United States v. Fay

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation230 F. Supp. 158
PartiesUNITED STATES of America ex rel. Frank REALMUTO, Petitioner, v. Edward M. FAY, as Warden of Green Haven Prison, Stormville, New York, Respondent.
Decision Date26 May 1964

230 F. Supp. 158

UNITED STATES of America ex rel. Frank REALMUTO, Petitioner,
v.
Edward M. FAY, as Warden of Green Haven Prison, Stormville, New York, Respondent.

United States District Court S. D. New York.

May 26, 1964.


230 F. Supp. 159

Frank Realmuto, petitioner, pro se.

Louis J. Lefkowitz, Atty. Gen. of New York, for respondent, Mortimer Sattler, New York City, of counsel.

FEINBERG, District Judge.

Petitioner, Frank Realmuto, brings this pro se application for a writ of habeas corpus upon the ground that a 1963 New York first degree robbery conviction was based upon an indictment obtained in violation of his federal constitutional rights under the Fourth, Fifth, and Fourteenth Amendments.

The indictment in question, returned by the Grand Jury of Kings County on August 25, 1960, is alleged to have been based upon illegally seized evidence. A pre-trial motion to suppress this evidence was granted. However, it appears from the papers submitted on this application that no motion was made—either before or after conviction—to dismiss the indictment. More than a year after petitioner's sentencing, he was assigned counsel to appeal his conviction. Petitioner apparently requested his assigned counsel to move to dismiss the indictment and prepared motion papers which he submitted to counsel. Counsel advised petitioner that it was too late to move to dismiss the indictment or to inspect the grand jury minutes, but that he would proceed with an appeal, both from alleged errors committed at the trial and from the denial of a motion for a new trial. A notice of appeal has been duly served and filed and the appeal has been set down for the November term of the Appellate Division, Second Department.

Assuming arguendo that no motion to dismiss the indictment was made in the trial court,1 I direct myself to petitioner's contention that there is no presently available remedy in the state courts by which he can challenge the sufficiency of the indictment and that state remedies, therefore, have been exhausted.

The general rule in New York is that if a defendant fails to move to

230 F. Supp. 160
dismiss the indictment before or upon entry of judgment, he loses the right to attack the indictment while he is detained pursuant to that judgment. People v. Nitzberg, 289 N.Y. 523, 47 N.E.2d 37, 145 A.L.R. 482 (1943); People v. Willett, 213 N.Y. 368, 107 N.E. 707 (1915). However, it is by no means clear that a constitutional objection to an indictment cannot be...

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2 practice notes
  • USA ex rel. Sabella v. Follette, No. 69 Civ. 5047.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 3, 1970
    ...to the third trial, petitioner became aware of Points II and III in this application." 38 Cf. United States ex rel. Realmuto v. Fay, 230 F.Supp. 158 (S.D.N.Y.1964); Schlette v. People of California, 284 F.2d 827, 834 (9th Cir....
  • United States v. Thomas, No. 65 Civil 3648.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 19, 1966
    ...People of State of New York ex rel. Epps v. Nenna, 214 F.Supp. 102, 104-105 (S.D.N.Y.1963). 6 See United States ex rel. Realmuto v. Fay, 230 F.Supp. 158, 160 (S.D.N.Y. 1964); United States ex rel. Thompson v. Fay, 197 F.Supp. 855, 856 (S.D.N.Y. 1961). United States ex rel. Krzywosz v. Wilki......
2 cases
  • USA ex rel. Sabella v. Follette, No. 69 Civ. 5047.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 3, 1970
    ...to the third trial, petitioner became aware of Points II and III in this application." 38 Cf. United States ex rel. Realmuto v. Fay, 230 F.Supp. 158 (S.D.N.Y.1964); Schlette v. People of California, 284 F.2d 827, 834 (9th Cir....
  • United States v. Thomas, No. 65 Civil 3648.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 19, 1966
    ...People of State of New York ex rel. Epps v. Nenna, 214 F.Supp. 102, 104-105 (S.D.N.Y.1963). 6 See United States ex rel. Realmuto v. Fay, 230 F.Supp. 158, 160 (S.D.N.Y. 1964); United States ex rel. Thompson v. Fay, 197 F.Supp. 855, 856 (S.D.N.Y. 1961). United States ex rel. Krzywosz v. Wilki......

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