On November 24, 1976, Robert Hedderman and Margaret Byron were found stabbed to death, their throats cut, in the Hedderman Religious Shop in Albany. Lemuel Warren Smith was questioned and released, and the case went unsolved for almost a year. By the fall of 1977 the evidence had begun to point back at him, and after he told his psychiatrist and a psychiatric social worker that he was willing to talk, he met with state police and prosecutors and made the statements that the courts would spend the next several years reviewing.
The six opinions collected here begin with a smaller case. In 1978 a Schenectady County judge, sitting without a jury, convicted Smith of kidnapping and robbery in the abduction of a woman in Schenectady, and sentenced him as a persistent felony offender; the Appellate Division affirmed in 1980. The Albany murder convictions came next, and the Appellate Division in 1982 and the Court of Appeals in 1983 both upheld them over dissents, rejecting his argument that his own lawyer’s advice had led him to give up his right to remain silent.
While he was serving those sentences at Green Haven Correctional Facility, Smith murdered Donna Payant, a corrections officer, in May 1981. He was convicted of first-degree murder in April 1983 and sentenced to death under a New York law that made death mandatory for a prisoner serving life who killed again. The Second Circuit’s opinion of November 16, 1984, concerns the conditions of his confinement in the prison’s unit for condemned persons, and upholds nearly all of them; the last opinion, from 1988, is a one-paragraph ruling on the procedure at a later sentencing.
The facts in these opinions come from the trial records and are stated as the courts found them; the dissents in 1982 and 1983 took a different view of how his statements were obtained. The Court of Appeals decision that struck down New York’s mandatory death penalty for prisoners serving life, and set aside his sentence for the Payant murder, is not part of this collection, and neither are the two further killings he was suspected of whose indictments were dismissed.
The six opinions are public records of the New York courts and the Second Circuit. Robert Hedderman, Margaret Byron and Donna Payant keep their names, as do the police, prosecutors, lawyers, judges, the psychiatrist, the social worker and the prison officials. We have given initials to the woman he was convicted of kidnapping in Schenectady and to two private witnesses in the Albany investigation.
The Caselaw Access Project text is printed complete. The 1983 opinion begins with the points of counsel, as the official New York Reports print them. The capture keeps a few scanning errors, among them “saxy” for “saw,” and they are left as they stand. We closed words split across lines only where the whole word appears elsewhere in the text.
The People of the State of New York, Respondent, v Lemuel W. Smith, Appellant.
Appeal from a judgment of the County Court of Schenectady County, rendered August 30, 1978, convicting defendant of the crimes of robbery in the second degree and kidnapping in the second degree. The defendant was indicted for the crimes of robbery in the first degree and kidnapping in the second degree. After a trial before the court without a jury, he was found guilty of kidnapping in the second degree and robbery in the second degree. He was sentenced as a persistent felony offender to concurrent indeterminate terms of imprisonment of 25 years to life. This appeal ensued and defendant raises several issues urging reversal. The record reveals that about noontime on August 19, 1977 defendant entered the law office where the victim worked and at gun point robbed her of $35. He then forced her at gun point to enter her car and drive him to Saratoga Springs, where they arrived approximately four hours later. Again at gun point, he directed her to enter a house where he raped her. Thereafter, at about 10:30 p.m., he forced her to drive him to Colonie, where he was apprehended at about 12:15 a.m. on August 20, 1977. On March 6, 1979 he entered a plea of guilty in Saratoga County to the crime of rape in the first degree. The sole defense offered at the instant trial was of mental disease or defect. Defendant contends that the kidnapping was incidental to the rape and, therefore, the merger doctrine, as enunciated in People v Levy (15 NY2d 159), applies, mandating a reversal and vacating of the sentence imposed. We disagree. The record demonstrates that three distinct crimes were committed: robbery, kidnapping and rape. In our view, the kidnapping was unnecessary for the commission of the rape that occurred several hours later (People v Shay, 60 AD2d 698). It is most significant that after the rape, the victim was forced to drive defendant to Colonie, where defendant was apprehended when the police stopped the car the victim was operating and in which defendant was a passenger. Furthermore, from the time the victim was abducted at gun point until the defendant was apprehended, she was continually, uninterruptedly and forcibly restrained by defendant. We also reject defendant’s contention that it was reversible error for the court to fail to inform defendant that it would consider lesser included offenses of robbery in the first degree. While the court did not strictly comply with CPL 320.20 (subd 5), considering the record in its entirety we are of the view that the error was harmless (People v Crimmins, 36 NY2d 230). Defendant had based his defense on the theory of mental disease or defect, and it cannot be convincingly argued that defendant, on the facts, of this case, was denied his right to an effective summation (People v Chapman, 60 AD2d 584). We have also considered all of the other arguments advanced by defendant and find them unpersuasive. There must be an affirmance. Judgment affirmed. Mahoney, P. J., Sweeney, Kane, Staley, Jr.,-and Casey, JJ., concur.
The People of the State of New York, Respondent, v Lemuel Smith, Appellant.
Third Department,
July 29, 1982
APPEARANCES OF COUNSEL
Douglas P. Rutnik (Frank V. Bífera of counsel), for appellant.
Sol Greenberg, District Attorney (George H. Barber of counsel), for respondent.
[OPINION BY Yesawich, Jr., J. type=majority]
OPINION OF THE COURT
Yesawich, Jr., J.
On November 24, 1976, the dead bodies of Robert Hedderman and Margaret Byron were discovered at the Hedderman Religious Shop in Albany. Both victims had been stabbed several times in the chest and their throats slit. An intensive investigation ensued. Several days later defendant Smith was questioned, but released. However, by the fall of 1977, evidence implicating Smith began to surface.
Meanwhile, in August, 1977, defendant, who was suspected of involvement in crimes in Schenectady and Saratoga Counties, was indicted by a Schenectady County Grand Jury for the kidnapping and attempted armed robbery of one M.M. On September 16, 1977, Sanford Rosenblum, defendant’s retained attorney, met with the District Attorneys of Schenectady, Albany and Saratoga Counties in an attempt to negotiate a plea bargain concerning crimes defendant had allegedly committed in all three jurisdictions, including Albany County homicides for which defendant had not yet been indicted. Rosenblum indicated defendant’s willingness to plead guilty in exchange for concurrent sentences of 25 years to life on all the charges. This offer was rejected. At the same meeting, in the interest of solving three homicides in his county, the Albany County District Attorney apparently agreed to underwrite the cost of continuing psychiatric assistance which Rosenblum had arranged for his client.
