United States ex rel. Testamark v. Vincent, 636

• Citation: 496 F.2d 641
• Decision Date: 08 May 1974
• Docket Number: Docket 73-2614.,No. 636,636
• Parties: UNITED STATES of America ex rel. Louis TESTAMARK, Petitioner-Appellee, v. L. J. VINCENT, Superintendent, Green Haven Correctional Facility, Stormville, New York, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

496 F.2d 641 (1974)

UNITED STATES of America ex rel. Louis TESTAMARK, Petitioner-Appellee, v. L. J. VINCENT, Superintendent, Green Haven Correctional Facility, Stormville, New York, Respondent-Appellant.

No. 636, Docket 73-2614.

United States Court of Appeals, Second Circuit.

Argued November 30, 1973.

Decided May 8, 1974.

Lillian Z. Cohen, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of the State of New York, and Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for respondent-appellant.

L. Mifflin Hayes, New York City (Ralph K. Nickerson and Murray Allan Gordon, New York City, of counsel), for petitioner-appellee.

Before MOORE, HAYS and TIMBERS, Circuit Judges.

MOORE, Circuit Judge:

This is an appeal brought by the Attorney General of the State of New York on behalf of L. J. Vincent, Superintendent, Green Haven Correctional Facility (hereinafter the "State") from an order granting the application of petitioner, Louis Testamark (Testamark) for a writ of habeas corpus and directing that the State retry Testamark within 60 days or release him. For the reasons subsequently outlined, we reverse, direct that the petition be dismissed and the writ be denied.

The basis for the petition is petitioner's claim that upon his trial in the Supreme Court, New York County, in January, 1971, he was denied effective representation by counsel and, hence, deprived of a fair trial.

On December 24, 1969, Testamark entered a crowded liquor store, drew a gun and proceeded to take money from the cash register. The owner of the store, grabbed the weapon which discharged a shot into the ceiling, drew his own gun (for which he had a permit) and shot Testamark in the stomach. Testamark, after firing at the owner, fled despite his wound but was quickly captured.

On March 16, 1970, Testamark was arraigned and the Legal Aid Society was assigned to represent him. Shortly thereafter Mrs. Dorothy Cropper, an attorney for the Society, was assigned to the case. She visited Testamark in the Tombs, and took a statement. There is no claim that this statement did not disclose Testamark's version of the facts relating to the robbery or was in any way inadequate to enable a defense attorney to plan such defense, if any, as the facts warranted. On May 14, 1970, Testamark was indicted and on May 26th he was arraigned. Thereafter, Testamark's counsel endeavored to negotiate a mutually satisfactory plea bargain with the prosecutor but was unsuccessful. Defense counsel so advised the court when the case was called for trial.

Mrs. Cropper had originally agreed to set October 20th as the trial date.

Unfortunately, before that date Mrs. Cropper was injured and Mr. Edward Lipton of the Society was assigned to the case. On October 27th Lipton announced his readiness for trial. The case was marked "ready and passed." On October 30th Testamark appeared with counsel but the case was again passed to November 2nd on which date the record indicates that counsel conferred with Testamark and that he requested medical aid for him. On November 4th the court granted this request and Testamark was hospitalized.

The trial commenced on January 4, 1971. Testamark was convicted of Robbery, First Degree, Attempted Assault, Second Degree, Petit Larceny and Possession of a weapon as a Felony.

In granting the writ the District Court based its decision largely on an assumed inadequacy of preparation for trial by Testamark's counsel and counsel's failure "to develop any line of defense." Alleged failure to interview witnesses and to speak with hospital officials are also cited.

A brief review of the benefits of counsel received by Testamark is illuminating. Mrs. Cropper almost immediately conferred with Testamark and no suggestion is made that he did not disclose all the facts. Thereafter, both she and Lipton did what they could to bargain for a plea. From October 27th on, Lipton responded that he was ready for trial. Parenthetically, Lipton's current misgivings with respect to the adequacy of his preparation would seem to be in conflict with his court room representations of readiness. Absent proof, it cannot be presumed that these representations were false. Lipton personally visited the scene of the crime to prepare for cross-examination. The fact that he did not actually cross-examine at trial was the result of Testamark's demands. A Huntley hearing was held in advance of trial. Lipton moved for exclusion of witnesses which motion was granted. The facts will not support the conclusion that there was a total failure to prepare for Testamark's defense. Nor is there any indication in the trial record in the State Supreme Court that Testamark did not receive a fair trial. To the contrary, Legal Aid did all that it could under the circumstances.

Testamark makes much of the fact that he was not frequently visited by his counsel. The initial interview is conceded, another interview occurred on the eve of trial. He was before the court with counsel on various calendar calls and was aware of all plea bargaining efforts.

As the Appellate Division said when Testamark's case was on appeal:

Seldom has this court examined a record where the defendant\'s guilt is so clearly demonstrated.

People v. Testamark, 40 A.D.2d 645, 336 N.Y.S.2d 482 (First Dept. 1972)

The facts of the attempted robbery were not capable of contradiction. Testamark entered a crowded store with a gun, he was seen by many witnesses, he was wounded in an exchange of shots with the store owner and was immediately apprehended. As we recently said in United States v. Katz, 425 F.2d 928, 930 (1970), under somewhat similar circumstances:

there is not too much the best defense attorney can do.

See also United States ex rel. Crispin v. Mancusi, 448 F.2d 233, 234 (2d Cir.), cert. denied, 404 U.S. 967, 92 S.Ct. 346, 30 L.Ed.2d 288 (1971); United States ex rel. Marcelin v. Mancusi, 462 F.2d 36, 43 (2d...