United States v. Fay

• Decision Date: 13 April 1965
• Citation: 240 F. Supp. 591
• Parties: UNITED STATES of America ex rel. Phillip EIDENMULLER, Relator, v. Hon. Edward M. FAY, as Warden, Green Haven State Prison, Stormville, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

240 F. Supp. 591

UNITED STATES of America ex rel. Phillip EIDENMULLER, Relator, v. Hon. Edward M. FAY, as Warden, Green Haven State Prison, Stormville, New York, Respondent.

United States District Court S. D. New York.

April 13, 1965.

Phillip Eidenmuller, pro se.

Louis J. Lefkowitz, Atty. Gen., of New York, for respondent. Lillian Z. Cohen, Deputy Asst. Atty. Gen., of counsel.

WYATT, District Judge.

This petitioner for a writ of habeas corpus (28 U.S.C. § 2241), Phillip Eidenmuller, is in the custody of the penal authorities of New York serving at Green Haven Prison, Stormville, Dutchess County, New York, a sentence imposed on him on October 6, 1961, by the former Queens County Court after conviction by a jury of robbery (first degree), grand larceny (first degree), and assault (second degree). Petitioner was sentenced as a second felony offender to a term of from fifteen to thirty years. On appeal, the judgment of conviction was unanimously affirmed. 20 A.D.2d 682, 246 N.Y.S.2d 1006 (2d Dept.1964). Petitioner avers that leave to appeal to the Court of Appeals was thereafter denied by Judge Burke. There has been no application to the state court for a writ of error coram nobis.

The principal claim here made is contained in Point III of the brief for Eidenmuller in the Appellate Division; the briefs on appeal are submitted with the petition and Point III of Eidenmuller's brief is incorporated by reference. Point III argues that the arrest of Eidenmuller was illegal because in violation of New York Code of Criminal Procedure § 180 (informing of cause of arrest and officer's authority) and hence that currency taken from petitioner's person was unconstitutionally admitted in evidence (without objection) at the trial. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The trial minutes which have been examined by the Court, indicate that the trial began on October 3, 1961. The minutes do not indicate the calendar date on which the currency was admitted in evidence (SM 99-100) but it was after October 3, 1961 and thus some months after the decision in Mapp v. Ohio (June 19, 1961).

There is enough in the petition from which to conclude that petitioner also claims that — aside from N.Y.Code Cr. Proc. § 180 — the officers did not have probable cause to arrest him, or "reasonable cause" as used in N.Y.Code Cr.Proc. § 177. I assume that petitioner bases on this contention a further claim that the search and seizure of the currency was in violation of his constitutional rights.

Petitioner asks for an evidentiary hearing and cites Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). However, there is no issue of fact tendered. As already stated, only the briefs in the Appellate Division are submitted by petitioner. His affidavit contains no statement of any fact. His brief in the Appellate Division contains a recital of facts taken from (and citing) the People's case in the trial minutes. Petitioner did not testify at his trial and put in no defense. As already noted, this Court has examined the trial minutes. Under these circumstances, there seems to be no reason for holding an evidentiary hearing and Townsend v. Sain does not appear to compel one. 372 U.S. at 313, 83 S.Ct. 745, see Note, Federal Habeas Corpus for State Prisoners: The Isolation Principle, 39 N.Y.U.L.Rev. 78, 104-05 (1964).

The facts concerning the arrest and search were adequately developed during the trial and, in relevant part, are as follows:

On May 4, 1961 at about 11 p. m., Henry Bengel entered the Seneca Bar and Grill, located on Seneca Avenue in the Borough of Queens, where he stayed about 20 minutes, had a few drinks and left for home (about five blocks away). Also present in the bar when Bengel was there were Eidenmuller (petitioner), Speilman (his co-defendant at the trial) and another unknown man (SM 79; "SM" references are to the stenographic minutes). Three blocks from the bar in the vicinity of Harman Street and Seneca Avenue, Bengel was attacked by two men and robbed of his wallet which contained approximately sixty dollars (SM 12-17).

