United States ex rel. Newsome v. Malcolm, 693

• Decision Date: 28 January 1974
• Docket Number: No. 693,Docket 73-2413.,693
• Parties: UNITED STATES of America ex rel. Leon NEWSOME, Petitioner-Appellee, v. Benjamin J. MALCOLM, New York City Commissioner of Correction, et al., Respondents, Louis J. Lefkowitz, Attorney General of the State of New York, Intervenor-Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

492 F.2d 1166 (1974)

UNITED STATES of America ex rel. Leon NEWSOME, Petitioner-Appellee, v. Benjamin J. MALCOLM, New York City Commissioner of Correction, et al., Respondents Louis J. Lefkowitz, Attorney General of the State of New York, Intervenor-Respondent-Appellant.

No. 693, Docket 73-2413.

United States Court of Appeals, Second Circuit.

Argued January 11, 1974.

Decided January 28, 1974.

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Robert S. Hammer, Asst. Atty. Gen. of the State of New York (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen. on the brief), for intervenor-respondent-appellant.

Stanley Neustadter, New York City (William J. Gallagher, The Legal Aid Society, New York City, on the brief), for petitioner-appellee.

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

IRVING R. KAUFMAN, Chief Judge:

This appeal presents the rare instance where by granting a writ of habeas corpus to a state prisoner we intrude less into local administration of criminal justice than if we were to follow the contrary course suggested by the state Attorney General. Judge Bruchhausen granted Leon Newsome's petition pursuant to 28 U.S.C. 2254 because the loitering statute under which Newsome was arrested has been declared unconstitutional by the New York Court of Appeals. Since Newsome is collaterally attacking a conviction not for loitering, but for a narcotics violation arising from evidence seized at the time of his arrest for loitering, his petition raises an interesting question of Fourth Amendment law. We agree with the New York Court of Appeals in its evaluation of the loitering statute and, because of the particular constitutional infirmities involved, are compelled to conclude that the writ should issue. We affirm.

I. FACTUAL BACKGROUND

The essential facts are not in dispute and can be related briefly. On February 12, 1970, New York City Housing Authority Policeman Warren J. Ungar and a fellow officer responded to an anonymous telephone call "to the effect that someone was in the hallway" of a City Housing Authority dwelling at 81-03 Hammel Boulevard, Queens, New York. The patrolmen entered the building at approximately 10:20 p.m. and immediately approached two men — Leon Newsome and an unidentified companion — who were standing in the lobby near the main doorway. In response to Ungar's questions, Newsome said he had just entered the building. When Newsome was unable to produce identification, he was arrested for loitering (N.Y. Pen.L. 240.35(6), McKinney's Consol. Laws, c. 40) and searched incident to that arrest. Patrolman Ungar placed Newsome against the wall and "went through the pockets." This search produced a closed black leather pouch in which Ungar found a functional hypodermic instrument and a glassine envelope later determined to contain 2 grains of heroin. Accordingly, Newsome was also charged with possession of dangerous drugs (N.Y.Pen.L. 220.05) and criminal possession of a hypodermic instrument (N.Y.Pen.L. 220.45).

After a brief nonjury trial before Criminal Court Judge Nicholas Tsoucalas on April 7, 1970, Newsome was convicted for loitering. Judge Tsoucalas immediately proceeded to conduct a hearing on Newsome's motion to suppress the evidence seized at the time of his arrest.¹ Newsome raised and Judge Tsoucalas rejected the same claims at trial and on the motion to suppress: that the patrolmen did not have probable cause to arrest Newsome for loitering and that the loitering statute was unconstitutional and could not therefore serve as the basis for searches incident to arrests.

On May 7, 1970, the date scheduled for a trial on the drug charges, Newsome appeared before Judge Abraham Roth and withdrew his prior pleas of not guilty and pleaded guilty to the lesser charge of "attempted possession of dangerous drugs" (N.Y.Pen.L. 110.05(6)). He was sentenced immediately to 90 days in the City Reception Center, and received an unconditional release for the loitering conviction. The minutes of the May 7 proceedings clearly disclose Newsome's intention to appeal both the loitering conviction and, pursuant to N. Y.Code Crim.P. 813-c² the denial of his motion to suppress. Indeed, at the close of proceedings on May 7, Judge Roth granted a certificate of reasonable doubt (N.Y.Code Crim.P. 527) because "there is a question of law involved here, very serious question of law, with regard to the loitering charge." On direct appeal to the Appellate Term, the loitering conviction was reversed for insufficient evidence; but because the court found that probable cause existed to arrest Newsome for loitering, the search incident to that arrest was held valid and the drug conviction affirmed.³ Leave to appeal to the New York Court of Appeals was denied and a petition for a writ of certiorari was denied sub nom. Newsome v. New York, 405 U.S. 908, 92 S.Ct. 970, 30 L.Ed.2d 779 (1972). The instant petition for a writ of habeas corpus was filed on April 6, 1972,⁴ just five days before Newsome was to begin serving his 90 day sentence (imposition of which had been stayed pending appeal).⁵

