The opinion of the court was delivered by: DUFFY
Petitioner Dollree Mapp seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming that certain of her constitutional rights were denied in her trial in State court. The main thrust of her claim is that she and her codefendant, Alan Lyons, were represented by the same law firm, notwithstanding the fact that a conflict of interest allegedly existed between the two defendants. She also appears to be raising two other claims presented in her coram nobis motion before the State court: (1) that she was denied due process of law because of the deliberate falsification of evidence by corrupt police officers; and (2) that newly discovered evidence warranted a new trial. Since I believed that her latter claims were linked to her claim of conflict of interest, and since, in any event that was the sole claim raising issues warranting a hearing, I ordered that a hearing be held on the conflict question. That hearing took place on January 4 and 6, 1978, after which date the parties submitted post-trial memoranda. The following shall constitute my findings of fact and conclusions of law.
Dollree Mapp and Alan Lyons were arrested on February 18, 1970 following the discovery of heroin and other narcotic drugs in an apartment allegedly used to package narcotics. Rent receipts linking Ms. Mapp to that apartment were found at her own premises at the time of the arrest.
Petitioner and Lyons were convicted in New York State Supreme Court of possession of narcotics and sentenced on May 2, 1973 to twenty years to life imprisonment.
Thereafter, in a coram nobis proceeding, petitioner raised the issues presently before me. Her petition was dismissed by the New York Supreme Court and permission to appeal was denied by the Appellate Division of the Second Department after consideration of her claims.
Ms. Mapp was tried twice on the charges arising from her arrest in 1970. At the first trial, she and Mr. Lyons were represented by unaffiliated counsel. Both defendants took the stand in their own defense and both were convicted. Ms. Mapp engaged Nancy Rosner to handle the appeal of their conviction and a reversal was obtained based upon improper cross-examination, 39 A.D.2d 968, 333 N.Y.S.2d 539.
Ms. Mapp then contacted Mr. Feldman of the firm of Goldberger, Asness, Feldman and Braitbart to represent her at retrial. It was agreed that Mr. Goldberger would represent Ms. Mapp and Mr. Asness would represent Mr. Lyons.
The trial court conducted two colloquies on the record concerning the conflict of interest question. The first, on November 20, 1972, went as follows:
THE COURT: In the meantime I'd like to have it stated for the record, in view of the information that's before me, that you, Mr. Goldberger and Mr. Asness are associates.
MR. GOLDBERGER: Yes, we are.
THE COURT: In practice of law. And that having come to my attention, I call to the attention of the defendants Dollree Mapp and Alan Lyons that you are represented, both, by two members of the same firm in effect.
Now I don't want the record later on to indicate that you have an objection, being represented by people who are associated, and say later on that there was a conflict of interest as far as each one of you is concerned individually in connection with such representation.
Now are you, Dollree Mapp, satisfied to proceed with your lawyer Mr. Goldberger, knowing that he also is associated with Mr. Asness who represents the defendant Alan Lyons?
THE COURT: You have no question about any conflict of interest ...