Appeal from order of the District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, dismissing petition for habeas corpus on ground that collateral estoppel claim did not reach constitutional dimensions. Remanded for failure to exhaust state remedies.
Waterman and Feinberg, Circuit Judges, and Gurfein,*fn* District Judge.
This is an appeal from an order of the United States District Court for the Eastern District of New York (Mishler, J.), dismissing a petition for a writ of habeas corpus. The District Court granted a certificate of probable cause.
On June 2, 1967, appellant Leo Di Giangiemo was sentenced by Judge Kelly in the Nassau County Court, as a second offender, to imprisonment for 10 to 20 years to be served concurrently, upon conviction by a jury of the crimes of burglary in the third degree and grand larceny in the first degree. The judgment was affirmed by the Appellate Division, Second Department, 34 A.D.2d 960, 312 N.Y.S.2d 381 (2d Dept. 1970), and by the New York Court of Appeals, 27 N.Y.2d 956, 267 N.E.2d 109, 318 N.Y.S.2d 325 (1970). Certiorari was denied, 401 U.S. 981, 91 S. Ct. 1216, 28 L. Ed. 2d 333 (1971). An application for a writ of error coram nobis was denied, the order of denial being affirmed by the Appellate Division, 34 A.D.2d 1108, 313 N.Y.S.2d 972 (2d Dept. 1970), and the Court of Appeals affirmed, 28 N.Y.2d 929, 271 N.E.2d 704, 323 N.Y.S.2d 175 (1971).
Thereafter, the application for the writ of habeas corpus was filed in the Eastern District. The petitioner contended that his conviction was unconstitutional because certain evidence was admitted at his Nassau County trial in violation of his rights under the Fourth and Fifth Amendments to the United States Constitution.
Appellant had been arrested on September 2, 1965 about a half hour after he had been dropped off at his home from an automobile operated by John Galante. After dropping appellant, Galante was arrested and his automobile searched. A gun and jewelry were found in an attache case in the car. A chisel and two screwdrivers were found in the trunk of the car. Appellant and Galante were indicted in Queens County for the crimes of receiving and withholding stolen jewelry and an automobile, and possessing a dangerous weapon. Appellant was also indicted in Nassau County with two others for burglary and grand larceny.
In the Queens prosecution, counsel for appellant and Galante moved for suppression of the gun and jewelry, relevant to the Queens prosecution, on the ground that their Fourth Amendment rights had been violated by an alleged unlawful search and seizure. They apparently did not move to suppress the chisel and the two screwdrivers because they were not to be offered in evidence in the Queens prosecution.
A suppression hearing was held in the Queens County matter, and Mr. Justice Bosch of the Supreme Court, Queens County, on June 3, 1966, ordered the evidence suppressed and the indictment dismissed upon the ground that the warrantless arrest was not based on probable cause, and could not validate the illegal search. He ordered the pistol and the jewelry to be suppressed as evidence, and he also dismissed the indictment.
Although Mr. Justice Bosch held the search unlawful, he did not suppress the chisel and screwdrivers found in the car at the same time, because that relief was not asked. Appellant was not present at the suppression hearing.
Thereafter, represented by a different lawyer, appellant was tried, beginning February 27, 1967, on the Nassau County indictment. The chisel and the screwdrivers that had been taken from Galante's car were put in evidence. As Judge Mishler found, they were "important to the state's [sic] case against petitioner. The tools were alleged to have been used in prying open a stolen safe. There was no other physical evidence linking petitioner with the crime."
When the tools were offered in evidence, counsel for appellant objected, but not on Fourth Amendment grounds. The objection was overruled. No motion to suppress was made. It develops that the Nassau lawyer for the appellant had not been told that the other items involved in the same search and seizure had been suppressed.
Judge Mishler held a hearing to determine whether appellant had "understandingly and knowingly" waived his Fourth and Fifth Amendment rights by not objecting on those grounds to the admission of the tools at the Nassau trial. Fay v. Noia, 372 U.S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963); Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938). After hearing testimony from appellant and the Queens lawyer for appellant, and by deposition from his Nassau lawyer, Judge Mishler made a specific finding "that petitioner did not knowingly waive his fourth and fifth amendment rights." He found that appellant was not informed about the suppression hearing in Queens until after the Nassau trial, and the Queens lawyer confirmed that he had not told the Nassau lawyer of his success at the suppression hearing in Queens. Nor did the District Attorney of Queens tell the District Attorney of Nassau.
Although police officers of Queens (New York City) and Nassau County jointly made the arrest of appellant, Detective Reilly of the N.Y. Police Department testified only regarding the jewelry and the gun at the Queens proceeding; and Detective Miraval, of the Nassau police force, testified in the Nassau trial only about the chisel and screwdrivers. No one mentioned the ...