People v. Capone

• Citation: 35 Misc.2d 1071,232 N.Y.S.2d 3
• Parties: The PEOPLE of the State of New York, Plaintiff-Respondent, v. Alfred CAPONE, Defendant-Appellant.
• Decision Date: 28 August 1962
• Court: United States State Supreme Court (New York)

Page 3

232 N.Y.S.2d 3

35 Misc.2d 1071

The PEOPLE of the State of New York, Plaintiff-Respondent, v. Alfred CAPONE, Defendant-Appellant.

Court of Special Sessions of City of New York, Appellate

Part, Second Judicial Department.

Aug. 28, 1962.

Michael S. Washor, Brooklyn, for defendant-appellant.

Edward S. Silver, Dist. Atty., and Harry Brodbar, Asst. Dist. Atty., for plaintiff-respondent.

JAMES RANDALL CREEL, Justice.

The defendant moves for leave to re-argue the appeal herein. Heretofore the defendant had been tried and convicted in Magistrates' Court for bookmaking in violation of Section 986 of the Penal Law, and on appeal that conviction had been affirmed by this court without opinion, Chief Justice Murtagh dissenting and voting to reverse and remand for a new trial.

In support of this motion the defendant cites the recent case of People v. Moore, 11 N.Y.2d 271, 183 N.E.2d 225, 228 N.Y.S.2d 822. In reply the District Attorney has urged that in this case, tried subsequent to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 that the issues of illegality and unreasonableness of the search and seizure were not appropriately raised at the trial, citing People v. Friola, 11 N.Y.2d 157, 182 N.E.2d 100, 227 N.Y.S.2d 423. However, the record clearly reveals that the exhibits, upon which in part at least this defendant's conviction was based, were admitted over defense counsel's objections and an exception granted, and though neither the objection, nor the exception squarely and precisely focused on the illegality of the search, this Court in its appellate duties is not believed to be restricted by those self-imposed limitations in hearing appeals which underlie the Friola case.

In any event the issue here raised as to the propriety of this bookmaking arrest is such a recurring one on which there appears to be such diversity of opinion and uncertainty in the law, as to warrant some comment.

It should be noted that bookmaking, which long has been a misdemeanor under the laws of this State, has by recent legislative enactment been raised, in certain circumstances, to the status of a felony. § 986-c Penal Law. This action of the New York State Legislature in raising, in certain factual situations, not only bookmaking but also policy to the status of a felony, has so altered the statutory basis for the arrests in the cases cited in the opinion relied upon by the appellant as to require re-examination as to their current applicability to the facts of the arrest here presented.

The record is clear that the arresting officer without a warrant of search or arrest entered a multiple dwelling, an apartment house, and stationed himself in the public hallway outside of the defendant's second floor front apartment. From this vantage point in a hallway (shared by all the tenants, all their guests, the owner and his maintenance staff, various municipal department inspectors and others), the arresting officer could not see anything but could hear what was taking place in the defendant's apartment. He heard a telephone ring, he heard it answered, he heard the receiving part of the telephone conversation. That conversation related to the taking of a number of bets on race horses running that day on various tracks and those bets were in goodly sums or amounts. His auditory investigations of only eight minutes duration were interrupted by the defendant's opening the apartment door, and the officer identifying the defendant's voice as the speaker on the telephone. The record is not clear as to just when the officer identified himself as a police officer, as to when he told the defendant he was under arrest, nor is it clear whether the search preceded the arrest or followed it as an incident thereto. Those principles mandated by Mapp v. Ohio, supra, cannot be properly applied until this uncertainty in the record is made clear as to this point.

This point is sharply raised on this motion for rearrangement and it becomes necessary not only to grant the motion but to remand this case for a new trial to clarify this uncertainty in the record.

Since the United States Supreme Court has asserted supervisory jurisdiction on constitutional grounds by the majority holding in Mapp v. Ohio, supra over not only State Courts, but also municipal police forces and practices, without providing any guideposts or specifications as to application of the general principles therein pronounced, it probably becomes necessary for metropolitan courts of states and cities to evolve by trial and error, reversal and affirmance, a body of case law on constitutional search conditions, in which the federal cases, particularly those of federal districts and circuits predominantly agricultural, rural or suburban may be of questionable value as precedents. The trial court on the retrial of this case, is entitled to receive such guidance as this court in its limited capacity can give upon the issue which will be raised there, particularly as to the legality of this arrest.

The legality of this arrest would appear to depend upon two considerations. First, was the action of the officer, without any warrant, in stationing himself in the common public hallway of this multiple dwelling or apartment house outside of the door of the defendant's second floor apartment, such an eavesdropping trespass or intrusion as to be unreasonable and illegal? Second, did the officer have reasonable grounds for believing that a felony was committed in his hearing, and that the defendant was connected therewith, although the crime is now alleged by information as a misdemeanor?

While we as judges can weigh and ponder these questions over considerable periods of time in the relative quiet of courts, chambers or libraries, it should be observed that the arresting officer must not only decide such questions, but implement them by appropriate action, and secure submission in the matter of split...