The opinion of the court was delivered by: COOPER
Petitioner, applying to this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq., is presently confined in Green Haven Prison, Stormville, New York, having been convicted by a jury in 1961 of the crimes of robbery, first degree, grand larceny, first degree, and assault, second degree. Petitioner was tried jointly for these offenses in the former County Court, Kings County, with co-defendant William DeBerry. He was sentenced to terms of ten to thirty years on the robbery count, five to ten years on the grand larceny count and two and a half to five years on the assault count; the latter two sentences to run concurrently with the first.
The judgment of conviction was affirmed by the Appellate Division, People v. Savino, 20 A.D.2d 901, 248 N.Y.S.2d 984 (2d Dept. 1964), and without opinion by the New York Court of Appeals at 15 N.Y.2d 778, 257 N.Y.S.2d 345, 205 N.E.2d 536 (1965).
Petitioner previously sought a writ of habeas corpus in this Court, but his application was dismissed by Judge Cannella "in order to give the New York courts an opportunity to review their previous disposition of petitioner's claims in the light of Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L.Ed 2d 705 (1967)." United States ex rel. Savino v. Follette, 66 Civ. 1274 (S.D.N.Y.July 11, 1967). The New York Court of Appeals thereafter granted petitioner reargument. The case was reconsidered in the light of Chapman, and the original judgment of affirmance was adhered to. People v. Savino, 22 N.Y.2d 732, 292 N.Y.S.2d 115, 239 N.E.2d 209 (1968).
Based upon the papers before us and the record of petitioner's trial,
certain facts are undisputed. Mrs. Adeline Bergman was robbed by two men at her residence on March 23, 1961. The two men pushed their way into her apartment and remained there for some forty-five minutes. During this time the man she identified at trial as petitioner engaged her in intermittent but extended conversation thus affording her ample opportunity to observe his features. Mrs. Bergman called the police immediately after the robbers left. She told Detective Sutton, who conducted the investigation, that one of the robbers, whom she later identified as petitioner, was about 28 to 30 years old, five feet ten inches tall, heavy set and powerfully built, weighing about 190 pounds. She testified at trial that she described this man's distinguishing features to the police as "bushy, thick brows," "beady" eyes, and a "dark, pasty complexion" with "little marks," a "full mouth" and "protruding lips," a nose which was "not too wide" and "nice" ears.
She described the clothing he wore as a dressy black overcoat of a smooth, flat material with two pockets,
and a black hat having a velvet texture, a narrow brim, and a black and white intertwined band.
On June 2, 1961 at 12:30 p.m., more than two months after the robbery, Detective Sutton arrested petitioner and brought him to the station house. At a line-up consisting of five men including petitioner, none of whom were wearing a hat or coat, Mrs. Bergman quickly and positively identified petitioner as one of the two men who robbed her.
Following that identification, the police along with petitioner Savino went to Savino's apartment between 4:30 and 5 p.m. on June 2nd to conduct a warrantless search,
which resulted in the discovery and seizure of a hat and coat matching the description Mrs. Bergman had given of the hat and coat worn by one of the robbers.
Mrs. Bergman was thereafter summoned to a police station to view petitioner for a second time in order that she might see him dressed in the hat and coat police had seized from his apartment.
She again positively identified Savino as one of the two men who robbed her.
At trial Mrs. Bergman was the sole identifying witness for the prosecution. She testified and was cross-examined at great length as to the distinguishing features of the robber she identified as petitioner, and stated she was a "thousand percent" sure of her identification. Over the objection of petitioner's counsel, the hat and coat seized in the search of petitioner's apartment were admitted into evidence.
Aside from Mrs. Bergman's testimony, only one additional piece of evidence tended to show that Savino and DeBerry were acquainted prior to their arrests. Co-defendant DeBerry offered an alibi defense in which it was alleged that on March 23, 1961, the date of the robbery, he was painting the apartment of an alibi witness.
In rebuttal, the prosecution called Detective Sutton who in the course of his testimony stated that DeBerry had told him that one of the two orders of paint which DeBerry claimed at trial were purchased for the alibi witness' apartment, in fact were bought "to paint an apartment of William Savino."
Counsel at trial and the trial judge rightly recognized that this testimony was not binding on Savino, and the jury was so instructed.
Petitioner contends that the trial court erred in permitting Detective Sutton to testify to co-defendant DeBerry's out-of-court statement that some of the paint was bought "in order to paint an apartment of William Savino" because, in addition to controverting DeBerry's alibi defense, its effect was to implicate Savino.
While petitioner has not waived his right to raise as an issue herein deprivation of his right of confrontation, see United States ex rel. Floyd v. Wilkins, 367 F.2d 990, 993 (2d Cir. 1966), we need not rule with respect to it in view of our disposition below as to the effect of the introduction in evidence at trial of the illegally seized hat and overcoat. We note in passing, however, that in light of the apparent absence of crucial, "devastating," or "powerfully incriminating" hearsay, and of the trial court's explicit limiting instructions
no fundamental error justifying relief appears present. See Bruton v. United States, 391 U.S. 123, 135, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968); United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir., December 2, 1968). See also, United States v. Catino, 403 F.2d 491 (2d Cir. 1968).
While we are convinced of defendant's guilt, that does not relieve us of the obligation to determine whether he received a fair trial in contemplation of law. Our great respect for the New York Court of Appeals which sees no merit to defendant's complaint has compelled us to strain in considering and reconsidering the merits of defendant's next challenge. And so we turn now to what we view, albeit reluctantly, as the ...