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STEPHENS v. LEFEVRE

March 29, 1979

John Sohn STEPHENS, Petitioner,
v.
E. S. LeFEVRE, Superintendent, Clinton Correctional Facility, Respondent



The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

Petitioner John Stephens submits this application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging violations under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution. For the reasons set forth below, his petition must be denied.

 I

 Petitioner was convicted after a non-jury trial in New York State Supreme Court on April 1, 1976 for criminal possession of stolen property in the first and third degree, and unauthorized use of a vehicle. The arresting officer testified at the trial that on January 20, 1974, Petitioner and his co-defendant were stopped for driving a 1974 Ford Mustang in New York City without a front license plate (TT 10, 14). *fn1" When Petitioner, the alleged driver, failed to produce a driver's license, and the only registration card discovered belonged to an Ernest Wilson, the police instituted a "check" on the car, the results of which led to Petitioner's arrest (TT 10, 15-17). The arresting officer further testified that Petitioner, having been advised of his constitutional rights following his arrest (TT 19-20), nevertheless volunteered the information that Ernest Wilson had lent him and his co-defendant the car (TT 21). *fn2"

 Ernest Wilson identified the license plate and registration card recovered from the 1974 Ford Mustang, stating that both items actually belonged to his 1968 Ford Shelby (TT 62-64). In addition, Wilson testified that he had given his 1968 Ford, the registration and license plate included, to Petitioner's co-defendant only for repairs (TT 62-64), and had not given authority for any other use of the car or its contents.

 A Hertz Rent-a-Car representative identified the 1974 Ford Mustang, testifying that the car had been reported stolen on January 18, 1974, approximately two days before Petitioner's arrest for being in possession of that car (TT 51-53).

 Petitioner took the stand as the only witness for the defense, and denied that he was driving the car (TT 76) or that he had any knowledge that the Ford Mustang was stolen (TT 78). Moreover, Petitioner claimed that he never made a statement to the arresting officer (TT 81-82). On cross-examination, for the alleged purpose of impeaching Petitioner's credibility, the prosecution asked several questions concerning Petitioner's prior convictions for possession of stolen property and unauthorized use of motor vehicles (TT 83-84, 86-88, 89, 91-93). These questions were allowed on the basis of a pre-trial Sandoval *fn3" hearing, where the trial judge determined that prior convictions for possession of stolen property and unauthorized use of motor vehicles should be admissible to impeach the credibility of a defendant on trial for a similar charge, notwithstanding the risk of possible prejudice (TT 3-4). When Petitioner claimed that he could not "recall" these convictions, *fn4" he was asked by the prosecutor about the arrests underlying the convictions, allegedly to refresh Petitioner's recollection (TT 84-85, 88-91). While Petitioner's counsel objected to the trial judge's Sandoval ruling again at trial (TT 90), he specifically withheld objection to the prosecution's questions concerning Petitioner's prior arrests (TT 91).

 Petitioner was found guilty by the trial judge of criminal possession of stolen property in the first degree, *fn5" unauthorized use of a vehicle, *fn6" and criminal possession of stolen property in the third degree. *fn7" His conviction was affirmed by the New York State Supreme Court, Appellate Division, First Department, and leave to appeal to the Court of Appeals was denied.

 II.

 Petitioner raises four grounds for reversal of his conviction in state court. First, he argues that the trial judge improperly allowed the prosecution to ask him questions on cross-examination concerning his prior arrests, thereby depriving him of a fair trial; second, he contends that the trial judge should not have been the trier of fact after that same judge had presided over his Sandoval hearing; third, he contends that the evidence introduced against him at trial was insufficient to prove his guilt beyond a reasonable doubt; and finally, he claims that both his trial counsel and appellate counsel did not adequately represent him.

 III.

 The first two claims raised by Petitioner were argued before the Appellate Division, First Department, and leave to appeal these questions to the Court of Appeals was denied. Therefore, Petitioner has exhausted his state remedies with regard to these two issues, in accordance with 28 U.S.C. §§ 2254(b) & (c), United States ex rel. Ross v. LaVallee, 448 F.2d 552 (2d Cir. 1971), and they will be considered on the merits.

 Petitioner contends first that the trial judge improperly allowed the prosecution to ask him questions on cross-examination concerning his prior arrests, thereby depriving him of a fair trial. There is some question as to whether this claim is cognizable on federal habeas review. At least two decisions have dismissed claims similar to this, reasoning that they were not of sufficient "constitutional stature" to receive consideration. Frazier v. Czarnetsky, 439 F. Supp. 735 (S.D.N.Y.1977); United States ex rel. Green v. McMann, 268 F. Supp. 529 (S.D.N.Y.1967). However, even assuming that Petitioner's first contention does allege a sufficient constitutional issue to warrant review of this Court, there is no evidence to support a finding that the prosecution's cross-examination was so prejudicial as to deprive Petitioner of a "fair trial" and thus his right to Due Process under the Fourteenth Amendment.

 As a general rule in New York, the credibility of a witness may not be impeached by questions concerning the witness' prior arrests. People v. Cook, 37 N.Y.2d 591, 376 N.Y.S.2d 110, 338 N.E.2d 619 (1975); People v. Morrison, 194 N.Y. 175, 86 N.E. 1120 (1909). Arrests are deemed to be "unproven charges" that have little or no probative value in determining a witness' credibility and are unduly prejudicial hearsay if used against the defendant. People v. Cook, supra, 37 N.Y.2d at 596, 376 N.Y.S.2d 110, 338 N.E.2d 619. However, arrests which resulted in conviction are not "unproven charges" and were excluded, at least by implication, from the general rule in People v. Cook, Id. at 594, 596, 376 N.Y.S.2d 110, 338 N.E.2d 619. The facts of the instant case fall within this implied exception. Petitioner was questioned first about his conviction, and when he failed to give a positive response to these questions, he was asked about the underlying arrests ...


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