In March of 1978, defendant indicated to his psychiatrist that he was willing to talk to police about various crimes he had committed. Rosenblum agreed to allow defendant to be questioned under certain conditions. At that meeting, held March 5, 1978, it was stipulated that all present except Smith and his attorney were to be considered agents of the Schenectady County District Attorney’s office, and no information obtained at the meeting was to be disclosed without their written consent. The stipulation did allow the Albany County District Attorney, who was not present, to be informed of the general substance of defendant’s statements.
Defendant gave a lengthy statement recounting several murders he had committed, including those in the Hedderman Religious Shop. The following day, Rosenblum telephoned the Albany County District Attorney and informed him that Smith had made damaging admissions.
The Schenectady County case was tried in July of 1978 by the court without a jury, and Smith, despite skillful and thorough representation by his counsel, was found guilty. The defense theory that Smith was suffering from a mental disease or defect was supported by the testimony of Dr. Zvi Klopott, a psychiatrist. Dr. Klopott testified that defendant was suffering from a delusion that his brother John (who died in infancy) in effect lived within defendant and was responsible for the crimes defendant had committed. In detailing Smith’s psychiatric history, Dr. Klopott drew upon the statement given by Smith at the March 5, 1978 meeting, wherein he blamed “John” for the Hedderman and Byron murders.
Then, in October, 1978, the Albany County District Attorney’s office subpoenaed Dr. Klopott to testify before an Albany County Grand Jury. The transcript and tapes of the March 5 meeting were also subpoenaed, and Smith’s indictment for the November 24, 1976 killings followed.
The attempt by defense counsel (now the Albany County Public Defender) to suppress, inter alia, the transcript and tapes of the March 5 meeting was denied. Following a jury trial, in which the defense of mental disease or defect was again presented, defendant was convicted. He received consecutive sentences of 25 years to life for each murder.
Chief among defendant’s contentions on appeal is his assertion that the court erred in refusing to suppress the transcript of the March 5 meeting. He argues that his waiver of the right against self incrimination was the product of ineffective representation. He also maintains that these admissions were obtained by promises which the prosecution later failed to fulfill.
Whether a defendant’s counsel was adequate requires an analysis of the facts of each case (People v Aiken, 45 NY2d 394). Thus attorney Rosenblum’s actions on March 5,1978 must be viewed in light of the facts as they then existed. He was representing a predicate felon, facing the serious charges of kidnapping and robbery in a case where the prosecution’s proof was overwhelming and believable denial of his participation in the crime an impossibility. Moreover, he knew his client was a suspect in several brutal murders in the Albany area and that defendant sorely needed psychiatric help. In addition, Smith had shown a willingness to admit his guilt if he could be convinced it was he who was responsible, and not “John”.
These circumstances dictated the insanity defense. To develop this defense, the psychiatrist was obliged to testify concerning the history of defendant’s alleged delusion, which necessarily included defendant’s version of the various murders. But by allowing the psychiatrist to testify, defendant waived his physician-patient privilege (People v Bloom, 193 NY 1, 10; see, also, People v Edney, 39 NY2d 620; M. v State of New York, 88 AD2d 1087), exposing Smith to possible prosecution for several murders. However, foregoing the insanity defense in the Schenectady case would assure defendant’s conviction on serious charges, and being a prior felon he was certain to receive a substantial sentence. Moreover, this defense, if successful in the Schenectady case, could be utilized to enable defendant to avoid conviction for the Albany County crimes, including the Hedderman-Byron murders. At that point in time, other evidence that Smith had committed these slayings appeared substantial.
In view of all these considerations, defendant had essentially nothing to lose by speaking to the authorities at the March 5 meeting. Indeed, only by offering to co-operate could he keep alive his slim hope of obtaining a plea bargain. Counsel’s decision to allow defendant to talk to the authorities was part of a reasonably employed trial strategy and should not now be the object of second guessing via hindsight (see People v Aiken, 45 NY2d 394, 399, supra). Moreover, since Smith’s incriminating admissions would have come to light in any event, we fail to see how he was harmed by his attorney’s claimed incompetence.
Nor did the prosecution fail to abide by its promises. The record of the March 5 meeting was not used against defendant until after the defense psychiatrist had referred to it in the Schenectady County case. This public use constituted a waiver of any right defendant otherwise possessed to keep the transcript secret.
We have examined defendant’s remaining arguments and find them to be without merit.
The judgment should be affirmed.
[OPINION BY Mikoll, J. type=dissent]
Mikoll, J.
(dissenting). I respectfully dissent. Defendant’s conviction should be reversed and a new trial granted because of the failure of defense counsel to afford defendant competent and effective legal assistance.
The Court of Appeals in People v Droz (39 NY2d 457, 462) commented on what constitutes inadequate or ineffective legal representation: “it is elementary that the right to effective representation includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense (People v Bennett [29 NY2d 462]) and who is familiar with, and able to employ at trial basic principles of criminal law and procedure (People v LaBree, 34 NY2d 257; cf. People v Jones, 25 NY2d 637). Whether counsel has adequately performed these functions is necessarily a question of degree, in which cumulative errors particularly on basic points essential to the defense, are often found to be determinative (see, e.g., People v Bennett, supra; People v LaBree, supra).”
I cannot agree with the majority’s conclusion that defense counsel’s advice to defendant to participate in the March 5 conference with the District Attorney and police officials, which resulted in his indictment for murders in Albany County, was part of any reasonably intelligent stratagem to effect a plea bargain for defendant. I also do not agree with the conclusion that the error here was somehow made harmless because the information secured at the March 5 meeting might have surfaced in any event in his murder trial in Schenectady, thus exposing defendant to possible further prosecution.
Defense counsel’s advice to defendant that anything he said at the March 5 meeting could never be used against him and that he was in no jeopardy in making the statements was patently wrong. No attorney of competence would have come to such a conclusion or ventured such advice. Further, defense counsel’s belief that the two New York State Police present at the interrogation were authorized by the Albany District Attorney’s office to grant immunity to defendant had no basis in fact and reveals defense counsel’s total inability to comprehend the dire consequences to defendant of his actions. Adding to the magnitude of his legal error was counsel’s failure to hold the District Attorney to the agreement both had made that in no event was defendant to be questioned by the District Attorney about cases in various counties where no indictments had yet been returned against defendant. Not only was defendant questioned about events in Albany County but defense counsel remained mute and permitted the questioning to continue.
The inculpatory statements made on March 5 regarding events occurring in Albany resulted in defendant’s indictment and subsequent conviction of the crimes appealed here. Based on the failure to afford defendant effective counsel, the judgment should be reversed and a new trial ordered.
