People ex rel. Bird v. Behagen

• Decision Date: 04 March 1971
• Citation: 320 N.Y.S.2d 696,65 Misc. 2d 733
• Parties: The PEOPLE of the State of New York ex rel. Joan BIRD, and Afeni Shakur, Relators v. Jesse BEHAGEN, Warden of New York House of Detention for Women, Respondent. ., New York County, Part XXXI
• Court: New York Supreme Court

Page 696

320 N.Y.S.2d 696

65 Misc.2d 733

The PEOPLE of the State of New York ex rel. Joan BIRD, and Afeni Shakur, Relators v.Jesse BEHAGEN, Warden of New York House of Detention for Women, Respondent.

Supreme Court, Trial Term., New York County, Part XXXI.

March 4, 1971.

Evelyn A. Williams and Jethro M. Eisenstein, for relators.

Frank S. Hogan, Dist. Atty., for defendant; Joseph A. Phillips and Jeffrey J. Weinstein, Asst. Dist. Attys., of counsel.

MAX BLOOM, Justice.

Relators, Joan Bird and Afeni Shakur, seek, by habeas corpus, to review a determination by Mr. Justice Murtagh, made during the course of trial, revoking their bail and remanding them to custody pending further order of the Court.The plain purpose of the application is to place the issue in a form appropriate for appellate review.

Bail for these two defendants was exonerated on February 8, 1971, under circumstances which, hereafter, will be adverted to.Thereafter, on February 19, 1971, relators brought this proceeding on before me.At the outset, I voiced the opinion that, despite my conceded power and jurisdiction to pass upon the issues in dispute (People ex rel. Klein v. Krueger, 25 N.Y.2d 497, 307 N.Y.S.2d 207, 255 N.E.2d 552;People ex rel. Shapiro v. Keeper of City Prison, 290 N.Y. 393, 49 N.E.2d 498;cf.People ex rel. Epton v. Nenna, 25 A.D.2d 518, 267 N.Y.S.2d 267), for one judge of this Court to sit in review of a determination rendered by another judge of coordinate jurisdiction was of doubtful propriety.Such intervention, when sought to control the conduct of a trial then going on before another judge, seemed to me to be grossly improper.By consequence, and in the interests of orderly procedure, I referred the matter of Mr. Justice Murtagh.

The application for the writ came on before Mr. Justice Murtagh on February 22, 1971.He, prompted by the punctilio of an honor the most sensitive, indicated that 'in fairness to the defendantsJoan Bird and Afeni Shakur, it is believed that they are entitled to a determination of their application by a justice other than the one who is directing their commitment.'Accordingly, he referred the proceeding to Mr. Justice Riccobono.On February 25, 1971, when the matter came on to be heard before Mr. Justice Riccobono, counsel objected, insisting that since the matter was originally brought on before me it should be heard by me if it were to be heard before any judge other than Mr. Justice Murtagh.Although I am no more persuaded now of the property of action by me on this application than I was on February 19, I consented that the matter be referred to me so that there will be a determination from which appeal will lie.

The facts leading to the revocation of bail of these relators finds origin in the following circumstances: On April 2, 1969, an indictment was handed down charging twenty-two persons, among whom were these relators, with a series of crimes including conspiracy to commit murder, conspiracy to bomb police precinct stations and other public offices, conspiracy to bomb various department stores and conspiracy to bomb sites along the New Haven Railroad tracks.

Of the twenty-two indicted, three were never apprehended ¹; two were in detention in New Jersey ²; two were granted youthful offender treatment ³; one ⁴ obtained a severance because of illness; and one ⁵ was released on bail and jumped bail prior to the commencement of the trial before Mr. Justice Murtagh.The remaining thirteen, consisting of the two relators, Curtis Powell, Robert Collier, Alex McKiever, Lamumba Abdul Shakur, John J. Casson, Walter Johnson, Clark Squire, Lee Roper, William King, Richard Moore and Michael Tabor, are currently on trial.

Bail was fixed for all defendants except Roper and King.⁶Numberous habeas corpus proceedings were thereafter instituted (People ex rel. Tabor v. McGrath, 25 N.Y.2d 804, 303 N.Y.S.2d 665, 250 N.E.2d 712;People ex rel. Epps (Shakur) v. Commissioner of Correction, 32 A.D.2d 921;United States ex rel. Shakur v. Commissioner of Corrections, D.C., 303 F.Supp. 303, affd.2 Cir., 418 F.2d 243, cert. den.397 U.S. 999, 90 S.Ct. 1144, 25 L.Ed.2d 408;United States ex rel. Shakur v. Commissioner of Correction (McGrath), D.C., 306 F.Supp. 507;People ex rel. Shakur v. McGrath, 62 Misc.2d 484, 309 N.Y.S.2d 483).

