United States v. Follette

• Decision Date: 26 March 1968
• Docket Number: No. 68 Civ. 93.,68 Civ. 93.
• Citation: 282 F. Supp. 10
• Parties: UNITED STATES of America ex rel. Joseph RANDAZZO, Petitioner, v. Hon. Harold W. FOLLETTE, Warden, Green Haven Prison, Stormville, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

282 F. Supp. 10

UNITED STATES of America ex rel. Joseph RANDAZZO, Petitioner, v. Hon. Harold W. FOLLETTE, Warden, Green Haven Prison, Stormville, New York, Respondent.

No. 68 Civ. 93.

United States District Court S. D. New York.

March 26, 1968.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, for respondent; Joel H. Sachs, Asst. Atty. Gen., of counsel.

Joseph Randazzo, pro se.

WYATT, District Judge.

This is an application for a writ of habeas corpus (28 U.S.C. §§ 2241, 2242) by Joseph Randazzo, who is in the custody of the penal authorities of New York at Green Haven Prison in Stormville, Dutchess County, in this District. Randazzo is acting for himself, without the help of counsel; by order of Judge Motley filed January 9, 1968, he was authorized to prosecute this proceeding without prepayment of fees, etc. (28 U.S. C. § 1915(a)).

There was a judgment of conviction of applicant, on his plea of guilty, of attempted possession of a narcotic drug (Penal Law, McKinney's Consol.Laws, c. 40, § 1751(5) as it then stood) on December 20, 1962, in the New York County Supreme Court (Davidson, J.). This conviction is sometimes referred to as the "narcotics" conviction. The sentence was imprisonment for from three to six years. Randazzo being then a second felony offender (Penal Law § 1941 as it then stood).

The detailed background of the first felony conviction of Randazzo and also of the narcotics conviction, as well as the history of the appeals and other proceedings in the state courts, are given in an opinion filed today, D.C., 282 F.Supp. 2, with an order denying the relief requested in an application by Randazzo for a writ of habeas corpus in respect of the first felony conviction (the "manslaughter" conviction).

In July 1962, Randazzo was not in physical custody under the sentence imposed on his first felony conviction; he had been released on parole.

In July 1962, information reached the Parole Board that Randazzo was, among other things, associating with a major narcotics violator and was believed to be in the narcotics traffic. The Board on July 10, 1962 issued a warrant for his retaking (Correction Law, McKinney's Consol.Laws, c. 43, § 216).

On July 12, 1962, a parole officer and one or more police detectives went to the apartment building on Rivington Street on the lower East Side where Randazzo lived; in his third floor apartment he was arrested by the parole officer under authority of the Parole Board warrant. At the same time the parole officer searched the premises and in the bedroom of Randazzo found 31 ounces of heroin concealed in a hollow in a dresser drawer; the parole officer did not have a search warrant.

When the narcotic drug was discovered, the parole officer turned Randazzo over to the police detectives for prosecution; Randazzo was then taken to the Manhattan House of Detention (125 White Street) to await grand jury action and the Board of Parole warrant was filed at the House of Detention.

An indictment (Index No. 3035/1962) charging Randazzo in two counts with possession of narcotic drugs with intent to sell (Penal Law § 1751(2), as it then stood) and with possession of narcotic drugs (Penal Law § 1751(3) as it then stood) was returned by a New York County grand jury on August 31, 1962.

Randazzo (or his family) retained counsel, Jesse Zaslav, Esq., who moved to suppress as evidence the heroin found in his bedroom on the ground that the search without warrant had violated constitutional rights. There was a hearing in the Supreme Court (Davidson, J.) and on November 15, 1962 the motion was denied with an opinion (People v. Randazzo, 37 Misc.2d 80, 234 N.Y. S.2d 740). Randazzo then pleaded guilty to a lesser included offense on November 29, 1962.

It is proper to entertain the present application on the merits, this for substantially the same reasons given in the opinion filed today with respect to the manslaughter conviction.

The attack on the narcotics conviction is based on the claim that the heroin was found in his apartment as a result of a search which violated the Fourth Amendment to the federal Constitution. This is the same claim presented to the state courts; applicant has submitted his state court briefs.

I have read the stenographic minutes (62 pages) of the evidentiary hearing in the New York Supreme Court on the motion to suppress made by Randazzo. The hearing was held on October 24, 1962; Randazzo was represented by counsel and himself testified. The state court "after a full hearing reliably found the relevant facts" and no hearing in this Court is required. Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). See also 28 U.S.C. § 2254(d) effective November 2, 1966.