Kane, J. P., Main and Casey, JJ., concur with Yesawich, Jr., J.; Mikoll, J., dissents and votes to reverse in a separate opinion.
Judgment affirmed.
On appeal, this court affirmed, without opinion (81 AD2d 1046).
Defendant was arrested while still holding the victim, who had undergone an ordeal lasting several hours.
The People of the State of New York, Respondent, v Lemuel Smith, Appellant.
Argued May 2, 1983;
decided June 7, 1983
POINTS OF COUNSEL
Douglas P. Rutnik, Public Defender, for appellant.
I. The court below committed reversible error by failing to suppress and exclude certain inculpatory statements which were made by defendant-appellant. Due to the ineffective assistance of his counsel defendant-appellant made an uninformed waiver of his right against self incrimination. (People v Settles, 46 NY2d 154; People v Donovan, 13 NY2d 148; People v Rogers, 48 NY2d 167; Miranda v Arizona, 384 US 436; Escobedo v Illinois, 378 US 478; People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325; People v Wise, 64 AD2d 272; People v La Bree, 34 NY2d 257; People v Bennett, 29 NY2d 462.) II. The trial court’s erroneous Sandoval ruling deprived defendant-appellant of a fair trial since it effectively prevented him from testifying on his own behalf. (People v Mayrant, 43 NY2d 236; People v Dickman, 42 NY2d 294; People v Wright, 41 NY2d 172; People v Duffy, 36 NY2d 258, 423 US 861; People v Schwartzman, 24 NY2d 241; People v Russell, 266 NY 147; People v Zackowitz, 254 NY 192; People v Molineux, 168 NY 264; People v Johnson, 31 AD2d 842; People v Goldstein, 295 NY 61.) III. The trial court committed reversible error by failing to exclude certain unqualified opinion testimony. (People v Lewis, 103 Misc 2d 881; Meiselman v Crown Hgts. Hosp., 285 NY 389.)
Sol Greenberg, District Attorney (George H. Barber of counsel), for respondent.
I. Defendant’s oral admissions were freely and voluntarily made as found by Judge Clyne and affirmed by the court below. (People v Avant, 33 NY2d 265; McMann v Richardson, 397 US 759; People v Aiken, 45 NY2d 394.) II. Judge Clyne’s Sandoval ruling was within his discretion and on the facts herein was proper. (People v Sandoval, 34 NY2d 371.) III. Defendant’s conviction was beyond a reasonable doubt and Dr. Davies, a pathologist, was qualified to give an opinion that the victim’s wounds were not caused by “maniacal” actions.
[OPINION BY Jasen, J. type=majority]
OPINION OF THE COURT
Jasen, J.
Defendant, convicted of two murders and sentenced to consecutive terms of 25 years to life for each murder, appeals. He asserts that on the jury trial he was deprived of the effective assistance of counsel and that a stipulation designed to keep secret a transcript revealing defendant’s participation in other crimes was breached.
On November 24, 1976, at approximately 3:00 p.m., Robert Hedderman and Margaret Byron were murdered while working at the Hedderman Religious Shop located at 50 Columbia Street in Albany. The murderer slit both victims’ throats after stabbing them several times in the chest.
During the course of the intensive investigation which followed these murders, the defendant was questioned and released. Upon further investigation, however, evidence came to light implicating defendant. Mr. W.W. told the police that he saxy a “wild-eyed” black male approximately six feet tall in Hedderman’s store on November 24, 1976, standing near the body of Margaret Byron. Later, after being shown a lineup photograph, Mr. W. identified defendant as that man. M.T. informed the police that she observed a black man leaving the Hedderman Religious Shop at approximately the time of the slayings. In September, 1977, she was taken to police headquarters where she was shown a lineup photograph containing pictures of six men and asked whether she recognized the man she saw leaving the Hedderman store that day. She pointed to defendant’s photo. Also in September, 1977, Lieutenant Murray of the Albany Police Department, while conducting an authorized search of a building where defendant had been employed, discovered one of defendant’s sweaters in a closet. A hair found on the sweater was sent to the FBI laboratory in Washington for testing. The FBI report indicated that the hair found on defendant’s clothing was that of the deceased, Margaret Byron.
Meanwhile, defendant had been indicted by a Schenectady County Grand Jury for the kidnapping and attempted robbery of M.M. Defendant had been arrested several hours after the abduction while still holding the victim. In September, 1977, he retained counsel to represent him on the Schenectady County charges.
Thereupon, his counsel met with the District Attorneys of Schenectady, Albany and Saratoga Counties in an attempt to negotiate a plea bargain concerning crimes defendant had allegedly committed in all three jurisdictions, including the Hedderman-Byron homicides for which defendant had not yet been indicted. The attorney’s proposal that defendant receive concurrent sentences of 25 years to life in satisfaction of all charges was rejected. At the same meeting, it was agreed that the Albany County District Attorney’s office would assume responsibility for the cost of continuing psychiatric assistance which defendant could not afford but which defense counsel had arranged for defendant through the Schenectady County District Attorney.
After defendant indicated to his psychiatrist, Dr. Camperlengo, and a psychiatric social worker, Diane Kassel, that he was willing to speak to the police, a meeting was arranged for March 5, 1978. Defense counsel agreed to allow defendant to be questioned at that meeting, providing that certain conditions were met. Pursuant to defense counsel’s demands, a stipulation was entered into whereby all persons present at the meeting, except defendant and his attorney, were to be considered agents of the Schenectady County District Attorney’s office and all statements made thereat were to be kept secret. No disclosure was permitted without the defendant’s and his counsel’s written consent. The stipulation did allow the Albany County District Attorney, who was not notified of the meeting and did not appear, to be informed of the general substance of defendant’s statements.
At the meeting, defendant admitted committing several murders, including those at the Hedderman Religious Shop in Albany. The following day, defense counsel and Schenectady County Assistant District Attorney Carey notified Albany County District Attorney Greenberg of the meeting and the fact that defendant had made incriminating statements.
A nonjury trial was held in Schenectady County Court in July, 1978. While preparing for that trial, defense counsel, who decided to assert an insanity defense on defendant’s behalf, gave the transcript of the March 5 meeting to Dr. Zvi Klopott, a psychiatrist he planned to use as a defense witness. At the trial, Dr. Klopott testified that the defendant was suffering from a delusion that his deceased brother John lived within him and was responsible for the crimes that defendant had committed. He also testified that, according to the transcript furnished by defense counsel of the March 5 meeting, defendant admitted killing both Robert Hedderman and Margaret Byron in Albany. The trial concluded on July 21, 1978, and the defendant was found guilty.
