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UNITED STATES EX REL. SADOWY v. MANCUSI

October 16, 1969

UNITED STATES of America ex rel. John SADOWY, Petitioner,
v.
Vincent R. MANCUSI, Warden, Attica Prison, Attica, New York, Respondent



The opinion of the court was delivered by: COOPER

MEMORANDUM

 COOPER, District Judge.

 Petitioner, applying pro se for a writ of habeas corpus, is presently confined in Attica State Prison, New York, serving as a fourth felony offender a sentence of fifteen years to life pursuant to a judgment of the Supreme Court, Bronx County rendered on February 6, 1968 upon petitioner's plea of guilty to the crime of attempted possession of a firearm. He contends that his plea of guilty was involuntary because it was the direct result of an unconstitutional search and seizure.

 Petitioner's motion to suppress evidence of a firearm seized from him at the time of his arrest was denied after a full evidentiary hearing in the Supreme Court, Bronx County, on April 20, 1967, long before his plea of guilty. He has exhausted his state remedies with regard to this claim. *fn1" He is entitled to raise this claim despite his plea of guilty. See United States ex rel. Ross v. McMann, 409 F.2d 1016 (2d Cir. 1969), cert. granted 396 U.S. 813, 90 S. Ct. 65, 24 L. Ed. 2d 67 (October 14, 1969).

 There is nothing in the record to suggest that the suppression hearing was not full and fair, or that the material facts were not adequately developed. Indeed, petitioner, introducing no evidence at the hearing, apparently concedes the basic facts as alleged by the State and differs only as to the legal conclusion which follows. *fn2"

 The facts developed at the suppression hearing are as follows: On October 21, 1966 an informer, who had never previously given information to the police, told detectives McCarthy and Guerci that petitioner and one Kiernan were going to commit an armed robbery at the O. K. Machine Corp., located at 551 E. 179th Street in the Bronx, on October 25, 1966 at about 2:15 p.m. The informer further told the detectives that the company's payroll was scheduled to arrive in a station wagon at that time and that petitioner and his accomplice would be on hand armed with guns given them by a third party and thus prepared to seize the vehicle, drive to 180th Street and Park Avenue, tie-up the driver, take the payroll, and go to 179th Street and Park Avenue where they would return the guns and give the money to the third party. *fn3"

 On October 22, 1966 the two detectives obtained photographs of petitioner and Kiernan along with their criminal records from the Bureau of Criminal Identification. Both men had long criminal records involving prior robberies and assaults and were believed dangerous. *fn4"

 On October 24, 1966 the detectives visited the O. K. Machine Corp. where they spoke with the company's bookkeeper who confirmed that a payroll in fact would be delivered to the office at 551 East 179th Street in a station wagon on October 25, 1966 between 1:50 and 2:00 p.m. *fn5"

 On the morning of October 25, 1966, the detectives again spoke to the informer who told them that the robbery was still planned for that afternoon. *fn6"

 The two detectives accompanied by other police officers proceeded to "stakeout" the area surrounding the O. K. Machine Corp. At about 2 p.m. the detectives, recognizing petitioner from his photograph, observed him walking with Kiernan at 180th Street and Third Avenue. The detectives followed them past 179th Street and Third Avenue to 1927 Washington Avenue (between 178th and 177th Streets) where, believing the two men were armed and leaving the area, the detectives arrested and searched them, finding a fully loaded revolver in petitioner's pants pocket and a similar gun in Kiernan's possession.

 The hearing justice found probable cause for the arrest of petitioner and his accomplice based upon the informer's detailed description of the planned robbery, the corroboration that a payroll was to be delivered to the particular company at the specified date and time, the ascertainment of both men's substantial prior criminal records, and, most importantly, the discovery of the two men named by the informer at the place, date and time predicted for the robbery. We agree. See Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959). At the very least, the police had probable cause to believe petitioner was in possession of a firearm (the crime to which he pled guilty) at the time of his arrest.

 While Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) parallels this case in certain respects, we find it distinguishable. Here the information related by the informer described the plan for the robbery with "minute particularity." As Spinelli recognized in discussing Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959), "the magistrate when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way." 393 U.S. at 417, 89 S. Ct. at 593. *fn7"

 In Spinelli, on the other hand, "the only facts supplied were that Spinelli was using two specified telephones and that these phones were being used in gambling operations." 393 U.S. at 417, 89 S. Ct. at 589. As a consequence the informer's tip in Spinelli was independently corroborated only to the extent that it was ascertained that Spinelli was making use of the two telephone numbers specified by the informer, information available from public records.

 Here, as in Draper, "independent police work * * * corroborated much more than one small detail that had been provided by the informant." 393 U.S. at 417, 89 S. Ct. at 590. The informer here was found to have accurately predicted the otherwise unexplained presence of petitioner at a specified location on ...


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