232 F. Supp. 906 | S.D.N.Y. | 1964
The petitioner, serving a five to ten year sentence under a judgment of conviction for possession of a narcotic drug with intent to sell, entered upon his plea of guilty in the County Court, Bronx County, State of New York, seeks his release upon a Federal writ of habeas corpus. The present application appears to be the fifteenth in a series 'made in the State and Federal Courts, and there is presently pending an appeal in the Appellate Division, Second Department, from the denial of a writ1 of habeas corpus upon grounds' other than those advanced here.
■ Petitioner here raises three points: (1) that insufficient legal evidence was'
As to the first claim, it alleges no constitutional deprivation, as the Fifth Amendment does not mandate the States to follow grand jury procedure in felony cases.
As to the second claim, the indictment affords petitioner “reasonable notice and information of the specific charge against him”; more is not constitutionally required.
As to the third contention, assuming it raises an issue of constitutional dimension, petitioner has not presented to the State Courts the purported “aggravating circumstances”
The petition for a writ of habeas corpus is denied.
. Section 480 provides: “When the defendant appears for judgment, lie must be asked by tbe clerk whether he have any legal cause to show, why judgment should not be pronounced against him.”
. Hurtado v. California, 110 U.S. 516, 4 S.Ct 111, 28 L.Ed. 232 (1884); Hudgens v. Clark, 218 F.Supp. 95 (D.Ore.1963). See Paterno v. Lyons, 334 U.S. 314, 322, 68 S.Ct. 1044, 92 L.Ed. 1409 (1948) (Frankfurter, J., concurring).
. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956).
. Paterno v. Lyons, 334 U.S. 314, 320, 68 S.Ct. 1044 (1948). See People v. Peterson, 33 Misc.2d 861, 228 N.Y.S.2d 170 (1962), aff’d, 18 A.D.2d 1054, 238 N.Y.S.2d 918 (2d Dep’t 1963).
. See United States v. Taylor, 303 F.2d 165, 167-168 (4th Cir. 1962).
. United States ex rel. Kessler v. Fay, S.D.N.Y., 1964, 232 F.Supp. 139. See People v. Sullivan, 3 N.Y.2d 196, 200, 165 N.Y.S.2d 6, 10, 144 N.E.2d 6 (1950) (Fuld, J., concurring); People v. Nesce, 201 N.Y. 111, 94 N.E. 655 (1911); People v. Miller, 5 Misc.2d 987, 166 N.Y.S.2d 902 (1957).