On July 27, 1978, an Albany County Grand Jury indicted defendant for the murders of Robert Hedderman and Margaret Byron, and in October, 1978 the Albany County District Attorney’s office subpoenaed the transcript and tapes of the March 5, 1978 meeting. At a suppression hearing held prior to his Albany County murder trial, defendant unsuccessfully attempted to suppress the transcript and tapes, M.T.’s identification of defendant and the hair found on defendant’s clothing. The case then proceeded to trial where defendant’s attorney again presented the insanity defense. The defense failed and defendant was convicted and sentenced to consecutive sentences of 25 years to life for each murder.
On this appeal, defendant contends that he was deprived of the effective assistance of counsel, that the trial court erred in its Sandoval ruling, that unqualified opinion testimony was improperly admitted into evidence and that the statements he made at the March 5 meeting were not given voluntarily and should, therefore, have been suppressed. In asserting this last contention, defendant raises a number of overlapping issues involving allegations that the Albany County District Attorney was bound by the March 5 stipulation, that the Schenectady County District Attorney violated the terms of that stipulation, that defendant’s statements were not the product of a rational intellect and free will and that defendant inadvertently waived his right against self incrimination due to the ineffective assistance of his counsel.
Preliminarily, we note that the record supports the factual determination by the courts below that defendant’s statements were given freely and voluntarily and not as a result of improper police inducement. That issue, therefore, is beyond this court’s scope of review. (People v Taylor, 57 NY2d 729; cf. People v Harrison, 57 NY2d 470.) Furthermore, with respect to defendant’s claim of mental incompetence to make the statements, defendant was found to be mentally competent at both his Schenectady and Albany County trials. The affirmance of those factual determinations, which are supported by the record, similarly precludes review by this court.
Defendant’s contention that the Schenectady County District Attorney breached the terms of the March 5 stipulation is wholly without merit. Pursuant to the terms of the stipulation, Assistant District Attorney Carey promised not to disclose the details of defendant’s statements without the written consent of both defendant and his attorney. Carey scrupulously honored his promise. Contrary to defendant’s assertions, the Schenectady County District Attorney’s office did not improperly allow Albany County District Attorney Greenberg to obtain a copy of defendant’s March 5 statements. The transcript was lawfully subpoenaed by District Attorney Greenberg and only after defendant allowed certain of its contents to be publicly disclosed by Dr. Klopott during his testimony at defendant’s prior Schenectady County trial. By permitting Dr. Klopott to disclose the details of those admissions, as he necessarily had to in order to support defendant’s insanity defense, the defendant not only waived his physician-patient privilege (People v Edney, 39 NY2d 620; People v Al-Kanani, 33 NY2d 260), but also made that information a matter of public record. Defendant cannot be heard to claim, therefore, that the Schenectady County District Attorney breached the agreement to keep defendant’s incriminating statements secret. There is not a shred of evidence to indicate that the Schenectady County District Attorney’s office disclosed any of the details of the March 5 meeting to law enforcement officials, prosecutorial agencies or the public prior to the transcript of that meeting being subpoenaed by the Albany County District Attorney’s office.
The defendant argues alternatively that the Albany County District Attorney was bound by the March 5 stipulation and, thus, should not have been allowed to use defendant’s admissions against him at the HeddermanByron murder trial. In support of this argument, defendant contends that Diane Kassel, the psychiatric social worker who was present at the March 5 meeting and was a party to the stipulation, was an agent of the Albany County District Attorney’s office and, therefore, bound that agency to abide by the stipulation. While it is true that when asked by the Schenectady County District Attorney to assume financial responsibility for defendant’s continuing psychiatric care, including Dr. Camperlengo’s and Diane Kassel’s salaries, the Albany County District Attorney’s office agreed, this alone is insufficient to create an agency relationship. To the contrary, a review of the record in this case makes it abundantly clear that no such relationship existed.
It is undisputed that District Attorney Greenberg was never informed that the March 5 meeting was to take place. Defendant’s attorney testified that he specifically intended to exclude the Albany County District Attorney’s office from the meeting because of some undefined antipathy he had towards Albany County Assistant District Attorney Daniel Dwyer. Furthermore, Diane Kassel testified that it was defendant’s attorney that directed her to work under the supervision of Dr. Camperlengo and Dr. Camperlengo testified that Kassel was brought into the case by defendant’s attorney. Also noteworthy is the testimony of Assistant District Attorney Carey that when he notified District Attorney Greenberg on March 6 that the meeting had taken place and that he could not reveal the details thereof, Greenberg became upset and would not consent to the stipulation. Finally, District Attorney Greenberg testified that Diane Kassel appeared at the meeting as a representative of defendant’s attorney. In light of this undisputed testimony and the explicit classification of Diane Kassel as an agent of the Schenectady County District Attorney’s office in the stipulation entered into pursuant to defense counsel’s demand, there can be little doubt that Diane Kassel was not acting as an agent of the Albany County District Attorney’s office and, therefore, had no authority, actual or apparent, to bind that office in any way.
Turning then to defendant’s contention that he was denied his constitutional right to the effective assistance of counsel, we must consider the facts and circumstances as they existed at the time of the representation in order to evaluate the quality of the representation afforded the defendant. In doing so, it is important to avoid confusing mere losing tactics with truly ineffective representation and to avoid attributing undue significance to retrospective analysis. The constitutional requirement of effective assistance of counsel will be met where “the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation”. (People v Baldi, 54 NY2d 137, 147.)
Applying this standard of review, we conclude that defendant was accorded effective assistance of counsel.
Defendant was a predicate felon facing the serious charges of kidnapping and robbery in a case where the prosecution’s * proof was overwhelming. Indeed, defendant was apprehended while still holding his victim. As a predicate felon, defendant faced a lengthy sentence if he was convicted. Furthermore, defense counsel knew that his client was a suspect in several brutal murders committed in the Albany area. This knowledge, coupled with the fact that defendant was apparently in need of and had requested psychiatric help, made it incumbent upon defense counsel to attempt to obtain a psychiatric evaluation for the purpose of helping defendant personally and, from a legal standpoint, to establish an insanity defense.