On July 2, 1973, prior to Judge Bruchhausen's final disposition on the merits, the New York Court of Appeals in a well-reasoned opinion declared § 240.35(6) unconstitutional on its face because, among other infirmities, it was overly vague. People v. Berck, 32 N.Y. 2d 567, 347 N.Y.S.2d 33, 300 N.E.2d 411 (1973), cert. denied sub nom. New York v. Berck, 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (1973). On July 12, 1973, Judge Bruchhausen granted the writ.⁶ The New York State Attorney General, who had not appeared in prior proceedings in this case, requested and was granted leave to intervene as a respondent on the present appeal.

II. STANDING

As a threshold issue, the Attorney General raises the not unfamiliar claim that Newsome is without standing to pursue his underlying constitutional attacks on the drug conviction because those claims were waived when Newsome pleaded guilty. Ordinarily, it is true that an intelligent and voluntary guilty plea waives a defendant's right to trial and all claims of constitutional infirmities in the prosecution, which could have been raised at trial. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L. Ed.2d 235 (1973); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L. Ed.2d 763 (1970); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).⁷ But in McMann v. Richardson the Supreme Court noted that an exception to the general waiver rule exists where state law permits a defendant to retain his collateral claims after pleading guilty. 397 U.S. at 766, 90 S.Ct. 1441. New York is one of those states which permit a defendant to appeal specified adverse pretrial rulings even though he subsequently pleads guilty. The operative statutory provision at the time Newsome pleaded guilty was N.Y.Code Crim.P. 813-c, which stated: "the order denying a motion to suppress evidence may be reviewed on appeal from a judgment of conviction notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty."

We have characterized the New York procedure as "enlightened" for it permits a defendant whose sole defense is one of the specified constitutional claims neither to suffer nor impose on the state the burden of going to trial simply to preserve his claim — a procedure which precipitated the enactment of § 813-c.⁸ See United States ex rel. Rogers v. Warden, 381 F.2d 209, 214 (2d Cir. 1967). This new procedural device manifested obvious legislative determinations that trials are not to be encouraged in order to preserve a ground for appeal and that guilty pleas in such cases would aid in avoiding additions to beleaguered trial calendars. Accordingly, the rule in this circuit is well established that a New York defendant who has utilized § 813-c in the state courts may pursue his constitutional claim on a federal habeas corpus petition, for "it would be anomalous if a defendant by scrupulously following a sanctioned and reasonable state procedure for preserving his federal constitutional claims on appeal in state courts, simultaneously waived his right to present these same claims to a federal court . . . because he was lulled into following state procedures." Id. at 214-215. See United States ex rel. Stephen J. B. v. Shelly, 430 F.2d 215, 217 & n. 3 (2d Cir. 1970); United States ex rel. Molloy v. Follette, 391 F.2d 231 (2d Cir. 1968).

The Attorney General, despite our clear pronouncements on the issue, contends again, as he did in Molloy and Stephen J. B., that we should abandon the rule first announced in Rogers and close the avenue of federal habeas to state petitioners who have entered pleas of guilty under the circumstances we have recounted. Again, we reject this argument and reaffirm our view that where state law permits a defendant to plead guilty without forfeiting his appeals on collateral constitutional claims, it would be a trap to the unwary if a defendant who waived his right to trial in reliance on the state appeal procedures was thereafter precluded from pressing his federal constitutional claims in the district court. We believe, moreover, that were we to nullify the vitality of § 813-c and similar statutes for federal habeas corpus purposes, most defendants with competent counsel would be dissuaded from pleading guilty and instead would proceed to trial for the sole purpose of preserving claims for potential vindication on state review or federal habeas. The New York legislature passed § 813-c to prevent precisely this eventuality and federal courts should be reluctant to interfere with a state's administration of criminal justice, particularly when the result would be to add to its already congested criminal trial calendars. Accordingly, we refrain from confronting the state courts with a problem the legislature has attempted to ameliorate. We are of the view that the more...