People v. Augello

• Court: United States State Supreme Court (New York)
• Writing for the Court: WILLIAM W. SERRA
• Citation: 48 Misc.2d 550,265 N.Y.S.2d 509
• Decision Date: 20 December 1965
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Joseph AUGELLO, Defendant. The PEOPLE of the State of New York, Plaintiff, v. Bernard BERMAN, Defendant.

Page 509

265 N.Y.S.2d 509 48 Misc.2d 550 The PEOPLE of the State of New York, Plaintiff,
v.
Joseph AUGELLO, Defendant.
The PEOPLE of the State of New York, Plaintiff,
v.
Bernard BERMAN, Defendant. Supreme Court, Erie County. Dec. 20, 1965.

Page 510

[48 Misc.2d 551] Michael F. Dillon, Dist. Atty., Erie County, by Arthur G. Baumeister, Asst. Dist. Atty., Buffalo, for the People.

Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, Herald Price Fahringer, Buffalo, of counsel, for the defendant-petitioner Joseph Augello.

Paul I. Birzon, Buffalo, for defendant-petitioner Bernard Berman.

WILLIAM W. SERRA, Justice.

In the action against the defendant, Joseph Augello, a petition to set aside the judgment of conviction of the defendant dated March 9, 1944, was construed by the Hon. Alfred M. Kramer, of this Court, to be in the nature of a petition for writ of error coram nobis and a hearing was ordered in accordance with the direction of the Court of Appeals in People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179

Page 511

(1965). In the action against Bernard Berman, upon a petition for writ of error coram nobis to set aside the conviction of the defendant on March 9, 1944, a hearing was similarly directed by the Appellate Division, Fourth Judicial Department, in accordance with proceedings consistent with the Huntley decision (People v. Berman, 23 A.D.2d 532, 256 N.Y.S.2d 650). The defendants were jointly tried and convicted in 1944 and by consent in open court have been heard together on the issues raised by the two petitions. The original convictions were for murder in the first degree, committed on December 29, 1943, and upon the recommendation of the jury the defendants were sentenced to life imprisonment. They have served almost 22 years of confinement for the crime, having been arrested January 14, 1944.

Upon a review of the record of the original trial of the actions it appears that there was ample evidence to sustain the conviction independently of the three confessions of each defendant. Despite this fact the greater part of the proof was devoted to testimony concerning the facts and circumstances surrounding the taking of the confessions, involving some 22 witnesses. The trial court justice submitted the question of voluntariness to the jury. The defendants, however, did not have a separate [48 Misc.2d 552] hearing on the issue of voluntariness out of the presence of the jury as now required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and People v. Huntley, supra.

It is the contention of both defendants that the confessions were involuntary, that they were coerced or induced by long, continued, unrelenting questioning without benefit of counsel, without advice as to rights, under the physical duress of no food or water for some 15 or more hours, under continuous physical abuse with handcuffs used during all the questioning and without sleep; that in addition, their wives were unlawfully detained, were kept from them and were used as a lever to extort confessions; that such practices were continued until their individual resistances were overcome and they finally succumbed to the point of signing statements which they normally would not have executed, and which were not freely given.

Certain facts are undisputed and can be set forth as background to the situation. The defendants were apprehended in Onondaga County by officers of the Sheriff's Department at about 2:30 p. m. on Friday, January 14, 1944. They were at that time driving in an automobile owned by Mrs. Berman and operated by the defendant Berman. The defendant Augello and Mrs. Augello were in the rear of the automobile, the Bermans in the front. The men and their wives were not advised of any charges but were all taken to the city line and turned over to city police who were waiting at the Syracuse City line. From there they were taken to the Syracuse Police headquarters. The defendants were interrogated together continuously until about 6:00 p. m. when they were taken to a basement cell block in the building. Interrogation up to this

Page 512

point was only in connection with matter other than the murder charge upon which the convictions herein were based. From this time until about 7:00 a. m. each defendant was questioned separately, about this crime and other matters, at first by the Syracuse officers and from about 3:00 a. m. by Buffalo officers led by Detective Sergeant Fitzgibbons. The procedure during these interrogations was for one man to do the questioning seated in front of the defendant with a large number of officers standing all around him. Some officers were uniformed, some were not. Most if not all of the questioning was done by Detective Sergeant Fitzgibbons after 3:00 a. m. and prior to that by either Deputy Chief John A. Kinney or by Inspector Fred Arnold, both of the Syracuse Police Department. During all of these interrogations from 2:30 p. m. on Friday until approximately 7:00 a. m. on Saturday, the defendants were kept handcuffed. During the short periods when not being questioned after 6:00 p. m., each [48 Misc.2d 553] defendant was removed to the cell block and placed in an unlighted cell of small size described by various witnesses as 5 or 6 feet wide and 8 or 10 feet long with a suspended board type cot and with limited toilet facility at one end. They were each brought up for interrogation several times during the evening. The defendant Augello in final interrogation was questioned by Detective Sergeant Fitzgibbons from 3:00 a. m. to about 5:15 or 5:30 a. m. at which time he signed a confession prepared during the interrogation by a police typist. The defendant Berman was then interrogated by Detective Sergeant Fitzgibbons and signed a confession at about 6:30 or 7:00 a. m. Saturday, January 15. The wives of both defendants were detained in the matron's room during all of this period. Although each defendant saw his wife in the hall or through a door window on one or more occasions between interrogations the defendant Berman did not talk to his wife until after he signed the first statement about 7:00 a. m. on the 15th. The defendant Augello saw and spoke to his wife momentarily at about 7:00 p. m. and again about 8:00 p. m. on the 14th but she did not visit with him at length until he signed the statement at about 5:15 a. m. on the 15th. This was verified by the testimony of Inspector Arnold of the Syracuse Police Department and others. Augello had been married about four months at the time of apprehension and Berman for only six days. Neither defendant had any food from about 7:00 a. m. on the 14th until after the statements were signed on the 15th. They were offered neither food nor water from the time of their apprehension on the 14th until after they signed the first statements when they were given a light breakfast. (P. 531 trial testimony and P. 351 Huntley hearing). A second statement was taken later that day without any lunch from noon to 2:30 p. m. at the office of the District Attorney of Onondaga County. The defendants and their wives left about 4:30 p. m. January 15, 1944, for Buffalo and arrived at Buffalo, N. Y. about 10:00 p. m. at which time the wives were released from custody and cautioned not to leave the city. The defendants

Page 513

were offered supper en route to Buffalo. Augello testified he was, however, still too sick to eat. The defendants were at no time prior to arraignment advised of any right to counsel, they were not advised they did not have to answer questions or that their statements might be used against them on a trial of the issue or that they could consult with any friend or relative. They were not arraigned until Monday, January 17 at 10:00 a. m. in Buffalo City Court. The police officers uniformly testified there was no threats used, no promises made, no one struck any of the...