identified petitioner in a photo array on May 27, 1983.
In the meantime, at about 5:30 p.m., petitioner telephoned the office of an attorney, Melvin Lebetkin ("Lebetkin"). Lebetkin's secretary told Detective Leonick that Lebetkin was out of town, but the secretary would try to contact him. At approximately 7:40 p.m., petitioner requested that the lineups be postponed until he located Lebetkin. In response, Detective Leonick told petitioner that the police had been trying to contact Lebetkin for over two hours, and would not wait any longer to conduct the lineups. Indeed, as late as 7:20 p.m., Detective Leonick telephoned Lebetkin's office, and the secretary told him she still had not heard from Lebetkin. Detective Leonick asked petitioner if he wanted to call another attorney, but petitioner said "No." When petitioner declined, Detective Leonick told him the lineups would proceed at that point.
Shortly after 7:40 p.m., lineups occurred in connection with the Nassau robbery, and petitioner was identified by all three witnesses. At 7:55 p.m., after Nassau robbery lineups were completed, Lebetkin telephoned the Robbery Squad office. Lebetkin told Detective Leonick that he represented petitioner and requested postponement of any further lineups. His request was refused, and a lineup was held, without Lebetkin present, in connection with a robbery which occurred in Queens, New York (the "Queens robbery"). Petitioner was identified in connection with that robbery as well.
On June 12, 1983, a felony complaint was filed in connection with the Nassau robbery, and petitioner was arraigned that day. He pleaded not guilty. Petitioner was represented at the arraignment by an attorney from the Nassau County Legal Aid Society. At the arraignment, petitioner's attorney demanded a felony examination, which was then scheduled for June 15, 1983. On June 15, petitioner appeared in court represented by Lebetkin, who requested an adjournment to July 12, 1983 for plea discussion purposes. The adjournment was granted. On July 12, Lebetkin requested and was granted another adjournment, this time to August 2, 1983. On August 2, Lebetkin was granted another requested adjournment to September 16, 1983. Again, the adjournment was for plea discussion purposes. Thereafter, at the state's request, the matter was adjourned to October 4, 1983. The purpose of this adjournment was for assignment of the case to the county court from the district court for a felony screening conference. Nevertheless, the matter was transferred back to the district court that same day, and adjourned to October 6, 1983. Because Lebetkin was engaged in another court on October 6, an attorney appeared on his behalf and requested a further adjournment, which was granted to October 14, 1983, and then to October 16, 1983. Thereafter, as the trial court found, petitioner refused to appear on October 16, 17 and 21, 1983, prompting further adjournments by Lebetkin to November 3, 1983. On November 3, it was discovered that petitioner had been transferred to a correctional facility in Queens, New York, pursuant to an order concerning the Queens robbery. Because of petitioner's transfer to Queens, the Nassau robbery matter was adjourned to November 23, 1983. However, petitioner was not produced on November 23 because of proceedings in Queens concerning the Queens robbery. The Nassau robbery matter was then adjourned to December 8, 1983. On December 8, petitioner appeared with Lebetkin, who asked to be relieved as petitioner's counsel due to a conflict.
The request was granted, and the matter was adjourned to December 12, 1983, to allow time for the Defense Counsel Screening Bureau to determine whether petitioner was entitled to assigned counsel or a Legal Aid attorney. When the screening process was not completed by December 12, the matter was adjourned by the court to December 13, 1983. Thereafter, petitioner was assigned a Legal Aid attorney, and the case was adjourned to December 19, 1983, upon petitioner's demand for a felony examination.
Petitioner was charged in an indictment filed December 16, 1983 in connection with the Nassau robbery. He was arraigned on December 22, 1983, and pleaded not guilty. At the arraignment, petitioner's attorney requested an adjournment, which was granted to February 15, 1984. On January 27, 1984, a second indictment was filed charging petitioner in connection with the Nassau robbery, but as to different victims than the first indictment. On February 15, petitioner was arraigned on the second indictment, and again pleaded not guilty.
Prior to trial of the indictments, petitioner moved to suppress witness identification testimony stemming from the Nassau robbery lineups and to dismiss the indictments for denial of a speedy trial. These motions were ultimately denied. See New York v. LoPizzo, Indictment Nos. 58068 & 58300, slip op. (County Ct., Nassau County, Aug. 10, 1984) (Harris, J.); New York v. LoPizzo, Indictment Nos. 58068 & 58300, slip op. (County Ct., Nassau County, June 8, 1984) Lawrence, J.).
Upon trial of the Nassau robbery indictments in October and November 1984, petitioner was convicted of three counts of robbery in the first degree, and sentenced on December 10, 1984 to concurrent indeterminate terms of imprisonment of twelve and a one-half to twenty-five years.
