Waterman, Smith and Kaufman, Circuit Judges.
State prisoners DeLucia and Montella appeal from an order of the United States District Court for the Northern District of New York denying without a hearing their joint application for a writ of habeas corpus.
After a jury trial appellants were convicted in the New York Supreme Court for Queens County of an attempted burglary in the third degree and of possession of burglar's instruments. Information of jury misconduct, an unauthorized clandestine view by some jurors of the premises of the alleged crimes, was discovered by appellants after the jury's verdict was rendered. They moved before sentencing to set aside the verdict. The trial court denied the motion.
On June 28, 1963, DeLucia was sentenced to concurrent terms of 2 1/2 to 10 years imprisonment on the two counts and Montella was sentenced to 2 1/2 to 5 years imprisonment on the burglary charge and given a suspended sentence for possession of burglar's instruments.
After the imposition of the sentences an investigator employed by counsel for the convicted men obtained from five members of the jury statements disclosing that jurors had visited the scene. These statements were attached to a motion addressed to the trial court praying for a rehearing of the denied motion to set aside the verdict. This motion was also denied, but reargument of the original motion was granted and the original decision thereon was adhered to.
The appellants' convictions, as well as the denial of the motion to set aside the verdict, were affirmed without opinion by the Appellate Division for the Second Department. People v. DeLucia, 21 App.Div.2d 805, 252 N.Y.S.2d 259 (1964). Appeal was taken to the New York Court of Appeals by permission of a judge thereof and the judgment of the Appellate Division was affirmed by a divided court (4-3). People v. DeLucia, 15 N.Y.2d 294, 258 N.Y.S.2d 377, 206 N.E.2d 324 (1965). The United States Supreme Court denied certiorari. DeLucia v. New York, 382 U.S. 821, 86 S. Ct. 50, 15 L. Ed. 2d 67 (1965). Having thus exhausted their state remedies, appellants, alleging a denial of due process under the United States Constitution, brought their petition for a writ of habeas corpus to the court below. The petition was denied and dismissed without a hearing on the ground that the jury's alleged "irregularity does not rise to the stature of being State action violative of fundamental liberties guaranteed by the Federal Constitution." On May 16, 1966 the district judge granted a certificate of probable cause and the within appeal followed. Before the appeal was argued the opinion and order of the United States Supreme Court in Parker v. Gladden was handed down on December 12, 1966. In view of Parker v. Gladden, 385 U.S. 363, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1966), we vacate the order below denying and dismissing the petition and, in order to give the New York courts an opportunity to reconsider the previous disposition of appellants' claims, we direct that the petition below be dismissed without prejudice to the rights of petitioners to renew their petition in an appropriate federal district court, after reconsideration by the New York courts, in the event that relief is denied them by the state courts.
In the early hours of the morning of May 14, 1962 at about 5:30 A.M. three New York City police detectives, Szarwas, Goggin, and Lester arrested DeLucia and Montella. The detectives' testimony indicated that they made the arrest inside an apartment building on Queens Boulevard in which an establishment called Pep McGuire's Cabaret was located. Detective Szarwas further testified that he saw Montella attempting with a screwdriver to open a rear entrance door that led from the hallway of the apartment building into Pep McGuire's Cabaret. Montella testified that he and DeLucia were innocently walking through the alleyway bordering the apartment building on their way to Montella's parked car; that the detectives came upon them in the alleyway, opened the door leading into the building and pushed them inside; and that Detective Szarwas found the screwdriver on the floor in the hallway and attempted to place it in Montella's hands. He testified that although they had been customers at Pep McGuire's a few hours earlier he and DeLucia had never been in this part of the building before the detectives pushed them in, were not carrying the screwdriver, and had no intention of burglarizing the premises. Various photographs and descriptions of the hallway of the apartment building were introduced into evidence by both the prosecutor and the defense counsel so as to familiarize the jury with this area where the alleged crimes took place.
As the case was presented to the jury their main deliberations inevitably must have been directed toward resolving the conflict between the testimony of the detectives and that of Montella. The jury received the case at 10:40 A.M. on May 2, 1963, made requests for exhibits and for rereading of testimony, and deliberated continuously, excluding the usual periods for meals, until 10:45 P.M. when it returned its verdict that both DeLucia and Montella were guilty as charged on both counts.
As the jury was leaving the courtroom after giving its verdict, counsel for appellants had occasion to speak to several jurors and learned from them that during the trial a number of the jurors had visited the scene of the crimes, which was only about one block from the building in which the trial was being held, and reenacted the crimes there. There was no official view of the premises, and court and counsel had been unaware of this clandestine one.
The investigation, mentioned above, resulted in the obtaining of sworn affidavits from five of the jurors. These statements give a fairly clear picture of what took place during the unauthorized view and of the effect the jurors' excursion had upon the jury's deliberations.
Juror Nick Kushner stated that he did not visit the scene. He said that a Mrs. Margolin, one of the jurors, had initiated the visit and that after she returned she attempted, in the jury room, to influence others as to the guilt of the appellants. It was his opinion that she had influenced at least five of the other jurors who had been in favor of voting for acquittal.
Juror Yves LeBris stated that he was one of the jurors who visited the scene in order to clarify some of the testimony. He said that the result of his visit was that "it helped influence me" in coming to a decision.
Juror Nicholas S. Johnson testified that he visited the scene with Mrs. Margolin and some other jurors and reenacted some of the testimony. He also attempted to verify a point defense counsel had been trying to make on cross-examination. He said that he recalled seeing Mrs. ...