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October 22, 1979


The opinion of the court was delivered by: COOPER

This application (received October 17, 1979) *fn1" for an order to show cause made returnable October 19, 1979 at 3 p.m. is still another attempt by defendant to avoid compliance with our order that he surrender to start serving the sentence of one year we imposed on May 31, 1979. At defendant's request the first surrender date was set for September 5, 1979. Subsequent applications by defendant resulted in four changes in the surrender date, the last being October 24, 1979 marked peremptorily against the defendant.

As on prior occasions, the main thrust of the applicant's position is that he is seriously ill and confinement in a hospital operated under prison authority, even with medical attention provided for, would further endanger his health. He asks us to order and conduct Another medical hearing. An exhaustive medical hearing was held before us on March 21 and 22, 1979 after we experienced considerable difficulty getting the defendant to appear for arraignment. *fn2" The medical testimony adduced by both sides, in addition to the testimony of the physician designated by the Court, compelled us to comment and conclude as follows (extracts from the official court reporter's minutes consisting of a total of 125 pages):

Counsel, as we see it, after deliberation, close scrutiny and as thorough an analysis as we can possibly engage in, we find that quantitatively and qualitatively the testimony adduced at this proceeding is overwhelmingly in favor of the Government's position. Accordingly, we grant the Government's motion and we deny the motion in opposition. This Court enters a finding that mentally and physically this defendant, Pappadio, has the capacity to stand trial on the date heretofore fixed, to wit, April 23, 1979 at 1 p.m. (p. 120 of the minutes)

 At no time did we belittle the true physical ailments of this defendant. We repeatedly expressed our sympathy but we still refuse to adopt (in fact we cast aside) defendant's unwarranted lament that he is in a "life-threatening condition." (He urges upon us Roba v. U. S., 604 F.2d 215 (2d Cir. 1979) wherein a factual situation existed readily distinguishable from what confronts us here.) At the time of sentence, we accorded the defendant every appropriate consideration an approach that was only fair and proper. United States v. Unterman, 422 F. Supp. 228 (S.D.N.Y.1976):

How serious is your illness? I have little doubt that it is very serious. What do I base it on? I'm not a doctor. That issue has been thrashed out. I appointed a doctor in whom I have absolute confidence to examine you in addition to the doctors that you had, and I listened to all of them . . . . I'm convinced that you are a seriously ill person. . . . I read from a very substantial part of Dr. Gittler's report, the doctor that I appointed: "Mr. Pappadio has degenerative arthritic disease of the cervical spine with radiculopathy. He has similar degenerative disease of the lumbar spine and possible discogenic disease with sciatic neuropathy. He also has essential hypertension and possibly underlying rheumatic heart disease with mitral insufficiency." That is nothing to cover up. It enters into a judge's sentence, as it should. I don't for a minute take any satisfaction in your serious physical condition. All I'm mentioning is that that is a factor that operates in your favor, as does your plea of guilty. These are the factors I must take into consideration or my conscience would be outraged. (pp. 16, 17 18 minutes of May 31, 1979)


 We take very seriously the sentencing process, insisting on discovery and careful evaluation of all factual material that can possibly be accumulated, to the end that the proper, appropriate and fitting sentence is imposed so that justice is done to each defendant and community alike. Such has been our positive approach during four decades of judicial effort. We said so in United States v. Unterman, 422 F. Supp. 228 (S.D.N.Y.1976).

 Medical hearing

 Much emphasis on defendant's behalf, developed at the medical hearing, dealt with his degenerative arthritic condition just as it is emphasized again now. Yet from his personal physician for many years (Dr. Klinger) came this testimony (p. 106):

Q Is it fair to say, Doctor, that degenerative arthritis of various areas of the spine and neck is not uncommon in middle-aged or 56-year-old American males?
A No, it's not an uncommon thing.
Q The type of treatment and medication you prescribed to help or alleviate the pain is not an uncommon course of treatment?
A An uncommon what, sir?
Q Course of treatment.
A No, it is not uncommon.
Q In fact, it is fairly common; it is a regular course of treatment, is it not?
A Yes.
Q Would you say that there are many people who suffer from that condition and have had the same treatment prescribed who are working in and around the streets of New ...

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