Appeal from an order entered in the Southern District of New York, Gerard L. Goettel, District Judge, F. Supp. , which denied a state prisoner's petition for a writ of habeas corpus, the essential question presented being whether the district court correctly rejected petitioner's claim that he was denied his Sixth Amendment right to the effective assistance of counsel as a result of his attorney's joint representation of petitioner and two co-defendants at the state court trial which resulted in his conviction of second degree arson.
Mansfield and Timbers, Circuit Judges, and Dooling, District Judge.*fn*
On this appeal from an order entered in the Southern District of New York, Gerard L. Goettel, District Judge, 444 F. Supp. 233, which denied a state prisoner's petition for a writ of habeas corpus, the essential question presented is whether the district court correctly rejected petitioner's claim that he was denied his Sixth Amendment right to the effective assistance of counsel as a result of his attorney's joint representation of petitioner and two co-defendants at their state court trial which resulted in the conviction of petitioner of second degree arson. We affirm.
In July 1973 petitioner George Kaplan, together with Jerry Gomberg and Martin Hodas, was indicated by a New York County Grand Jury of the crimes of second degree arson and criminal mischief for their participation in setting fires at two massage parlors in the Times Square area - the Palace and the French Model Studio - on May 10, 1972 and July 25, 1972, respectively. The two burned massage parlors were in competition with the Geisha House, another massage parlor in the same area which allegedly was owned by petitioner and his co-defendants. The motive for the fires, according to the evidence at the state trial, was the extreme disturbance on the part of the three defendants with the fact that the two competing massage parlors were undercutting the prices charged by the Geisha House.
On December 20, 1973, after a five day jury trial in the New York County Supreme Court before Justice Richard G. Denzer, Kaplan and Gomberg were convicted of two counts of second degree arson. Hodas was acquitted. On February 14, 1974 Kaplan and Gomberg filed a post-trial motion to set aside their convictions on the grounds, among others, that there had been a conflict of interest resulting from their attorney representing them, as well as the codefendant Hodas, at trial. Following an extensive evidentiary hearing on this motion on February 28, 1974, Justice Denzer denied the motion on April 19, 1974. On the same day sentence was imposed on both defendants. Kaplan was sentenced to an indeterminate term of imprisonment not to exceed seven years.
On December 3, 1974 the Appellate Division unanimously affirmed both convictions. People v. Gomberg, 46 A.D.2d 850, 362 N.Y.S.2d 832 (1st Dept. 1974) (mem.); People v. Kaplan, 46 A.D.2d 850, 362 N.Y.S.2d 833 (1st Dept. 1974) (mem.). The New York Court of Appeals on December 29, 1975, in a comprehensive opinion by Judge Jasen, also unanimously affirmed both convictions. People v. Gomberg and Kaplan, 38 N.Y.2d 307, 342 N.E.2d 550, 379 N.Y.S.2d 769 (1975). An application for a stay was denied by Mr. Justice Marshall of the United States Supreme Court. No further review was sought in the Supreme Court.
Having exhausted his state remedies,*fn1 Kaplan filed the instant petition for a writ of habeas corpus in the Southern District of New York on June 1, 1976, from the denial of which by Judge Goettel in a well reasoned opinion filed January 6, 1977 the instant appeal has been taken.*fn2
In view of the adequate statements of the facts in the opinions of the New York Court of Appeals and of the district court below with which we assume familiarity, we shall summarize here only those facts and prior proceedings necessary to an understanding of our rulings below on petitioner's claim of denial of effective assistance of counsel.
Turning first to the state court proceedings prior to trial, Justice Denzer conducted a hearing to determine if joint representation would create a potential conflict of interest prejudicial to any of the defendants. In the presence of defense counsel and the assistant district attorney, the judge addressed the three defendants to determine if they viewed their defense "as being in conflict or that there might be a conflict of interest with respect to any attorney that represents all three of you." When asked if he wished to change lawyers, Hodas replied that he wanted Kassner to continue to represent him. Gomberg at first appeared not to understand what the judge was getting at, stating that it might be "better for us to get another lawyer." At that point the prosecutor stated that in his view the defendants were attempting further to stall the trial which already had been delayed for several months. Defense counsel Detsky then informed the judge, in the presence of the three defendants, that he had discussed the problem with his clients several days earlier and that all three had stated that they "had confidence in our firm [Kassner & Detsky] to handle it." The judge then specifically asked Detsky, in the presence of the three defendants, whether "the way the situation stands is that you advised them of this and they told you they didn't want to hire other counsel?" Detsky replied that the judge's understanding was correct. After further discussion, the judge concluded by stating that the trial would proceed but that the defendants were at liberty to bring other counsel into the case at any time if they felt that there was a conflict. Throughout this entire proceeding the judge addressed all three defendants. Kaplan remained silent throughout.
After reviewing this pre-trial inquiry by the trial judge, the New York Court of Appeals concluded:
"We hold that the Trial Judge's inquiry of appellants and their counsel as to possible conflict of interest in this case was more than sufficient to protect the appellants' right to effective assistance of counsel. Although Gomberg initially expressed some misgivings, at the end of the proceedings all of the defendants were made aware of the possible conflict and acquiesced in the continuation of the Kassner & Detsky representation. The court took added precaution to advise the defendants that if at some later stage of the trial a conflict arose, the court would permit other counsel to enter the case. The ...