United States District Court, Eastern District of New York
May 11, 1991
JUAN PABON, PETITIONER,
ROBERT HAKE, SUPERINTENDENT, EASTERN CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM AND ORDER
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 ), 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
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 ), 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) 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
"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.
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 ). 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, 133, 510 N.Y.S.2d 1036, 1036 ).
28 U.S.C. § 2254(a) provides, in pertinent part, that a
"district court shall entertain an application
for a writ of habeas corpus in behalf of a person
in custody pursuant to the judgment of a State
court only on the ground that he is in custody in
violation of the Constitution or laws or treaties
of the United States."
The instant petition, is based on two alleged Constitutional
"Petitioner was deprived of his fifth and sixth
amendment rights by the trial court's refusal to
suppress his involuntarily given oral and
videotaped statement, [and]
Petitioner was deprived of due process under the
fourteenth amendment when he received a
substantially more severe sentence as judicial
retribution for the exercise of his right to a
jury trial" (Pabon v. Hake, Petition for Writ of
Habeas Corpus, CV-89-2182, at p. 7)
Since the basis for the instant petition was "presented to
the highest court" of New York State, the Petitioner exhausted
his state remedies and this Court can entertain the Petition
(see Pesina v. Johnson, 913 F.2d 53
, 54 [2d Cir. 1990]).
B. Admission into Evidence of Petitioner's Statements
The propriety of obtaining a statement in close proximity to
an improper act by police was addressed by the Supreme Court
in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d
416 (1975). There, an illegal search of the defendant's
residence resulted in finding evidence connecting the defendant
with a murder for which the defendant was subsequently
arrested. The defendant thereafter gave two confessions after
separate Miranda warnings were administered (id. at pp. 591-96,
95 S.Ct. at 2255-58). The Court determined that the illegal
arrest "tainted" the confessions obtained by the police,
thereby constituting a coerced statement, and held that a
Miranda warning, by itself, is insufficient to eliminate the
taint of coerced statement (id. at p. 605, 95 S.Ct. at p.
2262). In holding that the Miranda warnings did not remove the
"taint", consideration was given to the proximity in time
between the arrest and confession, the presence of intervening
circumstances and the misconduct of officials (id. at pp.
603-04, 95 S.Ct. at pp. 2261-62).
A person who makes a statement to the police prior to a
Miranda warning is not, however, "disabled from waiving his
rights and confessing after he has been given the requisite
Miranda warnings" (Oregon v. Elstad, 470 U.S. 298, 318, 105
S.Ct. 1285, 1298, 84 L.Ed.2d 222 ). The Supreme Court in
Elstad reviewed a case where an 18-year-old burglary suspect
made the statement "I was there" prior to receiving a Miranda
warning, and approximately one hour later made a full
statement, after receiving a Miranda warning, describing his
involvement (id. at pp. 301-02, 105 S.Ct. at pp. 1288-89). The
Court, reasoning that the purpose underlying the Fifth
Amendment is to prevent coerced testimony (id. at pp. 306-07,
105 S.Ct. at pp. 1291-92), held that a statement made prior to
a Miranda warning is not automatically the equivalent to a
coerced statement and courts must avoid a rigid rule requiring
a finding of coercion when "the suspect's initial inculpatory
statement, though technically in violation of Miranda, was
voluntary" (id. at p. 318, 105 S.Ct. at p. 1297; see also
United States v. Wauneka, 770 F.2d 1434, 1440 [9th Cir. 1985]
["the court must suppress the evidence unless the violation was
sufficiently attenuated to permit the use of the evidence under
the standards announced in Brown. If, on the other hand, the
prior statement was voluntary in the sense that it was not
coerced in violation of the fifth amendment, though obtained in
technical violation of the Miranda requirements, the court
should suppress the statement given after the Miranda warning
only if the court finds that the subsequent statement was not
Applying the rule in Elstad, Statements # 2 and # 3 were
properly admitted into evidence if Statements # 1, # 2 and # 3
were voluntary. In determining whether a statement is
voluntarily made, the Court must consider all of the facts and
circumstances surrounding the statement (United States v.
Anderson, 929 F.2d 96,
99 [2d Cir. 1991]). According to the Second Circuit, this
totality of circumstances test to determine whether an
accused's confession is voluntary involves three sets of
circumstances: "(1) the characteristics of the accused, (2)
the conditions of the interrogation, and (3) the conduct of
law enforcement officials" (Green v. Scully, 850 F.2d 894, 901
[2d Cir.], cert. denied, 488 U.S. 945, 109 S.Ct. 374, 102
L.Ed.2d 363 ). The pertinent characteristics of the
accused include experience, background, age and education or
intelligence. (Id. at p. 902)
Reviewing the record, the Court finds that Statements # 1,
# 2 and # 3 were voluntarily made. The Petitioner resided in
Astoria with his wife and three children, and worked as a
glazier full-time and as a sanitation worker part-time. He
speaks English. Statement # 1 was made to Officer Barnett in
the Petitioner's residence. At the time, the police did not
have their weapons drawn, did not forcibly enter the premises
and did not handcuff the Petitioner. In addition, the trial
court found and the record confirms that the Petitioner
expressed the desire to speak with the police about the car.
