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UNITED STATES EX REL. CUBICUTTI v. VINCENT

October 2, 1974

UNITED STATES of America ex rel. Jerry CUBICUTTI, Petitioner,
v.
Leon J. VINCENT, Warden, Green Haven Correctional Facility, Respondent



The opinion of the court was delivered by: GURFEIN

GURFEIN, Circuit Judge, sitting by designation.

 NATURE OF PROCEEDINGS:

 Petitioner, a state prisoner presently incarcerated in Green Haven Correctional Facility, has made application pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure for an order vacating and setting aside the Court's previous decision of March 29, 1974, dismissing his petition for a writ of habeas corpus for his failure to comply with the requirements of 28 U.S.C. § 2254(b) and (c); to wit, failure to present the same claims made here in the state courts on direct appeal from his conviction. Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); United States ex rel. Nelson v. Zelker, 465 F.2d 1121 (2 Cir.), cert. denied, 409 U.S. 1045, 93 S. Ct. 544, 34 L. Ed. 2d 497 (1972). The Court at that time directed that the petition be dismissed in order to give petitioner the opportunity to present his newly-raised claims in state court via appropriate application for post-conviction relief in order to give those courts a "fair opportunity" to pass on them.

 Following the Court's mandate, petitioner moved by order to show cause in Supreme Court, Queens County, before the original trial judge, for a motion to vacate and set aside the judgment of conviction, pursuant to Article 440 et seq., of the Criminal Procedure Law, raising for the first time in the state courts the issues previously raised here, namely, the sufficiency of the search warrant based upon probable cause and the denial of a suppression hearing prior to trial.

 The trial judge denied the motion in its entirety on June 27, 1974. Without reaching the merits, that court stated that: "in the utilization of coram nobis it is necessary, in addition to the assertion of alleged violation of fundamental constitutional rights, that the opportunity to assert same has been substantially impaired or denied." Citing C.P.L. § 440.10(2)(c) and People v. Bennett, 30 N.Y.2d 283, 332 N.Y.S.2d 867, 283 N.E.2d 747 (1972), the court denied the motion without a hearing on the ground that, upon complete review of the record, no impairment or infirmity had prevented petitioner from having raised these issues at trial or upon appeal.

 It is upon this denial that petitioner has made the present motion in this Court to re-open his previously dismissed haebas corpus petition upon the grounds that "petitioner has exhausted his state remedies;" or, more correctly, that there are no longer any state remedies still available to him in order to raise his claims. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).

 Petitioner appears to be correct in his assertion that no remedies are presently available to him under C.P.L. § 440.10(2)(c), which mandates that a motion to vacate a judgment must be denied where sufficient facts appear in the record to have permitted adequate appellate review of an issue where the issue was not raised on appeal. United States ex rel. Leeson v. Damon, 496 F.2d 718, 721 (2 Cir. 1974). Whether state habeas corpus is still a remedy is an open question. People ex rel. Anderson v. Warden, 68 Misc.2d 463, 325 N.Y.S.2d 829 (S. Ct. 1971). In view of the time that has elapsed and the uncertainty of the habeas remedy in the state courts, further delay "might well invite the reproach that it is the prisoner rather than the state remedy that is being exhausted." United States ex rel. Graham v. Mancusi, 457 F.2d 463, 467 (2 Cir. 1972). The Court will, therefore, entertain this application.

 The order dismissing the petition is vacated and the petition is considered on the merits.

 STATEMENT OF FACTS:

 Petitioner was convicted, after trial by jury, of the crimes of promoting gambling (Penal Law § 225.10) and possessing bookmaking instruments (Penal Law § 225.20), and on November 15, 1972, was sentenced in Supreme Court, Queens County, to serve concurrent indeterminate terms of 0-3 years on each count. The conviction was affirmed without opinion by the Appellate Division, People v. Cubicutti, 41 A.D.2d 1027, 344 N.Y.S.2d 993 (2d Dept. 1973), with leave to appeal to the Court of Appeals denied on September 13, 1973.

 As previously discussed in the Court's memorandum-opinion of March 29, 1974, a search warrant was issued on July 6, 1972, pursuant to an affidavit sworn by Patrolman Thomas Fitzgerald, relating to a gambling investigation he was conducting. The affidavit, consisting of four pages, recited that "a confidential gambling investigation" revealed that telephone number, AS 8-2983, was "being used for illegal gambling activities" and stated that the telephone number was listed at the address to be searched. Attached to the affidavit were transcripts of four calls which he placed to that number. These conversations were reproduced in the Appendix of the Court's previous decision.

 According to testimony at the hearing conducted by this Court, the issuing magistrate did not interrogate the Patrolman about the contents of the affidavit and apparently had no information beyond that contained in the affidavit and the transcripts of the phone conversations.

 On July 6, 1972, a search was conducted of the address listed for the telephone pursuant to the warrant. Upon entering, the police found petitioner, alone, along with betting paraphernalia, and he was placed under arrest.

 Prior to trial, petitioner moved pursuant to C.P.L. Art. 710 for a hearing to vacate the search warrant and suppress the property seized. The motion was denied on October 4, 1972 in a one sentence order which read, "The motion papers do not allege a ground constituting legal basis for the motion, accordingly the motion is denied." Petitioner's affidavit in support of that motion alleged that "at no time on July 5 and 6 [the dates Patrolman Fitzgerald ...


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