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LOPIZZO v. LEFEVRE

September 9, 1994

SALVATORE LoPIZZO, Petitioner,
v.
EUGENE S. LeFEVRE, SUPERINTENDENT, FRANKLIN CORRECTIONAL FACILITY, Respondent.



The opinion of the court was delivered by: LEONARD D. WEXLER

 WEXLER, District Judge

 Pro se petitioner Salvatore LoPizzo petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the following grounds: (1) denial of petitioner's alleged constitutional right to counsel in connection with a pre-accusatory instrument lineup, and (2) denial of petitioner's constitutional right to a speedy trial. For the reasons below, the petition is denied.

 I. BACKGROUND

 On June 11, 1983, petitioner was arrested in connection with a robbery that took place in Nassau County, New York, on July 16, 1982 (the "Nassau robbery"), and was taken to a Nassau County Police Department ("NCPD") Robbery Squad office. At the Robbery Squad office, Detective John Leonick of the NCPD Robbery Squad ("Detective Leonick") arranged for petitioner to be viewed at a lineup by three witnesses to the robbery. These witnesses arrived at the precinct between 6:30 and 6:45 p.m. that evening. Witnesses to the robbery had previously 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. *fn1" 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.

 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 ...


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