These factors lead this Court to believe that the Petitioner
understood what he was doing when speaking with the police and
that he knew the consequences of his actions. As a result,
Statement: # 1 was voluntary and not coerced, although it was
inadmissible for lack of a Miranda warning.
As to Statement # 2, the Petitioner was read his
Miranda rights prior to making the statement. However the New
York Appellate Division deemed the admission of the statement
at trial improper, because there was no "pronounced break in
the questioning that the defendant may be said to have
returned, in effect, to the status of one who is not under the
influence of questioning" (People v. Pabon, supra, 501 N.Y.S.2d
at p. 917). Nevertheless, this Court finds that the statement
was voluntary and not coerced. In addition to the Petitioner's
own ability to communicate and understand what was happening
around him, the record clearly indicates that the Petitioner
himself expressed the desire to speak about the events of the
As to Statement # 3, the Petitioner was informed of his
Miranda rights prior to the statement. Further, Statement # 3
occurred over eight hours after Statement # 2 and was taken by
a different person. While the Petitioner "let the cat out of
the bag" in Statement # 2, this is only "one factor bearing on
the disputed issue of voluntariness of the later, fully advised
statement" (Tanner v. Vincent, 541 F.2d 932, 937 [2d Cir.
1976], cert. denied, 429 U.S. 1065, 97 S.Ct. 794, 50 L.Ed.2d
782 ). As with Statement # 2, the Petitioner clearly
expressed his desire to make the videotaped statement.
In sum, the Court finds that Statements # 1, # 2 and # 3
were voluntary and, pursuant to the rule in Elstad, the
admission of Statements # 2 and # 3 did not violate the Fifth
or Sixth Amendment.
C. Petitioner's Sentence
The Petitioner argues that the maximum sentence was imposed
as retribution for proceeding to trial. In determining whether
a sentence was imposed as a form of judicial retribution, the
Court starts with the concept that trial by jury is a right
given to persons under the United States Constitution (Amend.
VI), and a state may not penalize a person for exercising a
right guaranteed under the Constitution (North Carolina v.
Pearce, 395 U.S. 711, 724, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656
). However, a presumption of vindictiveness applies to a
sentence only when there is a "realistic motive for [the]
vindictive sentencing" (Texas v. McCullough, 475 U.S. 134, 139,
106 S.Ct. 976, 979, 89 L.Ed.2d 104 ). When a presumption
of vindictiveness does not apply, the Petitioner has the burden
of proving vindictiveness by a preponderance of the evidence
(Alabama v. Smith, 490 U.S. 794, 799-800, 109 S.Ct. 2201,
2204-05, 104 L.Ed.2d 865 ).
The only evidence the Petitioner cites in support of his
claim of vindictive sentencing was that, after trial, he
received a sentence exceeding the promised sentence
he rejected as part of the proposed plea agreement. In
United States v. Araujo, 539 F.2d 287, 292 (2d Cir.), cert.
denied, 429 U.S. 983, 97 S.Ct. 498, 50 L.Ed.2d 593 (1976), it
was held that "lenience to those who exhibit contrition by
admitting guilt does not carry a corollary that the Judge
indulges a policy of penalizing those who elect to stand trial"
(quoting United States v. Thompson, 476 F.2d 1196, 1201 [7th
Cir.], cert. denied, 414 U.S. 918, 94 S.Ct. 214, 38 L.Ed.2d 154
). Under Araujo, the fact that an offered sentence during
plea negotiation is less than the maximum potential sentence
does not mean that the judge acted vindictively (see Shu v.
Wilmot, 1985 WL 2034, *3 [S.D.N.Y. July 15, 1985] [court held
that "[t]he fact that the sentence imposed after trial is
significantly greater than the one contained in a plea offer .
. . does not alone suggest vindictiveness"]). Moreover, there
is no support in the record that Justice Leahy even considered
the prior plea bargain arrangement when sentencing the
Petitioner. Indeed, there was no statement by the sentencing
Justice indicating any vindictiveness as a result of the
Petitioner choosing to go to trial. Accordingly, the court
finds that the Petitioner has failed to show by a preponderance
of the evidence that his sentence was unconstitutionally
The Petitioner also claims that his sentence was imposed as
a result of the trial Justice's erroneous conclusion that the
Petitioner was the mastermind behind the robbery and therefore
did not deserve special treatment, in violation of the
The trial Justice sentenced the Petitioner within the
permissible statutory range (see N.Y.Penal Law § 70.00).
