United States v. LaVALLEE

• Decision Date: 02 May 1966
• Docket Number: Civ. No. 9657.
• Citation: 275 F. Supp. 91
• Parties: UNITED STATES of America ex rel. James P. CARAFAS, Petitioner, v. Hon. J. Edin LaVALLEE, Warden of Auburn Prison, Auburn, New York (Successor to Hon. Robert E. Murphy), Respondent.
• Court: U.S. District Court — Northern District of New York

275 F. Supp. 91

UNITED STATES of America ex rel. James P. CARAFAS, Petitioner, v. Hon. J. Edin LaVALLEE, Warden of Auburn Prison, Auburn, New York (Successor to Hon. Robert E. Murphy), Respondent.

Civ. No. 9657.

United States District Court N. D. New York.

May 2, 1966.

James P. Carafas, in pro. per., Lawrence W. McKeown, Mineola, N. Y., for petitioner.

Louis J. Lefkowitz, Atty. Gen. of New York, Albany, N. Y., for respondent; Barry Mahoney, Asst. Atty. Gen., New York City, Joseph R. Castellani, Asst. Atty. Gen., Albany, N. Y., of counsel.

JAMES T. FOLEY, Chief Judge.

Memorandum—Decision and Order

This petitioner and his wife, the latter not a party in this habeas corpus proceeding, were convicted after trial by jury verdict in Nassau County, New York, in November of 1960, of the crimes of Burglary third degree and Grand Larceny second degree. In November 1960, the wife was sentenced to concurrent terms of 1½-5 years, and on December 13, 1960 petitioner was sentenced to concurrent terms of 3-5 years. These judgments of convictions were affirmed, no opinion. (14 A.D.2d 886, 1961, 218 N.Y.S.2d 536). The Court of Appeals, New York, affirmed, no opinion. (11 N.Y.2d 891, 227 N.Y.S.2d 926, 182 N.E. 2d 413, 1962). Remittitur of that Court was amended to show the unreasonable search and seizure question was presented and passed upon. (Carafas v. New York, 11 N.Y.2d 969, 229 N.Y.S.2d 417, 183 N.E.2d 697, 1963). Certiorari was denied in 372 U.S. 948, 83 S.Ct. 944, 9 L.Ed.2d 973 (1963).

Then, the federal procedure of habeas corpus was invoked. No matter the diplomatic camouflage in judicial language to describe it as a proceeding other than one of review in reality federal habeas corpus is automatically the next appellate step of review of state criminal convictions on federal constitutional grounds. It is so considered and freely used by the state prisoners. (Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed. 2d 837; Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770). The petitioner was confined to Auburn State Prison in the Northern District of New York, when he filed his habeas corpus petition in this Court. I denied it in a reported decision without prejudice, ruling that in view of the unsettled state of the law in New York on the question of failure to object at the trial when photographs of the furniture involved in the theft were offered and received, he should reapply to the Appellate Division, Second Department, and Court of Appeals, New York, for reconsideration. (U. S. ex rel. Carafas v. Murphy, D.C., 231 F.Supp. 533, 1963; see also Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408). It is not clear in the record how it was managed, and probably is unimportant, but the petitioner did follow my suggestion and went back to the New York Courts, but apparently at the same time appealed to the Court of Appeals, Second Circuit. There was no further presentation to me by the petitioner after the State Appellate Court denials for reargument. The next ruling was by the Court of Appeals, Second Circuit, reversing my denial, qualified as one without prejudice to renewal and remanding the issues of unreasonable search and seizure to me for determination. (334 F.2d 331, 1964). New York obtained a stay of the mandate and a combined petition for certiorari was filed in this proceeding and in two others with similar questions and was denied. (381 U.S. 951, 1965, 85 S.Ct. 1798, 14 L.Ed.2d 725). The Court of Appeals, Second Circuit, in this case and in Angelet v. Fay, 333 F.2d 12; aff'd 381 U.S. 654, 85 S.Ct. 1750, 14 L.Ed.2d 623, commented that the failure to object in New York before the Mapp v. Ohio ruling (367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, June 19, 1961), would be futile and not a waiver. (See Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408; Nelson v. State of California, 9 Cir., 346 F.2d 73; Fay v. Noia, supra, 372 U.S. p. 439, 83 S.Ct. 822).

