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UNITED STATES EX REL. GRAY v. NEW YORK STATE BD. O

April 26, 1976

UNITED STATES of America ex rel. Jay GRAY, Petitioner,
v.
NEW YORK STATE BOARD OF PAROLE, Respondent



The opinion of the court was delivered by: MOTLEY

MOTLEY, District Judge.

 In this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, Jay Gray raises several constitutional claims arising out of his arrest and conviction on a New York state criminal charge in 1971. Upon his plea of guilty in the Westchester County Court, petitioner was convicted of robbery in the first degree and was sentenced on September 9, 1971 to seven years imprisonment. Pursuant to § 710.70(2) of the New York Criminal Procedure Law, petitioner, who had previously requested a suppression of evidence hearing and an identification hearing in the Supreme Court prior to his plea, appealed the judgment of conviction, claiming that the trial court improperly denied his motions to suppress certain physical evidence and testimony relating to his identification by the robbery victim. He further argued that, as a result of the denials of these motions, his guilty plea was invalid. The conviction was affirmed by the Appellate Division, Second Department, on October 24, 1972, and application for leave to appeal to the New York Court of Appeals was denied by the Hon. Hugh Jones on May 28, 1974. *fn1"

 Before considering the merits of petitioner's claims, two threshold matters require brief discussion. The instant action was commenced while petitioner was incarcerated at Great Meadow Correctional Facility in Comstock, New York, and accordingly, the warden of that facility was named as defendant. Subsequently, petitioner was transferred to the Attica Correctional Facility and, on October 17, 1975, was released on parole. Although the federal habeas corpus statute provides that relief is potentially available only to persons "in custody pursuant to the judgment of a State court", *fn2" it is now established that a person who is released from confinement to parole is "in custody" of the relevant parole board for purposes of this section. n.3 (Footnote omitted.) Accordingly, in this action, the court has, on its own motion, substituted the New York State Board of Parole as respondent to facilitate resolution of the issues raised by petitioner.

 A second important preliminary issue has been resolved by the United States Supreme Court during the pendency of this action. In Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235 (1973), the Court had announced the general rule that "when a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Such a rule would preclude the petitioner in this case from raising his claims by way of the federal habeas corpus procedure.

 However, in Lefkowitz v. Newsome, 420 U.S. 283, 95 S. Ct. 886, 43 L. Ed. 2d 196, the Court announced an exception to the rule enunciated in Tollett : ". . . when state law permits a defendant to plead guilty without forfeiting his right to judicial review of specified constitutional issues, the defendant is not foreclosed from pursuing those constitutional claims in a federal habeas corpus proceeding." *fn4" As indicated supra, § 710.70(2) of the New York Criminal Procedure Law authorizes just such an appeal of rulings on suppression motions. Thus, the petitioner may now properly raise those previously mentioned claims which he raised in the New York appellate courts, despite his plea of guilty.

 Although petitioner's constitutional claims are a bit difficult to discern from his papers, they appear to fall into the following categories: (1) illegal arrest; (2) improper seizure of property following arrest; (3) improper questioning following arrest; (4) improper identification procedures; (5) denial of counsel in the early stages of the investigation and prosecution; (6) improper bail terms; (7) ineffective assistance of counsel; (8) denial of the right to a speedy trial; (9) failure to provide free transcripts of various preliminary hearings. Of these various challenges, it appears from the transcripts of proceedings in the New York Supreme Court and the briefs submitted in the Appellate Division by petitioner's assigned counsel that only the claims relating to the identification, the property seizure, and the arrest were raised in the New York courts. The other claims are, accordingly, dismissed without prejudice for failure to exhaust available state avenues of relief. *fn5"

 Since the facts relative to the remaining claims were very adequately developed at suppression hearings in the Supreme Court on July 8, July 9, and July 28, 1971, and since petitioner has not challenged the sufficiency of the factual inquiry at those hearings, this court will rely on the facts as there set forth. *fn6" The facts will be briefly summarized as they relate to the contentions put forth in this court.

 The Seizure of the Tangible Evidence

 On the night of December 28, 1970, nineteen year old Michael Luiso was working as an attendant in his father's service station in Mount Vernon, New York. At approximately 7:00 P.M., two unmasked black men entered the station. One of them approached Luiso, placed a gun at his chest, and demanded money. After Luiso handed the gunman his wallet and a roll of paper money in his shirt pocket, he and his assailant stepped briefly into the lighted bay area of the station and the robbers then ran out the door. Mr. Luiso subsequently called the police. Testimony adduced at the July 8 and 9 hearings tended to indicate that both the exterior and the interior of the station were very well lighted, and that the robbers were in the station about five minutes.

 Later that evening, at approximately 10:30 P.M., two uniformed members of the Bronx Task Force of the New York City Police Department stopped a white Cadillac automobile in the vicinity of 182nd Street and Southern Boulevard in the Bronx, apparently for a routine traffic check. The driver of the car was the petitioner in this action, Jay Gray, and there were three other passengers in the vehicle. According to the testimony of Patrolman William Watson, who briefly remained in the patrol car, his partner, Patrolman Daniel Boldi, advanced to check the driver's license and automobile registration.

 Apparently as those documents were being examined, Officer Watson approached the Cadillac from the rear on the right side. He testified that, as he neared the car, a small brown envelope was ejected from the right front window and landed open on the ground in such a way that Bambu cigarette wrapping papers were sticking out (7/28/71 transcript [Tr.] p. 43). When he picked up the package and examined it, he discovered that it contained a substance which he believed to be marijuana. Having found this material, he informed the occupants of the car that they were under arrest and asked them to step out of the car. When they got out, they were frisked, handcuffed, and put into patrol cars which had arrived at the scene.

 After the suspects were placed in the patrol cars, Officer Watson returned to the Cadillac and "gave it a superficial search of seats, floors and the glove compartment." (7/28 Tr. p. 21). While he had been standing near the open door on the right side of the vehicle, Watson had previously observed a wallet lying on the front seat partially under the right leg of the car's driver, petitioner Gray. He then placed the wallet in his pocket, and did not examine the contents until he arrived at police headquarters. Before driving the Cadillac to headquarters, Watson opened the car's glove compartment "to see if there was any further contraband or weapons in the car" (7/28 Tr. p. 21), and there discovered a fully loaded Rohm.38 caliber revolver. At some point in the search, Watson also discovered the sum of $197 either actually or constructively within the possession of petitioner. *fn7"

 It is, apparently, the seizure of the money, wallet, and revolver which petitioner asserts as being violative of his right to be free from unreasonable searches and seizures. On the basis of the testimony adduced at the state suppression hearings, this court finds that there was no impropriety in acquisition of the money and wallet, and that any possible impropriety in the seizure of the revolver was not such as to warrant granting of the writ of habeas corpus in this case.

 At the outset, the State conceded that, when the car was searched, the police officers had neither a search warrant for the car nor an arrest warrant for its passengers (7/28 Tr. p. 103). However, the officers were authorized to stop the car for a routine check of license and registration. *fn8" When the car had been stopped and Officer Watson observed the container of what appeared to be marijuana and cigarette papers, he clearly had probable cause to arrest the occupants of the car for the misdemeanor of criminal possession of a controlled substance in the seventh degree. *fn9" The state trial judge's ...


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