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JOHNSON v. WARDEN

March 1, 1984

KENNETH JOHNSON, Petitioner,
v.
WARDEN, Auburn Correctional Facility, Respondent.



The opinion of the court was delivered by: PLATT

MEMORANDUM & ORDER

PLATT, D.J.

 Petitioner, Kenneth Johnson, has asked this Court to issue a writ of habeas corpus, pursuant to 28 U.S.C. ยง 2254 (1976), on the grounds that his continued imprisonment by the State of New York violates certain rights secured to him by the United States Constitution. For the reasons that follow we decline to issue such a writ and order the petition dismissed.

 I

 A

 Petitioner was convicted on July 11, 1973 in New York State Supreme Court, Kings County, after a jury trial, of murder and attempted murder. He was sentenced to a prison term of 25 years to life. Petitioner's conviction was upheld by the New York State Supreme Court, Appellate Division, Second Department, on July 24, 1974, with one Justice dissenting. See People v. Johnson, 45 A.D.2d 1030, 357 N.Y.S.2d 892 (2d Dept. 1974). The New York State Court of Appeals unanimously affirmed petitioner's conviction on July 10, 1975. See People v. Johnson, 37 N.Y.2d 778, 375 N.Y.S.2d 97, 337 N.E.2d 605 (1975).

 B

 The following facts were proven at trial: On April 7, 1970, a man later identified as petitioner entered a luggage store owned by an elderly woman named Mrs. Jenny Laffer and located at 507 Pennsylvania Avenue in Brooklyn, New York, three times, in search, he said, of a briefcase for his son. This person did not touch any paper bags, nor did he buy anything during any of these visits. He was waited on each time by Mrs. Jenny Laffer's daughter, Phyllis Laffer, who was helping her mother while on a day off from her normal job. Also working that day was Mrs. Jenny Laffer's other daughter, Gertrude Laffer, who regularly tended the store with her mother. All three members of the Laffer family lived together in an apartment above the store.

 The next day, April 8, 1970, this same man entered Mrs. Jenny Laffer's luggage store four times. Ms. Gertrude Laffer was tending the store with her mother this day and waited on this person each time; on one such occasion he came in with a boy and purchased an envelope for two dollars.At 1:00 PM, Ms. Gertrude Laffer was in the back of the store when she heard her mother calling her. Coming to the front of the store, Ms. Gertrude Laffer saw a man she later identified as petitioner beating her mother with his fists and a nail studded piece of wood. When Ms. Gertrude Laffer asked the man to stop beating her mother he replied "I will kill her and then I will kill you." The man beat Ms. Gertrude Laffer with his fists, broke her jaw, broke several teeth; her face was so swollen as to require a tracheotomy to allow her to breath. Mrs. Jenny Laffer died of her wounds.

 The Laffer's store was ransacked, as was their upstairs apartment.

 The subsequent police investigation turned up a pair of matching fingerprints; one on a paper bag found within the store, and one on a bureau in the upstairs apartment. In addition, detectives got an unverified report that 3 persons, 2 black males and one black female, were seen leaving the Laffer's store around 3:00 PM on the afternoon of the murder.

 The police investigation continued until February of 1971, when petitioner was located and subsequently arrested. During an interview with police, after having been given a Miranda warning, he denied ever having been in the Laffer's store. Petitioner was identified by each of the Laffer sisters from a photo spread and later at a line-up. In addition, the prints discovered in the store and the apartment were found to match petitioner's.

 C

 Petitioner was indicted in May, 1971, and after arraignment the case was adjourned to enable petitioner to obtain private counsel. When petitioner failed to retain an attorney within a few months, the Court appointed Morris Shulslapper, Esq., to represent petitioner. Several further adjournments wre granted, as petitioner continued to search for private counsel.

 In January of 1972, petitioner's case was marked over into the trial part. Again, adjournments were given to petitioner to obtain private counsel. In addition, the Court ordered a psychiatric examination of the petitioner. On February 1, 1972, petitioner was found competent to proceed, and a Wade hearing was begun on February 7, 1972. During the course of the hearing, petitioner asked to be permitted to withdraw his previously entered plea of not guilty, and to plead guilty to one count of manslaughter, in satisfaction of the entire indictment. This petitioner was permitted to do, but on April 5, 1972, the date of sentencing, petitioner stated that he wished to withdraw his guilty plea, stating that he had not realized what he was doing, and that Mr. Shulslapper had coerced him into pleading guilty.The Court relieved Mr. Shulslapper of his appointment and ordered petitioner to undergo another psychiatric examination.In September of 1972, with Joseph Lombardo, Esq., *fn1" now representing petitioner as assigned counsel, petitioner was allowed to withdraw his guilty plea. After further adjournments to enable petitioner to obtain private counsel the case was marked ready for ...


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