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UNITED STATES EX REL. CONROY v. BOMBARD

November 23, 1976

UNITED STATES of America ex rel. Richard CONROY, Petitioner,
v.
Roy BOMBARD, as Superintendent of Green Haven Correctional Facility, Respondent



The opinion of the court was delivered by: HAIGHT

MEMORANDUM AND ORDER

 HAIGHT, District Judge:

 Petitioner Richard Conroy, currently incarcerated in a New York State prison, having been sentenced to life imprisonment for murder in the first degree, has brought this petition for habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2254, alleging violations of his rights under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution.

 Subsequent to the filing of the petition, but prior to decision, the Supreme Court of the United States has decided Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976). That case substantially restricts the remedies available to state court prisoners in the federal district courts in cases of this nature; and the case at bar has necessarily been analyzed within the context of Stone v. Powell.

 This Court has reached the conclusion, for the reasons set forth in the following opinion, that the petition for habeas corpus must be dismissed.

 I.

 The Factual Background

 On April 14, 1964, Charles Gallagher, an Associate Professor of Physics at Columbia University, left his home sometime between 7:30 and 8:00 p.m. after dining with his wife and children. The following morning at 6:00 a.m., Professor Gallagher's body was discovered hidden behind a group of bushes in Central Park. A subsequent autopsy disclosed that his death, which had occurred between 8:30 and 9:30 the preceding night, had been caused by a single bullet.

 An intensive investigation into the homicide and the surrounding circumstances was undertaken by the New York County District Attorney's Office and by members of the New York City Police Department. This investigation yielded no results. On April 29, 1966, an investigator in the Queens County District Attorney's Office received an anonymous phone call. The substance of that call was to state that Peter Butler and Richard Conroy were involved in the murder of Charles Gallagher and that Conroy had confessed to one Lynne Richardson. The contents of the conversation were relayed to the New York County District Attorney's Office, by telephone and in writing.

 Assistant District Attorney John F. Keenan, in charge of the New York County investigation, evaluated the information received by the anonymous call, and devised a strategy aimed at accumulating additional evidence regarding the guilt of Conroy and Butler. On June 28, 1966, a warrant to eavesdrop on Conroy's telephone was obtained from Justice Gerald J. Culkin, Supreme Court, New York County. In addition, copies of a bogus newspaper article dealing with the Gallagher murder were mailed to Conroy and Richardson, in the hope of stimulating discussions about the homicide. When that first order expired on July 15, 1966, the police continued to eavesdrop without judicial authority. On July 18, 1966, a second eavesdropping order was obtained. Before the warrants were issued, and during their existence, New York City detectives investigated the backgrounds of Butler, Conroy, and Richardson.

 Butler and Conroy were subsequently indicted for murder in the first degree. At the commencement of their trial, counsel for the defense sought a hearing for the purpose of determining whether probable cause existed for the wiretap orders, and whether any evidence or leads had been uncovered as a result of the wiretapping. The prosecution responded that there had been probable cause for both warrants, and that no evidence or leads had resulted. The trial court, determining that there had been probable cause, declined to hold a hearing.

 At the trial, several friends of the defendants recounted admissions defendants had made to them about the Gallagher murder. Both defendants were convicted of murder in the first degree, as a felony murder committed during the course of an attempted robbery. On June 15, 1967, they were sentenced to life imprisonment.

 Following conviction, Conroy and Butler appealed to the Appellate Division, First Department, arguing that they were entitled to a hearing for the purpose of determining the validity of the wiretap warrants, as well as to discern whether any leads had been developed as a result. Petitioner Conroy asserted then, as he has throughout the litigation, that information obtained by illegal wiretapping, and not disclosed to him, was used to discover and coerce witnesses. In addition, Conroy challenged the sufficiency of the evidence of his guilt.

 The People responded by arguing that the Petitioner's guilt had been proven beyond a reasonable doubt. However, the People did agree that Petitioner Conroy was entitled to a hearing on the wiretap issues. Further, the People conceded the invalidity of the second eavesdrop order, and also conceded that the period of wireless interception was improper. The People maintained, however, that the first order was valid, and, that in any event, no evidence or leads had been obtained through any of the interceptions.

 On November 20, 1969, the Appellate Division, First Department, ruled that Conroy was entitled to an evidentiary and suppression hearing in accordance with People v. Morhouse, 21 N.Y.2d 66, 286 N.Y.S.2d 657, 233 N.E.2d 705 (1967) and People v. Munger, 24 N.Y.2d 445, 301 N.Y.S.2d 39, 248 N.E.2d 882 (1969). The First Department ordered the hearing court to determine the legality of the first order, and to determine whether any witnesses and evidentiary matter developed at trial stemmed from any of the illegal interceptions. People v. Butler and Conroy, 33 A.D.2d 675, 305 N.Y.S.2d 367 (1st Dept. 1969). The First Department upheld the conviction of Peter Butler, and held that he lacked standing to contest the wiretaps, and was thus not entitled to a hearing. Aff'd, People v. Butler, 28 N.Y.2d 499, 318 N.Y.S.2d 943, 267 N.E.2d 587 (1971).

 The hearing thus ordered commenced May 26, 1970, before Justice Davidson, who had been the trial judge. At the beginning of the hearing, the People gave defense counsel certain tape recordings of conversations which had been intercepted during the investigations. However, several of the original tapes had been erased and reused during the wiretapping period, and one entire tape was inexplicably missing. As substitutes for these missing and erased tapes, the People provided the defense with "logs" -- summaries of those tapes, compiled by the individuals who had monitored the interceptions. At the hearing, the People presented the investigatory personnel, and the trial witnesses whom Petitioner alleged, then and now, were discovered through illegal wiretaps. These witnesses testified that their trial testimony had not resulted from coercion, and that they had been unaware of any wiretapping at the time they made their statements to law enforcement officials. The Petitioner argued at the hearing that the possibility of taint had been suggested by certain obscure statements made by law enforcement officials and other witnesses, and that the absence of the tapes, which prevented effective pursuit of the taint question, may have been due to bad faith.

 Justice Davidson, however, found beyond a reasonable doubt that the People's evidence was obtained independently of any wiretapping. Petitioner appealed this ruling to the First Department, which affirmed the judgment of conviction. People v. Conroy, 41 A.D.2d 805, 341 N.Y.S.2d 875 (1st Dept. 1973). Petitioner appealed to the Court of Appeals, which affirmed unanimously. 34 N.Y.2d 917, 359 N.Y.S.2d 551, 316 N.E.2d 868 (1974).

 Conroy then petitioned this court for a writ of habeas corpus, pursuant to 28 U.S.C. §§ 2241 and 2254, alleging that his conviction was obtained in violation of his rights under the Fourth, Fifth and Fourteenth Amendments, basing his argument upon the use against him of evidence obtained as a result of an illegal wiretapping, in contravention of the Fourth Amendment's prohibition against unreasonable searches and seizures.

 Subsequent to the filing of Conroy's petition in this court, but prior to decision, the Supreme Court rendered its opinion in Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), restricting the jurisdiction of the district courts over habeas corpus applications based on such Fourth Amendment claims. Supplemental briefs addressing the ...


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