There can be little doubt that defense counsel’s decision to structure defendant’s defense around a claim of mental disease or defect was a proper one. (See People v Bennett, 29 NY2d 462.) While not disputing this fact, defendant contends that his attorney made a serious mistake in advising him to speak with law enforcement authorities on March 5 because there was nothing to be gained by doing so. To the contrary, we believe that it was entirely reasonable for defendant’s attorney to assume that by co-operating with the police he might revive the hope that a favorable plea might be accepted. Although there was no guarantee that this would happen, the truth of the matter was that defense counsel had precious few alternatives. Indeed, as things stood at the time, defendant had nothing to lose by speaking to the authorities. He was a predicate felon facing overwhelming proof of guilt on the kidnapping and robbery charges in Schenectady County and was facing substantial, if not overwhelming, evidence with respect to the Hedderman-Byron murders. Moreover, in light of defense counsel’s reasonably conceived plan to assert an insanity defense at the Schenectady County trial and necessarily to call Dr. Klopott to testify to the fact that defendant admitted committing the various murders but placed responsibility for them on his deceased brother John, the secrecy to be attached to the March 5 meeting became of secondary importance. Nevertheless, defendant’s attorney took steps to insure the secrecy of defendant’s statements by insisting on the stipulation. While it certainly would have been preferable to have had the Albany County District Attorney personally consent to the stipulation, to say that he would have done so, if asked, is rank speculation. That the stipulation ultimately proved ineffective in preventing the Albany County District Attorney from using the March 5 statements does not render defense counsel’s otherwise thoughtful and reasonably employed defense strategy ineffective. (People v Aiken, 45 NY2d 394, 399.)
In People v Baldi (54 NY2d 137, supra), a somewhat similar case, we held that an attorney provided effective representation to his client when, in an effort to strengthen the defendant’s insanity defense, the attorney took the stand and testified that his client had committed a large number of sexual assaults and murders. There, as here, defense counsel had thoroughly reviewed the facts of the case and the law relevant to his client’s defense. (People v Bennett, 29 NY2d 462, 466, supra.) In light of the overwhelming evidence of defendant’s guilt, we held that counsel’s defense strategy was reasonable. Similarly, we hold today that defendant’s attorney provided meaningful representation under the circumstances when he permitted defendant to speak with the authorities on March 5 and allowed Dr. Klopott to testify at the Schenectady County trial concerning statements made by defendant at that meeting.
We now turn our attention to defendant’s remaining claims of error. The record demonstrates that the trial court, at the pretrial Sandoval hearing, exercised its discretion in ruling that five of defendant’s prior convictions could be inquired into on cross-examination should defendant choose to testify. Indeed, the Judge specifically advised defense counsel that in reaching his decision he had considered the prejudicial effect that evidence of those convictions would have on the defendant. The ruling, therefore, cannot be said to constitute an abuse of discretion as a matter of law. (People v Mackey, 49 NY2d 274, 281; People v Sandoval, 34 NY2d 371, 378.) Inasmuch as the record demonstrates that the court exercised its discretion, appellate review ends in the intermediate appellate court. (People v Pollock, 50 NY2d 547, 550.)
Defendant also cites as error the trial court’s ruling allowing Dr. Jack Neville-Phillips Davies, a professor of pathology at Albany Medical College, to give his opinion as to whether the deaths of Robert Hedderman and Margaret Byron were the results of a maniacal attack. Defendant argues that Dr. Davies was not trained in psychiatry and was, therefore, not qualified to offer this testimony, which, according to defendant, constituted an opinion as to defendant’s mental state at the time of the slayings.
The record shows, however, that Dr. Davies did not testify as to defendant’s mental condition. After testifying that he had been involved in more than 40,000 autopsies, two to three thousand of which involved homicides, Dr. Davies was asked to define a maniacal stabbing. He responded that a pattern of widely distributed knife wounds is indicative of a maniacal stabbing. Dr. Davies further testified that a maniacal stab wound pattern was not found on the bodies of either Robert Hedderman or Margaret Byron. Thus, it is clear that Dr. Davies was testifying about the nature of the attack, a subject well within his area of competence, and not to defendant’s state of mind. There was no error in allowing Dr. Davies to so testify.
For all of the above reasons, the order of the Appellate Division should be affirmed.
[OPINION BY Meyer, J. type=dissent]
Meyer, J.
(dissenting). The incompetence of defendant’s trial attorney is made clear by his own testimony (1) that he told defendant “that no one could ever use these statements that he had made that night against him; that he was in no jeopardy whatsoever * * * by giving these statements; that it can only help him and not hurt him” and (2) that before he gave the statements on March 5, 1978, defendant was granted immunity for any statement given by Captain Scheeman and Investigator Gannon on behalf of the Albany County District Attorney’s office. The fact, noted in the majority’s footnote 4, that defendant’s present attorney no longer presses the latter argument only emphasizes the trial attorney’s incompetence, for the March 5 meeting was a “criminal proceeding, other than a grand jury proceeding” and, therefore, under CPL 50.30, immunity turned on court approval, at the request of the District Attorney and, thus, was not within the competence of Scheeman and Gannon to give, even had they been employees of the Albany County District Attorney, which they were not.
The more particularly is this so in view of the prior negotiations of the attorney with the Albany County District Attorney, which had ended with harsh words. That the Albany District Attorney would have consented if asked was, therefore, highly improbable. The attorney’s strategy was hopelessly defective without that consent, yet without it he advised defendant that “no one” could use his statements. His ignorance of the law readily distinguishes the present case from People v Baldi (54 NY2d 137) on which the majority relies.
I would reverse and order a new trial.
Chief Judge Cooke and Judges Jones, Wachtler and Simons concur with Judge Jasen; Judge Meyer dissents and votes to reverse in a separate opinion.
Order affirmed.
The Albany County District Attorney apparently agreed to this arrangement in hopes that with proper treatment defendant would realize that it was he and not his brother John (who died in infancy but according to defendant lived within him) who was responsible for the murders. If the psychiatrist was successful, the District Attorney hoped to obtain a guilty plea from defendant.
