United States v. Follette

• Citation: 282 F. Supp. 2
• Decision Date: 26 March 1968
• Docket Number: No. 67 Civ. 4790.,67 Civ. 4790.
• Parties: UNITED STATES of America ex rel. Joseph RANDAZZO, Petitioner, v. Hon. Harold W. FOLLETTE, Warden, Green Haven Prison, Stormville, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

282 F. Supp. 2

UNITED STATES of America ex rel. Joseph RANDAZZO, Petitioner, v. Hon. Harold W. FOLLETTE, Warden, Green Haven Prison, Stormville, New York, Respondent.

No. 67 Civ. 4790.

United States District Court S. D. New York.

March 26, 1968.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, for respondent; Joel H. Sachs, Asst. Atty. Gen., of counsel.

Joseph Randazzo, pro se.

WYATT, District Judge.

This is an application for a writ of habeas corpus (28 U.S.C. §§ 2241, 2242) by Joseph Randazzo, who is in the custody of the penal authorities of New York at Green Haven Prison in Stormville, Dutchess County, in this District. Randazzo is acting for himself, without the help of counsel; by order of Judge McGohey filed December 6, 1967, he was authorized to prosecute this proceeding without prepayment of fees, etc. (28 U.S.C. § 1915(a)).

There was a judgment of conviction of applicant of manslaughter in the first degree (Penal Law, McKinney's Consol. Laws, c. 40, § 1050 as it then stood) on February 17, 1949, in the old Court of General Sessions for New York County (Schurman, J.). The sentence was imprisonment for from six to twenty years (Penal Law § 1051 as it then stood). The judgment was on a jury verdict; the indictment (Index No. 2560/1948) was for murder in the second degree, punishable by imprisonment for from twenty years to life (Penal Law §§ 1046, 1048, as they then stood).

Randazzo contends that detention under this conviction (sometimes herein the "manslaughter" conviction) violates his federal constitutional rights (1) because his appeal from the conviction was "frustrated" (he means, presumably, by the state) and (2) because the state denied him a hearing under the rule of People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965) carrying into effect the "separate hearing" on the voluntary character of a confession required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

I

Before the trial on the second degree murder charge Randazzo, at the request of his counsel, was committed to Bellevue Hospital for psychiatric examination.

The evidence at the trial established that Randazzo about three o'clock in the morning of August 8, 1948, on the lower East side in Manhattan, hit a man at least twice on the head and face with a baseball bat, using both hands and with much force; from his injuries, the man died some hours later. Randazzo was then about 20 years old, separated from his wife and living in the neighborhood with his parents. Self-defense was the explanation of Randazzo, who testified at his trial. The jury, by its verdict, rejected this explanation. As noted above, the judgment of conviction was entered on February 17, 1949; the sentence was imprisonment for from six to twenty years.

Randazzo was represented at his trial by retained counsel, Morris Dickman, Esq.

The term of imprisonment of Randazzo began on February 21, 1949, the date he was received at Sing Sing Prison (Correction Law, McKinney's Consol.Laws, c. 43, § 231).

Mr. Dickman timely filed a notice of appeal on March 11, 1949.

By order entered July 12, 1949, the Appellate Division, First Department, granted a motion for Randazzo for permission to prosecute the appeal on the original record (not printed) but with printed briefs; the Court ordered that the record with points on appeal be filed by September 2, 1949. This was not done.

By order entered February 1, 1950, a motion by the People to dismiss the appeal for failure to prosecute was granted by the Appellate Division. No one appeared for Randazzo in opposition. Notice of the motion was given to counsel but not to Randazzo.

On December 17, 1953, Mr. Dickman died (N.Y. Law Journal, December 24, 1953).

According to records of the Parole Board, Randazzo was released on parole in January 1954 from the correctional institution at Comstock but was returned to prison in the following month as a parole violator.

In July 1956, Randazzo, acting without counsel, moved in the New York Supreme Court to obtain a copy of the pretrial report on his psychiatric examination; a copy had been given Mr. Dickman but he had died in 1953. In March 1957, this motion was denied on the ground that Randazzo was in custody as a result of the manslaughter conviction and not by reason of the psychiatric examination.

On March 26, 1957, Randazzo was released on parole from Clinton Prison (Correction Law, Art. 8, see § 213).

In January 1961, Randazzo, acting by David Markowitz, Esq., as retained counsel, moved in the New York Supreme Court for a writ of error coram nobis to vacate the manslaughter conviction. The ground was that the District Attorney had suppressed evidence favorable to Randazzo in the psychiatric report. The Court (Postel, J.) set the matter down for hearing but in June 1961 the motion was withdrawn by Randazzo and his counsel.

