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BASSIK v. SCULLY

May 29, 1984

Richard BASSIK, Petitioner,
v.
Charles SCULLY, Superintendent, Green Haven Correctional Facility, Stormville, New York, Respondent.



The opinion of the court was delivered by: WEXLER

MEMORANDUM AND ORDER

WEXLER, District Judge.

 This is an action for a writ of habeas corpus brought under 28 U.S.C. Section 2254.

 I. FACTS

 In June 1977, following a jury trial, petitioner was convicted by the Nassau County Court of kidnapping in the first degree (N.Y.Penal Law Section 135.35).

 It is undisputed that petitioner committed the kidnapping; petitioner's defense was insanity.

 Petitioner kidnapped a six-year old child, took him to a motel, gave him a sleeping pill, and left the motel. The child awoke and phoned for help. The police rescued the child and waited in the motel room for petitioner to return. Petitioner returned and was arrested. The police, without giving a Miranda warning, asked petitioner the location of his car, for the purpose of determining whether there were any accomplices in the vicinity. Petitioner told the police petitioner's car was in the motel parking lot. Later, petitioner was taken to police headquarters and given a Miranda warning. Petitioner then confessed. Petitioner contends that, prior to confessing petitioner unsuccessfully sought permission to telephone his brother, an attorney. In any case, after confessing, petitioner telephoned his brother to come to the police station. Petitioner then had a conversation with his brother in the police squad room, which was overheard by detectives. Petitioner in this conversation again admitted to the kidnapping.

 A pre-trial suppression hearing was held. The Nassau County Court ruled that the initial police question regarding the location of petitioner's automobile was proper and that petitioner's answer was not incriminatory and did not lead to the recovery of any incriminating evidence which would not otherwise have been recovered. The Court also ruled that petitioner's confession to the police was admissible because petitioner had knowingly and intelligently waived his right to remain silent and his right to counsel. The Court also ruled that petitioner's conversation with his brother was admissible because petitioner had no reasonable expectation of privacy at the time of the conversation, in that petitioner knew that detectives were present in the room and had not requested privacy and in that the conversation was not overheard surreptitiously.

 During the trial, conflicting psychiatric testimony regarding petitioner's sanity was presented.

 At the trial, the judge refused to instruct the jury that a verdict of "not guilty" would result in petitioner being sent to a mental institution. Further, the judge instructed the jury (without objection) that "since sanity is the issue and normal condition of a man and woman, the law presumes as a fact that every individual is sane in the absence of proof to the contrary. But when evidence is introduced which tends to rebut the presumption of sanity, as in this case, the People are required to prove beyond a reasonable doubt that a defendant was criminally responsible for his acts and conduct at the time when he allegedly committed them." Further, the judge instructed the jury that the jury should consider post-arrest statements made by petitioner only if the state proved beyond a reasonable doubt that petitioner understood the statements and knowingly waived his Miranda rights.

 On appeal to the Appellate Division, petitioner argued for the first time that the charge on the presumption of sanity was erroneous. Petitioner also argued for the first time that all petitioner's post-arrest statements were inadmissible on the ground that petitioner was mentally imbalanced at the time he made them. The state argued in its brief that these claims were barred by procedural default. The Appellate Division affirmed the conviction without opinion, but reduced petitioner's sentence. People v. Bassik, 73 A.D.2d 651, 422 N.Y.S.2d 1017 (1979).

 On appeal to the New York Court of Appeals, petitioner noted that an amendment to a New York statute, N.Y.C.P.L. Section 300.10, requiring that a jury be informed that a verdict of "not guilty" would result in a defendant pleading insanity being sent to a mental institution, had become effective September 1, 1980. The New York Court of Appeals issued an opinion stating that the amendment to the statute had no bearing on petitioner's trial, which had concluded prior to the effective date of the amendment, that the trial judge properly refused to inform the jury that a "not guilty" verdict would result in petitioner being sent to a mental institution, and that "[w]e have considered the defendant's remaining contentions and find them to be without merit." People v. Bassik, 53 N.Y.2d 1032, 425 N.E.2d 873, 442 N.Y.S.2d 485 (1981).

 II. DISCUSSION

 A. PROOF OF ...


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