Schenectady County Assistant District Attorney Carey reiterated the stipulations for the record. It was agreed, in pertinent part, as follows: “Today’s proceeding is entirely secret. The only persons who are aware of the proceeding are those present in this room and the District Attorney of Schenectady County, who is not present today. Everybody here has been sworn to secrecy. There will be no releasing of either the fact that this meeting is taking place or the substance of what has taken place today, with the exceptions that I’ll state later on. The proceedings are being recorded on tape. There are two tapes being made, one is an original which will be sealed at the end of the proceeding. The other one is for the purpose of Mr. McConchie, in the event that he misses anything on the stenographic minutes he’ll be able to review the second tape, and the tape is for the purpose of insuring the accuracy of the stenographic transcript. The stenographic transcript and the two tapes will be the property of the Schenectady County District Attorney. They will be in the sole and exclusive possession of the Schenectady County District Attorney. They will not be available to anyone else without the written permission of both Mr. Smith and his attorney, at that time. All the persons present, with the exception of Mr. Rosenblum and Mr. Smith, are to be considered the agents of the Schenectady County District Attorney’s Office and will abide by all the stipulations which are entered into between Mr. Rosenblum and myself. In no * * * the transcript or the tapes cannot be used in any form without Mr. Smith’s and his attorney’s permission. I will be permitted to discuss the matter with the District Attorneys of Montgomery County, Saratoga County and Albany County as to the substance of the fact that this meeting has taken place and to the general substance of the conversation, but I’ll reveal no other information without Mr. Smith and Mr. Rosenblum’s consent. “Mr. Smith is not waiving any of his fifth amendment privileges by being here today.” Those present at the meeting were: Lemuel Smith, his attorney, Diane Kassel, Captain Robert Scheeman of the New York State Police, Joseph Carey, Schenectady County District Attorney’s office, and a court reporter, Lynn McConchie. From time to time, four State Police investigators came in and out of the room; the investigators were R. T. Anslow, J. A. Manello, H. J. Malee and T. O. Rehm. In another room monitoring the tape recorder was Investigator Richard Gannon of the State Police.
During the cross-examination of Dr. Klopott, the prosecutor sought to introduce into evidence the transcript of the March 5, 1978 meeting. Judge Stroebel, however, refused to allow its admission on the ground that the Schenectady County District Attorney’s office had agreed, pursuant to the March 5 stipulation, that the particulars of that meeting would not be disclosed unless defendant and his attorney gave their permission in writing.
Defendant has apparently abandoned his argument raised below, that Captain Scheeman and Investigator Gannon, both of the New York State Police, were also agents of District Attorney Greenberg. In his brief to this court, defendant states that “the record of the instant case fails to reveal that either Captain Scheeman or Investigator Gannon were acting at any time as the agents of the Albany County District Attorney’s Office.”
The People of the State of New York, Respondent, v Lemuel Smith, Appellant.
Submitted February 20, 1984;
decided February 28, 1984
Motion to dismiss appeal, etc., denied.
Lemuel SMITH, Plaintiff-Appellant, v. Thomas A. COUGHLIN, III, Commissioner of the New York State Department of Correctional Services; and Charles J. Scully, Superintendent of Green Haven Correctional Facility, individually and in their official capacities, Defendants-Appellees.
No. 1156, Docket 84-2015.
United States Court of Appeals, Second Circuit.
Argued May 7, 1984.
Decided Nov. 16, 1984.
Mark B. Gombiner, New York City (Mark B. Gombiner, Robert H. Gombiner, William M. Kunstler, Kunstler & Mason, New York City, of counsel), for plaintiff-appellant.
Tarquin Jay Bromley, New York City (Robert Abrams, Atty. Gen. of the State of N. Y., Melvyn R. Leventhal, Deputy First Asst. Atty. Gen., Barbara B. Butler, Asst. Atty. Gen., New York City, of counsel), for defendants-appellees.
Before OAKES, VAN GRAAFEILAND and PIERCE, Circuit Judges.
[OPINION BY PIERCE, Circuit Judge: type=majority]
PIERCE, Circuit Judge:
In this appeal, prisoner Lemuel Smith challenges his confinement to a special Unit of Condemned Persons in a New York State correctional facility and the various concurrent restrictions imposed on him as a result of this confinement. We agree with the district court (1) that restrictions on visits by non-lawyers in the employ of his attorney violated appellant’s constitutional rights and (2) that appellant’s confinement and the limitations imposed upon him pursuant to state law are not otherwise unconstitutional. 577 F.Supp. 1055. We therefore affirm the order of the district court, but we remand to allow an award of nominal damages.
Background
In May of 1981, Donna Payant, a Correction Officer, was murdered during her tour of duty at Green Haven Correctional Facility (hereinafter “Green Haven”), a state prison. At the time of Payant’s murder, Lemuel Smith, the plaintiff-appellant herein, was confined at Green Haven serving two twenty-five year to life sentences for second degree murder. The State of New York charged Smith with Payant’s murder. In April of 1983, after a jury trial, Smith was convicted of first degree murder. In June of 1983, he was sentenced to death. Following this sentencing, the state acting pursuant to N.Y.Correct.Law § 650 (McKinney Supp.1983-84), transferred him to a special Unit of Condemned Persons (“UCP”) at Green Haven where he was to remain until execution of his sentence. N.Y.Correct.Law § 650 provides in part:
From the time of such delivery to such superintendent [of the prison in which the condemned person will be held], until the infliction of the punishment of death upon him, unless he shall be lawfully discharged from such imprisonment, the defendant shall be kept in a segregation unit at such state institution and no person shall be allowed access to him without an order of the court, except the officers of the prison, his counsel, his physician, a priest or minister of religion, if he shall desire one, and the members of his family.
Smith was confined to a cell in the UCP which measured approximately six feet by ten feet. By stipulation the parties have agreed that the cell’s lighting and ventilation were adequate. Outside the cell were a color television and an AM/FM radio to which Smith had access twenty-four hours each day. By summoning the on-duty correction officer, Smith could obtain personal or legal materials of his choice. At the end of the officer’s shift, he was required to return any personal items or legal materials, but he could reobtain them from the next officer on duty.
He was permitted to leave his cell each day for exercise in a yard measuring approximately twenty yards square. He could enter the exercise yard at any time after 8:30 a.m. and remain there until approximately 3:30 p.m.
He could receive various visitors daily. He was allowed contact visits with his attorney, a nurse or doctor (one of whom saw him each day) and a priest (who weekly ministered to him). He was allowed regular non-contact visits with a prison psychiatrist, members of his family, and four additional clergy. He was not allowed visits with lay religious advisors nor was he permitted visits with friends or others — such as the press or persons employed by his attorney — except by order of the court. In addition, he was not allowed to attend congregate religious services.
Shortly after his confinement to the UCP, Smith commenced this action in the federal district court pursuant to 42 U.S.C. § 1988 alleging violation of his first, fifth, sixth, eighth, and fourteenth amendment rights. Specifically, he contended that his confinement to the UCP and the various associated restrictions on his behavior (1) deprived him of a liberty interest without due process of law, (2) subjected him to cruel and unusual punishment, (3) denied him equal protection of the laws, (4) denied him freedom of speech and religion, and (5) deprived him of access to the courts. Smith moved for a preliminary injunction. The parties stipulated certain facts, and the district court ordered that a hearing be held on those that remained in dispute.
