Pinkney v. Keane
Decision Date | 10 May 1990 |
Docket Number | No. 89 CV 734 (ERK).,89 CV 734 (ERK). |
Citation | 737 F. Supp. 187 |
Parties | Marvin PINKNEY, Petitioner, v. John KEANE, etc., Respondents. |
Court | U.S. District Court — Eastern District of New York |
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Lipsitz, Green, Fahringer, Roll, Schuller & James, New York City by Diarmuid White, Herald Price Fahringer, for petitioner.
Michael O'Brien, Asst. Dist. Atty., John J. Santucci, Dist. Atty. of Queens County, Queens, N.Y., for respondents.
On October 1, 1981, at approximately 4:45 p.m., Andrew Kalina, the proprietor of a liquor store at 44-24 College Point Boulevard, Queens, New York, was shot to death during an armed robbery. By 6:45 p.m. that same day, the New York City Police had found petitioner, Marvin Pinkney, at Jamaica Hospital receiving medical attention for wounds he incurred while escaping, had recovered the murder weapon from petitioner's car parked a short distance from the hospital, and had brought the four persons who witnessed petitioner's escape from the scene of the crime to the hospital to identify him.
On the basis of this and other compelling evidence, petitioner was convicted of murder in the second degree by a jury sitting in the Supreme Court of the State of New York, Queens County, and he was sentenced to a term of imprisonment of twenty-five years to life. The judgment of conviction was affirmed by the Appellate Division, People v. Pinkney, 135 A.D.2d 748, 522 N.Y.S.2d 653 (2nd Dep't 1987), and a motion for leave to appeal to the Court of Appeals was denied by Judge Simons on May 17, 1988. People v. Pinkney, 71 N.Y.2d 1031, 526 N.E.2d 59, 530 N.Y.S.2d 566 (1988).
On appeal from the judgment of conviction, petitioner argued that the trial judge erroneously admitted into evidence the murder weapon that was obtained as a result of the unlawful search of his car. Petitioner also argued that the eyewitness identifications of him at Jamaica Hospital were unnecessarily suggestive and that the eyewitnesses should not have been permitted to testify at trial. Even if the eyewitness testimony was admissible, petitioner argued that the trial judge improperly refused to allow his attorney to comment in his summation on the suggestive nature of the pre-trial identifications.
The Appellate Division agreed with petitioner that the search of his automobile was invalid because it "was neither supported by probable cause nor justified by exigent circumstances or any other exception to the exclusionary rule." People v. Pinkney, 135 A.D.2d at 749, 522 N.Y.S.2d at 654 (citations omitted). Although this conclusion resulted in the reversal of petitioner's conviction for the illegal possession of two firearms found in the car, one of which was the murder weapon, the Appellate Division affirmed petitioner's murder conviction on the ground that the eyewitness identifications and other physical evidence that had been properly obtained were so compelling as to render harmless the admission of the fruits of the search of the vehicle. Id. at 749-50, 522 N.Y.S.2d at 654-55. The Appellate Division did not address petitioner's argument that the trial judge had improperly restricted the effort of his attorney to argue to the jury that the eyewitness identifications were unreliable. The Appellate Division also did not address petitioner's argument that the trial judge erroneously admitted evidence of petitioner's refusal to answer questions after he had been arrested and given his Miranda warnings.
Petitioner now seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. While the claims of error he presses, i.e., the admissibility of the eyewitness identifications, the inability of his attorney to attack the reliability of the identifications in his summation and the admissibility of evidence of his post-arrest silence, have substantial merit, there is no need to resolve them here. A careful review of the record indicates that the Appellate Division erred when it concluded that the search of petitioner's automobile was invalid. Because the evidence found in the automobile and other evidence properly admitted renders harmless the errors petitioner alleges were made at trial, the petition must be denied.
The facts leading to the discovery of the murder weapon in an open leather bag in petitioner's car are set out in the findings of fact made by the trial judge. In pertinent part, they are as follows:
Memorandum and Order Denying Defendant's Motion to Suppress Evidence, People v. Pinkney, No. 2614/81 (N.Y. Supreme Court October 25, 1982) (Zelman, J.).
Petitioner acknowledges that these findings, "as far as they go, are presumed to be correct." Post-Argument Memorandum of Law, People v. Pinkney, No. 89-734 (E.D.N.Y. June 23, 1989) (hereinafter "Post-Argument Memorandum") at 10 (citing 28 U.S.C. § 2254(d)). The one fact that is conceded to have been omitted by the trial judge in her findings of fact is that Officer Fitzpatrick first observed the bag containing the guns while he was inside the car. Specifically, Officer Fitzpatrick testified that he observed a brown leather bag "on the passenger side of the rear on the floor" as he "was starting to back out of the car." Transcript of Mapp Hearing, People v. Pinkney, No. 2614/81 (N.Y. Supreme Court, April 14, 1982 and October 12, 1982) (hereinafter "Tr.") at 61. Officer Fitzpatrick then got out of the car and "went around to the passenger side and looked through the window." Id. At that point, he "could see the handle of a gun protruding from the bag." Id. Although Officer Fitzpatrick's initial entry into the automobile enabled him to see no more than was visible through the window of the unlocked automobile, petitioner alleges that his entry into...
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