The opinion of the court was delivered by: COOPER
Petitioner, applying pro se for a writ of habeas corpus, is presently confined in Green Haven Prison, Stormville, New York, serving a sentence of 6 to 12 years imposed on April 28, 1967 by Judge Orenstein of the Onandaga County Court following petitioner's conviction by a jury of burglary third degree and petit larceny. The conviction was unanimously affirmed without opinion by the Appellate Division, New York Supreme Court, 30 A.D.2d 1051, 295 N.Y.S.2d 323 (4th Dept. 1968). Leave to appeal to the New York Court of Appeals was denied on April 12, 1969. Petitioner's present grievance is based on his claim of identification following an impermissibly suggestive lineup.
The State's evidence at trial developed that on January 22, 1967 at 3:20 p.m. a Mrs. Burke, while visiting (in the same building where she resided) a neighbor's first floor apartment which looks upon the rear of the Snowdon apartment building, observed three men enter the courtyard between the buildings. (Tr. 14)
She saw one of the three put his arm against a door leading to the Snowdon basement and appear to force it open (Tr. 13); two of the men went down into the basement while the third remained outside. (Tr. 15). Upon seeing this she called the police. (Tr. 15).
The police arrived according to Mrs. Burke "a couple of minutes" after she called. (Tr. 15). The three police officers who came in answer to the call testified that they found one man Ball outside in the courtyard and two men, petitioner and one Moore, each holding suitcases in their arms, in the storage area of the basement of the Snowdon building. (Tr. 37, 50, 60 et seq.).
The manager of the Snowdon building testified that the door leading to the basement was locked when he inspected it the morning of January 22nd; that he arrived at the scene that afternoon shortly after the police arrested petitioner and the other two men and observed that the lock on the basement door had been broken; that the door into the storeroom was still padlocked, but the bolts had been removed from one side and the door removed from its hinges; that the suitcases petitioner and the other man had under their arms when the police arrived had come from inside the storeroom. (Tr. 21-27).
Mrs. Burke testified that about half an hour after the three men were arrested she accompanied police to the Public Safety Building where she identified petitioner, Moore and Ball as the same three men she had seen when she made her report to the police (Tr. 16-17). On cross-examination, Mrs. Burke stated that her identification of petitioner was made at a show up consisting of only the three suspects and that the police had told her that these were the three men.
Petitioner, the sole witness for the defense, took the stand and, claiming he was an unknowing participant in the crime, admitted his presence at the scene at the time of arrest, but contested Mrs. Burke's identification of him as one of the three men she first observed entering the Snowdon building. He testified that on the date in question he and Moore while at a restaurant had met for the first time one Lee, whose last name he did not know, and that Lee had offered them a couple of dollars to help him move (Tr. 68); further, that both agreed, but petitioner indicated he had to go to the bathroom and so was given directions to the Snowdon building basement.
Petitioner said that he did not leave the restaurant until about 20 minutes after the other two had left.
(Tr. 79). He stated that when he arrived at the rear door of the apartment he found the door open, walked in and joined Lee and Moore in the storage area without noticing the broken condition of the doors. (Tr. 70-71). Lee allegedly gave them directions as to what suitcases to move and left to get a cab. (Tr. 71). Shortly thereafter the police arrived. (Tr. 73). Petitioner acknowledged being acquainted with Ball (whom the police found standing outside), but insisted that Ball had not been with them in the restaurant and had not accompanied him to the Snowdon Apartments.
The jury after deliberation for an hour and a half requested that Mrs. Burke's testimony be read to them. (Tr. 123). This request was granted. (Tr. 124). The jury retired and within minutes returned with a verdict of guilty. (Tr. 124).
Petitioner claims that the show up conducted by the police at which Mrs. Burke identified petitioner as one of the three men she saw entering the courtyard was so impermissibly suggestive as to lead to irreparable misidentification on her part.
Exhaustion of State Remedies
The first question confronting us is whether petitioner has exhausted his available state remedies with respect to this constitutional claim.
On appeal, petitioner's brief raised two issues; the only one relevant to this claim asserts that the verdict was against the weight of the evidence. Brief for Appellant, People v. Springle, Supreme Court, Appellate Division, 4th Dept. At first blush, this does not appear to raise petitioner's present contention of a lineup so impermissibly suggestive as to be a denial of due process and a fair trial. However, the major portion of this section of petitioner's brief was addressed to the credibility of Mrs. Burke and of her identification of petitioner as one of three men she observed entering the basement of an apartment building across from where she lived. In this regard petitioner argued:
"While the Supreme Court of the United States has determined that the right to counsel at lineup proceedings shall not be applied retroactively and, therefore, that ruling does not have strict application here, the evil which that ruling was intended to obviate can form the basis for a constitutional objection. U.S. v. Wade, 388 U.S. 218 [87 S. Ct. 1926, 18 L. Ed. 2d 1149]. In the instant case, the procedure was so admittedly suggestive and possible ...