During a three day hearing, Smith testified that he was dissatisfied with conditions in the UCP and that he desired contact visits with his mother, friends, and paralegal personnel, interaction with fellow inmates, the right to attend congregate religious services, and the right to keep legal papers in his cell. He also testified that he had suffered psychological damage as a result of his isolation. Two experts testified as to conditions on other death rows, as did one New York State prisoner who had previously been under sentence of death. Smith’s psychiatrist testified that he was treating Smith for a minor “anxiety disorder” and that conditions in the UCP might aggravate this condition.
Defendants presented two witnesses: Arthur Leonardo, Deputy Commissioner for Facility Operations, New York State Department of Corrections, and defendant Charles Scully, Superintendent of Green Haven. They testified that the UCP had been established in accordance with the mandate of N.Y.Correct.Law § 650. They offered several explanations for the UCP’s existence and.the restrictions imposed on prisoners confined therein. First, they noted that because a person sentenced to death has little reason to fear ordinary disciplinary action, condemned prisoners pose a special danger to other inmates. Second, they testified that the condemned person was a likely target for attacks by inmates seeking to establish a reputation for dangerousness by harming notorious prisoners. Third, they testified that condemned persons posed a greater suicide risk.
Following this hearing, the district judge denied Smith's request for a preliminary injunction and reserved decision as to the granting of permanent relief. Both parties agreed that no further testimony was needed to resolve factual issues. Thereupon, in a thorough opinion, the district court made findings of fact and conclusions of law and ruled on Smith’s request for a permanent injunction. The court denied the relief sought except that it ordered defendants to allow Smith to have non-contact visits with paralegal personnel in the employ of his attorney.
Plaintiff timely filed a notice of appeal, and this Court heard oral argument. Approximately two months after argument of the appeal, but before we had issued any decision, the Court of Appeals of the State of New York declared the statute under which plaintiff was sentenced to death unconstitutional; it vacated Smith’s sentence of death; it reduced his conviction to one of second degree murder; and it remanded the case to the state trial court for resentencing. Consequently, Smith, no longer under sentence of death, was released from the UCP. These events alter somewhat the posture of the matter that we must decide. Because the district court addressed the factual situation that existed prior to Smith’s release from the UCP, and because our review is consequently similarly limited, Smith’s claims for injunctive relief based on those facts are now moot. Therefore, we direct our discussion of this case’s merits to Smith’s damage claim alone.
Discussion
Due Process
On appeal, Smith first contends that his confinement to the UCP without a prior hearing deprived him of a liberty interest without due process of law. We find this argument to be without merit.
The United States Constitution does not create any protected liberty interest in remaining in the general prison population. Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983); Sker v. Coughlin, 739 F.2d 77 (2d Cir.1984). “As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.” Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). We recognize that the state by its own constitution, statutes, regulations, or judicial decisions may create a protected interest in remaining within the general prison population. Hewitt v. Helms, 103 S.Ct. at 869-71. However, in light of N.Y.Correct.Law § 650, which expressly mandated his confinement, appellant had no basis to claim to be the beneficiary of any state-created liberty interest. Appellant contends that in McCann v. Coughlin, 698 F.2d 112 (2d Cir.1983), we held that New York, through 7 N.Y.C.R.R. § 250, created such a protected interest in remaining in the general prison population. But that regulation applies only to prisoners who are subject to administrative or disciplinary segregation imposed under N.Y.Correct.Law § 137(6) (McKinney Supp.1983-84). Thus, whatever the merits of this argument were appellant a prisoner confined under those regulations and not subject to N.Y.Correct.Law § 650, it is irrelevant here.
Cruel and Unusual Punishment
Plaintiff’s claim that the totality of his conditions of confinement constituted cruel and unusual punishment is without merit. Though the eighth amendment bars more than physical torture, “discomfort compelled by conditions of confinement, without more, does not violate the amendment.” Jackson v. Meachum, 699 F.2d 578, 581 (1st Cir.1983). Restraints on an inmate do not violate the amendment unless they are “totally without penological justification,” “grossly disproportionate,” or “involve the unnecessary and wanton infliction of pain.” Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1980) (quoting Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859 (1976)). The district court found that Smith’s “physical and mental discomforts [were] minimized to the extent permitted by security requirements” and that “Smith [was] not suffering from any psychological damage as a result of the conditions of his incarceration.” Unpublished slip opinion at 10. We agree with these findings and conclude that they are dispositive of appellant’s eighth amendment claims. Though appellant’s confinement was accompanied by numerous restrictions, it did not violate the standards of Rhodes, Gregg, and their progeny. Moreover, although lengthy segregated confinement of the type considered herein, after an inordinate lapse of time, may necessitate periodic review to insure that conditions once constitutional have not become cruel and unusual, Smith’s confinement to the UCP lasted approximately thirteen months. Under the circumstances presented herein, the absence of periodic review implicated no constitutional right.
Equal Protection
Smith contends that because his incarceration in the UCP was significantly more onerous than that of other inmates convicted of murder and other crimes of violence, that confinement denied him equal protection of the laws. There are equal protection rights that survive incarceration. See Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968). However, prison administrators, when making classifications “need only demonstrate a rational basis for their distinctions.” Jones v. North Carolina Prisoners’ Union, Inc., 433 U.S. 119, 134, 97 S.Ct. 2532, 2542, 53 L.Ed.2d 629 (1977). Here, the appellees have proffered several reasons that demonstrate a rational basis for their special classification and treatment of appellant. Smith has proven himself a particularly dangerous person by murdering a prison guard while already serving two life terms. Once sentenced to death, it was not unreasonable to conclude that Smith was unlikely to be deterred from violent behavior by the threat of ordinary sanctions. Moreover, as Leonardo and Scully testified, Smith was himself a likely target for acts of violence committed by prisoners seeking a reputation in the prison setting for dangerousness or “toughness.” And finally, as Smith himself admitted, he was depressed. There was testimony, apparently credited by the court below, that condemned persons pose a greater risk of suicide. Reviewing these justifications, we conclude that N.Y.Correct.Law § 650 is rationally related to the above-discussed concerns and thus did not deny appellant equal protection of the law.
Freedom of Speech and Free Exercise of Religion
Smith contends (1) that limits on visitation rights impermissibly restricted his freedom of speech and (2) that the prison officials’ refusal to allow Smith to attend congregate religious services deprived him of the right to freely exercise his religion. Concluding that the restrictions placed on Smith are not impermissible under the first amendment, we reject these claims.
