Petition — Graham v. New York

Supreme Court brief1980

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| RICHARD GRAHA! MAR 4 1980

, [OFFICE OF THE CLERK

}SUPREME COURT, US.

-~against-

~ mmm F |

f= PEOPLE OF THI }

NEW YORK,

ients.

Petition r a Writ of Cert: the Appellate

Division of the Supreme Court of te of New York, Third

Judicial Department.

ae ———

STEPHEN L. OPPENHEIM

Attorney for Petitioner™®.

253 Broadway - Box 29

jcello, New York 12701

(914)-794=-7110

TABLE OF CONTENTS

Cases Cited

Petition

Opinions Below

Jurisdiction

Questions Presented for Review

Statutes Involved

Facts

Stage at Which ‘sues Raised

The Reasons for “ranting The Writ

1. The case squarely presents 3

question of ‘he definition of °

t constitution Limitations on nh

{| entries to e// ect arrest, and ti

raises an important question o+ Ae

Constitutiona! Law which, to date has

not been, but should be,decidec »y

this Court.

2. (a) The decision below demonstrates

the continuing reluctance of New York

Courts to abandon the reasonable

suspicion standard of People vs Morales,

25 N.Y¥.2d 55, reversed sub. nom.

Morales vs N.Y., 396 U.S. 102, and

to adopt the requisite standarc of

probable cause; (b) the absence of

probable cause in this case is so

egregious as to warrant intervention

of this Court.

3. This case was decided on the authority

of People vs Payton and Riddick, 4° N.¥.2d

300. s Court should grant certiorari

herein in order to be able to ispose of

this case in light of its decision to

be rendered in Payton and Riddick.

4. The Appellate Division concedes that

the motel search violated the Rule of

Chimel vs California, 395 U.S. 752, but

justifies the search and receipt of the

iteme seized into evidence on tac basis

of the confession which followed and

is a product of the search, Such a

ruling violates fundamental rulings of

this Court and warrants the corrective

review of this Court.

_—-

ee ee

SRS Se

= — - +

S. This Court should review th:

decision below because the Appe!

Division refused to suppress th«

of a general search in violation

principles long and clearly enuncieted by

th:.s Court.

6. Th2 decision below gives th

an opportunity to reaffirm a pz

so basic that it is rarely stat

oft forgott that truthfuln

an element oj voluntariness.

7. This Court should review th.

because the Courts below have f

follow the mandates of this Cov

concerning multiple searches.

8. We urge that this Court sho lew

this case because the lower Cou :

so enthralled by defendant's co. ey)

that the entire proceedings wer: torted

so that constitutional issues we sided

in general in violation of exis'

principles denying petitioner a

hearing

Conclusion

Appendix A - Decision of the Appeli« Division

Appendix B - Decision of the Sulli : fiouaty Court

Appendix C - Order of the Appellate Division

Appendix D - Order of the Appellate Division denying

Reargument

Appendix EB - Certificate of the Chic’ ige of the

State of New York Denying Leave to A l to the

Court of Appeals of the State of New You

Appendix F - Items geized at Search, » rt. Motor

Lodge, Fort Lauderdale (Dania), Flo» d°-October

19, 1975 :

Appendix G - Items Seized in Search of i incoln

Automobile at Gateway Downtowner Mcic!. ‘cowark,

New Jersey, October 17, 1975

i agi ii

CASES CITED CASES CI’

PAGE |

Amador - Gonzalez vs. United States Millez vg. United States om

i Eo cer mina panties laceniaa abe parma ae rriadas ——457 J.8. 301--------------- 2 ecw cnenen 135-38

Beck vs. Ohio, 379 U.&.89-<--~----- wo nnnenn = 18 Mincey vs. Arizo1 U.S

A ‘ ZONA, ee

IADB www ween ene ne an as wn ew or on os D

Berger vs. New Yoox, 98 S.Ct. 7

88 u.5.41-- Pe ee Fk oii Bile Sei eS 26 Morales vs. New York,

Brown vs. Illinoi:, {996 U8. 1 MEET Gere Gere TUTE CORT "

422 U.5.550------~- Fe ar ae ees eee ne Nardone vs. Unii d States,

|icaldwell vs. Lewis, 417 U.S.583---- --~--~-------0--"27 gua car NT ta A Ra aa uaa MAT 79

tas People vs. Boye!