This marathon of state and federal review is not yet ended. The complication that caused confusion in this case, as in many others, was that the trial was held before Mapp, and Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, settling the retroactivity of Mapp, did not come until June 1965. Fortunately, the long delay is not as serious as in some instances because the petitioner was paroled October 4, 1964 from confinement. Attorney McKeown, who had represented Carafas in the trial where the conviction here challenged was rendered, also at a suppression of evidence hearing before Nassau County Judge Kelly in 1962 on another Nassau County indictment charging similarly the burglary and larceny of model home furniture, and on the State appeals, volunteered to appear for him in the next steps in this proceeding to be taken upon the remand. The Court of Appeals left it to my discretion as to the need for hearing. However, Assistant Attorney General Mahoney, who handled the federal appeals for New York, and Attorney McKeown, thought a hearing should be held, and accordingly, one was held in Albany on November 5, 1965. The hearing was expedited by the attorneys who had the important witnesses Carafas, his wife and the two detectives, first reaffirm their testimony given at the State trial in 1960 and before Judge Kelly at the 1962 hearing relevant to the incidents that happened at the Carafas home in June 1959, and are important to be weighed in the determination of the search and seizure issue. Several of the witnesses at the hearing before me did testify to some further extent and exhibits were introduced to throw further light upon the physical factors present where the arrest, search and seizure were made.

As a result of this splendid cooperation by the lawyers, and I am sincere about the effort, a substantial record was speedily submitted and must be canvassed for decision. The State trial record submitted is one of 1181 pages; the record of hearing before Judge Kelly in August, 1962, is 164 pages; the transcript of hearing before me in 1965 is 81 pages. Even to those with little habeas corpus experience on the front line a burdensome task of review should be evident. I shall refer, when necessary, as the attorneys have done in their excellent briefs, to the State trial record by "Tr.", to the minutes of the hearing before County Judge Kelly by "M.", and to the hearing before me by the symbol "T". The State records shall be filed with the Clerk of this Court, Federal Post Office Building, Utica, N. Y., with this decision.

With full realization of the seriousness of any criminal charges upon which conviction causes imprisonment, there is noted in the background of our situation here in the necessary search for probable cause one Keystone Comedy aspect. Nassau County Detectives Grim and Kapler investigated on the same morning the burglary of a model home in Oceanside, Long Island, that took place during the early morning hours of June 3, 1959. In their investigation they were taken through the model home and had described to them the pieces of furniture stolen. (T. 28, 44). They spoke to one particular neighbor in the case who gave the amazing information that she saw an AAA Truck come in the early morning hours when the burglary was taking place and pull out of the sand by the model home a black and gray Cadillac, with a U-Haul trailer attached, carrying New Hampshire license plate. (M. 84, T. 45). She described the appearance of the man and woman in the car. The detectives located the tow truck operator who pulled the car and trailer out, and they learned through him that the person who was assisted gave his name as James Carafas, 3553-30th Street, Astoria, apparently a duly accredited member of AAA. (M. 85-86, T. 45-46). This information led the detectives to the Astoria address on June 3, 1959, where they testified they saw the Cadillac and trailer with the New Hampshire plate parked in front of the two-story house. (M. 142, T. 26, 46; Resp. Ex. A).

This is the critical juncture where the entry into the house and the search and seizure of the furniture must be examined. The legal guide lines for decision give no fixed formula to ascertain probable cause when, as here, arrest is made without an arrest warrant, and search without a search warrant. (United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653). It is emphasized that we must be mindful we deal with probabilities and must search for the practical considerations of everyday life on which reasonable and practical men, not legal technicians, act. (Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879). What...