United States v. McMann

• Citation: 236 F. Supp. 592
• Decision Date: 23 December 1964
• Docket Number: Civ. No. 10437.
• Parties: UNITED STATES of America ex rel. Nicholas DiBLASI, Petitioner, v. Hon. Daniel McMANN, Warden of Clinton Prison, Dannemora, New York, Respondent.
• Court: U.S. District Court — Northern District of New York

236 F. Supp. 592

UNITED STATES of America ex rel. Nicholas DiBLASI, Petitioner, v. Hon. Daniel McMANN, Warden of Clinton Prison, Dannemora, New York, Respondent.

Civ. No. 10437.

United States District Court N. D. New York.

December 23, 1964.

Anthony Marra, New York City, for petitioner.

Joshua N. Koplovitz, New York City, of counsel.

Ben Vinar, New York City, of counsel.

JAMES T. FOLEY, Chief Judge.

This petition presents the claim that every judge with any experience in criminal trials might have placed against him. It is that a decision by him on the scene and under trying circumstances that must be made quickly in the interests of the administration of justice is challenged at least by inference with the infallibility of hindsight we always assume as having been intemperately, impatiently or incorrectly made. The petition, drawn by competent counsel, asserts violation of Fourteenth Amendment constitutional right "in that before his trial began and before a jury was selected petitioner requested but was denied the right to conduct his own defense without the aid of counsel. Although petitioner explicitly and emphatically complained to the trial judge that he had no confidence in his assigned counsel and asked that such counsel be discharged, the Court nonetheless insisted that petitioner's defense be conducted by said assigned counsel and refused to permit petitioner to dispense with counsel and conduct his own defense." No position could be more plainly and strongly stated in detail except, in my judgment, failing support by record or reference, these statements are purely conclusory.

Justice Harlan, dissenting in Fay v. Noia, 372 U.S. 391, 469, 83 S.Ct. 822, 9 L.Ed.2d 837, noted that the federal habeas corpus writ may be turning into a roving commission of inquiry, and there is little question in my mind that is what it has become. In this situation, the home made method of inquiry in habeas corpus was adopted which is speedier and less time-consuming. Instead of issuing the statutory order to show cause, by letter I requested Attorney Koplovitz to furnish copies of appellate briefs filed in New York. Photostats of such were furnished and shall be filed with the Clerk of the Court with this decision. Assistant District Attorney Siegel of Kings County, as he has done countless times, furnished the minutes of the trial upon request. Such shall be returned to the office of the District Attorney of Kings County to be kept available for use upon the inevitable appeal.

The petitioner was convicted after trial with a co-defendant in Kings County Court held on January 10, 11, 1963, of burglary third degree and petit larceny, and sentenced to an indeterminate term of 5-10 years on the burglary conviction, with suspension of sentence on the petit larceny conviction. The conviction was affirmed, no opinion. (21 A.D.2d 964). The petition alleges Judge Fuld denied leave to appeal October 27, 1964. The colloquy that points up the problems facing the trial judge, the background of representation by lawyers and the position of the defendants on the day the trial was to commence are in the beginning of the trial minutes. Such discussions and other material statements made later as to representation and dissatisfaction with counsel are contained in full in the Respondent's brief now filed with this decision.

I am unable to ascertain from the record any direct statement that supports the claim that this petitioner unequivocally requested his right to defend himself without the assistance of counsel. The only thing I find is expressed dissatisfaction by DiBlasi, the petitioner, with his lawyer, but this, in my view, was done in an atmosphere that the trial...