The opinion of the court was delivered by: TYLER
Ralph Spero and Salvatore Scarpa were convicted in the Kings County Court in March, 1961 of the crimes of robbery in the first degree, grand larceny in the first degree, assault in the second degree and kidnapping. Spero was sentenced on June 12, 1961 to a term of 10 to 20 years on the robbery conviction. Sentences on the other counts were suspended. He now petitions this court for a writ of habeas corpus, alleging that evidence obtained in violation of his Fourth Amendment rights was wrongfully used against him at the trial.
At trial no constitutional objections were made to the introduction of the now challenged evidence; and, although Mapp v. State of Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), was decided one week after he was sentenced, Spero never raised the search and seizure issue on direct appeal.
Spero has made two previous habeas corpus applications to this court. Because the search and seizure issue had not been fully litigated in the state courts, his applications were denied.
His subsequent motion for a writ of error coram nobis and his appeal therefrom were rejected by the state courts, as was his application for leave to appeal to the Court of Appeals;
he has thus exhausted his state remedies with respect to the search and seizure claim, and his petition is properly before this court.
Because of a lack of certainty engendered by my reading of the state record as to the facts and circumstances under which two police officers stopped Spero's car on October 7, 1959, at a time when it was being driven by two friends, Scarpa and Hugh McIntosh, an evidentiary hearing was held on January 25 and 26, 1967. Rulings on various legal points raised by the Attorney General of the State of New York were deferred pending completion of the hearing, on the basis of which the facts hereinafter recited are found.
During the summer and fall of 1959, the Brooklyn South Burglary Squad, New York City Police Department, in connection with the Federal Bureau of Investigation, was investigating hijacking activities in the Borough of Brooklyn. It was known that a particular group of men (the "Persico group") which "hung out" in the vicinity of Union and Bond Streets, in particular at Russo's Bar and Grill and the El Fay Social Club, was involved in the hijacking operation; consequently, the inquiry had centered on its members. Among others, Hugh McIntosh and Salvatore Scarpa were known to be members of that group.
On September 30, 1959, after one Eddie Wallace had been interviewed regarding the hijacking of his employer's truck containing a quantity of Italian cheese and tomato paste, an "unusual occurrences" report was circulated describing, among other things, the two persons who had held Wallace captive and the car used in the hijacking. This report identifying a 1952 or 1953 two-tone green Buick two door sedan and containing the further information that one of the men had worn dark glasses, a blue striped "be-bop" style cap and a maroon corduroy jacket was read by Detectives Charles Bartels and Joseph McNeely, both members of the Brooklyn South Burglary Squad.
On October 7, 1959 members of that Squad were called upon to assist in solving the shooting of Anthony Brandofino, also known to the police as Tony Lapp. Specifically, they were called in because of their knowledge, acquired in the hijacking investigation, of the movements of Brandofino and of the members of the Persico group.
At approximately 2:15 a.m. on October 7, 1959, Anthony Brandofino received nine bullet wounds while walking along 59th Street in Brooklyn near Fort Hamilton Parkway. He managed to escape through an alley and climb through a window into the kitchen of a ground floor apartment where the police, in response to a radio call, found him. Brandofino would not tell the police who his assailants were, stating only that he would "take care of it" himself. He was taken to Maimonides Hospital in critical condition.
Shortly after Brandofino was removed to the hospital, it was learned that John Fahy, an off-duty patrolman who lived in the neighborhood, had been awakened by the shots and had seen an old model, possibly a 1954, rust or tan colored Pontiac pull away from the scene after a man ran from the alley and entered the car. Several other men were in the car.
The description fitted an automobile which the police knew belonged to Hugh McIntosh. They had frequently seen McIntosh, Scarpa and other members of the Persico group riding around in it.
At daybreak that morning, a car which fitted the description given by Patrolman Fahy was found by Detectives Farrell and McCabe parked in the vicinity of Bond and Union Streets. On the seat they saw a paper bag, the contours of which indicated that it might contain a gun; on inspection, however, it was found to be empty. A check of the license plates disclosed that they had been issued to Hugh McIntosh, but for a different automobile. When taken down to view the Pontiac, Parolman Fahy stated that it was similar to the car he had seen pulling away from the scene of the shooting.
Because of the numerous shots that were fired, the number of men seen in the Pontiac and Brandofino's refusal to identify his assailants, the police deduced that the shooting was a "gangland" assault. Previous knowledge of Brandofino and the Persico group and the identification of McIntosh's car focused suspicion on that group - especially on Salvatore Scarpa. Scarpa was known to have had a fight with Brandofino three months previously over a girl, Antoinette DeMarzo.
At the very least, the police believed that various members of the Persico group, if they had not participated in the shooting, knew something about it. Accordingly, Sergeant Cooney, who was in charge of the Brandofino inquiry, directed that Scarpa and McIntosh and any of their associates be picked up for questioning.
In the early afternoon of October 7, Ralph Spero had loaned his car - a 1953 Buick, recently repainted - to McIntosh and Scarpa. At approximately 3:00 p.m. Bartels and McNeely, who were parked near the intersection of Flatbush and Sixth Avenue, observed McIntosh and Scarpa in Spero's car; at the same time Scarpa spotted the detectives, whom he knew, and tried to hide his face from them. The detectives approached the car with guns drawn, ordered McIntosh and Scarpa to get out and then "patted them down" for possible weapons. Bartels knew that McIntosh, who had been driving, did not have a driver's license, and when he asked who owned the car, the only answer was "Ralphie". At that time Bartels could see that there was no key in the ignition and one of the side vent windows had been broken. The detectives also noticed a rust colored corduroy jacket lying on the back seat of the car. Almost instantly, McNeely, putting "two and two together", recognized it to be similar to the jacket described in the report of the September 30th hijacking. A search of ...