In July 1962, information reached the Parole Board that Randazzo was, among other things, associating with a major narcotics violator and was believed to be in the narcotics traffic. The Board on July 10, 1962 issued a warrant for his retaking (Correction Law § 216).

On July 12, 1962, a parole officer and one or more police detectives went to the apartment building on Rivington Street on the lower East side where Randazzo lived; in his third floor apartment he was arrested by the parole officer under authority of the Parole Board warrant. At the same time the parole officer searched the premises and in the bedroom of Randazzo found 31 ounces of heroin concealed in a hollow in a dresser drawer; the parole officer did not have a search warrant.

When the narcotic drug was discovered, the parole officer turned Randazzo over to the police detectives for prosecution; Randazzo was then taken to the Manhattan House of Detention (125 White Street) to await grand jury action and the Board of Parole warrant was filed at the House of Detention.

An indictment (Index No. 3035/1962) charging Randazzo in two counts with possession of narcotic drugs with intent to sell (Penal Law § 1751(2), as it then stood) and with possession of narcotic drugs (Penal Law § 1751(3) as it then stood) was returned by a New York County grand jury on August 31, 1962.

Randazzo (or his family) retained counsel, Jesse Zaslav, Esq., who moved to suppress as evidence the heroin found in his bedroom on the ground that the search without warrant had violated constitutional rights. There was a hearing in the Supreme Court (Davidson, J.) and on November 15, 1962 the motion was denied with an opinion (People v. Randazzo, 37 Misc.2d 80, 234 N.Y.S.2d 740).

Randazzo then pleaded guilty on November 29, 1962 to attempted possession of a narcotic drug (Penal Law § 1751(5) as it then stood); judgment of conviction (sometimes herein the "narcotics" conviction) was entered on that plea on December 20, 1962; the sentence was imprisonment for from three to six years, Randazzo being then a second felony offender (Penal Law § 1941 as it then stood) because of the prior manslaughter conviction.

There was an appeal, as permitted after denial of a suppression motion and a plea of guilty (Code of Cr.Proc. § 813-c). The appeal was prosecuted by Mr. Zaslav, the retained counsel.

The Appellate Division on March 31, 1964 unanimously affirmed without opinion (20 A.D.2d 850, 248 N.Y.S.2d 203).

On April 28, 1964, the Appellate Division, First Department, denied a motion by Randazzo, acting without counsel, to vacate the order of dismissal of February 1, 1950 and to reinstate his appeal from the manslaughter conviction; his papers dated March 18, 1964 claimed that he had never received any notice of the motion to dismiss that appeal.

On May 18, 1964, Judge Fuld made a certificate granting permission to appeal from the narcotics conviction (Code of Cr.Proc. § 520(1)). Apparently Mr. Zaslaw, the retained counsel, then withdrew; in June 1964, the Court of Appeals assigned counsel to represent Randazzo.

The issue before the Court of Appeals was solely the constitutional validity of the search during which the heroin was found. On October 15, 1964, the search was upheld and the judgment affirmed, Judge Fuld dissenting with a short opinion (15 N.Y.2d 526, 254 N.Y.S.2d 99, 202 N.E.2d 549). Certiorari was denied by the Supreme Court on June 7, 1965 (381 U.S. 953, 85 S.Ct. 1810, 14 L.Ed.2d 725).

In July 1964, Randazzo, acting without counsel, moved in the New York Supreme Court for a writ of error coram nobis to vacate the manslaughter conviction. The ground was that his appeal had been dismissed in the Appellate Division on February 1, 1950, without any notice to him. By order (with memorandum opinion) entered October 7, 1964, the Court (Postel, J.) denied this motion without a hearing, noting that, while it was then required that notice of dismissal of appeal be given to defendants personally, the statute (Code of Cr.Proc. § 537-a) had become effective September 1, 1963 and was not retroactive. The Appellate Division unanimously affirmed this order on March 2, 1965 (23 A.D.2d 722, 258 N.Y.S.2d 332). Judge Fuld on April 9, 1965, refused to make a certificate granting permission to appeal to the Court of Appeals (Code of Cr.Proc. § 520(1)).

On May 24, 1965, this Court (Judge Croake) took under advisement an application (65 Civ. 1179) by Randazzo, acting without counsel, for a writ of habeas corpus. The grounds appear to have been (a) that the dismissal on February 1, 1950 of his appeal from the manslaughter conviction without notice to him personally was a violation of federal constitutional rights and (b) that (among possibly other grounds) he was without the effective assistance of counsel on his appeal because his counsel was "either incapacitated or deceased during the crucial appeal period".

By order, with opinion, filed June 15, 1965, Judge Croake denied the application without a hearing. As to ground (a) the denial was because it had no merit; as to ground (b...