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UNITED STATES EX REL. ROSNER v. COMMISSIONER

September 24, 1976

UNITED STATES ex rel. NANCY ROSNER, on behalf of THOMAS LIPUMA, Petitioner,
v.
COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTION; WARDEN, NEW YORK STATE CORRECTIONAL FACILITY, OSSINING, NEW YORK, Respondents



The opinion of the court was delivered by: CONNER

MEMORANDUM AND ORDER

 CONNER, D.J.:

 Petitioner Thomas LiPuma, currently serving a five-year-maximum term of imprisonment pursuant to a judgment rendered in Supreme Court, New York County, on June 24, 1974, was convicted of second degree burglary and petit larceny after trial to a jury. Having unsuccessfully appealed that judgment to the New York Appellate Division and Court of Appeals, petitioner now collaterally challenges his conviction under 28 U.S.C. § 2254.

 Petitioner has launched a three-pronged assault against the state judgment, claiming that (1) he was so inadequately represented by retained defense counsel that he was denied protections rightfully his under the Sixth and Fourteenth Amendments; (2) the trial court's refusal to declare a mistrial, despite the admission of inculpatory evidence relevant solely to indictment counts that were ultimately dismissed, constituted a denial of petitioner's due process rights; (3) the prosecutor's summation was so inflammatory and otherwise improper that it effectively vitiated the Constitution's fair trial guarantees.

 Reference to petitioner's appellate submissions discloses that the state courts have had a fair opportunity to pass upon the three contentions advanced by petitioner herein. This Court is thus satisfied that petitioner has exhausted his state remedies in accordance with 28 U.S.C. § 2254(b) and (c). *fn1" Picard v. Connor, 404 U.S. 270, 276, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Ralls v. Manson, 503 F.2d 491, 493 (2d Cir. 1974). See United States ex rel. Gibbs v. Zelker, 496 F.2d 991, 993-94 (2d Cir. 1974); United States ex rel. Nelson v. Zelker, 465 F.2d 1121, 1123-25 (2d Cir.), cert. denied, 409 U.S. 1045, 34 L. Ed. 2d 497, 93 S. Ct. 544 (1972). The merits of petitioner's present claims may best be measured against the historical background -- partially reflected in the state court trial transcript and supplemented via an evidentiary hearing held by this Court -- traced in relevant portions as follows.

 I.

 On the evening of January 10, 1972, Mr. and Mrs. William Robinson, returning to their suite in the Berkshire Hotel, discovered that various items -- including a leopard-skin coat and a mink jacket -- had been taken from their rooms during their absence. Minutes before, Mr. and Mrs. Raymond Geibel, the elderly occupants of rooms on the floor above, had returned to their own suite from an evening's stroll only to encounter a situation no less disconcerting: an intruder -- entirely unknown to them -- sitting at the desk in their front room. Asked by Mrs. Geibel to explain his presence, the stranger announced that he was a hotel security officer investigating several reported burglaries at the Berkshire. Thereupon, two additional men appeared from the Geibels' bedroom and hurriedly corroborated the explanation proffered by the first. Mr. Geibel, then recuperating from recent brain surgery, summoned enough wit to demand from the three credentials of their purported capacity. Hastily assuring Mr. Geibel that they would return with the proof demanded, the three strangers just as hastily exited from the couple's suite. In the hope of drawing from the men some further information or reassurance, Mr. Geibel accompanied the three down the hall and remained with them until arrival of the elevator. Thereafter, taking stock of their rooms and their property, the Geibels unhappily noted the presence of a state of disarray and the absence of a small pill box, approximately five dollars in value, from a bedroom dressing table.

 The incidents described above were quickly reported by the victims. Within minutes of those reports, the police had arrived at the Berkshire, had sealed the hotel's front doors, and had interviewed the Robinsons and the Geibels. From the former, the police obtained a list of the items that had presumably been stolen; from the latter, the police elicited a description of three suspects, two reportedly "latin types," the third of "lighter skin." After a general search of the hotel's hallways and stairwells, the police consulted the Berkshire records. The register disclosed that Suites 612 and 613 were occupied by new registrants. Three police officers were assigned to investigate those suites. What the officers discovered in Suite 613 is largely a matter of no dispute. The manner in which that discovery was accomplished, however, is a question that lies at the heart of the present petition.

 II.

 One James Doyle, under an assumed name, had checked into the Berkshire, and was assigned Suite 613, sometime during the early evening of January 10, 1972. And it was Doyle whom the police first encountered at the threshold of the suite later that evening. The officers encountered petitioner as well in Suite 613, but rather more indirectly: at the time of discovery, petitioner was crouched inside a bedroom closet, joined in that posture by one Peter Raimondo. Also found inside the suite were a leopard-skin coat, a mink jacket, and a small pill box, the last harbored in one of Raimondo's pockets.

 Petitioner and his two companions were placed under arrest and brought to the local precinct stationhouse. Within two hours of the hotel burglaries, the three were separately placed in line-ups and viewed by the Geibels. Mr. Geibel was unable to identify any of the three. Mrs. Geibel identified petitioner alone as having been among the three strangers whom she had confronted earlier in the evening. At LiPuma's trial some two-and-one-half years later, Mrs. Geibel would testify that petitioner had been the man at the desk whom she had initially encountered upon her return to her Berkshire suite on January 10, 1972.

 III.

