Appeal from denial of petition for a writ of habeas corpus by the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., Judge. Appellant was convicted in state court on plea of guilty to criminal contempt for refusing to answer questions posed by a New York grand jury, and attacks his conviction as in violation of 18 U.S.C. § 2515 and the fifth amendment.
Smith, Oakes and Meskill, Circuit Judges.
Jerry Langella appeals the denial of his petition for a writ of habeas corpus by the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., Judge. Langella argues that his conviction for criminal contempt for refusing to answer the questions of a New York grand jury violates 18 U.S.C. § 2515 and the fifth amendment. We affirm.
In 1972 Langella was subpoenaed to appear before a New York County grand jury investigating the death of Joseph Gallo in April, 1972. On December 19, 1972 Justice Jawn Sandifer, Supreme Court (New York), denied Langella's motion to quash the subpoena. The motion was based on a claim that the questions to be asked by the grand jury were the product of illegal electronic surveillance. Justice Sandifer, on the prosecution's representation that a court surveillance order had been obtained, rejected Langella's request that a hearing be held.
On the same day Langella appeared before the grand jury and was given "transactional" immunity.*fn1 While he answered some questions, Langella refused, after consulting with his attorney, to answer other questions, and on January 16, 1973 he was indicted, pursuant to New York Penal Law § 215.51 (McKinney 1975), for criminal contempt for refusing to answer two questions.*fn2 In June, 1975 Justice George Roberts, Supreme Court (New York), denied Langella's motion to dismiss the indictment, and on June 18, 1975 Langella pleaded guilty. On July 24, 1975 he was sentenced to five months' imprisonment.
On March 4, 1976 the Appellate Division, First Department, affirmed his conviction without opinion, and April 13, 1976 the New York Court of Appeals denied leave to appeal.
Langella then filed a petition for a writ of habeas corpus, which Judge Brieant denied on May 12, 1976. On appeal Langella claims that the grand jury's questions were derived from illegal electronic surveillance in violation of 18 U.S.C. § 2515*fn3 and that it is a violation of the fifth amendment for the same grand jury that heard his immunized testimony later to indict him for contempt.
Before reaching the merits of Langella's claims, we must deal with New York's vigorous argument that this court cannot consider these claims because they were not presented to the United States District Court, because Langella by-passed the New York courts, and because he pleaded guilty. The first two arguments are without merit. Judge Brieant's opinion indicates that the issues were fully presented to the district court. Justice Roberts' opinion and the brief Langella presented to the Appellate Division indicate that the substance of these issues was also presented to the New York courts. Picard v. Connor, 404 U.S. 270, 278, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971).
On the third contention, relying on People v. Melton, 35 N.Y.2d 327, 329, 361 N.Y.S.2d 877, 320 N.E.2d 622 (1974), and People v. Lynn, 28 N.Y.2d 196, 201-03, 321 N.Y.S.2d 74, 269 N.E.2d 794 (1971), New York argues that under New York law Langella's claims are not reviewable in New York on appeal after a guilty plea and thus, under Lefkowitz v. Newsome, 420 U.S. 283, 43 L. Ed. 2d 196, 95 S. Ct. 886 (1975), Langella is foreclosed from pursuing these claims in a federal habeas corpus proceeding.
Both Melton and Lynn, however, involve appeals from a coram nobis proceeding in which the defendant initially failed to appeal after pleading guilty. People v. Gleeson, 44 A.D.2d 252, 354 N.Y.S.2d 207, 208 (App. Div. 1974), rev'd on other grounds, 36 N.Y.2d 462, 369 N.Y.S.2d 113, 330 N.E.2d 72 (1975), holds that despite a guilty plea a defendant retains his right to appeal the denial of his suppression motion, pursuant to New York Criminal Procedure Law (NYCPL § 710.70(2) (McKinney 1971).
Judge Brieant held that under Lefkowitz, Langella's plea of guilty did not foreclose his pursuing his claims in a federal habeas corpus proceeding. See also Menna v. New York, 423 U.S. 61, 46 L. Ed. 2d 195, 96 S. Ct. 241 (1975) (per curiam). Lefkowitz involved a fourth amendment claim, and Menna involved a fifth amendment claim. We agree with Judge Brieant that NYCPL § 710.20(2) and § 710.70(2)*fn4 permit Langella to challenge the legality of the electronic surveillance and that NYCPL § 210.20(1)(c) and § ...