268 F. Supp. 751 | S.D.N.Y. | 1967
OPINION
Petitioner was convicted after a jury trial of rape, attempted robbery and carrying and using dangerous weapons. He was sentenced on May 20, 1964,
During the pendency of his appeal to the Appellate Division, the Supreme Court decided Jackson v. Denno,
The hearing, involving confessions by both petitioner and a codefendant, con
This court has examined the hearing record, consisting of more than 500 pages, and finds there is no basis for interference with the trial court’s conclusion that the confession was voluntary. A reading of the testimony readily establishes that this determination is abundantly supported by the record.
Finally, not only was petitioner’s claim under Escobedo v. State of Illinois resolved against him on the facts, but further he is not entitled to the benefit of Escobedo, since his trial began prior thereto.
. The defendant has since been resentenced twice. See People v. Smith, 26 App.Div. 2d 656, 272 N.Y.S.2d 401 (2d Dep’t 1966).
. 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
. 378 U.S. 478, 84 S.Ct. 1758, 12 D.Ed.2d 977 (1964).
. Supra note 2.
. People v. Smith, 22 App.Div.2d 927, 255 N.Y.S.2d 507 (2d Dep’t 1964).
. 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965).
. People v. Smith, 23 App.Div.2d 893, 260 N.Y.S.2d 600 (2d Dep’t 1965). Leave to appeal to the Court of Appeals and certiorari to the United States Supreme Court were both denied. 384 U.S. 1020, 86 S.Ct. 1938, 16 L.Ed.2d 1044 (1966).
. Cf. Clewis v. State of Texas. 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967) ; Davis v. State of North Carolina, 384 U. S. 737, 741-742, 86 S.Ct. 1761, 16 L.Ed. 2d 895 (1966) ; Townsend v. Sain, 372 U.S. 293, 316, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).
. See Townsend v. Sain, 372 U.S. 293, 312-314, 83 S.Ct. 745 (1963); United States ex rel. Lo Piccolo v. LaVallee, 377 F.2d 221 (2d Cir. 1967). The fact that the constitutional warnings were not given petitioner may have significance in determining whether his confession was voluntary. Davis v. State of North Carolina, 384 U.S. 737, 740-741, 86 S.Ct. 1761 (1966); Johnson v. State of New Jersey, 384 U.S. 719, 731, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). However, the testimony of the police officers, which was credited by the state court, makes clear that apart from the lack of warnings, there is no basis for a claim of involuntariness. The total time from petitioner’s arrest to the completion of his confession was approximately two hours. Compare Clewis v. State of Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761 (1966).
. Johnson v. State of New Jersey, 384 U.S. 719, 732-734, 86 S.Ct. 1772 (1966).
. Id. at 732, 86 S.Ct. 1772.
. Cf. People v. Pratt, 27 A.D.2d 199, 278 N.Y.S.2d 89 (1967).
. Johnson v. State of New Jersey, 384 U.S. 719, 732-734, 86 S.Ct. 1772 (1966).