A. Visitation Rights
“[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974). However, “challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system.” Id. Moreover, in reviewing the justifications stated by prison officials, we are mindful that “[sjuch considerations are peculiarly within the province and professional expertise of corrections officials, and [that], in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Id. 827, 94 S.Ct. at 2806. Here, prison officials argued that to permit visitors other than those allowed or to permit contact visits with persons other than plaintiff’s priest, lawyer, and doctor would have (1) disrupted proper prison administration by increasing outsider traffic within the prison, (2) created security risks, and (3) increased the possibility that a visitor would introduce contraband into the prison. The district court found these claims to be justified, and reviewing the record, we cannot conclude that the prison officials exaggerated their response to these considerations, or that the district court was wrong.
Moreover, we note that appellant was allowed numerous visitors including family members, lawyers, doctors, and clergy. He could communicate with any or all of these persons, and through them, could communicate with the world beyond the prison walls. As the Supreme Court stated in Pell, limits on visitation rights “cannot be considered in isolation but must be viewed in the light of the alternative means of communication permitted under the regulations with persons outside the prison.” 417 U.S. at 823, 94 S.Ct. at 2804. Considering the alternative means of communication that were available to appellant through those persons with whom he could visit and the justifications put forth by prison officials, we conclude that the restrictions on Smith’s visiting rights did not violate the first amendment. Accord Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981) (holding similar restrictions on general population inmates constitutional); Wilson v. Nevada Depart- merit of Prisons, 511 F.Supp. 750 (D.Nev. 1981) (same).
B. Free Exercise of Religion
We now turn to appellant’s claim that his inability to attend congregate services prevented him from freely exercising his religion. We have evaluated this claim also under the Pell framework. Having already concluded, in reviewing Smith’s equal protection claims, that there existed good reason to separate him from the general prison population, we also find that the security interests cited in that context are controlling here. These interests fully justified appellees’ refusal to allow Smith to attend congregate religious services, and the restriction thus did not violate his first amendment rights.
The Sixth Amendment
Appellant makes two claims under the sixth amendment. First, he argues that the UCP’s conditions of incarceration in time would have weakened his will to live and thus, in effect, have forced him to surrender his right to appeal. Second, he claims that the ban on visits by non-lawyers employed by his attorney denied him effective assistance of counsel.
As to appellant’s first claim, the district court found no evidentiary basis for his claimed psychological debilitation. We perceive no reason to disagree with this finding, and we thus dismiss appellant’s first argument as meritless.
Considering appellant’s second argument — that appellees’ refusal to allow him to see paralegal personnel denied him effective assistance of counsel — we agree with the district court that this claim is meritorious. See Procunier v. Martinez, 416 U.S. 396, 419-21, 94 S.Ct. 1800, 1814-15, 40 L.Ed.2d 224 (1974). We thus affirm the district court’s holding as to this contention.
We note, however, that the district court failed to make a finding as to, or an award of, damages for violation of appellant’s sixth amendment rights. This was error. Under Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), appellants cannot raise a defense of qualified immunity because their actions did “violate clearly established ... constitutional rights of which a reasonable person would have known.” See Procunier v. Martinez, 416 U.S. at 419-21, 94 S.Ct. at 1814-15, which clearly established — eight years before Smith’s incarceration in the UCP — the right appellees violated here.
Upon review of the record, we find that appellant offered no proof of actual damages suffered as a result of any denial by appellees of his sixth amendment rights. Since the central purpose of the damage provision of 42 U.S.C. § 1983 is to compensate persons for injuries caused by deprivation of constitutional rights, a court may not award compensatory damages absent proof of actual compensable injury. Carey v. Piphus, 435 U.S. 247, 253-67, 98 S.Ct. 1042, 1046-54, 55 L.Ed.2d 252 (1978); McCann v. Coughlin, 698 F.2d 112, 126-27 (2d Cir.1983). However, even when a litigant fails to prove actual compensable injury, he is entitled to an award of nominal damages upon proof of violation of a substantive constitutional right. We therefore remand to the district court so that it may enter an award for nominal damages in the amount of one dollar. See Carey v. Piphus, 435 U.S. at 267, 98 S.Ct. at 1054.
Conclusion
We conclude that, with the exception of the ban on paralegal visits which violated the sixth amendment, appellant’s confinement to the UCP and the conditions imposed on him therein were constitutional. We therefore affirm the judgment of the court below. However, we remand to the district court so that it may award nominal damages, in the amount of one dollar, for appellees’ violation of appellant’s sixth amendment rights.
N.Y.Penal Law § 125.27 (McKinney Supp. 1975) defines the crime of murder in the first degree in part as follows: A person is guilty of murder in the first degree when: 1. With intent to cause the death of another person, he causes the death of such person; and (a) Either: * * * * * * (ii) the victim was an employee of a state correctional institution or was an employee of a local correctional facility as defined in subdivision two of section forty of the correction law, who was killed in the course of performing his official duties, and the defendant knew or reasonably should have known that the victim was an employee of a state correctional institution or a local correctional facility; or (iii) at the time of commission of the crime, the defendant was confined in a state correctional institution, or was otherwise in custody upon a sentence for the term of his natural life, or upon a sentence commuted to one of natural life, or upon a sentence for an indeterminate term the minimum of which was at least fifteen years and the maximum of which was natural life, or at the time of the commission of the crime, the defendant had escaped from such confinement or custody and had not yet been returned to confinement or custody ....
Conviction of the crime of first degree murder carries with it a mandatory sentence of death. N.Y.Penal Law § 60.06 (McKinney Supp.1975).
As explained infra, Smith was subsequently released from the UCP. For this reason, our discussion of the facts relates only to Smith’s conditions of confinement at the time this suit was instituted.
Appellant's counsel has informed us that Smith is now confined to another segregation unit at Green Haven. We do not mean to address or foreclose, by this opinion, any claims Smith might make regarding his present confinement.
The People of the State of New York, Respondent, v Lemuel Smith, Appellant.
In view of the facts that an updated presentencing report had been filed with the court, that the defendant made no attempt to prepare a presentencing memorandum as permitted pursuant to CPL 390.40 (1) despite being provided with ample time and opportunity to do so, and that he failed to demonstrate in concrete fashion the need for any experts to aid in the preparation of such a memorandum, the court did not err in denying his motion for an adjournment and for the appointment of the various desired experts (see generally, People v Santos, 109 AD2d 901, lv denied 66 NY2d 922; cf., People v Mortimore, 96 AD2d 1063). Under all the circumstances, the challenged sentence is neither harsh nor excessive. Mollen, P. J., Lawrence, Eiber, Sullivan and Balletta, JJ., concur.