Writing for the Second Circuit in United States v. Gelb, No.
90-1396, slip op. at p. 2385 (2d Cir. Mar. 5, 1991), Judge
Pratt stated that a sentence will not be set aside if it is
within the legal limits and not based upon "materially
inaccurate or otherwise improper information" (quoting United
States v. DiPaolo, 804 F.2d 225, 234 [2d Cir. 1986]).
For example, the material misinformation in Townsend v.
Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690
(1948), concerned the judge's reliance during sentencing on the
defendant's prior criminal record, later shown to have numerous
inaccuracies. The Supreme Court concluded that these materially
untrue assumptions adversely affected the defendant's sentence.
In United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589,
591, 30 L.Ed.2d 592 (1972), improper reliance upon an
unconstitutional conviction was considered material. In McGee
v. United States, 462 F.2d 243 (2d Cir. 1972), the potential
influence of an invalid count on the sentence imposed for the
remaining valid counts was deemed material. And in United
States v. Malcolm, 432 F.2d 809, 818 (2d Cir. 1970), the
failure of the sentencing judge to permit the prosecutor or
defense attorney to elaborate upon circumstances mitigating the
sentence was held to be material.
The alleged material misinformation in this case — the
Petitioner's role in the crime — does not rise to the level of
materiality enunciated in the precedents. Moreover, Justice
Leahy's statement at sentencing was not "materially inaccurate"
when viewed in the light of the evidence introduced at the
Upon a searching review of the record, the Court determines
that support for the statement made by Justice Leahy may be
inferred from various portions of the evidence. There was
evidence introduced at the trial that the attempted robbery
was planned in advance. Several witnesses testified that a car
and driver were waiting in a manner consistent with the desire
to make a quick escape. Off-duty Police Officer John Oliver,
an eyewitness to the murder, testified that he observed the
passenger door open in the car used in the robbery and he saw
the driver of the car holding the passenger seat forward (Tr.
at p. 86). He observed the first accomplice to reach the car
dive into the back seat and the second accomplice sit in the
front seat prior to the car speeding away from the scene (Tr.
at pp. 86-87). Police officer
Oliver also observed that the car was parked approximately 15
to 20 feet east of the service station (Tr. at pp. 97-98). The
trial Justice could reasonably infer from this evidence that
the Petitioner purposefully stayed a distance from the gas
station to avoid identification.
Denis Curtin, another eyewitness, testified that he observed
the car used in the robbery "idling" on the street away from
the service station (Tr. at p. 224). The car then came to a
"screeching stop" in front of the service station followed by
the driver reaching over to open the passenger door and
tilting the passenger seat forward (Tr. at p. 226). Curtin
also observed the first accomplice leap into the back seat and
the second accomplice enter the front seat prior to the car
leaving the scene (Tr. at p. 230).
In addition, the testimony revealed that only the Petitioner
lived in and was familiar with the immediate surrounding area.
Arresting Officer Clifford Barnett testified that the alleged
accomplices were not residents of the Borough of Queens.
Rivera lived in the Bronx and Roman lived in Manhattan (Tr. at
p. 155). The Petitioner testified at the trial that both
Rivera and Roman recently arrived in the United States from
Puerto Rico and neither spoke English (Tr. at p. 286). The
Petitioner also testified that he lived in Astoria all of his
life (Tr. at p. 285), and that, inexplicably, he did not stop
for gas at two stations closer to his home than the Mobil
station (Tr. at pp. 289 and 299-300). The trial Justice could
reasonably infer from these facts that the Petitioner
purposefully chose a station further from his home to avoid
recognition, a tactic his two co-defendants could not
reasonably formulate, given their unfamiliarity with the
neighborhood and their inability to speak English.
A potential motive for the Petitioner's involvement in the
robbery was exhibited on cross examination when the Petitioner
revealed that he had a heroin habit of $30 per day, his wife
had a heroin habit of approximately $15-20 per day and that he
earned only approximately $250 per week (Tr. at pp. 287-88).
Taken together, the above summarized evidence supports
Justice Leahy's statement at sentencing, which in this Court's
view, was not materially inaccurate (United States v. Gelb,
supra). Since the sentence was within the legal limits, there
is no evidence of vindictiveness on the part of Justice Leahy
and he did not rely on any materially inaccurate information,
the Court finds that the sentence was not unconstitutionally
For the foregoing reasons, the instant Petition for the writ
of habeas corpus pursuant to 28 U.S.C. § 2254 is denied.
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