People v. O'Hara

• Citation: 53 Misc.2d 293,278 N.Y.S.2d 500
• Parties: The PEOPLE of the State of New York, Plaintiff, v. John O'HARA, Defendant.
• Decision Date: 05 January 1967
• Court: New York County Court

Page 500

278 N.Y.S.2d 500

53 Misc.2d 293

The PEOPLE of the State of New York, Plaintiff, v. John O'HARA, Defendant.

Westchester County Court.

Jan. 5, 1967.

ROBERT J. TRAINOR, Judge.

The defendant, John O'Hara, together with John Simmons and Thomas Stack, was indicted by the Grand Jury of Westchester County on December 12, 1947, for Murder in the First Degree, allegedly committed in the City of Yonkers, New York, on December 1, 1947.

On November 19, 1948, after a trial before Honorable Elbert T. Gallagher and a jury, a verdict of guilty of Murder in the First Degree (felony murder) was returned against all three defendants, with the jury's recommendation that the defendants be imprisoned in a State prison for the term of their natural lives and, on December 13, 1948, this defendant was so sentenced.

By virtue of the decision in People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179, the defendant filed a petition with this court, in the nature of a writ of error coram nobis, and demanded a hearing with respect to the voluntariness of three certain statements allegedly made by him and offered into evidence against him at his trial. An earlier filed petition also requested that the judgment of conviction be vacated on the ground that the district attorney wilfully and knowingly suppressed material evidence with respect to the defendant's arraignment before the City Judge of Yonkers, sitting as a magistrate, and that thus deprived the defendant of due process of law as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution.

A hearing to consider both petitions was granted, much testimony was taken and voluminous exhibits were received in evidence.

The determination depends upon whether the defendant's alleged confessions were involuntary As a matter of law. The basis for this contention is that all three statements were made post-arraignment (all three after 'arraignment' before Coroner Squires, and the third one after the arraignment before Judge Fay) and thus are involuntary on the authority of People v. Meyer, (1962) 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103, which held that a statement taken from a defendant After arraignment but before indictment (which is the case here) was inadmissible as a matter of law. The resolution of this contention requires a brief review of the law as it existed prior to the Meyer case.

In People v. Spano (1958) 4 N.Y.2d 256, 173 N.Y.S.2d 793, 150 N.E.2d 226, the defendant argued that inasmuch as his confession had been exacted from him after indictment and in the absence of his attorney, it was a violation of his constitutional rights under the Fourteenth Amendment. Our Court of Appeals rejected this contention and found the confession to be admissible. The United States Supreme Court reversed the conviction, Spano v. People of State of New York, (1959) 360 U.S. 315, 320, 79 S.Ct. 1202, 1205, 3 L.Ed.2d 1265, but it held the confession Inadmissible on the traditional ground of coercion in fact; it did not pass upon the defendant's contention that the confession was inadmissible because made post-arraignment:

'Petitioner's first contention is that his absolute right to counsel in a capital case, Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, became operative on the return of an indictment against him, for at that time he was in every sense a defendant in a criminal case, the grand jury having found sufficient cause to believe that he had committed the crime. He argues accordingly that following indictment no confession obtained in the absence of counsel can be used without violating the Fourteenth Amendment. He seeks to distinguish Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448, and Cicenia v. Lagay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523, on the ground that in those cases no indictment had been returned. We find it unnecessary to reach that contention, for we find use of the confession obtained here Inconsistent with the Fourteenth Amendment Under traditional principles.' (P. 320, 79 S.Ct. p. 1205, italics supplied.)

The question next reached our Court of Appeals in People v. Di Biasi (1960), 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825. In that case, after indictment, the defendant had been surrendered to the police by his attorney and, thereafter, in the absence of his attorney, the police obtained a confession from him. The same argument was raised as in Spano. In Di Biasi, a majority in the Court of Appeals reversed its holding in Spano. Chief Judge Desmond, (who had been a dissenter in Spano) wrote the prevailing opinion wherein, in referring to the opinion of the United States Supreme Court in Spano, he stated that that court had thrown out the confessio on traditional grounds and, as to the other contention:

'The Supreme Court majority, therefore, did not directly decide that question.' but '* * * we do not think we are concluded by this court's decision in Spano. We think this questioning was a violation of this defendant's constitutional rights and that the admission in evidence, over objection, of his admissions made during that questioning after indictment and surrender for arraignment who so gross an error as to require reversal, regardless of any other question in this case' (Pp. 550--551, 200 N.Y.S.2d p. 25, 166 N.E.2d p. 828, italics supplied).

Thus, in 1960, lacking any pronouncement of the United States Supreme Court as authority, our Court of Appeals, For the first time itself assumed the responsibility of declaring their holding in Di Biasi to be the law, As of then, 1960. There is no express statement, nor any intimation, that this holding is to be given retroactive effect. Nor have we been able to find any case, earlier than Di Biasi, holding that a post-indictment confession made in the absence of an attorney is inadmissible for that reason only. In his dissenting opinion in Di Biasi Judge Dye said, referring to Spano, page 555, 200 N.Y.S.2d page 29, 166 N.E.2d p. 831:

'Thus a majority in the Supreme Court refused to consider the contention that a defendant's confession, made after indictment but before arraignment, is inadmissible solely on the ground that it was given in the absence of his attorney.'

Di Biasi was a capital case. The following year the Court of Appeals decided People v. Waterman, (1961) 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445, and extended its Di Biasi holding to a non-capital case. Then came People v. Meyer, (1962) 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103, upon which the argument of the defendant herein must, in our opinion, stand or fall. Meyer extended the Di Biasi and Waterman holding still further by ruling involuntary and Inadmissible as a matter of law, a statement taken from a defendant After his Arraignment but before indictment. Di Biasi and Waterman refer to After indictment but before arraignment, whereas Meyer relates to After arraignment but before indictment. This would sound like double talk in reverse unless we bear in mind that the arraignment in Di Biasi and Waterman has reference to an arraignment under Section 296, Code of Criminal Procedure, after indictment, whereas the arraignment referred to in Meyer is the one under Section 188, Code of Criminal Procedure, after arrest but Before indictment. The Meyer case does not expressly state, nor does it intimate, that its holding is to be given retroactive effect, and no earlier case has been called to our attention which accords with Meyer. It seems to us incontrovertible that Di Biasi, Waterman and Meyer established principles of law not theretofore recognized as such in New York State, and while it is possible that those principles might have been made applicable to cases still in the appellate stage as of the dates of the respective decisions, we can find no authority which holds them otherwise retroactive so as to include a final judgment rendered in 1948. I have read People v. Augello, 48 Misc.2d 550, 265 N.Y.S.2d 509. This recent case found a 1944 confession to be involuntary in fact, on traditional grounds, and thus has no influence or significance in view of our findings that the confessions herein were not in fact coerced.

Two other cases have been cited to me by the defendant as authority for the proposition that post arraignment statements in the absence of counsel are involuntary as a matter of law and thus must be held to be inadmissible. One is a case...