The state court (37 Misc.2d 80, 234 N.Y.S.2d 740) found that an arrest warrant was issued by the Parole Board for Randazzo as a parole violator, that the information on account of which the Parole Board issued the warrant was "that Randazzo had consorted with a convicted felon, a narcotics violator, that Randazzo was suspected of being involved in the narcotics traffic, that he was not working and maintained late hours, and although not working had visited a bar late at night" (234 N.Y.S.2d at 741), that the warrant was executed on July 12, 1962 when Randazzo was arrested in his apartment, that the entry of the officers into the apartment was with the consent of Randazzo, that before he was arrested he was asked and freely answered questions about his "consorting with known criminals" (234 N.Y.S.2d at 742), that he was told that he was being arrested "for a violation of parole for consorting with known criminals" (234 N.Y.S.2d at 742), and that following his arrest the apartment was searched and the heroin discovered.

There was in evidence at the state court hearing the agreement made by Randazzo with the Parole Board and signed by him as a condition to secure his release from prison on parole. Among other things, he promised not to change his residence without the permission of his parole officer and that he would "permit" the parole officer "to visit me at my residence"; he promised not to use or sell narcotics, not to use intoxicating liquors, not to have sex relations with any woman not his lawful wife, not to associate with any person having a criminal record, etc.

There was evidence at the state court hearing that just before his arrest Randazzo admitted that he had been associating with a man known while in prison.

The duty of this Court is "to apply the applicable federal law to the State court fact findings independently". Townsend v. Sain, above, 372 U.S. at 318, 83 S.Ct. at 760.

It is also clear that Randazzo may resort to this Court despite his plea of guilty in the state court. United States ex rel. Molloy v. Follette, 391 F.2d 231 (2d Cir. February 27, 1968).

After consideration of the merits, however, it is concluded that the search of his apartment violated no constitutional rights of Randazzo.

Randazzo had no right to be released from physical custody. His release on parole was an act of grace and favor to him by the Parole Board.

The Parole Board has the discretion to determine "what prisoners * * * may be released on parole and when and under what conditions." Correction Law § 210. The Parole Board is directed to release on parole "only if * * * of opinion that there is a reasonable probability that * * * he will live and remain at liberty without violating the law * * *". Correction Law § 213. Under New York law, Randazzo on parole remained "in the legal custody of the warden". Correction Law § 213. The federal statute is in substance the same. 18 U.S.C. § 4203; see Anderson v. Corall, 263 U.S. 193, 44 S.Ct. 43, 68 L.Ed. 247 (1923). Under New York law, the division of parole has "the duty of supervising all prisoners released on parole * * *, of making * * * investigations, * * * of determining whether violation of parole conditions exists * * *". Correction Law § 210.

In Escoe v. Zerbst, 295 U.S. 490, 55 S. Ct. 818, 79 L.Ed. 1566 (1935), the Supreme Court dealt with Escoe, who had been placed on probation when a sentence to imprisonment was suspended after conviction of an offense in a federal court. Thereafter the court issued a warrant for the arrest of Escoe and made an order revoking suspension of his sentence. Escoe was arrested and was then taken directly to a federal prison. The statute then (18 U.S.C. § 725) as now (18 U.S.C. § 3653) provided that after arrest the probationer shall be "taken before the Court". The Supreme Court found that the intent of the statute was for the court to make an "inquiry" and for the probationer to be able "to explain away the accusation". The Supreme Court declared the commitment of Escoe illegal but on the basis of the statute specifically rejecting all constitutional claims for Escoe, Mr. Justice Cardozo said (295 U.S. at 492, 493, 55 S.Ct. at 819):

"In thus holding we do not accept the petitioner's contention that the privilege has a basis in the Constitution, apart from any statute. Probation or suspension of sentence comes as an act of grace to one convicted of a crime, and may be coupled with such conditions in respect of its duration as Congress may impose."

If there be any difference between one on probation and one on parole, so far as standing to invoke constitutional rights is concerned, the difference should favor the one on probation. The probationer has never entered prison; the parolee by becoming an inmate of a prison has thereby certainly lost some constitutional rights, including the protection at least while in prison against unreasonable searches and seizures. Lanza v. State of New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962). See Holtzoff, The Power of Probation and Parole Officers To Search and Seize, XXXI Federal Probation 3-7 (1967); Note, Parole, etc., 38 N.Y.U.L.Rev. 702 (1963); Note, Parole Revocation Procedures, 65 Harv. L.Rev. 309, 310-12 (1951).

The ...