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UNITED STATES EX REL. AMERICA v. FISH

July 15, 1965

UNITED STATES of America ex rel. America MENDEZ, Relator,
v.
Lillian V. FISH, Superintendent of the Westfield State Farm of the State of New York, Respondent


Frederick van Pelt Bryan, District Judge.


The opinion of the court was delivered by: BRYAN

MEMORANDUM

FREDERICK van PELT BRYAN, District Judge:

 This is a petition for a writ of habeas corpus by a state prisoner presently incarcerated in the Westfield State Farm, at Bedford Hills, New York. She is there under a sentence imposed on a plea of guilty to a charge of abortion. Petitioner alleges that her detention is in violation of the Federal Constitution.

 From the papers submitted by petitioner through her attorney and the opposing papers submitted by the State of New York, the following undisputed facts emerge.

 On August 12, 1964 petitioner's home was searched pursuant to a warrant which authorized the search for and seizure of evidence pertaining to the performance of unlawful abortions.

 On August 21, 1964 petitioner was indicted in a nine count indictment for the crime of abortion by the Grand Jury of Kings County. She alleges that evidence seized on August 12 pursuant to the search warrant furnished a basis for the indictment.

 The warrant was issued pursuant to New York Code of Criminal Procedure § 792, subd. 4, which permits the seizure under a search warrant of "property constituting evidence of crime or tending to show that a particular person committed a crime."

 On December 14, 1964 a hearing was held in Kings County Supreme Court on a motion to suppress the evidence seized under the search warrant, on the grounds, among others, that § 792 violated the Federal Constitution in that it permitted unreasonable searches and seizures. Petitioner was represented by the same counsel who represents her on her present application. Justice Starkey held the statute constitutional and denied the motion to suppress.

 At the hearing on the motion to suppress it also developed that petitioner's telephone had been tapped shortly before issuance of the search warrant. Petitioner maintains that she was also denied due process because her application to examine the court order authorizing the telephone tap was not granted.

 Petitioner subsequently pleaded guilty to one count of the nine count indictment and on April 20, 1965 was sentenced to one to two years confinement.

 There is no indication that petitioner's plea was anything but voluntary and made with a complete understanding of all the circumstances or that she was not represented by counsel.

 On May 3, 1965 petitioner filed a notice of appeal from the judgment of conviction to the Appellate Division of the New York Supreme Court. By appealing her judgment of conviction, even though it was predicated upon a plea of guilty, petitioner claims she may obtain a review of the denial of the motion to suppress. See N.Y. Code Crim.Proc. § 813-c. The appeal will be argued next September or October.

 On June 9, 1965 petitioner moved in state court for an order granting a certificate of reasonable doubt and an order releasing her on bail pending appeal. Under N.Y. Code Crim.Proc. §§ 527, 529, a defendant may be released on bail pending appeal only if a certificate of reasonable doubt is obtained from the trial court.

 Petitioner's motion for a certificate of reasonable doubt was denied. There is apparently no state procedure to obtain a review of a denial of a motion to grant a certificate of reasonable doubt. See Epps v. Supreme Court, State of New York, 19 A.D.2d 807, 243 N.Y.S.2d 377 (1st Dept.1963) ...


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