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UNITED STATES EX REL. DELMAN v. BUTLER

March 11, 1975

UNITED STATES OF AMERICA ex rel. WILLIAM DELMAN, Petitioner,
v.
HAROLD BUTLER, as Superintendent of WALLKILL Correctional Facility, Respondent


Neaher, United States District Judge.


The opinion of the court was delivered by: NEAHER

MEMORANDUM ORDER

NEAHER, United States District Judge.

 Petitioner, William Delman, is presently incarcerated in the Wallkill Correctional Facility, Wallkill, New York, serving a sentence of 20 years to life imprisonment following a plea of guilty to murder in the second degree in the New York Supreme Court, Kings County. Petitioner has filed an application for a writ of habeas corpus, claiming, in essence, that he was coerced into pleading guilty by the Kings County District Attorney and the State Justice who presided at the plea, taken January 5, 1970. The circumstances under which that plea arose appear undisputed and largely a matter of record.

 Petitioner and co-defendants were arrested in 1964 for the shotgun killing of one Joseph Mandola during the commission of an armed robbery of a Brooklyn supermarket on December 23, 1963. Petitioner, on April 2, 1964, pleaded guilty to a charge of first degree murder before Justice Cone, Supreme Court, Kings County, while his co-defendants pleaded guilty to charges of second degree manslaughter that same day. Petitioner, apparently the one who wielded and fired the shotgun, avoided any possibility of the death penalty then extant in this State by his plea, and was thereafter sentenced to a term of natural life on June 2, 1964.

 Subsequently, on March 6, 1967, petitioner filed a motion for a writ of error coram nobis, alleging that his plea of guilty was coerced by inflammatory media coverage which precluded a fair trial. The question of adequacy of representation for petitioner was also raised with the allegation that his attorney during the plea negotiations, Sidney Gitelman, Esq., had a conflict of interest when he represented one of petitioner's co-defendants as well.

 Represented by Peter D. Pervis, Esq., of the Legal Aid Society, petitioner was accorded a coram nobis hearing on these claims on July 24 and 25, 1969, before Justice Corso. Decision on the motion was reserved and petitioner was returned to prison. During the pendency of that motion Pervis undertook plea bargaining negotiations on petitioner's behalf with the District Attorney. The District Attorney agreed to a result where, in exchange for his plea of guilty to murder in the second degree, petitioner would be sentenced to prison for a term of 20 years to life imprisonment. The mechanics of the offer were that the District Attorney would consent to the vacating of the previously entered plea of guilty to murder in the first degree, and the entering of a plea of not guilty, rendering moot petitioner's pending claims with respect to its involuntariness. Petitioner would have to agree to withdraw the plea of not guilty and substitute a plea of guilty to murder in the second degree in satisfaction of the indictment.

 Pervis communicated with petitioner concerning the nature and substance of the negotiations during the latter part of 1969. At a subsequent meeting between the two the attorney told his client that the above offer was the best he could get; that its refusal would result in the denial of the motion pending before Justice Corso, leaving petitioner to his chances on appeal; that he did not think much of petitioner's chances of winning on appeal; and that basing his future on a reversal of Justice Corso by a higher court "would be making a very big mistake."

 At another meeting, on December 17, 1969, Pervis allegedly told petitioner he would be a fool to refuse the District Attorney's offer, apparently in response to an indication from petitioner that he had decided to refuse it. Pervis added that petitioner would not be offered less than an opportunity to plead to second degree murder, which would mean an additional seven years in prison. Pervis is also alleged to have said that petitioner's only chance of winning would be in the federal courts, that it would take him at least five more years to get there, and that even then the federal courts might not consider the merits of his case. Pervis concluded by saying that he felt petitioner would be making a very big mistake if he turned the offer down, and he urged petitioner to think the matter over very carefully. Petitioner asked Pervis to get an adjournment so he would have more time to think about it.

 Apparently as a result of that meeting, Pervis was able to get a final adjournment of the decision of the pending motion until January 5, 1970. Just prior to appearing before Justice Corso, Pervis met with petitioner once again, inquiring whether he had changed his mind about the offer. Petitioner responded that he considered the offer unfair and coercive but felt he had no choice, under the circumstances, other than to accept it.

 It is abundantly clear from the record of proceedings on January 5, 1970, that petitioner was intelligent and literate and had no trouble understanding the many questions which ensued. Among other things, petitioner stated unequivocally that he felt that Pervis had represented him properly and to the best of his ability; that it was his desire, and not his attorney's, to plead guilty after having thought the matter over for about one month; that while in the commission of an armed robbery of a supermarket he shot and killed one Joseph Mandola with a 12-gauge shotgun; that no one had forced him to plead guilty and that he was doing so of his own free will; and that he had the absolute right, which only he could waive, to have the charges against him tried before a jury. After sentencing petitioner and advising him of his right to appeal, Justice Corso added some observations on petitioner's previously pending motion, commenting in detail on why he thought each of the grounds advanced by petitioner was without merit.

 Petitioner filed a second writ of error coram nobis on January 8, 1970, alleging coercion and unlawful pressure by the District Attorney and the court with respect to the plea of guilty to second degree murder. After the filing of opposing papers by the District Attorney, Justice Corso denied the motion without a hearing, April 29, 1970. The appeal from that ruling was denied by the Appellate Division, June 21, 1970. On August 26, 1971, leave to appeal to the Court of Appeals was denied (Gibson, J.).

 Having thus exhausted his State remedies, petitioner now seeks from this court a writ of habeas corpus, on the grounds that his plea of guilty to murder in the second degree was involuntary, having been coerced by unlawful pressure, and, secondly, that the denial of his writ of error coram nobis of January 8, 1970 without a hearing was error. This court, following issuance of an order to show cause on the Attorney General, has reviewed the record of the coram nobis hearing, and all other pertinent papers, and concludes, for the reasons which follow, that petitioner's application must be denied.

 Petitioner's argument is that he was deprived of the free choice between standing trial for first degree murder and pleading guilty to second degree murder, because he was told repeatedly that the plea was the only way to obtain a reversal of his conviction of first degree murder. He adds that Justice Corso was a party to the deal and could not therefore perceive its unfairness. He also offers to produce witnesses to testify as to his complete reluctance to plead guilty to second degree murder. His conclusion is that by his involuntary plea he was denied due process, a fair trial, and a trial by jury.

 In evaluating petitioner's claim of involuntariness and coercion, the court notes at the outset that had petitioner sought to claim that his 1964 plea would not have been entered except for a desire to avoid the death penalty and to limit the maximum penalty to life imprisonment, such a claim would not have rendered his plea involuntary. North Carolina v. Alford, 400 U.S. 25, 31, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970); Brady v. United States, 397 ...


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