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FEUERSTEIN v. NEW YORK

June 3, 1981

Morris FEUERSTEIN, Petitioner,
v.
The PEOPLE OF the State of NEW YORK, Respondent



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

Petitioner is currently serving a sentence of three and a half to ten years following his conviction of arson in Supreme Court, Queens County. Claiming that his Fifth and Fourteenth Amendments rights were violated by the admission into evidence of certain statements he made to a New York City Fire Marshal, and that his guilt was not proved beyond a reasonable doubt, petitioner has applied to this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons which follow, the writ is denied.

 The evidence adduced at trial revealed the following: On the evening of May 28, 1976, a serious fire occurred at petitioner's store, the Jen-West Bootery, and soon spread to several neighboring stores. Several passersby, as well as firemen who promptly arrived at the scene, placed the start of the fire at about 9:15 p.m. Expert testimony was presented to the effect that the fire could not have begun in any of the adjacent stores, and that it had in fact begun at the rear of petitioner's store. In addition, it appeared to Fire Department arson experts that the pattern of burning, particularly the apparent spread of fire by seepage of some liquid under doors and walls, indicated that a liquid accelerant had been used to start the fire.

 An employee of petitioner's testified that contrary to their usual practice of more than two years, on the evening of May 28th petitioner said that he would close up the store alone and allowed the employee to leave at about 8:55 p.m. On his way home, the employee met and chatted briefly with the owners of the adjacent jewelry store, one of whom corroborated the employee's testimony that he had left petitioner back at the store.

 The assistant manager of a nearby theatre testified that as he was parking his car at about 9:00 p.m. he saw petitioner leave the Bootery and return a few minutes later carrying a shopping bag. Another witness stated that shortly after 9:00 p.m. he was passing the Bootery when he looked in and observed petitioner lifting brown cartons and throwing them about.

 Petitioner had been late in making rental payments on the store's premises and owed over $ 1,400 in rent at the time of the fire. He had admitted to the managing agent of the owner of the premises that his business was doing poorly and that he wished to sell the business. Petitioner's insurance broker testified that the store's contents were insured for $ 60,000 and that he had arranged an additional amount of insurance for business interruption. The witness stated that petitioner filed a claim for the full coverage shortly after the fire.

 New York City Fire Marshal Robert McCann, of the Fire Department's Major Case Unit and an expert in the field of arson, examined the burning on the premises of the nearby stores and interviewed their owners, as well as over 100 other persons who may have known about the fire. In early June, 1976, he attempted twice to contact petitioner telephonically to set up an interview as part of "standard operating procedure" following a serious fire. Unable to make telephone contact, he visited petitioner's home in mid-June and handed his wife an investigatory subpoena summoning petitioner to Fire Department offices to answer questions regarding the fire. *fn1"

 Petitioner appeared on his own at Marshal McCann's office and was interviewed on July 7, 1976. At that time, petitioner stated to McCann that on the evening of the 28th he had left the Bootery at the same time as his employee. Petitioner also stated that on his way to his car he had encountered the owners of the jewelry store. McCann further testified that petitioner had stated that the store's contents were insured for $ 60,000 and that he had $ 25,000 in insurance for interruption of business, plus $ 2,000 insurance on the sign on the Bootery's exterior. McCann asked permission to visit the premises to make a physical inspection, which was arranged and occurred the next day.

 Under circumstances described more fully below, McCann's testimony regarding petitioner's statements was admitted without a separate hearing into their voluntariness. Petitioner was found guilty by a jury of arson in the third degree and his conviction was affirmed by memorandum, People v. Feuerstein, 74 A.D.2d 853, 425 N.Y.S.2d 379 (App.Div. Second Dept. 1980), and leave to appeal to the New York Court of Appeals was denied on May 12, 1980.

 Petitioner's objection to the admission of the evidence of his statements really divides into two federal claims. First, there is his contention that the evidence was received without notice and a hearing, in violation of his right to procedural due process. Second, independent of due process rights, petitioner's privilege against self-incrimination under the Fifth and Fourteenth Amendments would have been violated had the statements been made involuntarily.

 For the purposes of this petition, it is necessary to explore the circumstances under which the State trial judge concluded that petitioner was not entitled to a separate hearing on voluntariness. N.Y.Crim.Proc.L. §§ 710.40 and 255.20 provide that a motion to suppress evidence "must" be made soon after arraignment and prior to trial. Notwithstanding a failure timely to move for a suppression hearing out of the presence of the jury, if such a request is made during trial the court may, in its discretion, either interrupt trial for such a hearing, or proceed with the evidence and make a determination regarding constitutional admissibility. People v. Lawrence, 79 Misc.2d 872, 361 N.Y.S.2d 602 (Rensselaer County Court 1974), aff'd mem., 39 N.Y.2d 956, 386 N.Y.S.2d 885, 353 N.E.2d 849 (1976). See People v. Ganci, 27 N.Y.2d 418, 318 N.Y.S.2d 484, 267 N.E.2d 263, cert. denied, 402 U.S. 924, 91 S. Ct. 1398, 28 L. Ed. 2d 663 (1971).

 Petitioner was indicted in August 1976, and, on November 23, 1976, claiming that he was "entitled to a hearing to suppress statements alleged to have been made by him to law enforcement officials, whether members of the police department or the fire department," Respondent's Memorandum of Law, Exh. B, at 10, he moved for discovery of all such statements. On December 16, 1976, the prosecutor provided petitioner's counsel with, inter alia, a full copy of the statement given to Fire Marshal McCann. During the ensuing months, petitioner failed to pursue his initial request for a suppression hearing, and trial began on May 3, 1977.

 On the third day of trial, as Marshal McCann was about to relate the substance of petitioner's statements, his attorney objected to the imminent testimony on the ground that he had not had formal notice of the State's intention to use the statements. The objection was overruled after argument out of the presence of the jury.

 N.Y.Crim.Proc.L. § 710.30 provides that whenever the State intends to offer at trial evidence of statements made by a defendant to a "public servant" which, "if involuntarily made would render the evidence thereof suppressible upon motion," it must serve notice of its intention to use the statements. If no notice is given, the evidence may not be used unless the defendant has moved to suppress the statement and ...


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