 On March 7, 1972, LiPuma, Doyle, and Raimondo were arraigned on an indictment that charged each with two counts of second degree burglary, petit and grand larcenies, and two counts of criminal possession of stolen property. At the time of arraignment, petitioner was nominally represented by Lawrence Hochheiser, Esq., retained counsel for Doyle. Two months thereafter, petitioner retained Michael Coiro, Esq., as his individual counsel, an engagement reflected in a formal substitution for Hochheiser recorded on May 14 or 16, 1972. Coiro and his partner, Salvatore Quagliata, Esq., were to represent LiPuma as co-counsel via a division of labors, the former to act as courtroom counsel, the latter to attend to paper submissions on motion practice in the case.

 During independent consultations with their respective attorneys, both Doyle and LiPuma maintained that the police had entered Suite 613 of the Berkshire without the lawful occupants' consent. Each recounted that, prior to the policemen's entry, he had heard a commotion in the outside hall and the sound of a neighboring door being broken down. Each recalled a knock at the door of Suite 613, the policemen's announcement of their presence, and LiPuma's flight, with Raimondo, to the bedroom closet. Doyle, according to Hochheiser's later account, "spoke of master keys being used and policemen forcing their way in with guns." Both Doyle and LiPuma recalled that the Robinson furs had been discovered by the police only after a search of the suite.

 On April 5, 1972, i.e., before LiPuma's individual counsel had been retained, Hochheiser had filed on Doyle's behalf a motion to suppress all evidence derived from the search and seizure of January 10, 1972. On May 16, 1972, Quagliata, appearing on LiPuma's behalf before Supreme Court Justice Leff, took part in the following colloquy:

 
"Mr. Quagliata: The defendant came to [my] office last night. We went through the facts briefly. * * *. Now, from the little information that we have, without getting a copy of all the papers, it would appear that there are some motions that lie. In order to expedite the matter, I would ask the Court for an adjournment sufficiently long enough so that I could collect all the information, get whatever witnesses are necessary should there be any witnesses and file any motion papers. * * *. I would file motion papers as soon as it is practicable, as soon as I can find if a motion lies."
 
"The Court: We have adjourned this case to May 30th [1972], and if you have to make any motions, make them in ample time so that the papers will be back here before then."

 After fuller discussion with their client, and a pooling of information with Hochheiser, co-counsel for LiPuma jointly concluded -- as had Hochheiser -- that the facts, at least according to their client, supplied the stuff of which a meritorious suppression motion is made: the events preceding the police entry of Suite 613 did not, after all, bespeak the probable cause or exigency of circumstances that would otherwise have justified a warrantless search without consent. In July or August 1972, LiPuma was advised by Coiro and Quagliata that a motion to suppress had been filed on his behalf.

 At some time between the summer of 1972 and the spring of 1973, a private investigator was hired at the joint expense of LiPuma and his co-defendants. The investigator reported to counsel the results of his interview with a hotel clerk employed at the Berkshire during the time of the occurrences in question: the clerk disclosed that the door adjacent to Suite 613 had been damaged on the evening of January 10, 1972, and that, at some point during that evening, he had supplied the police with a master key.

 IV.

 On May 3, 1973, James Doyle pleaded guilty to one count of second degree burglary. Doyle's counsel had advised the plea in the light of a federal indictment that had been pending against his client. Hochheiser later explained:

 
"[Doyle's] public defender [on the federal charge] had negotiated a plea for that case * * * and arranged for an 8-year sentence in that case.
 
I had discussed that situation with Judge George Roberts, who was an acting Supreme Court Judge in the State of New York at that time, and Judge Roberts had told me that if Doyle got substantial time in the federal [case], and not merely nominal time, that he would accept a plea of guilty under which he would sentence Doyle to concurrent time which * * * would satisfy me that Doyle wouldn't wind up doing a million years.
 
* * * [Since] my understanding at that time was that Doyle would in effect do this time at the same time he would do the federal time and would do it in a federal institution, which was better time than a state institution, it is more civilized and easier to do, that it seemed to me that there was no purpose in pursuing this case any more."

 Hochheiser described as well what he characterized as a "secondary" consideration in his client's decision to plead guilty. At some point prior to May 3, 1973, Hochheiser had interviewed one or more of the police officers who had participated in the January 20, 1972 search and seizure in Suite 613. According to the account given by the officer or officers, James Doyle -- in an attempted bluff -- had permitted the policemen access to his rooms and, indeed, had invited them to "come in and look around"; once inside the suite, the officers had spied, in plain view atop a bed, an open suitcase from which overflowed a mink jacket and a leopard-skin coat. Again according to the recital by the policeman or policemen, Doyle's furtive glances toward the bedroom closet quickly led the police to their discovery of LiPuma and Raimondo.

 Hochheiser later recalled his reaction to the above-outlined interview:

 
"After they told me what in effect they would be testifying to, I realized that, A, if their testimony was true and believed that they would probably win; or, B, if their testimony was false that they were pretty clever policemen and knew the law well enough to lie effectively enough to beat Doyle, who had an extensive criminal record."

 To these last observations, however, Hochheiser added:

 
"[Without] the Connecticut situation I would not have come to [the] conclusion [that the suppression motion was ill-fated]. Without the Connecticut situation I would have said that this may be tough but I am going to do it * * *. [If] I didn't have the Connecticut case to use as an umbrella, so to speak, I would have proceeded."

 Conceding that "there is some benefit to taking a motion to suppress and then taking a plea," Hochheiser explained why ...


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