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October 20, 1978

Milton SCHAFFNER, Petitioner,
Louis GRECO, Warden of New York City Correctional Institution for Men,Respondent

The opinion of the court was delivered by: LASKER

In September of 1975, Milton Schaffner pled guilty in state court to bribe receiving in the second degree *fn1" and was sentenced to an indeterminate term of imprisonment not to exceed three years. While serving his term, Schaffner filed this petition for a writ of habeas corpus to set aside his conviction on the ground that his guilty plea was coerced by the conduct of the trial judge in violation of his due process rights under the Fourteenth Amendment. *fn2" An evidentiary hearing was held on February 7, 1978. The petition is granted.


Factual Background

 Schaffner, who was employed as a New York City building inspector, originally pled not guilty to a two count indictment of bribe receiving and receiving an award for official misconduct. *fn3" He was brought to trial on September 10, 1975, in State Supreme Court. The evidence introduced against Schaffner was very damaging. The chief witness for the prosecution, Peter Roberto, an undercover agent for the City, testified that Schaffner had solicited and accepted a bribe of $ 150. in return for approving substandard construction work. To corroborate Roberto's testimony, the State introduced tape recordings of conversations between Roberto and Schaffner, in which a voice, allegedly Schaffner's, demanded that Roberto pay him "a yard and a half" *fn4" and in which a payoff appears to have been performed.

 In his defense, Schaffner called Professor Louis Gerstman, a voice expert, who testified that, although Schaffner's voice could be heard on the tapes, certain critical, incriminating statements were made not by Schaffner but by an unidentified third person. Schaffner himself took the stand and testified that he had not solicited or accepted the bribe and that he lived sparingly on his modest income as a building inspector. On cross-examination, however, the prosecutor introduced evidence that Schaffner had deposited over $ 77,000. in four bank accounts during the years 1972 to 1974, at one time depositing $ 1,900. in one hundred dollar bills. When pressed, Schaffner was unable to explain how he had acquired such a large sum of money.

 After cross-examination of the defendant had concluded on Friday, September 19th, the trial judge summoned counsel to the bench and informed them that if Schaffner proceeded with the trial and was found guilty by the jury, he would impose a harsher sentence than if he then entered a plea of guilty. The judge testified at the habeas hearing that he made the following statement:

"If this case goes all the way and this jury convicts this defendant, I certainly am not going to give him anything less than five years and the maximum penalty for this is seven years, so he could get something in the neighborhood of anywhere from five to seven years."
"I indicated that if he took a plea at this particular time, that I would impose a sentence, the maximum of which would be four years." *fn5" (Transcript, 128) *fn6"
Although the jury had apparently either been dismissed by this time or was out of earshot, *fn7" Schaffner, who was still sitting at the witness stand, overheard the conversation.
Schaffner did not change his plea at this time but met with his attorney, Michael Dowd, over the weekend to decide how to deal with the damaging testimony concerning his bank accounts. Dowd testified at the hearing that at their meeting Schaffner seemed "very, very, very depressed." (Transcript, 67) He complained that he was not getting a fair trial and that the judge was hurting him in front of the jury; "he was yelling at me yesterday," he told Dowd, "he's determined to railroad me." (Transcript, 66-67) When Dowd questioned him about the bank records, Schaffner said that he could explain where the money came from but that it would not make any difference since the judge "is trying to kill me." (Transcript, 67) Nevertheless, Schaffner did not at that time decide to change his plea. (Transcript, 100-01)
On Monday, September 22nd, before the trial resumed, the judge again summoned counsel to the bench *fn8" and spoke with them, out of the hearing of both the jury and the defendant, about the possibility of a plea. The judge testified that he had said to Dowd that if Schaffner would change his plea to guilty, he would impose a sentence of only "zip to 3" (Transcript, 131-32), that is, an indeterminate sentence with a maximum of three years of imprisonment. After being told what the judge said and discussing it with Dowd for approximately three quarters of an hour, Schaffner decided to enter a plea of guilty.
At sentencing, on November 13, Schaffner moved to withdraw his plea on the ground that it had been coerced by the threatening conduct of the judge at trial. The court characterized the motion as "a sham and an outrage" (Trial Transcript, 12a) and denied it. Schaffner was then sentenced to an indeterminate term with a maximum of three years of imprisonment.
In his petition, Schaffner contends that the change of plea was induced by the trial judge's repeated threats of a heavier sentence in the event the trial continued, together with the contempt and incredulity with which he treated the defendant and his witnesses before the jury. Schaffner charges that, by the tone of voice he used, his facial expressions and the manner of his questioning defense witnesses, the judge continually gave the jury the impression that he considered the defendant guilty. Because of this alleged prejudicial conduct, Schaffner claims that he ...

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