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UNITED STATES EX REL. LASALLE v. SMITH

April 11, 1986

UNITED STATES OF AMERICA, EX REL RAMON LASALLE, Petitioner,
v.
HAROLD J. SMITH, Superintendent, Attica Correctional Facility, Respondent



The opinion of the court was delivered by: KORMAN

OPINION AND ORDER

EDWARD R. KORMAN, UNITED STATES DISTRICT JUDGE.

Petitioner, Ramon LaSalle, is presently serving a term of imprisonment of twenty-five years to life pursuant to a judgment entered in the Supreme Court of the State of New York convicting him of murder in the second degree. The pro se petition for a writ of habeas corpus, which he has filed pursuant to 28 U.S.C. § 2254, mirrors the brief filed by his assigned counsel on appeal from the judgment of conviction. *fn1"

 Petitioner alleges that he was not adequately and effectively represented by counsel, Specifically, he points to the failure of trial counsel (1) to move to suppress certain evidence, (2) to demand a bill of particulars, (3) to request a so-called "Sandoval" hearing, and (4) to call certain witnesses. Petitioner also alleges that a prosecution witness was improperly precluded from testifying to an exculpatory statement made by petitioner, and that the evidence was insufficient to support his conviction.

 Because petitioner's claim regarding the sufficiency of the evidence is plainly without merit, *fn2" and because the holding excluding petitioner's exculpatory statement as hearsay involves solely a question of the application *fn3" of New York law, the only issue which remains to be addressed is petitioner's claim that he was denied the effective assistance of counsel. The principal predicate for the latter claim involves the failure of counsel to move to suppress certain clothing belonging to petitioner. This evidence provided critical corroboration for the principal prosecution witnesses, the credibility of whom was subject to attack.

 After reviewing the transcript of the trial and the relevant New York law, it is apparent that petitioner failed to exhaust the only effective remedy available to vindicate the claim he presses here. InPeople v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149 (1978), the Court of Appeals held that "in the typical case it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under CPL 440.10." Id. at 854. This is so because it is frequently impossible to determine from the record on direct appeal whether counsel was justified in taking the course of action which forms the basis for the claim that his conduct fell below the minimum required by the Constitution.United States v. Aulet, 618 F.2d 182, 186 (2d Cir. 1980). Accordingly, unless the record is clearly sufficient to enable it to resolve the merits of the claim, the New York Court of Appeals, like the Court of Appeals for the Second Circuit, will not entertain claims attacking the adequacy of counsel without an evidentiary exploration of the issue in a collateral proceeding.People v. Brown, supra ;United States v. Aulet, supra ;

 United States v. Cruz, F.2d , Docket No. 84-1251 (2d Cir. March 6, 1986).

 The record on direct appeal, which is detailed below, demonstrates that this case is precisely the kind of case in which it was "essential that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under CPL § 440.10."People v. Brown, supra, 45 N.Y.2d at 854. Petitioner's failure to seek an evidentiary hearing pursuant to CPL § 441.10 made it impossible for the Appellate Division and the Court of Appeals (to which he unsuccessfully sought leave to appeal) to resolve his claim. Under these circumstances, the petition for a writ of habeas corpus is dismissed for failure of petitioner to adequately exhaust state remedies.

 I

 At the trial, certain clothing belonging to the defendant was admitted into evidence. Petitioner's counsel did not file a suppression motion. When petitioner himself moved to suppress the evidence, his motion was denied because "according to defense counsel and the results of his investigation, the so-called common law wife [of] this defendant voluntarily surrendered to the police [the clothing] and since there has been no claim of an illegal seizure, a suppression of physical evidence hearing under these circumstances is not required" (Tr. 13). The "concession" by defense counsel to which this ruling alluded was the statement that (Tr. 10):

 [W]hile on the surface it might seem we should make a motion to suppress that, nonetheless his woman voluntarily gave those to the police officers.

 A reading of the trial transcript leaves considerable doubt as to the circumstances under which the clothing came into the possession of the police. Despite the statement by defendant's counsel that the defendant's common law wife, Carmen Torres, "voluntarily gave" the clothing to the police, Ms. Torres herself apparently told an investigator retained by defendant's counsel that the police forced their way into the house (Tr. 179):

 Q. And you told him, also that the police forced their way into your house with, showed their shields and searched ...


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