Appeal by Respondents from the grant by the United States District Court for the Southern District of New York, Conner, Judge, of petitioner's application for a writ of habeas corpus because of inadequate representation by counsel. Reversed.
Clark, Associate Justice,*fn* Anderson and Mulligan, Circuit Judges.
This is an appeal from a judgment entered September 24, 1976 vacating petitioner Thomas LiPuma's New York state conviction for a second degree burglary and petit larceny and granting a writ of habeas corpus pursuant to 28 U.S.C. § 2254 unless the State commenced proceedings to retry the petitioner within 60 days of the judgment. Subsequently the district court on December 17, 1976 amended the judgment to provide instead that the writ of habeas corpus would issue within 60 days unless the State afforded petitioner an opportunity to make a motion to suppress certain evidence. United States ex rel. Rosner v. Commissioner, 421 F. Supp. 781 (S.D.N.Y. 1976) (hereinafter cited as Rosner).
On the evening of January 10, 1972, two robberies took place at New York's Berkshire Hotel. Mr. and Mrs. William Robinson returned to their room to find their two fur coats, a pair of gold cuff links and other items missing. On the floor above the Robinsons, Mr. and Mrs. Raymond Geibel returned from a stroll to find an unknown individual sitting at the desk in the sitting room of their suite. Mrs. Geibel asked the stranger to identify himself, and he replied that he was a hotel security officer investigating several reported burglaries in the hotel. Two more strangers next emerged from the Geibels' bedroom and likewise claimed to be hotel security men. Mr. Geibel demanded identification of the three, and they answered that they did not have any with them but that they would get it and return; they then departed. The Geibels noted that their rooms were in disarray and that a small pillbox, worth approximately five dollars and a small purse containing some change were missing.
The Geibels and the Robinsons immediately reported the incidents, and the police were summoned. They arrived within a very few minutes. The hotel's entrances were sealed and its hallways and stairwells were checked, but the intruders were not found. All of the guest rooms at the Berkshire, except those on the sixth floor, were leased to long term tenants. Only the rooms on the sixth floor were used for transients; and at the time of the burglaries, only three of these transient rooms had been rented. In examining the hotel register, the police discovered that Rooms 612 and 613 were occupied by persons who had recently registered. Three officers went to Room 613. Whom and what the officers discovered in Room 613 were largely undisputed, that is to say, three men, Doyle, Raimondo and the appellant LiPuma, and the Robinsons' furs, and the Geibels' pillbox. The manner and means by which those discoveries were made, however, have, for the purposes of this case, given rise to an issue of credibility as to the assertion by the police that their entry into Berkshire's Room 613 was with the consent of Doyle, the occupant, or without his consent, which in turn raises the issue of a Fourth Amendment violation. There is also a question whether LiPuma's Sixth Amendment right to "the Assistance of Counsel for his defence" was violated because his trial attorney failed to make a timely motion for suppression.
The three policemen sent to investigate Room 613, testified at petitioner's state court trial before a judge and jury that they had knocked at the door and announced themselves as police. The jury was warranted in so finding and also in determining that James Doyle, who was also charged with the burglaries along with LiPuma and one Peter Raimondo, came to the closed door, where Officer Donnelly told him that the police wanted to make sure he was all right because there "had been trouble in the building . . . ." After a minute, Doyle let them in.*fn1 As Officer Donnelly spoke with Doyle, Officer Powers went past him into the room without objection or protest. Donnelly then followed. He noted that Doyle kept looking nervously toward the closet, the door of which Donnelly opened and saw evidence that someone was inside. The policeman then drew his gun and ordered whoever was inside the closet to come out. LiPuma then emerged, followed by Raimondo. A search of Raimondo's pockets disclosed the Geibels' pillbox, which was later introduced at trial against LiPuma. LiPuma, Doyle and Raimondo were then arrested. On the night of the arrest, Mrs. Geibel identified LiPuma as the man she had encountered sitting at the desk upon entering her Suite.
The three defendants were later indicted on two counts each of second degree burglary, petit and grand larceny and two counts of criminal possession of stolen property.
