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May 11, 1991


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


This Petition for a writ of habeas corpus raises the issue of whether the Fifth or Sixth Amendment of the United States Constitution was violated when a videotaped statement made by the Petitioner after he received a Miranda warning was admitted into evidence at trial, even though nine hours earlier the police obtained a statement from the Petitioner without first administering Miranda warnings. In addition, the Petitioner contends that his sentence violated the Eighth Amendment in that the sentencing Justice punished him for proceeding to trial by imposing the maximum sentence allowable under law.


On February 15, 1982, during the attempted robbery of a Mobil service station in Astoria, Queens, two perpetrators shot and killed a service station attendant. The two men fled from the scene in a car driven by a third man. On February 16, 1982 Officer Clifford F. Barnett, accompanied by approximately five other officers, went to the Petitioner's home at 20-07 Shore Boulevard, Queens, New York while investigating the homicide and robbery of the prior evening. The police rang the Petitioner's doorbell and found him inside. While inside the Petitioner's home, and prior to administering a Miranda warning (see Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S.Ct. 1602, 1624-27, 16 L.Ed.2d 694 [1966]), Officer Barnett asked the Petitioner whether he drove the car parked near his home the previous evening. The Petitioner stated that he was the driver ("Statement # 1"). Officer Barnett then told the Petitioner to accompany him to the 114th police precinct, and while getting into the police car, the Petitioner told Officer Barnett that he wanted to speak with the police about the car.

At the 114th precinct Officer Barnett read the Petitioner his Miranda rights, which the Petitioner waived. The Petitioner, in sum and substance, made the following oral statement concerning his involvement in the homicide and robbery the prior evening ("Statement # 2"): The two men who went into the gas station, whom the Petitioner identified as Ricardo Rivera and Juan Roman, were at the Petitioner's home earlier in the evening to sell heroin to the Petitioner and his wife. The two men then allegedly asked the Petitioner to drive them to a local gas station to get gas. The Petitioner drove Rivera and Roman to the Mobil station on the corner of 44th Street and Astoria Blvd. South in Queens, New York. The Petitioner stated that Rivera and Roman left him waiting in the car and went into the gas station; when they returned to the car they forced him, at gunpoint, to quickly drive away from the station. At the conclusion of his statement the Petitioner assisted the police in locating Rivera and Roman. After the arrest of Rivera and Roman, the Petitioner was taken to the 23rd police precinct to identify the two men.

Approximately eight hours later, at the station house, Assistant District Attorney Alexander Malewski, Jr. again read the Petitioner his Miranda rights. After the Petitioner again waived his rights, he made a videotaped statement concerning his involvement in the homicide and robbery ("Statement # 3"). The Petitioner's videotaped statement was, in sum and substance, identical to the oral statement given to Detective Barnett (see Transcript ("Tr."), pp. 132, 154 and 160), which Detective Barnett described at trial (see Tr. at pp. 151-53). The Petitioner was then placed under arrest and charged with murder in the second degree and attempted robbery in the first degree.

Prior to trial a Huntley hearing was held (see People v. Huntley, 15 N.Y.2d 72, 78, 204 N.E.2d 179, 183-84, 255 N.Y.S.2d 838, 843-44 [1965]), after which Justice John L. Leahy suppressed Statement # 1 and found Statement # 2 and Statement # 3 admissible (People v. Pabon, Index No. 0504/82, July 21, 1982, at p. 5-6).

At trial the Petitioner was convicted of murder in the second degree (N.Y.Penal Law § 125.25[3]) and attempted robbery in the first degree (N.Y.Penal Law § 160.15). On November 18, 1982, Justice Leahy sentenced the Petitioner to twenty-five years to life on the murder count and five to fifteen years imprisonment on each of the three robbery counts, all sentences to run concurrently.

At sentencing, Petitioner's counsel indicated that prior to trial the Assistant District Attorney offered the Petitioner a guilty plea to manslaughter in the first degree (N.Y.Penal Law § 125.20) and promised a sentence of six to eighteen years, which the Petitioner refused to accept. In addition, the Petitioner's counsel stated that the Petitioner deserved special consideration for helping the police capture his alleged accomplices. In response Justice Leahy stated as follows:

  "There is no doubt in my mind that this guy here
  set this robbery up. He was the master mind of
  this robbery. He was the one familiar with
  Astoria. He lived in Astoria for many, many
  years. He knew about that Mobil station up at
  48th Street and Astoria Boulevard. These other
  two defendants didn't speak English. They knew
  nothing and he set it up. He was the mastermind
  the schemer and the planner and he didn't go
  inside with them because they knew him in the
  station. He had been there on prior occasions as
  a customer. He was trying to save his own skin
  with his cooperation and ratting on his two
  co-defendants. That's what he did. He ratted on
  them just to save his own skin.
    The court has no compassion for this fellow at
  all, none at all."

(People v. Pabon, Index No. 0504/82, November 18, 1982, at p. 5-6.)

The Petitioner appealed, arguing: (1) that the entry and search of his apartment violated the Constitution; (2) that two statements he made to the police were improperly admitted into evidence at the trial; and (3) that his sentence was excessive and a penalty for exercising his right to a jury trial. The Appellate Division unanimously affirmed the Petitioner's conviction (People v. Pabon, 120 A.D.2d 685, 501 N YS.2d 915, 916-17 [1986]). First, the Appellate Division found that the entry and search of Petitioner's residence was justified based upon "probable cause and sufficient exigent circumstances." Second, the Court held that since the Petitioner was in custody inside his house, Statement # 1 was properly suppressed. Third, the court found that the admission of Statement # 2 into evidence was error because there was no "pronounced break" between Statement # 1 and Statement # 2, but the error was "harmless, since the same information was contained in [Statement # 3 and] . . . properly admitted" and even had Statement # 2 been suppressed, the evidence elicited from the content of Statement # 2 would be known to the jury because the same evidence was presented through Statement # 3. Fourth, the Appellate Division did not find a Constitutional violation in the sentence imposed, holding that "[t]he Constitution does not forbid the state to offer leniency [in return] for a guilty plea" (501 N.Y.S.2d at pp. 916-17).

The Petitioner sought leave to appeal to the New York Court of Appeals, which was denied (People v. Pabon, 68 N.Y.2d 1003, 1003, 503 N.E.2d 133, ...

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