Harned v. Henderson
| Decision Date | 21 November 1978 |
| Docket Number | D,No. 54,54 |
| Citation | 588 F.2d 12 |
| Parties | Edward H. HARNED, Jr., Petitioner-Appellee, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent-Appellant. ocket 78-2031. |
| Court | U.S. Court of Appeals — Second Circuit |
Jeffrey Ira Zuckerman, New York City, for petitioner-appellee.
Kevin J. McKay, Asst. Atty. Gen., State of New York (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., State of Before OAKES, GURFEIN and MESKILL, Circuit Judges.
New York, New York City, of counsel), for respondent-appellant.
The State of New York, on behalf of the Superintendent of New York's Auburn Correctional Facility, appeals from an order and judgment entered in the United States District Court for the Eastern District of New York, Edward R. Neaher, Judge, granting to Edward H. Harned, Jr., a petition for a writ of habeas corpus, releasing him from state custody 1 and vacating his conviction. The central issue on this appeal is whether Harned's plea of guilty, upon which his conviction was based, was voluntary in a constitutional sense. For the reasons that follow, we cannot hold that it was and, accordingly, we affirm the decision of the district court.
This case is before us after having travelled an unusually tangled path. In November of 1969 the Nassau County Police Department arrested Harned on a complaint of rape and sodomy. After arraignment he was released on $2,500 bail. On December 2, 1969, a felony hearing was held in the District Court of Nassau County before Judge Lyman D. Hall, and on January 20, 1970, the Nassau County Grand Jury returned an indictment charging Harned with rape in the first degree, sodomy in the first degree, sexual abuse in the first degree and assault in the second degree. Harned denied the charges then and continues to deny them today. He remained free until January of 1971 when he was again arrested again for rape but this time for burglary as well. Harned waived a felony hearing and, on March 9, 1971, the Grand Jury returned an indictment charging him with rape in the first degree, burglary in the first degree and possession of burglars' tools. He was arraigned on April 12, 1971, before Nassau County Court Judge Harold M. Spitzer and pleaded not guilty. 2 The two indictments are, for most purposes, unrelated. It is the second indictment that is at the center of this appeal.
On June 23, 1971, Harned appeared before Nassau County Court Judge Frank X. Altimari and in satisfaction of all charges in both indictments pleaded guilty to the second indictment's charge of burglary in the first degree. 3 Present at the hearing The Court: On the 16th day of January, 1971, in the night time, did you enter and remain unlawfully in the dwelling house of a person by the name of ______, located at ______, with intent to commit a crime therein?
were Harned's parents and his two attorneys, Richard Schulz and Joseph McCartney. During the course of this hearing the following exchanges took place:
The Defendant: Yes, sir.
The Court: It is alleged here that the crime that you intended to commit was rape. You understand that?
The Defendant: Yes, sir.
The Court: Was there an attempt to commit the rape?
The Defendant: It was an intent.
The Court: That's all I want to know, was there an intent to commit the crime of rape and was it at night time? Let's start from the beginning. Did you enter the house by reason of license or invitation?
The Defendant: The answer to the last question is yes.
The Court: All right. So you went to the house unlawfully; is that correct?
The Defendant: Yes, sir.
The Court: You had no invitation?
The Defendant: Yes, sir.
The Court: It was night time?
The Defendant: Yes, sir.
The Court: Did you know these people at all?
The Defendant: No, sir.
The Court: So you went into a strange house at night. Did you break through?
The Defendant: Yes, sir.
The Court: How did you break in?
The Defendant: Through a window.
The Court: So you were in that house for the purpose of committing a crime; is that correct?
The Defendant: Yes, sir.
The Court: All right, the plea is accepted. And this was on the 16th day of January, 1971?
The Defendant: Yes, sir.
The Defendant: Yes, I do.
The Court: Is there any question in your mind that you are guilty of the burglary?
The Defendant: Of the burglary, no.
The Court: All right. I understand your position. Your position is clearly that you are guilty of burglary in the first degree, but you don't feel guilty with regard to the other.
The Defendant: I know I am not guilty.