From a third floor window at 483 Seneca Avenue, overlooking the scene of the attack, Otto Freier, after being aroused from bed by noise in the street, observed a man stretched out on the sidewalk and two men standing next to him. He saw one of the two men take the victim's wallet. Although he could not clearly see the faces of the assailants (SM 74), Freier noticed that one of them was wearing a sweater (or jacket) with a red stripe (SM 74) and that the other was wearing a dark jacket and dark trousers (SM 64). The two men ran from the scene, across Seneca Avenue toward Greene Avenue. Freier then called the police. (By this time, Bengel had left the scene, gone to his home at 1880 Harman Street, Queens, and also called the police.) Patrolman McLaughlin was in a radio patrol car cruising in the neighborhood. When the alarm (presumably a result of Freier's call) was broadcast over the radio at 11:40 p. m. McLaughlin proceeded to the scene where Freier informed him of what he had just seen (SM 59-64). McLaughlin then cruised about the area (SM 94). Within a few minutes, Eidenmuller and Speilman, who had left the bar a short time after Bengel had left (SM 80) were stopped by McLaughlin while they were walking on the street at St. Nicholas and Gates Avenues (about eight or ten blocks from the scene of the attack); Speilman was wearing a sweater with a red stripe and Eidenmuller was wearing a bluish gray jacket and black trousers (SM 95). After some conversation with the two men, McLaughlin searched them and found $126 on Speilman and $61 on Eidenmuller. (The currency was introduced into evidence at the trial (SM 92-100).) Patrolman McLaughlin testified that if someone were to cross Seneca Avenue toward Greene Avenue and toward Wyckoff Avenue, then he would be going in the direction of St. Nicholas and Gates Avenues (SM 103), where McLaughlin stopped petitioner and his companion. Examination of a map shows that this testimony is correct. Freier testified that the two men he saw "crossed Seneca Avenue at an angle and went down Greene Avenue" (SM 63-64).

The officer took Eidenmuller and Speilman to the scene of the attack where Freier confirmed that Speilman's sweater was similar to the one he had previously seen on one of the assailants. Later, in the police station, Bengel (who had been brought to the police station by another patrol car) selected the two men from a "line-up". This identification was within an hour after the attack (SM 19; 72-73).

I.

There was no objection based on Mapp v. Ohio, above, at the time the currency was introduced into evidence (SM 99-100); the claim that the arrest and the incidental search were unlawful was raised for the first time on appeal. (Brief for appellant, Point III). Since there was no opinion in the Appellate Division (20 A.D.2d 682, 246 N.Y.S.2d 1006 (2d Dept.1964)) it cannot be known whether the court considered the constitutional claim on its merits or instead decided that the failure to object waived that question of law on appeal. See People v. Friola, 11 N.Y.2d 157, 227 N.Y.S. 2d 423, 182 N.E.2d 100 (1962); People v. Alexander, 18 A.D.2d 1092, 239 N.Y.S. 2d 364 (2d Dept.1963); cf. People v. Kelly, 12 N.Y.2d 248, 250, 238 N.Y.S.2d 934, 935, 189 N.E.2d 477 (1963).

If the Appellate Division considered the constitutional claim on its merits, leave to appeal to the New York Court of Appeals having been denied, the highest state court which would hear the claim has done so and the requirement of 28 U.S.C. § 2254 has been met. See, for example, Irvin v. Dowd, 359 U.S. 394, 406, 79 S.Ct. 825, 3 L.Ed.2d 900 (1959).

If, on the other hand, the claim was not considered on its merits, then it must be determined whether there exists an available collateral remedy in New York. A writ of error coram nobis to review this claim is not available in New York because the claim could have been made by objection in the trial court and reviewed on direct appeal. People v. Howard, 12 N.Y.2d 65, 236 N.Y.S.2d 39, 187 N.E.2d 113 (1962), cert. denied 374 U.S. 840, 83 S.Ct. 1893, 10 L.Ed.2d 1060 (1963).

"It would introduce confusion in the administration of justice if defenses or objections which might have been made and reviewed on appeal could be reserved as grounds for collateral attack upon the judgment of conviction years after it was rendered." 12 N.Y.2d at 68, 236 N.Y.S.2d at 43, 187 N.E.2d at 116.

Thus it must be concluded that state court remedies have been exhausted.

Did the failure to object constitute a deliberate bypassing of orderly state procedure within the meaning of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) so that it can be said that petitioner has waived his rights? It would not seem so, since the failure to object appears to be the result of a routine decision by trial counsel during trial; the record does not show that the failure to object was "the considered choice of the petitioner", as Fay v. Noia requires for any waiver (372 U.S. at 439, 83 S.Ct. at 849). "A choice made by counsel not participated in by petitioner does not automatically bar relief." (the same)

Fay v. Noia places denial of relief on the ground of waiver within "a limited discretion in the federal judge" (372 U.S. at 438, 83 S.Ct. at 848). I would not here exercise that "limited discretion" to find waiver and on that ground to deny relief. See United States ex rel. Alexander v. Fay, 237 F.Supp. 142, 147-148 (S.D.N.Y.1965).

Therefore the petition is properly to be considered on its merits.

II.

The State apparently does not dispute the fact that the arrest took place when Patrolman McLaughlin stopped Eidenmuller and Speilman on the street. The Court feels justified in so finding because under New York law "an arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer."...