United States v. LaVallee

• Decision Date: 22 June 1964
• Docket Number: No. 452,Docket 28655.,452
• Citation: 334 F.2d 331
• Parties: UNITED STATES of America ex rel. James P. CARAFAS, Appellant, v. J. Edwin LaVALLEE, Warden, Auburn Prison, Auburn, New York, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

334 F.2d 331 (1964)

UNITED STATES of America ex rel. James P. CARAFAS, Appellant, v. J. Edwin LaVALLEE, Warden, Auburn Prison, Auburn, New York, Appellee.

No. 452, Docket 28655.

United States Court of Appeals Second Circuit.

Submitted June 1, 1964.

Decided June 22, 1964.

James P. Carafas, pro se.

Louis J. Lefkowitz, Atty. Gen. of State of New York, New York City (Samuel A. Hirshowitz, First Asst. Atty. Gen., and Barry Mahoney and Brenda Soloff, Deputy Asst. Attys. Gen., of counsel), for appellee.

Before MOORE, KAUFMAN and MARSHALL, Circuit Judges.

KAUFMAN, Circuit Judge.

Contending that the fruits of an unlawful search and seizure were improperly admitted into evidence at his trial, a New York prisoner convicted before the Supreme Court's decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), but whose appeal was pending when that decision was rendered, here seeks to invalidate his conviction under the Fourteenth Amendment's due process clause. While the constitutional issue was raised and considered in the state courts on direct appeal, we are asked to determine whether the petitioner's failure to object to the evidence at trial or to seek a New York collateral remedy preclude federal habeas corpus relief.

Petitioner was convicted of burglary in the third degree and grand larceny in the second degree, after a jury trial in Nassau County Court in 1960, for the alleged theft of furniture from a model home; he was sentenced to concurrent terms of from three to five years. Carafas' petition alleged that the police, acting on a tip that a Cadillac and trailer registered in his name were seen near the model home on the morning of the theft, came to his residence without a warrant. Informed that Carafas lived on the second floor of the two-family dwelling, the police proceeded up the stairway without ringing the doorbell. Carafas further alleged that upon reaching the half-way landing one of the detectives was able to observe some of the stolen furniture in his living room, and that the police then called his name, and arrested him when he appeared. Carafas attacks his conviction, claiming that approximately twenty-five photographs of the purported proceeds of the burglary, obtained as the fruits of this allegedly unconstitutional entry and search, were introduced at his trial and served as the primary basis of his conviction.

Because Mapp was decided after Carafas' conviction, no constitutional objection was taken at trial and the Mapp issue was first urged on appeal to the Appellate Division. The conviction was, however, affirmed without opinion. People v. Carafas, 14 A.D.2d 886, 218 N.Y.S. 2d 536 (1961). The Court of Appeals affirmed, 11 N.Y.2d 891, 227 N.Y.S.2d 926, 182 N.E.2d 413 (1962), later amending its remittitur to show that the search and seizure question had been "presented and necessarily passed" upon and that Carafas' constitutional rights were not violated. 11 N.Y.2d 969, 229, N.Y.S.2d 417, 183 N.E.2d 697 (1962), cert. denied, 372 U.S. 948, 83 S.Ct. 944, 9 L.Ed.2d 973 (1963).

In proceedings below the District Court did not reach the merits, and denied without prejudice Carafas' petition for a writ of habeas corpus, suggesting that he first apply to the state courts for reargument. The district judge, who decided on the petition alone without calling for the state court records, thought it significant that Carafas' pleading did not refer to any page of the trial record "to show that a lawyer stood on his feet and said `I object.'" Apparently assuming that the constitutional claim was rejected on appeal because of this failure to object, the court held that the petitioner should reapply to the state courts for reconsideration in light of an intervening decision, People v. Kelly, 12 N.Y.2d 248, 238 N.Y.S.2d 934, 189 N.E.2d 477 (1963), which held that intermediate appellate courts may, regardless of objections or exceptions, reverse in the interests of justice.

Carafas followed this suggestion, but the Appellate Division denied his motion for reargument, stating that it had duly considered the Mapp question and had concluded that the decision was "inapplicable to the facts in this case." N.Y. L.J., October 30, 1963.

We begin by noting that although Carafas was convicted before the Mapp decision, our recent holding in United States ex rel. Angelet v. Fay, 333 F.2d 12 (2d Cir. 1964), in no way precludes relief. The Supreme Court and the New York Court of Appeals have clearly held that Mapp applies to cases in the appellate process at the time of that decision, at least where sufficient objection was made at the pre-Mapp trial to preserve the constitutional question for state appellate review. Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478 (1961). In the present case, however, the State maintains that Carafas did not make any such objection at trial, and that this failure to comply with New York's procedural requirements renders federal habeas corpus unavailable, despite petitioner's contention that illegally seized evidence was used against him at his pre-Mapp trial.

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