United States v. Follette

• Decision Date: 27 February 1968
• Docket Number: No. 232,Docket 31840.,232
• Citation: 391 F.2d 231
• Parties: UNITED STATES of America ex rel. John J. MOLLOY, Relator-Appellant, v. Harold W. FOLLETTE, Warden of Green Haven Prison, Stormville, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

391 F.2d 231 (1968)

UNITED STATES of America ex rel. John J. MOLLOY, Relator-Appellant, v. Harold W. FOLLETTE, Warden of Green Haven Prison, Stormville, New York, Respondent-Appellee.

No. 232, Docket 31840.

United States Court of Appeals Second Circuit.

Argued December 6, 1967.

Decided February 27, 1968.

C. Dickerman Williams, New York City, for relator-appellant.

Brenda Soloff, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., State of New York; Samuel A. Hirshowitz, First Asst. Atty. Gen., on brief), for respondent-appellee.

Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

John J. Molloy was charged by the State of New York with attempted grand larceny of an automobile. He moved for the suppression of the automobile registration card found upon his person as a result of an allegedly illegal search. The Supreme Court, Queens County, denied the motion. Molloy then pleaded guilty and was convicted and sentenced. Despite this, as permitted by the final paragraph of § 813-c of the New York Code of Criminal Procedure, he pressed the issue of illegal search by an appeal. The Appellate Division affirmed in a memorandum, 22 A.D.2d 814, 254 N.Y.S.2d 769 (2d Dept. 1964), and was affirmed by the Court of Appeals, 17 N.Y.2d 431, 266 N.Y.S.2d 520, 213 N.E.2d 801 (1965).

Molloy then sought a writ of habeas corpus in the District Court for the Southern District of New York. Taking note of the State's contention that such relief was precluded by Molloy's guilty plea, an issue then before this court and subsequently decided against the State, United States ex rel. Rogers v. Warden of Attica State Prison, 381 F.2d 209 (2 Cir. 1967), the district judge ruled against Molloy on the merits, on the basis of the record in the State suppression hearing. This appeal followed.

Before discussing Molloy's complaint we must deal with the Attorney General's earnest contention that we should affirm on the ground that Rogers was wrongly decided or, more accurately, that we should seek the convocation of the court in banc to pass upon that issue.¹ If we disagreed with Rogers, we would follow the latter course since the question is of large consequence both to the State of New York and to the federal courts. But we do not.

There is some initial appeal in the State's argument that habeas corpus tests the legality of custody, that the State's custody of Molloy is pursuant to his conviction on his plea of guilty, that there is no claim that the plea was improperly induced, and that New York's decision to allow a criminal defendant to appeal from a judgment of conviction on the ground of error in a suppression ruling notwithstanding a guilty plea goes beyond the requirements of the Constitution and should not enlarge a prisoner's right to federal habeas corpus.² But acceptance of the State's contention would make the final paragraph of § 813-c a trap rather than the beneficent and "enlightened statute," 381 F.2d at 214, it was meant to be. While in strict letter New York has said only that a plea of guilty will not foreclose appeal from the denial of a motion to suppress, defendants and their counsel would scarcely read the statute so narrowly; the natural interpretation would be rather that they might plead guilty and still preserve all remedies with respect to the alleged unlawful search that would otherwise have been available — including ultimate resort to a federal court. What the result should be if New York were to say in so many words that the sole remedy with respect to an illegal search preserved on a plea of guilty was by an appeal or other remedies in the state system, we are not now required to decide.

The record of the state suppression hearing consists solely of the testimony of Detective Gagliardi. Being assigned to radio motor patrol in Brooklyn on the night shift of November 21, 1962, he received a call to proceed to 871 Flatbush Ave. "where there were prowlers." He saw — from somewhere — Molloy on the roof of 12 Martense St., 100' north of 871...