298 F. Supp. 1298 | S.D.N.Y. | 1969
Petitioner, currently serving a fifteen to twenty year sentence at the Green Haven state prison following his conviction after trial to a jury on charges of first degree rape, second degree assault and first degree sodomy, seeks his release upon a writ of habeas corpus. He alleges that he was deprived of a fair trial by (1) unnecessary references to his race and that of his codefendant; (2) inflammatory and prejudicial remarks of the prosecution in his summation; (3) improper reception in evidence of an admission, made after an illegal arrest, and improperly found voluntary; (4) a prejudicial line-up identification by the complainant; (5) refusal of the court to charge (a) as to credibility of the complainant, and (b) assault in the third degree as a lesser included offense.
The jury could have found that petitioner and a companion, one Warren, after trailing the complainant, a seventeen year old girl, and her younger companion after they had left a high school dance, dragged the complainant into petitioner’s car and drove her to several secluded areas, where they each compelled her to submit to rape and petitioner to an act of sodomy. The jury could also have found that when the police first interrogated petitioner, he denied involvement in the offense, but after a lineup viewed by complainant, he voluntarily admitted that he had had sexual relations with the girl, denying, however, that he had compelled her to submit to acts of intercourse or sodomy.
Petitioner has presented all questions raised here to the New York courts on the appeal from the judgment of conviction.
Nor was the prosecution’s summation to the jury so inflammatory as to require petitioner’s release. Although vigorous references were made in the summation, they cannot, given the content of the evidence adduced by the State at the trial, be said to have been so prejudicial as to deny petitioner a fair trial within the meaning of Fourteenth Amendment due process.
Petitioner has already had a full and fair state hearing on the question of the voluntariness of his admission, after the line-up, that he had had sexual relations with complainant. The trial court found, following the Huntley hearing, that petitioner approached one officer and asked for an hour of his time; that the officer told him he did not have to say anything, and that he had a right to counsel; and that petitioner made his statement anyway. The record fully supports the trial court’s finding that the admission was voluntarily made.
And, assuming arguendo, that petitioner may challenge the voluntariness of the admission on the theory that it was motivated by an illegal arrest,
Petitioner also contends that the refusal of the court to instruct the jury as to the credibility of the complainant and her companion invaded his right to a fair trial. Assuming arguendo that the failure to so charge was legal error, it does not present any issue of federal constitutional dimensions.
The petition is dismissed.
. Warren was tried separately.
. People v. Feldt, 26 A.D.2d 743, 272 N.Y.S.2d 223 (3d Dep’t 1966), aff’d, 22 N.Y.2d 839, 293 N.Y.S.2d 103, 239 N.E.2d 733 (1968).
. Id. at 744, 272 N.Y.S.2d at 226.
. Ibid.
. Compare Buchalter v. New York, 319 U.S. 427, 431, 63 S.Ct. 1129, 87 L.Ed. 1492 (1943) ; United States ex rel. Castillo v. Fay, 350 F.2d 400, 401 (2d Cir. 1965), cert. denied, 382 U.S. 1019, 86 S.Ct. 637, 15 L.Ed.2d 533 (1966) ; United States ex rel. Birch v. Fay, 190 F.Supp. 105, 107 (S.D.N.Y.1961). And see United States v. Antonelli Fireworks Co., 155 F.2d 631, 636-638 (2d Cir.), cert. denied, 329 U.S. 742, 67 S.Ct. 49, 91 L.Ed. 640 (1946) ; United States v. Dilliard, 101 F.2d 829, 837-838 (2d Cir. 1938), cert. denied, 306 U.S. 635, 59 S.Ct. 484, 83 L.Ed. 1036 (1939) ; United States v. Dubrin, 93 F.2d 499, 506 (2d Cir. 1937), cert. denied, 303 U.S. 646, 58 S.Ct. 644, 82 L.Ed. 1107 (1938).
. Cf. United States ex rel. Ross v. McMann, 409 F.2d 1016 (2d Cir. Feb. 26, 1969).
. 255 U.S. 298, 309 (1921), overruled, Warden v. Hayden, 387 U.S. 294, 305-310, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).
. Cf. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed. 2d 142 (1964) ; Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959) ; Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).
. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968) ; United States ex rel. Rutherford v. Deegan, 406 F.2d 217, 219 (2d Cir. 1969) ; cf. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969).
. Kenion v. Gill, 81 U.S.App.D.C. 96, 155 F.2d 176, 178 (1946) ; United States ex rel. Birch v. Fay, 190 F.Supp. 105, 107 (S.D.N.Y.1961).
. See People v. Mussenden, 308 N.Y. 558, 563, 127 N.E.2d 551 (1955) ; cf. People v. Brady, 16 N.Y.2d 186, 190, 264 N.Y.S.2d 361, 363, 211 N.E.2d 815, 816 (1965) ; People v. Lindsey, 12 N.Y.2d 421, 422, 240 N.Y.S.2d 441, 441-442, 190 N.E.2d 904 (1963).
. United States ex rel. Smith v. Reincke, 239 F.Supp. 887, 894 (D.Conn.), aff'd, 354 F.2d 418 (2d Cir. 1965), cert. denied, 384 U.S. 993, 86 S.Ct. 1896, 16 L.Ed.2d 1010 (1966).