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UNITED STATES EX REL. ROBERTS v. TERNULLO

January 7, 1976

UNITED STATES OF AMERICA ex rel. DANIEL H. ROBERTS, Petitioner,
v.
VITO TERNULLO, Superintendent, Fishkill Correctional Facility, Beacon, New York, Respondent



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

 NEAHER, District Judge.

 Petitioner, Daniel H. Roberts, a State prisoner, has applied for a writ of habeas corpus, 28 U.S.C. § 2241, et seq., challenging the legality of his confinement on the claim that his conviction resulted from evidence obtained through illegal search and seizure.

 Petitioner was convicted on July 23, 1973 of multiple counts of forgery and the making of an apparently sworn false statement, and one count of petit larceny, after a jury trial in the County Court of Nassau County. He was sentenced to concurrent terms ranging from definite terms of one year to an indeterminate term of four years and is presently serving that sentence at the Fishkill Correctional Facility, Beacon, New York. His conviction was affirmed by the Appellate Division, People v. Roberts, 47 A.D.2d 664, 364 N.Y.S.2d 43 (2d Dep't 1975), after that court had remanded the case to the County Court for a hearing on the claim of tainted evidence raised here, 43 A.D.2d 947, 352 N.Y.S.2d 30 (2d Dep't 1974). Permission to appeal was denied by a judge of the Court of Appeals on March 2, 1975.

 The precise nature of petitioner's constitutional claim and the pertinent State court rulings will more clearly appear from a preliminary statement of background facts which appear to be uncontradicted.

 The record of State proceedings reveals that for some years prior to March 1972 petitioner had conducted through various corporations a retail fence business in Merrick, Nassau County. In 1966 certain of his business practices came under the scrutiny of the State Attorney General. That investigation indicated, through interview statements made by an employee and petitioner himself, that petitioner would frequently fail to deliver fencing contracted for by customers or deliver less than called for in the contract, and when full payment was not forthcoming, would file mechanics liens with the County Clerk in Nassau County against the customer's property. Such liens could not be lawfully filed for fencing not delivered unless the fencing had been made to order. *fn1" The liens filed by petitioner in the name of corporate entities he controlled met this requirement by falsely stating that fencing had been made to order when in fact it was a stock item.

 In the fall of 1971, as the result of some 200 customer complaints, the Nassau County District Attorney undertook an investigation of Pasco Fence Sales, Inc., and related corporations owned by petitioner. That investigation focused upon the filing of mechanics liens by petitioner's corporations in the summer of 1971. In September 1971 the Attorney General supplied the District Attorney with information obtained from the 1966 investigation. In November 1971 the District Attorney obtained from the New York Secretary of State certified copies of the certificates of incorporation of some 25 fencing firms apparently controlled by petitioner and doing business in Nassau County. This included three corporations involved in the indictment eventually returned against petitioner.

 In December 1971 the District Attorney received specific information from a Mrs. Roman Hanisch, who complained of unsatisfactory dealings with Pasco Fence. She related that after contracting for fencing and making a $50 deposit, she had received nothing, was refused the return of her deposit, and a mechanics lien was filed against her property by the petitioner's corporation, Fencecraft Industries of America, Inc. On December 7, 1971 the District Attorney obtained a certified copy of this mechanics lien from the Nassau County Clerk's office. The Hanisch transaction formed the basis of six counts in the indictment returned against petitioner.

 On May 9, 1972 the Attorney General furnished the District Attorney with a list of mechanics liens filed by petitioner's corporations which were known to the Attorney General. Included in this list was a mechanics lien filed against the premises of a Mr. Charles Mancini, which formed the basis of four counts of the indictment returned against petitioner. Prior to the receipt of that list, the District Attorney had already interviewed one Allen Joseph Burke, an employee of petitioner, who testified that as part of his duties he notarized mechanics liens for the various fencing corporations operated by petitioner.

 On May 2 and 5, 1972 there occurred the events which have given rise to this petition challenging the validity of petitioner's conviction. They must be viewed in the light of a transaction on March 22, 1972 by which petitioner sold his fence business, inventory and equipment to an independent concern, Anco Fence, Inc., whose president was one Stanley Lynn. As part of the transaction, petitioner, as president of Pasco Realty Corp., leased substantially all of his former place of business to Anco for a 10-year term, retaining for petitioner's use only a two-room office on the first floor of the building. Business records of petitioner's corporations, however, remained in filing cabinets (which were sold to Anco) in the portion of the premises leased to Anco. Under the contract of sale, petitioner was obligated to "remove within a reasonable time, all business records, except lists of suppliers and lists of customers, and information as to prices with respect to both suppliers and customers." Between March 22 and April 10, 1972, defendant removed some of his records but failed to remove the balance although repeatedly requested to do so by Lynn. On April 22, 1972 Lynn had the locks changed on the leased premises, thereby cutting off petitioner's access to the unremoved records.

 Returning to the date of May 2, 1972, on that day a Nassau County detective and investigators from the District Attorney's office visited the Anco premises, apparently at the invitation of Lynn, who had been served the day before with a District Attorney's subpoena duces tecum. The subpoena directed Lynn to appear on May 5, 1972 before a grand jury investigating petitioner. It also ordered him to produce "All customer lists, books and records, correspondence, memoranda, and retained copies of all legal documents . . . pertaining to Pasco Fence, and any corporation or individuals using the name Pasco Fence." Lynn permitted the investigators to examine such records as were still in filing cabinets on the Anco premises and those selected by them were produced by Lynn before the grand jury on May 5, 1972 and were later left in the District Attorney's custody.

 On October 13, 1972, the grand jury returned a 34-count indictment against petitioner, charging him with multiple counts of forgery, possession of forged instruments, making an apparently sworn false statement, perjury, offering a false instrument for filing, and petit larceny. These counts were all based on seven mechanics liens filed by petitioner's corporations. *fn2" Two of these were the Hanisch and Mancini liens previously referred to. The remaining five mechanics liens mentioned in the indictment had been identified from copies included in the business records turned over by Lynn.

 Prior to trial, petitioner moved to suppress evidence obtained as a result of the May 2nd subpoena and to dismiss the indictment. County Judge Morrison, after an evidentiary hearing, granted petitioner's motion to suppress, finding that petitioner had not abandoned or relinquished control or ownership over the files which were seized, that the subpoena was not directed to the lawful owner, and that Lynn could not give a legal consent to the search. Included among the suppressed items were petitioner's copies of the seven mechanics liens upon which the charges in the indictment were based. Judge Morrison, however, denied petitioner's motion to dismiss the indictment. *fn3"

 Despite the suppression ruling, Judge Morrison permitted the prosecution to introduce into evidence at trial, over objection, certified copies of seven mechanics liens obtained from the County Clerk's office on May 15, 1972. These were authenticated facsimiles of the originals on file in that office, copies of which had been retained by petitioner in the records turned over by Lynn under the District Attorney's subpoena. The certified copies of the originals were admitted into evidence pursuant to New York CPLR § 4540, which makes such a copy of a public record prima facie evidence thereof, thus eliminating the need for the testimony of the public official having custody of them. Petitioner was found guilty on 16 of the 34 counts in the indictment. These included seven counts of forgery in the second degree ...


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