United States v. Murphy

• Decision Date: 23 October 1959
• Docket Number: Civ. No. 7280.
• Citation: United States v. Murphy, 184 F.Supp. 384 (N.D. N.Y. 1959)
• Parties: UNITED STATES of America ex rel. Gerard DENNIS, Petitioner, v. Robert E. MURPHY, Warden of Auburn State Prison, Respondent.
• Court: U.S. District Court — Northern District of New York

184 F. Supp. 384

UNITED STATES of America ex rel. Gerard DENNIS, Petitioner, v. Robert E. MURPHY, Warden of Auburn State Prison, Respondent.

Civ. No. 7280.

United States District Court N. D. New York.

October 23, 1959.

Irving Birnbaum, Syracuse, N. Y. (assigned), for petitioner.

Louis J. Lefkowitz, Atty. Gen. of New York (Raymond B. Madden, Asst. Atty. Gen., of counsel), for respondent.

BRENNAN, Chief Judge.

The petitioner is a state court prisoner presently confined under seven concurrent sentences of from eighteen years to life, imposed by a state court in Westchester County on July 7, 1949. In accordance with the provisions of Section 1943 of the Penal Law of the State of New York, McKinney's Consol.Laws, c. 40, an information was filed indicating fourteen previous convictions of the petitioner in Canada. These convictions were apparently used in the state court as a basis for the imposition of the above sentences as a fourth felony offender.

On September 22, 1958, petitioner's application to this court for a writ of habeas corpus, which in effect attacked the use of said Canadian convictions as a basis for increased punishment in the state court, was denied and a memorandum decision was filed. The denial was based primarily upon the rejection of the petitioner's contention that the New York State statute was unconstitutional as the Canadian convictions were applied thereto. Application for relief was made to the Circuit Court of Appeals, 2 Cir., 265 F.2d 57, 58. That court held that the use of a Canadian conviction presented no federal question. The decision however made a further holding in this language —"However, a liberal reading of the petition to the district court shows that it fairly raises factual issues of denial of due process in connection with the Canadian convictions, and, the district court should have further examined these claims". The proceeding was accordingly remanded to this court for a hearing, which has now been held.

The only allegation found in the petition which raises factual issues of denial of due process appears on page 2 thereof. "These convictions occurred in Police Magistrates' Courts, without petitioner having the assistance of counsel, the offer of assistance of counsel, or any sort of legal counseling from the Police Magistrates, and without petitioner having a clear understanding of statutory wordings or consequences of guilty pleas, beyond the understanding that he would receive less than one year imprisonment upon each plea". The Circuit Court apparently felt that the above allegations were sufficient to raise a constitutional question although there are no allegations of prejudice to the petitioner by reason of youth, education or experience. There are no allegations of overreaching on the part of the Canadian authorities. Upon the hearing however evidence, concerning all of the above, was received since it was indicated that a liberal interpretation and application of the above allegations should be made.

The fourteen convictions, referred to in the information filed by the District Attorney, and which were apparently used as the basis for the sentences imposed in the state court, are set out below in chronological order.

1. September 18, 1936. Police Magistrates' Court, Town of Brockville. Breaking and entering by night a garage and stealing a car therefrom. Sentence, one year.

2. September 7, 1937. Police Magistrate, City of Toronto. Breaking and entering dwelling house and stealing certain items. Sentence, one year.

3. September 7, 1937. Police Magistrates' Court, City of Toronto. Breaking and entering dwelling house and stealing items therefrom. Sentence, one year.

4. September 7, 1937. Police Magistrate, City of Toronto. Breaking and entering dwelling house and stealing items therefrom. Sentence, one year.

5. September 7, 1937. Police Magistrate, City of Toronto. Breaking and entering dwelling house with intent to commit an indictable offense—to wit; theft. Sentence, one year.

6. September 13, 1937. Police Magistrate, City of St. Catharines. Breaking and entering dwelling house and committing indictable offense of theft. Sentence, one year.

7. September 13, 1937. Police Magistrate, City of St. Catharines. Breaking and entering dwelling house with intent to commit an indictable offense. Sentence, one year.

8. March 4, 1941. Police Magistrate, County of Lincoln, Ontario, Canada. Breaking and entering dwelling house by night with intent to commit the indictable offense of theft. Sentence, one year and 364 days.

9. March 4, 1941. Police Magistrate of Lincoln County, Ontario. Breaking and entering by night dwelling house

with intent to commit the indictable offense of theft. Sentence, one year and 364 days.

10. March 4, 1941. Police Magistrate of Lincoln County, Ontario, Canada. Breaking and entering by night dwelling house and committing therein indictable offense of theft. Sentence, one year and 364 days.

11. March 4, 1941. Police Magistrate, County of Lincoln, Ontario, Canada. Breaking and entering by night dwelling house and committing therein indictable offense of theft. Sentence, one year and 364 days.

12. October 21, 1943. Police Magistrate, City of Toronto. Breaking and entering dwelling house and committing therein the indictable offense of theft. Sentence, two years less one day.

13. October 21, 1943. Police Magistrate, City of Toronto. Breaking and entering dwelling house and stealing items therefrom. Sentence, two years less one day.

14. October 21, 1943. Police Magistrate, City of Toronto. Crime of administering to a woman, or caused to be taken by her, a drug or noxious thing etc. with intent to procure her miscarriage. Sentence, two years less one day.

By a coram nobis proceeding, instituted in the state court in 1952, the petitioner sought to establish that each of the above convictions would not be a felony if committed within the State of New York and therefore were improperly used as the basis for his sentence as a fourth felony offender. The application was denied upon the finding that the seventh, eighth and fourteenth convictions, referred to above, were properly used as the basis for such increased punishment. (People v. Dennis, Co.Ct., 126 N.Y.S.2d 710, affirmed 282 App.Div. 747, 122 N.Y.S.2d 909). Although the holding of the court in the above proceeding does not clearly indicate that the remaining eleven convictions would not be felonies if committed in the State of New York, it is apparent that the decision was so construed by the State of New York. This appears in the brief of the State submitted on an appeal to the Appellate Division, Fourth Department, in 1955. This appeal apparently involves a habeas corpus proceeding later instituted by the petitioner. The brief refers to the decision in People ex rel. Stevens v. Jackson, 283 App.Div. 3, 125 N.Y.S.2d 905 as the basis of the court's opinion in...