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COLLINS v. FOGG

January 28, 1977

JOSEPH COLLINS, Petitioner,
v.
WALTER FOGG, Superintendent, Greenhaven Correctional Facility, Respondent



The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

 PLATT, D.J.

 By a petition for a writ of habeas corpus, Joseph Collins challenges his conviction for Rape in the Third Degree and Assault in the Third Degree imposed upon him after a jury trial in the Nassau County Court in violation of Title 28 U.S.C. § 2241 et seq.

 The following findings of fact were made by the County Court. Eugenia Kusky was using the facilities of a laundromat in Freeport, New York, when she saw a man whom she later identified as the petitioner herein looking through the glass front of the store. The man entered the laundromat, placed his arm around her, and when she resisted his advances, pushed her to the back of the store and repeatedly "stomped" on her with heavy, three inch heeled, white boots. Miss Kusky was then dragged out of the laundromat to a lot behind the store and raped. Shortly after the crime, two police officers arrived and found the victim who gave them a detailed description of her assailant. Three to four minutes later, one of the officers arrested the petitioner who was one and one-half blocks from the scene of the crime and running in an easterly direction carrying a pair of blood stained white boots. The petitioner was arrested, advised of his Miranda rights and immediately identified by Miss Kusky. He was taken to the Freeport police station at approximately 5:50 A.M. where his clothes were removed and he was supplied with other clothing. At approximately 7:25 A.M., the petitioner was taken to the Baldwin Precinct where he was advised several more times of his Miranda rights and questioned. He made no inculpatory statements. At approximately 9:30 A.M., Detective Morrissey advised the petitioner of his Miranda rights, and spoke to him about his belief in God. The petitioner then made the first of two confessions which was reduced to writing, signed by the petitioner, and witnessed by two officers. A second confession was made at approximately 12:30 P.M. which paralleled the earlier one in every respect, except that in the second confession the petitioner admitted that he had not visited his girlfriend prior to going to the laundromat as he had claimed in his first confession. At approximately 2:44 P.M. the petitioner was taken to the Mineola Police Headquarters where he was photographed and fingerprinted. In response to a question from a desk officer, he alleged for the first time that he had been beaten and kicked by the police and asked to see a doctor. At approximately 4:00 P.M., the petitioner was taken to the Nassau County Medical Center and examined by Dr. Firoozi. The only evidence of a beating found by the doctor was a small abrasion over the petitioner's left eye and numerous red blood cells in his urine.

 The petitioner's account of the events leading up to his confessions differed sharply from the other testimony. He claimed that after his arrest he was placed in the front seat of the arresting officer's car, who was alone at the time, and was beaten over the top and back of his head with a blackjack which "busted" his nose, caused him to bleed, and injured his right eye. The petitioner further claimed that he was never taken to the Freeport police station, that he was repeatedly beaten during the day of his arrest, both in the station-house and at the hospital by several police officers including a "tall blonde individual", and that he requested but was denied the assistance of counsel.

 The State Court found that the testimony of the police officers who arrested and interrogated the petitioner was credible, and that the petitioner was not beaten or coerced into confessing. Specifically, the Court found that there were no "tall blonde cops" who beat the petitioner since there were no policemen fitting that description on the force, that the petitioner's claim that he was beaten in a police car and the station-houses was incredible in that the only medical evidence of injury was a small cut over the petitioner's left eye and a high red blood cell count in his urine. The Court found that the cut must have occurred after the confessions were given since no such injury was visible in a mug shot taken at 3:30 that afternoon, and that the high red blood cell count in the urine was explainable as either a side effect from a recent operation, a result of the violence during the commission of the crime, or a result of the petitioner's own "thrashing about" in the police station. The Court also relied on the clarity of the petitioner's signature on the confession in concluding that he had not been beaten by the police. Furthermore, the Court concluded that on each and every occasion that the petitioner was warned of his constitutional rights he replied that he fully understood them and made a knowing, intelligent, and voluntary waiver of those rights.

 The decision of the County Court was affirmed by the Appellate Division, Second Department, on June 2, 1975, and by the New York Court of Appeals on March 25, 1976.

 Petitioner argues herein that his confessions should have been suppressed since: (i) they were a product of police coercion; (ii) he requested but was denied the right to counsel.

 I

 Petitioner has exhausted his state remedies. The claims raised herein were argued in the petitioner's brief to the State Courts. Title 28 U.S.C. § 2254(b) and (c).

 II

 Petitioner's first claim was dismissed at oral argument. The Court held that the petitioner had not met his burden of proof by convincing evidence that the factual determination of the State Court that petitioner was not beaten or otherwise coerced into confessing was erroneous. Title 28 U.S.C. § 2254(d); U.S. ex rel. Stanbridge v. Zelker, 514 F.2d 45 (2d Cir.), cert. denied, 423 U.S. 872, 46 L. Ed. 2d 102, 96 S. Ct. 138 (1975).

 III

 Petitioner's second argument, that he requested but was denied the assistance of counsel, presents a somewhat closer question. Petitioner relies on the testimony of Detective Furno who said that the petitioner asked him if he could recommend an attorney, to which he replied that it would be a Legal Aid or other appointed attorney, but that he could not recommend one. The detective's testimony is reproduced in relevant part in the appendix of this decision.

 We recognize initially that where interrogation of a defendant occurs without the presence of an attorney and a statement is obtained, a heavy burden rests on the state to show that the defendant knowingly and intelligently waived his right to counsel. Miranda v. State of Arizona, 384 U.S. 436, 475, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). However, we think that the state has satisfied its burden in this case. The testimony of Detective Furno reflects that he made every effort to explain the petitioner's Miranda rights to him, including the right to counsel. All told, the petitioner was advised of his rights at least five times following his arrest, including three times after the colloquy relied upon herein. *fn1"

 The pattern here is particularly interesting and significant. The detective advised the defendant "that he didn't have to talk to me, that he could talk to an attorney first," then explained to him what an attorney was, and "Then (the defendant) says, 'Oh, a lawyer? Yes I know what a lawyer is.' After the detective advised him again of his right to a lawyer before talking to him the defendant changed the subject.

 Thereafter the defendant asked "When am I going to be able to make my one phone call?" to which the detective replied "You are entitled to make a phone call and we don't limit you to one" and then asked if he ...


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