying, "You're entitled to have a lawyer at any time and if you can't afford one the County will get you one." To this the petitioner replied, "I don't want a lawyer."

 The petitioner was taken by the patrolmen to the 3rd Precinct in Nassau where he was formally "booked". Wooden was then taken upstairs to the Detectives' Squad Room. There Detective Lieutenant Guido informed the petitioner that he wanted to question him, advised him that he had already been indicted for murder, and started to advise petitioner of his rights. The petitioner interrupted stating that he knew his rights. Detective Guido, however, said "Well, that's all well and good, but I want to go over them with you so there is no misunderstanding." Detective Lieutenant Guido thereupon recited to petitioner all of the normal "Miranda" warnings. At the end of this recitation Guido told petitioner "Now, I ask you again, knowing your rights, are you willing to talk to us without an attorney being present or without talking to an attorney?" To this the petitioner replied, "Yes . . . I'll talk to you . . . I tried to tell you before."

 Thereupon the petitioner told his version of the events of the night of the murder. Basically, the petitioner admitted his participation in the burglary but attempted to exculpate himself from the murder by saying that one of his co-defendants had possession of the weapon used. Detective Lieutenant Guido had Detective Lazorcak type up petitioner's statement. The detectives advised Wooden that they were going to ask "the District Attorney to come in . . ." to which Wooden replied "Yes, bring him in. I'll tell him, too."

 Detective Lieutenant Guido left after some fifteen minutes and Detective Lazorcak offered the petitioner some coffee and read to him his rights as set forth on a card that Lazorcak carried. Lazorcak then started questioning the petitioner and typing up the statement as he talked. Sometime thereafter, two other detectives arrived and one of them took over the typing chore. At the completion of the questioning, Wooden reviewed a six page detailed statement, made some corrections and signed the statement.

 After the statement was signed, one of the detectives took petitioner into another office where two Assistant District Attorneys and a stenotype reporter were present. Once again Wooden was advised of his rights, including his right to counsel. He stated he knew his rights but he wanted to talk. Once again he gave his version of his implication in the burglary and murder.

 At no time during the night of his arrest did the petitioner ask for an attorney although the services of counsel were offered to him on at least four different occasions. There is no claim that any of the confessions or admissions by the petitioner on the night of his arrest were coerced.

 At his arraignment petitioner was assigned two defense counsel, as is the custom in New York State cases where murder is charged. Counsel for the defense moved to suppress all of the petitioner's post-indictment statements. The motion was denied and the statements were admitted in evidence at the time of trial.

 The statements were "icing on the cake" at the petitioner's trial since one of his co-defendants testified against him and other witnesses told of his admissions to them. For example, Dorothy Greene, whom the petitioner had visited in Boston after the crime, testified that she forced Wooden to leave her ...

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