United States ex rel. Tarallo v. LaVallee, 838

Citation433 F.2d 4
Decision Date15 October 1970
Docket NumberNo. 838,Docket 34609.,838
PartiesUNITED STATES of America ex rel. Peter TARALLO, a/k/a Peter Taro, Relator-Appellant, v. J. Edwin LaVALLEE, Warden of Clinton Prison, Dannemora, New York, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Kent Greenawalt, New York City, for relator-appellant.

Joel Lewittes, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of N. Y., and Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for respondent-appellee.

Before LUMBARD, Chief Judge, and SMITH and KAUFMAN, Circuit Judges.

LUMBARD, Chief Judge:

Peter Tarallo appeals from the denial of his petition for habeas corpus by the United States District Court for the Southern District of New York. Tarallo was indicted for the commission of two separate unrelated armed robberies which were joined for trial. He was convicted on September 30, 1964, after a jury trial in New York County, of one of the robberies and was sentenced as a second felony offender to fifty to seventy years. The increased penalty of five to ten years imprisonment, included in this sentence, was imposed because appellant was armed while committing the crime. His appeal raises two points: (1) that the separate charges of robbery should not have been joined for trial and he should have been granted a severance, and (2) that a warrant issued to search his apartment for "stolen property" was unconstitutionally vague and the items seized pursuant to the warrant should have been suppressed. We reject these claims and affirm the dismissal of the petition.

On September 6, 1963, Tarallo and an accomplice robbed Mrs. Lewitt and her daughter-in-law at their apartment, held them at gun point for fifty minutes, ransacked the apartment, handcuffed the women to the toilet, and left with over $16,000 worth of jewelry. One month later, Tarallo and the same accomplice, who later testified at the trial for the state, robbed Mrs. Match in a similar fashion. These two robberies were joined for trial. At the initial colloquy before the trial began, appellant moved for a severance of the unrelated charges. He repeated this motion at the end of the voir dire and at the end of the state's opening statement, and all these motions were denied. It was not until the end of the state's case, however, that he moved for a severance "on an additional ground" (Tr. 960) — that he wanted to testify on the charges involved in the Match robbery but not on the charges in the Lewitt robbery. This motion too was denied, and Tarallo eventually took the stand and testified as to both robberies. The jury returned a verdict of guilty on the Lewitt count; the Match count, on which the jury could not agree, was severed and dismissed.

With respect to appellant's first argument, we do not have to reach the constitutional question whether a defendant is denied his Fifth Amendment privilege against self-incrimination if he is compelled to testify on two charges that are joined for trial, when he wants to testify on only one and is refused a severance. Under state law, a trial judge has great discretion in deciding whether or not to grant a severance. Section 279 of the New York Code of Criminal Procedure permits the joinder of charges "for two or more acts or transactions constituting crimes of the same or a similar character," and provides that severance of them is within the discretion of the trial judge and may be granted if he feels that the party seeking the severance has shown good cause.1 Thus under the state statute, the movant must demonstrate how he will be prejudiced by denial of the severance.

Appellant's pre-trial motion for severance was simply grounded on the bare allegation that "defendant is placed in a very, very prejudicial position by being charged with two crimes when it's difficult enough for me to meet one of them." This hardly represents enough information as to how he would be prejudiced to constitute good cause. The courts have held that merely because two counts are harder to try than one does not demonstrate prejudice so as to require severance in all cases. Johnson v. United States, 356 F.2d 680, 682 (8th Cir.), cert. denied, 385 U.S. 857, 87 S.Ct. 105, 17 L.Ed.2d 84 (1966). And we have previously observed that the fact that evidence relevant to one indictment may not be relevant to another does not demonstrate prejudice. United States v. Nadler, 353 F.2d 570, 572 (2d Cir. 1965).

It was not until after the close of the state's case that appellant moved for a severance on the ground of his desire to testify on one count but not on the other. The exigencies of a trial and the need for orderly procedure require that the motion to sever be made at the earliest possible moment.2 There seems to be no reason why appellant could not have moved for severance on this ground before trial. More than seven months elapsed between appellant's indictment and the trial, and appellant had counsel some time before the trial began. Thus, he should have known before trial on which counts he wanted to testify; and hence his failure to move for severance on that ground until the end of the state's case cannot be excused.

Moreover, in order for a defendant to be granted a severance, he must make a "convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other." Baker v. United States, 131 U.S.App.D.C. 7, 401 F.2d 958, 977 (1968). Tarallo made no such showing to the trial judge even in his motion at the end of the state's case; all he presented was the fact that he had to make an "election," not that he was confronted with a dilemma fraught with prejudice. Thus he did not show "good cause" for a severance, as required by section 279 of the New York Code of Criminal Procedure; and consequently the trial judge did not abuse his discretion in denying Tarallo's motion. Nor does Tarallo make a sufficient showing of prejudice on appeal. He claims, apparently for the first time on appeal, that the reason he wished to testify on the Match charges was that he had met his accomplice a few blocks from the scene of the robbery for an unrelated purpose and he had to explain those circumstances to the jury. This argument is insubstantial and appears to be an after-thought. Finally, there is some doubt as to whether the appellant can, in any event, challenge the trial judge's broad discretionary power on collateral attack. See United States ex rel. Best v. Fay, 239 F.Supp. 632 (S.D.N.Y.) aff'd 365 F.2d 832 (2d Cir. 1966), cert. denied, Best v. Fay, 386 U.S. 998, 87 S.Ct. 1319, 18 L.Ed.2d 347 (1967); United States ex rel. Brown v. LaVallee, 424 F.2d 457 (2d Cir. 1970).

Tarallo's second argument is that the failure to suppress evidence gathered in an allegedly illegal search and used in connection with the Lewitt charge violated his rights under the Fourth and Fourteenth Amendments. The state argues that we do not need to reach this constitutional issue and we agree. Tarallo has failed to comply with state law in raising this objection. The New York Code of Criminal Procedure § 813-c provides for a suppression motion to be made by the party aggrieved.3 Section 813-d (1) requires that, in the absence of cause (not present here), the motion be made "with reasonable diligence prior to the commencement of any trial";4 and section 813-d(4) provides that if no motion is made

"in accordance with the provisions of this title, the defendant shall be deemed to have waived any objection during trial to the admission of evidence based on the ground that such evidence was unlawfully obtained."

These provisions have been uniformly enforced in the New York courts. See People v. McCall, 19 A.D.2d 630, 241 N. Y.S.2d 439 (2 Dept. 1963), which held that a motion to vacate a search warrant and to suppress evidence could not be made during trial; People v. Britton, 26 A.D.2d 586, 271 N.Y.S.2d 1010 (2 Dept. 1966), cert. denied, Britton v. New York, 386 U.S. 935, 87 S.Ct. 963, 17 L.Ed.2d 808 (1967), which held that a...

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