Petitioner appealed his convictions to the Appellate Division, Second Department. That court unanimously affirmed the convictions. See New York v. LoPizzo, 151 A.D.2d 614, 543 N.Y.S.2d 88 (2d Dep't 1989). On December 11, 1989, the New York Court of Appeals denied petitioner leave to appeal. See New York v. LoPizzo, 551 N.Y.S.2d 914 (1989).
In the meantime, petitioner pleaded guilty and was convicted of charges in connection with the Queens robbery, following an adverse ruling on a suppression motion concerning the Queens robbery lineup of June 11, 1983. On appeal from that conviction, the Appellate Division held that petitioner's right to counsel was violated when petitioner's attorney was excluded from the lineup after requesting that it be postponed. Accordingly, on May 13, 1991, the Queens conviction was reversed and the guilty plea vacated on the ground that the erroneous suppression ruling may have contributed to petitioner's decision to plead guilty in that case. See New York v. LoPizzo, 173 A.D.2d 562, 570 N.Y.S.2d 307 (2d Dep't 1991).
Following the reversal of the Queens conviction, in October 1991, petitioner moved to reargue his appeal from the Nassau convictions to the Appellate Division. On November 15, 1991, the Appellate Division denied the motion to reargue.
In his habeas petition, petitioner claims he was denied his right to counsel under the Sixth and Fourteenth Amendments in connection with the Nassau robbery lineups, and that he was denied his right to a speedy trial under the Sixth and Fourteenth Amendments for the delay from June 12, 1983, the date the felony complaint was filed, to February 15, 1984, the date petitioner alleges the state answered ready for trial.
A. Right to Counsel
The Sixth Amendment right to counsel applies to "'critical' stages of the proceedings." United States v. Wade, 388 U.S. 218, 224, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967). In Wade, the Supreme Court held that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a "critical" stage of the prosecution, and that police conduct of such a lineup without notice to and in the absence of defendant's counsel violates the Sixth Amendment right to counsel. Id. at 228. However, in Kirby v. Illinois, 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972), the Supreme Court emphasized that the Sixth Amendment right to counsel attaches only "at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Id. at 689; see also United States v. Gouveia, 467 U.S. 180, 187, 81 L. Ed. 2d 146, 104 S. Ct. 2292 (1984) ("Our cases have long recognized that the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant.").
As the Kirby Court explained,
it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and is immersed in the intricacies of substantive and procedural criminal law.
Kirby, 406 U.S. at 689. The Supreme Court, however, has recognized that there are situations where the right to counsel attaches even though formal prosecution has not begun, but this is when the "process shifts from investigatory to accusatory--when its focus is on the accused and its purpose is to elicit a confession." Escobedo v. Illinois, 378 U.S. 478, 492, 12 L. Ed. 2d 977, 84 S. Ct. 1758 (1964). Nevertheless, the government may not deliberately delay the filing of an accusatory instrument, thereby depriving the accused of his right to counsel. Gouveia, 467 U.S. at 192. The Fifth Amendment requires that an indictment be dismissed "if the defendant can prove that the Government's delay in bringing the indictment was a deliberate device to gain an advantage over him and that it caused him actual prejudice in presenting his defense." Id.
Petitioner concedes that the lineups occurred before the filing of the accusatory instrument--the felony complaint. However, he contends that the government's activity prior to the filing of the felony complaint establishes that the government had crossed the line from investigator to adversary. Specifically, he points to the photo array identifications of May 27, 1983 and a subpoena of his telephone records by the government in March 1983. However, these activities amount to normal investigatory procedures, and there is no support in the record for a claim that any acts of the government up to and including the day of his arrest, June 11, 1983, were aimed at petitioner for the purpose of eliciting a confession. Indeed, the trial court found these lineups were investigatory. See New York v. LoPizzo, Indictment Nos. 58068 & 58300, slip op. at 3 (County Ct., Nassau County, Aug. 10, 1984) (Harris, J.). Accordingly, this Court finds that petitioner did not possess a Sixth Amendment right to counsel in connection with the Nassau robbery lineups.
B. Right to Speedy Trial
The Sixth Amendment guarantees an accused the right to a speedy trial. See U.S. Const. amend. VI. In the petition, petitioner claimed that the state violated his right to a speedy trial pursuant New York Criminal Procedure Law ("CPL") § 30.30. As applicable to petitioner, CPL § 30.30(1)(a) required the state to be ready for trial within six months of commencement of the action. However, as respondent correctly observes in opposition to the petition, a claim of violation of CPL § 30.30(1)(a) is not cognizable in this habeas corpus action. Petitioner then responded by claiming a violation of his Sixth Amendment right to a speedy trial, alleging:
The petitioner was arrested on 6/11/83, and was not arraigned on the Grand Jury indictment until 12/22/83. The people were not ready on the record until 2/15/84. Well [sic] over the six month [sic] mandated by state and federal law.