United States ex rel. Spero v. Wenzel, 75 C 324.

• Decision Date: 03 July 1975
• Docket Number: No. 75 C 324.,75 C 324.
• Citation: 397 F. Supp. 597
• Parties: UNITED STATES of America ex rel. William Aaron SPERO, Petitioner, v. Henry G. WENZEL III, District Attorney of the County of Suffolk, Respondent.
• Court: U.S. District Court — Eastern District of New York

397 F. Supp. 597

UNITED STATES of America ex rel. William Aaron SPERO, Petitioner, v. Henry G. WENZEL III, District Attorney of the County of Suffolk, Respondent.

No. 75 C 324.

United States District Court, E. D. New York.

July 3, 1975.

William A. Spero, pro se.

Henry G. Wenzel, III, Dist. Atty., of Suffolk County, N. Y., Ronald E. Lipetz, Riverhead, N. Y., of counsel, for defendant.

MEMORANDUM AND ORDER

BRAMWELL, District Judge.

William A. Spero, petitioner in this habeas corpus action, pleaded guilty in state court to Forgery in the second degree and attempted grand larceny in the third degree. As a result, he was placed on probation for a period of five years, beginning in December 1972. Thereafter, on April 2, 1974 petitioner was charged with violating the terms and conditions of his probation. A hearing on these charges was held on April 29-30, 1974, where it was determined that Spero had violated the terms of his probation. As a result, the court revoked petitioner's probation and sentenced him to a term of one year for each previous conviction to be served consecutively. Spero then appealed to the Appellate Division, Second Department, contending that the evidentiary standards employed at the probation revocation hearing resulted in a deprivation of his constitutional rights. On November 25, 1974 that court affirmed without opinion the determination which resulted from the revocation hearing. People v. Spero, 46 A.D.2d 805 (2d Dept. 1974). On February 20, 1975 the New York Court of Appeals denied Spero leave to appeal. Having exhausted his state remedies, Spero has now petitioned this court on a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging that he is being unlawfully detained at the Suffolk County Jail in violation of the Fourteenth Amendment guarantee of due process of law and the Sixth Amendment right of a criminal defendant to be confronted with the witnesses against him.

The probation revocation hearing complained of by petitioner was held pursuant to and in basic accordance with the New York statutory scheme.¹ An examination of the record of Spero's hearing discloses that he was represented by counsel, exercised the right to cross-examine the one witness relied on by the prosecution, testified in his own behalf, and that no legally privileged evidence was used against him. Upon a preponderance of the evidence, the Judge found Spero to be in violation of the terms of his probation. However, petitioner asks that we do not end our inquiry here. It is his contention that the use of hearsay evidence at a probation revocation hearing is constitutionally impermissible in that the determination reached could result in the defendant's incarceration. After reviewing the entire record of the probation hearing this Court has found a sufficient amount of relevant, competent, nonhearsay evidence to warrant a finding that petitioner violated a condition of probation.

Accordingly, petitioner's motion is denied. Nonetheless, this Court's concern with the dangers inherent in the use of unlimited hearsay at such a vital stage of the criminal proceeding compels a further consideration of this practice.

The charge against the petitioner alleged that he:

1. Left the jurisdiction without the permission of his probation officer;

2. Failed to report to his probation officer as ordered;

3. Engaged in injurious and vicious habits, including:

a. Failure to return, by the date specified in the contract, an automobile rented in Delaware b. Failure to return a hauling truck rented in Delaware by the date specified in the rental contract;

c. Issuance of a bad check in the amount of $74.99 in violation of N.Y. Penal Law § 190.05 (McKinney's Consol. Laws, c. 40, 1967);

d. Issuance of a bad check in the amount of $48.57 in violation of 11 Del. C. § 900(2) (1953);

e. Failure to appear to answer a traffic ticket for an uninspected automobile; and

f. Withholding payments of rent due while receiving financial assistance from the Department of Social Services;

4. Failed to truthfully answer a reasonable inquiry by his probation officer regarding the rented automobile.

The only witness for the People's case was petitioner's probation officer. From his personal knowledge he testified that Spero left the jurisdiction without permission. (R at 9) Upon cross-examination it was revealed that the officer, Mr. Rehr, discussed Spero's intended move to Delaware with petitioner and had signed the papers granting permission in Spero's presence. However, Rehr insisted that he instructed petitioner not to depart until a "bad check" charge was cleared up. Later, on direct examination, Spero testified to another version of this conversation. It was Spero's belief that the signing of the papers constituted permission to leave for Delaware where he had procured a good job.