Doyle's retained counsel, Attorney Hochheiser, initially represented LiPuma as well, but in May of 1972, LiPuma retained Michael Coiro as his own separate counsel, who was assisted by his partner, Attorney Salvatore Quagliata, who prepared papers and handled pre-trial motions. After Coiro and Quagliata entered the case on LiPuma's behalf, Doyle's counsel, Attorney Hochheiser advised them that he had filed, on Doyle's behalf, a motion to suppress all evidence derived from the January 10, 1972 search of Room 613 at the Berkshire where LiPuma and Raimondo had been discovered in the closet, as well as where the physical evidence had been found.
Attorney Quagliata, in connection with his assigned duty to deal with pre-trial motions for LiPuma in the State court trial, discussed with Attorney Hochheiser, still representing Doyle, both a motion to suppress and a motion for a bill of particulars. They both testified at the subsequent United States District Court habeas hearing to an informal agreement before the state court trial, for a kind of division of labor, pursuant to which Attorney Hochheiser understood that Quagliata, on behalf of LiPuma, joined in Hochheiser's motion to suppress and Attorney Hochheiser, on behalf of Doyle, joined in Quagliata's motion for a bill of particulars. When this subject was examined by Justice Fraiman in the midst of the State court trial, Hochheiser testified generally, i.e., without a specifically detailed recollection,
"it had been my understanding over the period of that year, or whatever the pendency of that litigation was, that Judge Leff, who had been the previous judge in the case, and the prosecutor, Tom Andrews, and myself and Mr. Quagliata had all understood there was a time when Mr. Quagliata had told Judge Leff that he joined in my motion to suppress. I certainly understood I was the beneficiary of Mr. Quagliata's bills of particulars."
Quagliata understood this to constitute an oral stipulation which for the court and the parties, including the State, brought LiPuma under Hochheiser's motion to suppress. He also understood and believed that it was on the record. He told his senior partner, Attorney Coiro, about it and they both relied upon this understanding in seeking to have LiPuma's motion to suppress heard and ruled upon by Justice Fraiman in mid-trial of the case in the Supreme Court of New York. Due to the passage of time between the happenings testified to by Attorney Hochheiser and the actual trial in the State court, Andrews, the former prosecutor, no longer had any recollection of the matter one way or the other. Moreover an extended search failed to disclose that the oral stipulation was at any time made a part of the record. Attorney Hochheiser's motion to suppress on behalf of Doyle disappeared from the case on May 3, 1973, when Doyle pleaded guilty to the first count, charging second degree burglary.
The case against LiPuma continued and on May 16, 1972, Quagliata appeared before the New York Supreme Court and stated that "it would appear that there are some motions that lie." LiPuma was advised in July or August of 1972 by his attorneys that a motion to suppress had been filed on his behalf. A private investigator was hired at the joint expense of LiPuma and his co-defendants, with at least one of his duties being an investigation into the circumstances of the policemen's entry into Room 613 on the evening in question. In short, it appeared through the summer of 1972 and into 1973 that the case was being readied for trial. Immediately preceding the actual commencement of the trial, the state trial judge, Justice Fraiman, specifically asked Attorney Coiro if "there was any outstanding motion he required: " and Attorney Coiro advised the court "that there were not."
LiPuma was placed on trial on May 2, 1974, but as of that date no formal suppression motion had, in fact, been filed on his behalf. The prosecution presented the testimony of Mrs. Geibel, who had identified LiPuma in a police line-up on the night of the robbery. She also made a second identification of LiPuma in court. The State's case included the testimony of Officer Donnelly, one of the three policemen assigned to investigate Room 613 and that of Officer Powers, also part of the same detail. After the completion of Officer Powers' testimony and on the second day of trial, LiPuma's counsel, Attorney Coiro, inquired of the trial judge as to his "request for a motion to suppress . . . ." Coiro explained that in a pre-trial proceeding before a different judge, "the People consented to a motion to suppress." After extensive side-bar discussions with counsel over the course of five days, the trial judge finally denied Coiro's motion to suppress on May 8, 1974, on the ground that § 710.40 of the New York Criminal Procedure Law (NYCPL)*fn2 precluded the mid-trial consideration of the motion. The trial proceeded and LiPuma was ...