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WISE v. SCULLY

March 28, 1984

ANTHONY F. WISE, Petitioner, against CHARLES SCULLY, Respondent.


The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, D.J.:

 Petitioner Anthony F. Wise, a pro se state prisoner, brings this habeas corpur proceeding pursuant to 28 U.S.C. § 2254.In essence, one claim is raised in his petition: that the police officer's warrantless arrest of Wise in his home allegedly without either probable cause or exigent circumstances was unconstitutional in light of payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980).

 FACTS

 On February 21, 1978, the Poughkeepsie Police began investigating a robbery-homicide that had occurred the night before. Three elderly sisters, 80, 85, and 89 years of age, were attacked during the night in the bedrooms of their residence. Catherine and Madeline King were robbed and beaten but survived. Mary King was robbed, beaten, and choked to death.

 On February 21, Catherine King told a police officer that the assailants were known to her as two black individuals who had shoveled their home's walkway the previous winter. She did not, however, know their names. The police soon learned from a neighbor, Mrs. Quick, that the snow shoveler's were "Tony and his brother."

 The following day the police questioned two youths, Larry McFadden and Carl Dallas, about the King sisters' robbery and murder. Dallas stated that the previous day "Babe" (Lorenzo) Wright, a fifteen year old, had told him that Wright had gotten some money from pulling off a job which Dallas would read about. Following this lead, the police began looking for Wright. They were told by Wright's mother that he was missing, but she believed that he was staying at 95 Catherine Street in Poughkeepsie. Going to that address at about 7:30 p.m., the police were met at the door by someone who identified himself as "Bishmae." The latter's name later was learned to be Saul Holland. Anthony Wise also appeared and stated that the apartment was his, and that Wright was not there.

 Eventually the police were able to locate Wright back at his mother's home and they brought him to the police station for questioning. There, Wright admitted knowing who the perpetrators were and, after speaking with a youth counselor, disclosed that they were Holland, Anthony Wise, and Anthony's brother, Donald Wise. Wright stated that he had learned this by overhearing Saul Holland bragging to the petitioner's sisters about how Holland, Anthony Wise, and Donald Wise had tied and beaten the victims in their home.

 Thus, the investigation focused on Holland and the Wise brothers, and the police drove to 95 Catherine Street. Five detectives, two uniformed officers, and an assistant district attorney arrived at the darkened house at approximately 12:45 a.m. Three detectives, including one with a shotgun went up and banged on the front door for about five minutes until Madeline South, Anthony Wise's wife, answered the door. Transcript ("Tr.") 73 & 557. *fn1" The detective carrying the shotgun stood off to the side of the porch within the view of Ms. South. Tr. 202. Ms. South stated that Donald was not there and that Anthony was sleeping. The police indicated that they wished to speak to Anthony or bring him down to the station for questioning. Ms. South permitted the officers into the common part of the hallway, and went up the stairs disappearing into a bedroom. Tr. 73.

 When about five minutes had passed a detective, Detective Precious, shouted up the stairs: "Anthony, let's go." Tr. 74. After a second shout of "Anthony" the detective climed to the top of the stairs before Anthony appeared. Id. The detective with the shotgun at this point apparently was at the bottom of the stairs. The detectives advised Wise that they wished to question him at the police station. Tr. 74 & 563. After searching Anthony's clothing before he put it on, the detectives took Anthony to the police station. At 5:30 a.m. Anthony Wise confessed to the robbery and beatings of the King sisters.

 The County Court of Dutchess County denied petitioner's motion to suppress his statements as the fruits of an illegal arrest. On September 27, 1978, the County Court entered a judgment after a jury trial convicting Anthony Wise of two counts of Class A-I second degree felony murder, one count of Class B first degree felony robbery, and one count of Class B first degree felony burglary. Wise is presently serving an indeterminate sentence of twenty-five years to life.

 Wise properly exhausted his state judicial remedies. He appealed to the Appellate Division, 88 A.D.2d 1113, 452 N.Y.S.2d 473 (2d Dep't 1982), had his motion to reargue denied, and was denied leave to appeal to the New York Court of Appeals, 57 N.Y.2d 962 (1982). The Supreme Court also denied Wise's petition for a writ of certiorari. 459 U.S. 1216, 103 S. Ct. 1216, 75 L. Ed. 2d 454 (1983). He thereafter brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

 DISCUSSION

 After the petitioner was convicted, the Supreme Court decided Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980). In Payton, the Court held that the fourth amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect's home to make a felony arrest in the absence of exigent circumstances. 445 U.S. at 590. Payton was made retroactive and applicable to cases still pending or on direct appeal -- ...


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