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January 26, 1977

UNITED STATES of America ex rel. Howard J. DILLER on behalf of Joseph Carl Gallo, Petitioner,
Louis GRECO, Warden, etc., Respondent

The opinion of the court was delivered by: BRIEANT


 BRIEANT, District Judge.

 This petition is a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254, by Howard J. Diller, Esq., on behalf of his client, Joseph Carl Gallo. On July 30, 1976, in Part A of the Special Narcotics Part of the Supreme Court of the State of New York, New York County, Gallo was arraigned on charges of selling heroin to an undercover agent, conspiring to sell heroin, and related crimes. At the arraignment, Justice Walter Gorman set Gallo's bail at $100,000.00. On August 2, 1976, Justice Gorman approved a bond in that amount and Gallo was released on bail.

 Approximately three months later, on November 29, 1976, the People moved the trial court for an order revoking bail and remanding Gallo pending trial. The moving papers included an affirmation by the Assistant District Attorney setting forth four grounds for the request to remand. *fn1"

 Justice Norman B. Fitzer, there presiding, concluded correctly that an evidentiary hearing was appropriate. The hearing was begun on December 14, 1976, and completed two days thereafter. At the conclusion of the hearing, Justice Fitzer found that Gallo should be remanded pending trial. At the present time Gallo is in custody at the Rikers Island House of Detention for Men, whose Warden is the respondent in this action.

 Before turning to the merits, it is necessary, under 28 U.S.C. § 2254 to discover whether or not Gallo has exhausted his state remedies. Gallo has attempted to have his remand reviewed by a state habeas corpus proceeding. His petition was immediately denied by Justice Fitzer; similarly, his motion to the Appellate Division for an interim stay of Justice Fitzer's denial of the writ pending appeal was rejected. Finally, on January 11, 1977, the Appellate Division also declined to expedite the appeal of Justice Fitzer's denial of the writ.

 As a result of the Appellate Division's failure to make a final review of the denial of the writ, Gallo is precluded from completing his state court remedy by seeking review from the New York State Court of Appeals. State court relief is therefore effectively terminated since a trial date has been set for January 31, 1977.

 In these peculiar circumstances, it is likely that Gallo has exhausted his state court remedies, and I so find for the purposes of this application. 28 U.S.C. § 2254(b); United States ex rel. Goodman v. Kehl, 456 F.2d 863 (2d Cir.1972); Dixon v. Florida, 388 F.2d 424, 425 (5th Cir.1968); Bobick v. Schaeffer, 366 F. Supp. 503 (S.D.N.Y.1973); United States ex rel. Shakur v. Commissioner of Corrections, 303 F. Supp. 303 (S.D.N.Y.1969), aff'd, 418 F.2d 243 (2d Cir.1969), cert. denied 397 U.S. 999, 90 S. Ct. 1144, 25 L. Ed. 2d 408 (1970).

 It is uncontested that federal habeas corpus is a proper remedy by which to seek relief from an unconstitutional state custody imposed pursuant to the arbitrary denial of bail. United States ex rel. Goodman v. Kehl, supra. However, this jurisdiction gives us no license to substitute our judicial judgment and discretion for that of the state court.

"There might have been room for a difference in judgment on the amount of bail, but consideration by a federal court could not be asked or given upon that basis. A federal court would not be entitled to act in substitution of judgment for that of the state court. What the state court did would have to be beyond the range within which judgments could rationally differ in relation to the apparent elements of the situation. It would have to amount in its effect to legal arbitrariness in the administration of the bail right provided, so as to constitute a violation of due process, or to discriminatoriness in the application of the right as against petitioner, so as to constitute a violation of equal protection." Mastrian v. Hedman, 326 F.2d 708, 711 (8th Cir.), cert. denied 376 U.S. 965, 84 S. Ct. 1128, 11 L. Ed. 2d 982 (1964).

 Our sole legitimate concern, then upon a habeas corpus petition denying bail is whether this denial (or revocation) by the state court is arbitrary or discriminatory or results in the denial of a fair trial.

"Any other rule would not only commit the federal courts to the burdensome task of hearing evidence upon and setting bail de novo in a host of criminal cases, but also and much more intolerable, such a rule would authorize an unwarranted and unconstitutional encroachment upon the prerogatives of the states in the due administration of their processes of criminal justice." Simon v. Woodson, 454 F.2d 161, 165 (5th Cir.1972).

 Accordingly, the discretion exercised by the state trial judge must be accorded great respect. Only a clear showing of abuse by petitioner will allow this Court to tamper with the findings and conclusions of a state court judge made after a hearing. The petitioner bears a heavy burden of proof in demonstrating abuse of discretion.

 The next question, then, is what standard was the state judge required to follow? Surely the grant or denial of bail lies within the discretion of the trial judge in felony cases. The applicable statutes do, however, supply considerations to aid the judge in determining the bail issue. The standards governing the discretionary granting or denial of bail are found in New York Criminal Procedure Law ("N.Y.C.P.L."), § 510.30, which provides that the essential interest of the ...

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