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GRAHAM v. HOKE

December 11, 1990

MELVIN GRAHAM, PETITIONER,
v.
ROBERT HOKE, SUPERINTENDENT, EASTERN CORRECTIONAL FACILITY; ROBERT ABRAMS, ATTORNEY GENERAL OF THE STATE OF NEW YORK; AND CHARLES J. HYNES, DISTRICT ATTORNEY, KINGS COUNTY, RESPONDENTS.



The opinion of the court was delivered by: Nickerson, District Judge.

MEMORANDUM AND ORDER

Petitioner applies for a writ of habeas corpus.

In 1982 in Supreme Court, Kings County, New York, petitioner, then nineteen years old, was convicted after a jury trial of murder in the second degree and robbery in the first degree. The court sentenced him to concurrent terms of twenty years to life on the murder conviction and twelve and one half to twenty five years on the robbery conviction.

Before trial the court denied petitioner's motion for a severance of his case from that of his codefendant, Benjamin Stephens, despite the court's ruling that "interlocking" confessions by the two defendants would be admitted in evidence.

On appeal to the Appellate Division, Second Department, petitioner contended, among other things, that his pretrial motion for a severance was erroneously denied. The Appellate Division affirmed on May 12, 1986, stating in a memorandum opinion, among other things, that the "admissions" of petitioner and Stephens "while cross-inculpatory to some degree, were so similar that they interlocked; therefore, it is unlikely that any prejudice to this defendant resulted from the admission of his codefendant's confession," citing People v. Cruz, 66 N.Y.2d 61, 495 N.Y.S.2d 14, 485 N.E.2d 221 (1985). People v. Graham, 120 A.D.2d 611, 502 N.Y.S.2d 83 (2 Dept. 1986).

On September 12, 1986 the New York Court of Appeals denied petitioner's application for leave to appeal. 68 N.Y.2d 812, 507 N.Y.S.2d 1030, 499 N.E.2d 879 (1986).

On February 20, 1987 petitioner moved in Supreme Court, Kings County, under N.Y. C.P.L. § 440.10, claiming that he had been denied the effective assistance of appellate counsel. The motion was denied on May 7, 1987.

On July 10, 1987 petitioner made a second motion under Section 440.10, contending that the United States Supreme Court decision in Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), was applicable to his case and should be retroactively applied. The Cruz case held that it was error to admit a codefendant's confession inculpating another defendant even though that defendant had made an "interlocking" confession.

Justice Ronald A. Zweibel denied the motion, deciding that while the Supreme Court decision in Cruz should be retroactively applied and petitioner's right to confrontation had been violated, the error was harmless beyond a reasonable doubt. 140 Misc.2d 417, 531 N.Y.S.2d 172 (1988).

The Appellate Division affirmed the denial of the motion, stating, among other things, that petitioner's confession was detailed and comprehensive and "satisfactorily explained his part in the crime" and that "in addition" petitioner "did not repudiate his confession, and he was identified in court by a witness to the crime." The court held that any error in admitting the codefendant's interlocking statements was harmless beyond a reasonable doubt. 158 A.D.2d 714, 552 N YS.2d 162 (2 Dept. 1990).

On May 1, 1990 the Court of Appeals denied petitioner's application for leave to appeal. 76 N.Y.2d 735, 558 N.Y.S.2d 897, 557 N.E.2d 1193 (1990).

In this court petitioner makes several arguments, all of which were exhausted in the state courts and only one of which has any merit, namely, the contention that petitioner's confrontation rights under the Sixth and Fourteenth Amendments were violated by the admission Stephens' confession.

The only questions are whether the Supreme Court decision in Cruz v. New York, supra, decided after the trial in this case and after the direct appeal from the judgment of conviction, should be retroactively applied and, if it is, whether admission of Stephens' statement was harmless error.

It would serve no purpose to rehearse the history of the Supreme Court decisions discussing retroactive application of new rulings to convictions challenged by habeas corpus petitions. The law is well summarized by Judge Stanton in Reddy v. Coombe, 730 F. Supp. 556, ...


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