People v. Webster

• Decision Date: 25 August 1965
• Citation: 47 Misc.2d 487,262 N.Y.S.2d 930
• Parties: The PEOPLE of the State of New York v. Frank H. WEBSTER, Defendant.
• Court: New York Supreme Court

Page 930

262 N.Y.S.2d 930

47 Misc.2d 487

The PEOPLE of the State of New York v. Frank H. WEBSTER, Defendant.

Supreme Court, Ontario County.

Aug. 25, 1965.

Max Cohen, Sp. Dist. Atty., for the People.

Frank H. Webster, in pro. per., and L. Edward Monaghan, Cananduigua, foe defendant.

ALTON J. WIGHTMAN, Justice.

The defendant was convicted of Murder in the First Degree in the Supreme Court of Ontario County, New York on June 22, 1951 and thereafter sentenced to life imprisonment. No appeal was taken from the judgment of conviction and now, some 13 1/2 years later, he has commenced this coram nobis proceeding. He is challenging the voluntariness of a written confession and admissions used against him on the trial, and is also contending that he was denied an opportunity to see or speak to any member of his family or to an attorney; that he was not apprised of his right to counsel before making a statement and confession; that he was forced to make long trips outside the County of Ontario handcuffed to police officers and without counsel, in order to obtain identification of him and procure further evidence against him; that he was continually beaten and abused, intimidated and threatened by the police during questioning; that there was delay in his arraignment; that he was arraigned without counsel; that following his sentence the officers at the Elmira Reception Center, Elmira, New York denied him an opportunity to file a timely notice of appeal and to contact his court-assigned counsel; and that his court-assigned counsel failed to take an appeal in his behalf.

The hearing in this proceeding was held in two parts. The first part considered the voluntariness of the confession and admissions, concerning which the burden of proof was upon The People and upon which the Court is required to make findings of fact and conclusions of law (Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179). The second part considered the remaining allegations of the petition, the burden of proof being upon the defendant. The charges against the defendant resulted from the murder of Charles Lennox during the evening of December 5, 1950. The defendant was apprehended by Otis Smith, an officer of the Utica, New York police department on December 7, 1950 at about 6:30 P.M. at the Union Station in Utica, New York. He was handcuffed and taken to the police station, where he was asked routine question: i. e., 'booked', and placed in a cell. Anthony Cecere, County Detective for Ontario County, arrived at the police station on December 7 at about 10 P.M. The defendant was brought in and seated across a desk from Detective Cecere and he was questioned concerning the murder. During this questioning the defendant became ill; a doctor was called and he was taken by ambulance to a hospital and then transferred to another hospital, where he was confined until the following day, December 8, 1950 at about ten o'clock A.M., when he was discharged. He was then taken from the hospital by Detective Cecere and other officers to the State Police Barracks at Oneida, New York where he was fingerprinted and photographed, and then taken to the State Police Headquarters at Canandaigua, New York, and from there to the District Attorney's office at Canandaigua, New York, where they arrived at about 3:35 P.M. Detective Cecere was with the defendant substantially all this time and had conversations with him and questioned him. Some time before four o'clock P.M., a stenographer was called in, and between 4 P.M. and 5:58 P.M. on December 8, 1950 a question-and-answer statement consisting of 13 pages was taken and reduced to writing and signed and sworn to by the defendant, which statement or confession was received in evidence upon the trial and marked 'People's Exhibit 48' (Ex. 18 in this proceeding). Upon this hearing many witnesses were produced who saw and observed the defendant from the time he was arrested in Utica, New York until after the confession, Exhibit 48, was completed, and testified concerning the treatment of the defendant during this time. The evidence establishes that there was no undue delay in arraignment and, in any event, such delay as did occur did not render the confession involuntary (People v. Everett, 10 N.Y.2d 500, 225 N.Y.S.2d 193, 180 N.E.2d 556; People v. Lane, 10 N.Y.2d 347, 223 N.Y.S.2d 197, 179 N.E.2d 339; People v. Scully, 4 N.Y.2d 453, 176 N.Y.S.2d 300, 151 N.E.2d 861). The evidence further establishes, beyond a reasonable doubt, that the defendant was not abused, beaten, intimidated, threatened or coerced in any manner; that he received fair and considerated treatment; that he cooperated with the police officers and willingly and voluntarily related the details concerning the murder, and willingly and voluntarily made, signed and swore to the confession, Exhibit 48. Prior to making oral admissions which resulted in the making of the written confession, the defendant made no request to see or talk with an attorney or any member of his family, and he was advised of his privilege to remain silent. The confession, Exhibit 48, with the inculpatory statements contained therein, made prior to defendant's arraignment or indictment, was properly admitted in evidence (People v. Gunner, 15 N.Y.2d 226, 257 N.Y.S.2d 924, 205 N.E.2d 852).

After the confession was signed, and on December 8, 1950, the defendant was taken to the home of Warren Smithem, a Justice of the Peace of the Town of Hopewell, where an information was signed and the defendant was arraigned on the charge of Murder in the First Degree.

The real problem in this case concerns the admissibility of photographs, Exhibits 33 through 46, and the testimony of Detective Cecere of admissions made by the defendant concerning the subject matter of the photographs. After defendant was arraigned, Detective Cecere, accompanied by other officers, 'to determine the truth' of the items contained in the written confession, on December 9 and 11, 1950 and and January 5, 1951, took the defendant to various places mentioned in the written confession. There the defendant was asked to make certain identifications. Photographs, Exhibit 33 through Exhibit 46, were taken of the defendant demonstrating such identifications. The defendant argues that this post-arraignment evidence, in the light of several Court decisions handed down since the trial in this case, was not admissible as a matter of law (People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103; People v. Waterman, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445; People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825; People v. Santmyer, 20 A.D.2d 960, 249 N.Y.S.2d 555 (4th Dept.)).

In this case, however, the defendant could have objected to the receipt of such testimony and of the photographs and could thereby have fully protected his rights. No objections were made to the testimony of Detective Cecere, and as each photograph was offered in evidence defendant specifically stated that he had no objection to the photographs being received in evidence. Under such circumstances the question could not be raised by coram nobis (People v. Howard, 12 N.Y.2d 65, 236 N.Y.S.2d 39, 187 N.E.2d 113). In that case the Court of Appeals reviewed the principles governing the use of coram nobis and it held coram...