The opinion of the court was delivered by: PLATT
MEMORANDUM AND ORDER [June 10, 1976]
Under 28 U.S.C. § 2241(a) petitioner applies for a writ of habeas corpus to relieve him of an alleged illegal conviction claimed to have been imposed upon him by the State of New York in violation of the Constitution of the United States.
Petitioner was convicted upon his plea of guilty on or about July 1, 1974, of an attempt to commit the crime of possession of a weapon (a shotgun) as a felony and sentenced to a definite term of one (1) year. Prior to the entry of his plea of guilty petitioner moved for suppression of the shotgun and a switchblade knife on the grounds that the search and seizure of such weapons were in contravention of the Fourth Amendment to the United States Constitution.
After a suppression hearing the respondent (Tomson, J.) denied petitioner's motion to suppress and made the following findings of fact and conclusions of law in connection therewith and gave the following reasons therefor:
"In this hearing to suppress evidence, held pursuant to an Order of this Court (Tomson, J.) dated August 13, 1973, the defendant maintains that a sawed-off shotgun and a switchblade knife were obtained by police officers at premises known as 19 Perkins Avenue, Oceanside, pursuant to an unlawful search and seizure.
"The defendant has been charged in this matter by indictment, dated April 26, 1973, with possession of a weapon as a felony, namely a sawed-off shotgun; possession of a weapon, dangerous instrument and appliance as a felony, namely a switchblade knife and possession of a defaced firearm. The People intend to offer the seized items as evidence in relation to these charges.
"It was undisputed at the hearing that for some period of time prior to March 21, 1973, the date of seizure of the items, a warrant of arrest of the defendant on the ground of assault was pending and unexecuted.
"It is also undisputed that the defendant was apprehended on March 21, 1973, in the attic of 19 Perkins Avenue, Oceanside.
"There is a dispute in the testimony as to manner in which the police officers gained access to the house at 19 Perkins Avenue and indeed what conversations were had with Mrs. Jeanne Etcheverry, the mother of the defendant. Detective Rizzo testified that he knocked on the door and advised Mrs. Etcheverry that the officers had a warrant for the arrest of the defendant and that the warrant was displayed. Mrs. Etcheverry, her sister and her brother-in-law testified that two dogs which had been let out into the yard came bounding into the house and when Mrs. Etcheverry went to ascertain how the dogs got in she found four or five men inside the house. Police Officer Catalano also testified that Mrs. Etcheverry let the officers enter the house.
"Although the precise conversation between the officers and Mrs. Etcheverry seems to be in doubt, there is unanimity in the testimony that after the officers identified themselves and asked where the defendant was, Mrs. Etcheverry responded that he was upstairs. Detective Rizzo testified that before advising that he was upstairs, Mrs. Etcheverry first denied that the defendant was in the house.
"The testimony of both the People's witnesses and the defendant's is in substantial agreement that upon going upstairs the officers were unable to find the defendant until he was thereafter located in the attic of the house.
"The Court finds that two or three days prior to March 21, 1973, a confidential informant communicated with Police Officer John Catalano of the Crime Prevention Unit of the Nassau County Police Department and inquired whether the police were still looking for the defendant.
"On March 21, 1973, the informant advised Catalano that the defendant could be found at 19 Perkins Avenue, Oceanside and that the defendant had a sawed-off shotgun.
"Detective Michael Rizzo of the Fourth Squad was thereupon advised by telephone around 3:00 p.m. of the same day that the defendant was at the Perkins Avenue address and that he had a sawed-off shotgun. This address was the home of defendant's mother.
"Until March 21, 1973, the information available to Detective Rizzo indicated that the defendant was not at the Perkins Avenue house and that the first notification that the defendant was in the immediate area where the warrant could be executed resulted from the informant's communication on the same day.
"The police officers then proceeded to the premises for the purpose of executing the warrant of arrest for assault.
"When Detective Rizzo and several other officers arrived, other officers were already at the scene. Several officers were assigned to watch the permeters of the premises.
"After being advised by Mrs. Etcheverry that the defendant was upstairs working in the bathroom, several officers, including Detective Rizzo and Officer Catalano, went upstairs to the bathroom and to a bedroom identified as the defendant's. The defendant could not be found in any of the rooms entered by the officers.
"While simultaneously looking for the defendant and also for the sawed-off shotgun, Detective Rizzo looked under the bed, under the mattress and then opened the drawers of a dresser which was located in a corner of a closet in the bedroom (Def's Ex. E & F). In the other corner of the closet there was a quantity of clothing on a pole and directly overhead there was a movable trapdoor cover leading to the attic (Def's Ex. G). This trapdoor cover was in place.
"In one of the drawers of the dresser Detective Rizzo found a sawed-off shotgun and seven shells. The weapon and shells were immediately confiscated by the police (People's Ex. 1 & 2a). While going through the dresser drawers, Detective Rizzo was specifically looking for the sawed-off ...