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May 3, 1979

Paul CANNISTRACI, Petitioner,
Harold J. SMITH, Warden of Attica Correctional Facility, Respondent

The opinion of the court was delivered by: CARTER

The petitioner, Paul Cannistraci, has applied to this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is currently serving a term of life imprisonment with a minimum of twenty-five years. This sentence was imposed by the Supreme Court, New York County, after a jury found Cannistraci guilty of murder. Petitioner asserts that three inculpatory statements were improperly admitted at trial in violation of his Fifth and Sixth Amendment rights, and the state now moves to dismiss the petition on three separate grounds. First, it argues that the petitioner's claims are not cognizable in a proceeding for collateral relief brought under the federal habeas corpus statute. Second, the state contends that the statements at issue were properly admitted as evidence at the trial. Finally, it is urged that the admission of the statements, even if erroneous, was harmless error. For the reasons that follow, the state's motion is granted and petitioner's application is dismissed.

Background *fn1"

 On April 27, 1973, Cannistraci, who was then using the alias "Robert Gasparre", left the Concord Hotel in Monticello, New York where he had been employed very briefly. Cannistraci, together with his friend Eric Egan, took a bus to New York City where they checked into a hotel along with Thomas King, who had also been employed at the Concord. Shortly after the three men had gone to their room, Cannistraci and Egan left the hotel, and five minutes later the desk clerk received a telephone call from "one of the men who were in 405." *fn2" The caller said that because Thomas King was a homosexual and had tried to engage in sex with them, the caller and his companion had tied King up and hit him over the head.

 The desk clerk called the police who found Thomas King in the hotel room, dead. His body was seated upright in the bathtub, wearing only a shirt and undershirt. He was bound by a cloth that was wrapped around his throat and tied to a pipe behind his head. An autopsy subsequently revealed that King had died from asphyxiation and that he had been unconscious before he was tied up. He had suffered a blow to the head with a blunt instrument, and his larynx had been crushed. An investigation of the scene uncovered a fingerprint that later proved to be Cannistraci's and a bus ticket that gave the police an important lead by suggesting that the perpetrators had recently left Monticello.

 When the investigation had focused on Cannistraci and Egan, Detectives Robert Ginivan and Bernard Boyd were assigned to apprehend petitioner. They intercepted him in the hallway of the Bronx County courthouse where he was waiting to appear in a matter unrelated to the murder of Thomas King. The detectives escorted Cannistraci to a nearby room and told him that he was under arrest for homicide. Detective Ginivan then recited the Miranda warnings to Cannistraci and asked if he wanted an attorney. Cannistraci replied, "I have nothing to say." *fn3"

 The detectives then placed Cannistraci in a patrol car in order to take him to their precinct headquarters in Manhattan. Boyd drove while Ginivan sat in the back seat with the suspect. During the ride, Cannistraci asked why the detectives had apprehended him at the courthouse before his case had been called. Detective Ginivan asked, "What's the difference?," and Cannistraci replied that he had enlisted a friend to answer the first calendar call for his case so that Cannistraci could see if there was anyone in the courtroom to "pick him up." *fn4" Petitioner claims that the admission of this statement at trial violated his constitutional rights.

 Cannistraci then asked who had turned him in. When Detective Ginivan replied that it had been Eric Egan, Cannistraci said, "I thought so, because there aren't too many people on the street that know my real name." *fn5" This is the second statement that the petitioner unsuccessfully sought to suppress. The detectives then asked a series of questions to which Cannistraci gave incriminating answers. The trial judge, however, found that these statements resulted from police interrogation after the defendant had invoked his right to silence, and he ruled these further statements inadmissible. *fn6"

 Upon arriving at the precinct headquarters, Cannistraci was again informed of his constitutional rights, this time by Detective Boyd. When asked if he would be willing to answer any questions without an attorney present, Cannistraci replied, "No." *fn7" Shortly thereafter in a conversation with Detective Boyd, Cannistraci acknowledged having worked in Monticello, but this statement was conceded to be inadmissible in light of the petitioner's stated desire not to be questioned in the absence of an attorney. *fn8" Cannistraci was then processed in connection with the homicide charge, and while this procedure was taking place, Detective Boyd asked the petitioner if he would be willing to speak with an assistant district attorney. To this Cannistraci replied that he would "cop out" if the prosecutor would agree to give him a three year sentence. *fn9" This is the third statement that Cannistraci claims was admitted at trial in violation of his constitutional rights. At the conclusion of petitioner's pretrial Huntley hearing, *fn10" Justice Aloysius J. Melia found that the statements about a stand-in and public ignorance of his identity had been volunteered in conversations that Cannistraci himself had initiated. *fn11" In addition, the court held that Cannistraci's offer to plead guilty if promised a three-year sentence was admissible, but no explicit reasons were given for this ruling. *fn12"

 At the conclusion of Cannistraci's trial, the jury found that he was not guilty of felony murder. See N.Y. Penal Law § 125.25(3) (McKinney). However, the jury did find him guilty of murder in the second degree for engaging in reckless conduct that caused the death by strangulation of Thomas King. *fn13" See N.Y. Penal Law § 125.25(2) (McKinney).

 After his conviction, Cannistraci commenced a direct appeal to the Appellate Division in which his counsel argued that the three incriminating statements at issue were the product of interrogation that was prolonged after Cannistraci had invoked his right to remain silent. The Appellate Division rejected this argument and affirmed the conviction, People v. Cannistraci, 54 A.D.2d 631, 387 N.Y.S.2d 399 (1st Dept. 1976), and the Court of Appeals denied leave to appeal. People v. Cannistraci, 40 N.Y.2d 1078, 392 N.Y.S.2d 1031, 360 N.E.2d 965 (1976); 41 N.Y.2d 864, 393 N.Y.S.2d 1031, 362 N.E.2d 629 (1977). Cannistraci then filed this Pro se petition for a writ of habeas corpus.

 Collateral Review of State Court Determinations

 The state has argued that the petitioner's claims are not cognizable in a habeas corpus proceeding. This contention is derived from Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), in which the Supreme Court held:

"(W)here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 482, 96 S. Ct. at 3046 (footnote omitted).

 See also Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977), Cert. denied, 434 U.S. 1038, 98 S. Ct. 775, 54 L. Ed. 2d 787 (1978). The state now seeks to extend Stone to the issues of self-incrimination and right to counsel raised in this case. The Second Circuit has thus far declined to apply Stone to violations of the Fifth or Sixth Amendments, See Wilson v. Henderson, 584 F.2d 1185, 1189 (2d Cir. 1978), and I am persuaded that the Supreme Court's rationale is apt only where issues of search and seizure alone are involved. However, for a full exploration of this question more space would be needed than is required to dispose of the issues going to the merits. As I am confident that we have jurisdiction and equally satisfied that the ...

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