Of the total of 22 defendants, eight made bail.⁷

On February 8, 1971, during the progress of the trial, Moore and Tabor, two of the thirteen defendants currently on trial, absented themselves.The colloquy which ensued among counsel and the Court leads clearly to the conclusion that they were no longer subject to the jurisdiction of the Court.Indeed, a statement by the Assistant District Attorney in charge of the prosecution of this case gives hint that differences had arisen between Moore and Tabor and the leadership of the Black Panther Party.He stated on the record of proceedings for February 9 that, some two months earlier, Tabor had married a lady by the name of Connie Matthews; that Miss Matthews was an Algerian citizen and an official of the Black Panther Party in California; that her visa will expire on March 3 or 5, at which time she would be required to leave the country and that on February 5, Tabor, Miss Matthews and Moore appeared on a radio program in New Haven 'and discussed the Black Panther Party and criticized its leaders.'

Immediately following the failure of Moore and Tabor to appear for trial on February 8, Mr. Justice Murtagh expressed his concern 'about the continuance of this trial with any defendant on bail.'Thereupon, pursuant to Section 422, Code of Criminal Procedure⁸, he exonerated the bail of these relators and remanded them to custody pending further order of the Court.

At the hearing of the application for the writ before Mr. Justice Murtagh on February 22 and prior to the reference to Mr. Justice Riccobono, Assistant District Attorney Phillips, who is in charge of the prosecution, advised the Court that information had come to him from the FBI that Zayde Shakur, the brother of Lamumba Abdul Shakur⁹, one of the defendants, went to Detroit on January 19, 1971, and contacted Black Panther Party officials in that city for the purpose of obtaining false identification cards and false work papers.Purportedly, he was arranging for the flight of some or all of those currently on trial who were then at liberty and desired these documents in that connection.It is further pointed out that, although Zayde did not specifically mention the names of any defendants in connection with the possible use of these documents, Moore, Tabor and Josephs have since absconded.

Mr. Justice Murtagh briefly reviewed the status of the indicated defendants, pointing out that three were never apprehended.Of the remaining 19, eight made bail.Of these eight, four have fled the jurisdiction, two who have not been before him ¹⁰ are still on bail, and two, the relators, have been remanded.He further indicated that the evicence now before the jury, if given credence, has a strong tendency to establish the guilt of the defendants, including these relators.He concluded that to insure the orderly continuance of the trial 'at least as to those defendants still before the Court', remand of the relators was required and he reaffirmed his direction of February 8.

Thus, at the very threshold, there is presented the problem of what evidence the Court may take cognizance.Is February 8, the date upon which remand was ordered, the cutoff date?Or is consideration to be given to the evidence presented on February 22, when the decision of February 8 was reaffirmed?

Although no cause has been brought to my attention which is directly in point, the circumstances leading to the disposition in People ex rel. Burley v. Agnew, 28 N.Y.2d 551, 319 N.Y.S.2d 445, 268 N.E.2d 125, is most persuasive.On January 13, 1971, the Court of Appeals, in People ex rel. Menechino v. Warden, 27 N.Y.2d 376, 318 N.Y.S.2d 449, 267 N.E.2d 238, held that the constitutional right to counsel under the Sixth and Fourteenth Amendments to the Federal Constitution applied to a parole revocation proceeding.The failure to comply with constitutional requirement warranted granting of the great writ.The following day leave to appeal was granted in Burley (People ex rel. Burley v. Agnew, 28 N.Y.2d 658, 320 N.Y.S.2d 526, 269 N.E.2d 196) in a memorandum requesting counsel'to brief the question of the possible retroactive application of' Menechino.The following month the appeal in Burley was dismissed 'upon the ground that relator has been released on parole and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (People ex rel. Wilder v. Markley, 26 N.Y.2d 648, 307 N.Y.S.2d 672, 255 N.E.2d 784;CPLR 7002(a))'.Thus, the intimation is plain that the right to the writ depends on circumstances existing at the time of its consideration by the Court, even though that consideration be in the final stages of appeal.

This conclusion is strongly supported by practical necessity as well as logic.Were I, hypothetically, to grant the writ based on the record as it existed on February 8, and to fix bail for those relators, Mr. Justice Murtagh could, with complete propriety, again exonerate bail and remand relators, pursuant to Section 422, Code of Criminal Procedure, on...