The Court: All right, your position is you are not guilty with regard to the rape in the first degree.
I am not asking you to admit to the rape in the first degree. What I am saying to you is, as long as this Court is satisfied that you know that you are in fact guilty of burglary in the first degree and I am satisfied because the rape charge is being included to the extent that it is now in satisfaction of, do you understand that?
The Defendant: This one charge I am pleading to covers all charges?
The Court: Right. It is not an admission of the rape.
The Defendant: What do I say to people when they ask me why I didn't take it to trial if I know I am innocent?
The Court: Then take it to trial.
The Defendant: I would be so prejudiced.
The Court: I am not here to convince you that you should or should not take this plea. I think your position is clear. You say you never did what is charged in that (first) indictment.
The Defendant: I never did it, no.
The Court: You are not admitting to that indictment. I did not ask you to admit because I took the position that you took in the beginning. You say you are innocent. My question to you is, are you guilty of the burglary?
The Defendant: Yes, I am guilty of the burglary.
The Court: And at the time you committed the burglary, you entered this house at night time for the purpose of committing a rape; isn't that true? The fact that you didn't consummate the rape is of no consequence. I want to know whether or not you committed a burglary.
The Defendant: Yes.
The Court: All right, I think the record is clear.
That same afternoon Harned began writing a letter to Judge Altimari asking that he be allowed to withdraw his plea; once written, the letter was dated June 30, 1971. In the letter Harned insisted that he was innocent of the crimes charged in the first indictment and that he had pleaded guilty only as the result of varied and intense pressures the fear that the second indictment would be tried before the first, 4 parent pressure, attorney pressure, financial pressure, fear of long incarceration and so on.
On October 1, 1971, a hearing was held before Judge Altimari, the scheduled purpose of which was to sentence Harned pursuant to the plea of guilty. The sentencing was adjourned, however, because of the request for permission to withdraw the plea. At this hearing Harned's attorney made the following observation:
(T)here is some serious doubts in his mind, and no lawyer, including myself, and no other person, has been able to convince him that he is guilty of burglary. He claims he didn't understand the elements of burglary, he didn't know what he was talking about. That's his position, Judge.
Judge Altimari held a hearing on October 29, 1971, to determine whether Harned understood "the nature of the proceedings" of June 23, 1971. At the hearing Harned's mother testified that she had told Harned at the time of the plea that she and her husband had just paid the attorneys $5,000 for their efforts and could afford no more. She also testified that Harned's father had been terminally ill with cancer and that he had died shortly thereafter. Harned testified that when he told his parents he was not going to plead guilty his father became outraged and his mother began crying. He also said that, although he had understood that a plea of guilty would lead to 15 years incarceration, he had not understood the elements of first degree burglary or the "legal implications involved" in his answers at the previous hearing.
On December 23, 1971, Judge Altimari issued a memorandum of decision in which he concluded that Harned had understood the June 23, 1971, "proceedings"; he declined to allow Harned to withdraw the bargained plea. As part of his findings of fact, Judge Altimari observed that "(Harned) . . . admitted that he knowingly entered and remained unlawfully at the burglarized home in the night time and had the intent to commit the crime of rape." With regard to the attempt/intent In the case at bar, the defendant did not want to admit a forcible rape out of fear of the stigma which might attach. Thus, this court did not inquire during the Change of Plea proceeding whether the victim was physically injured during the commission of the crime of Burglary in the First Degree. The court, instead, immediately shifted its inquiry and continued as recommended in the Serrano case. (People v. Serrano, 15 N.Y.2d 304, 258 N.Y.S.2d 386, 206 N.E.2d 330 (1965)).
portion of the June 23 hearing, 5 Judge Altimari concluded that "(Harned) quickly stated that he Intended to commit the crime of rape and thereby inferentially denied an Attempt to rape." (Emphasis in original). As to the question whether he had explained to Harned that the charge of burglary in the first degree included a charge of physical injury, Judge Altimari made the following finding:
Such "Serrano " type plea of guilty has been held valid. In North Carolina v. Alford, (400 U.S. 25 (91 S.Ct. 160, 27...
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