The probation officer also testified that on one occasion petitioner failed to report as required. (R at 20) On direct examination Spero explained that he had packed his belongings and prepared his entire family for the trip back to New York but could not get gasoline because of the shortage at that time. (R at 103)

In addition, the original copy of an automobile rental agreement was placed into evidence by the officer. (R at 35) The contract revealed that the car was to be returned on February 18, 1974. Mr. Rehr testified to having seen petitioner's wife in that same automobile, parked in front of the court house on March 25, 1974, moments after petitioner had denied having had any knowledge of such a car.

This evidence was properly received and would have been competent at any criminal fact-finding proceeding. It is sufficient to warrant a finding that petitioner violated the terms of his probationary sentence. However, the remainder of petitioner's record illustrates the serious perils a defendant may be exposed to at this critical stage of the criminal process. Although the problem has been recognized by some courts,² little has actually been done to assure that the evidentiary practices at such hearings conform to constitutional requirements. A renewed consideration of this problem, as illustrated by the case at bar, may serve to shed light upon this neglected area of the law.

Six of the nine major charges made by the witness against petitioner Spero were based entirely upon hearsay and double hearsay allegations. (R at 15-19, R at 21-60) Spero's counsel strenuously and repeatedly objected to the prosecution's reliance upon such evidence, reminding the court that his client's liberty was in jeopardy. He insisted that it was impossible to cross-examine the witness in a manner which would enable the court to ascertain the truth. Petitioner's counsel further stressed that the use of such evidence constituted a deprivation of due process of law to his client. (R at 21) The Judge, without addressing himself to the constitutional questions, decided that the intent of the legislature when enacting N.Y.Criminal Procedure Law § 410.70(3) (McKinney 1971) was to permit the introduction of any relevant evidence, including hearsay. (R at 32) Accordingly, the probation officer was permitted to enter into evidence a variety of hearsay statements.³

The shoddy caliber of this evidence, which indeed was relied upon in reaching the finding of facts resulting in petitioner's incarceration, is alarming indeed. Although there was a residuum of legal evidence found in the record, this Court is of the belief that the informal proceeding employed here invites abuses rising to constitutional dimensions. See Matter of Caroll v. Knickerbocker Ice Co., 218 N.Y. 435, 113 N.E. 507 (1916).

In Goldberg v. Kelley, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) the Supreme Court provided guidelines to aid in the determination of whether the required standards for procedural due process have been met in a given situation. It was explained that:

Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action.

Goldberg v. Kelley, supra 397 U.S. at 262-263, 90 S.Ct. at 1018.

At one time it was alleged that the interest of a probationer in the continuance of a probationary sentence was not sufficient to warrant the protection of due process.⁴ However, by this time the principle has been well established that the Fourteenth Amendment guarantee assuring that no person shall be deprived of his liberty without due process of law is applicable to probation revocation. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). The precise governmental function to be performed at such a hearing is the determination of whether a man can continue to live in freedom or whether he will be confined to prison; thus the interest of the probationer in preserving his liberty is of the highest order.

Because the "private interest" of the petitioner is a key to the determination of the necessary extent of due process protection, it is important to distinguish between the interests which are at stake at the various types of post conviction hearings. The Supreme Court in Mempa v. Rhay, supra, recognizing the necessity for counsel at a proceeding for revocation of probation, held that the appointment of counsel for an indigent is required at every stage of a criminal proceeding where any substantial right of a defendant may be affected. The holding there applies only to a situation, such as the one at bar, where sentencing for the underlying crime is deferred until probation is revoked. This type of hearing requires greater protection than a second kind of probation revocation hearing at which the defendant receives a sentence which was previously determined at his trial but held in abeyance until the sentence of probation has been revoked. At such a revocation hearing, where the...