Chapman vs. Califoinia, “cop, We eo. 5 pan ma ennai we debts ev ae a evan wpm anther man ee me

eee lo IE | remrmapen Ee ee ne coe sh ee 5 A.D.2d § 40 16

Chimel vs. California, | People va, aye, - entra | «hsb oisaswasanannttpaaiaa

———Sen .8,752---2----------------- AE Oey ee | A.D,2d N.Y.S.2d 619 a8

' People vs. Crimnins

Coburn vs. State, /% Okl. Cr. | SP Og ee Ct een LEE

"562, 1498 P.2d 483-------------- ae aistaecnenee mete ae 6 N.¥.2d 230 22

' people vs. Floyd, 26 N.Y¥.2d

Coolid e vs. Wew tian shire, a) 6 y 7A a

oa gh a 24, 27 eT s8, 312 N.Y.S.2d 193 13, 14, 15

People vs. Liberty,

Dunaway vs. State of New York, “ops eae nie de apie teh th en en en spe acaneams 8

U.S. y 99S. Cbs 00d Den a nme n nnn 17 7A.D.28776- .

People vs. Morales,

Duncan vs. State, 11 Okl, Cr. 5% " 4A c Ol BW-<-<--<-<-e=<

F117, 184P. 629---------------- Fe oe Ahem 72 N.¥.2d 129, cert. dem. 434 U.S. 1018 18, 19

' ve People vs. Morales, 22 N.Y.2a 55,

Pahy 378 oer Rev'd. sub nom. Morales vs. Now York,

er Sele ear ornemenrrs wm eaermern Se Senerrne™ 22 396 U.S, 10 2---<noe monn nana mane ann enn nnnne 17, 18

-ti, Leasing Corp. vs. United States,

0 i Riddick

: oe ee tit--------- pasadena People ve: oS st0- 5

7 9 : 21 5 N.Y¥.2d 300, 408 N.¥-5.2d 34 ena ennennen 19, 20

United States, 361 ites, aed amet aenmane 19 People vs. Vese, “Miisc.2d

ohnson vs. United States, ee eta, MEP ee ray Li atin ereen a m

3 U.S.10-~~~= Jed) iano aaa an pein ati ki eo 19 Pennie 06. Mies, 46 BT 4082 <n sees 1é

Rios vs. United States,

optyra vs. State, 172 So2d 628---~------------------ 14 Se MOR Sree ene ee Shae ae for eae 18

: kodr tqve: vs. butler,

United States, 952 ene clavaldh oc denen talus ch iwev cxinpentr ca chan aaparena tba 12 3

5.346 Se tt A A A CU <a lb ea diis Gin tails eiienaew 24 o2a ‘ 1

Rogers vs. Richmond

United States, a} x . ye Ee eg aking Ne Pee ive I A on PO SEE SE 25 26

U.5. 19? Te ap amecleian al roles ia oe ye 23 65 U.S. 5 ’

Sabbath vs. United States, 39] :

Vee State, U.S. 58 Cs tae an Oe Saw 6 SS Gb OD OS Gen OHS SE OS SO ew mS OO Oe OH HY a ns ws Or eS CRD ERED ED EN NSN 12, 14

Ind. 175, 150 NE.50-------- <n ene 26

3 : . Texas, 31 .8. 476-- eee ene

Meponald vs. United States, Stantord vs. Texas, 379 U.S. 47 23

EMER eet ny cag eee CFT 14, 19 State vs. Moran, 103 W. Va. 753,

138 S.E. 366-----<--~------- HA me 26

tellet & Nichols Brewing Co. vs. United States,

. PS amen ee wm een aw asen mn 26

4 ie iii Me) om :

| sul

CASES J I | In

PAGE | Sul o oul C states

State vS. Parsons, 33 N.J j :

Supe . 430, 200A2d 340 Coue We / | stober Ter! }

State vs. Pina, +3 -2a 16; ’ — «G No.

Stoner vs. Cal i ror nia,

76 U.S. 483 [eee eee ee — _ - 19 }

RICHARD

Taylor U.S., 286 U.S. 1 “<a ome - ~49 |

: ‘

Oner,

Terry vs. Ohio, 392 U.S. l--~-=- : a VRrieersae tS eo

age

United States vs Amer can Be win

NG. FR ee eee ee ee eae ae THE PEOPLE OF THE STA {EW YORK,

United States vs. Bravo, ndents,

| EEE Be BUD. 29 [eee en wen coec enon asm assasananen 23

United States vs. Chapman, mE .

- Supp. 1232-<--------- smann mn) 3,

United States vs. bike, Petition for a Wiit of Certicrari ppellate Division

Be 59) --omew en oweoe son en sn — se enw ensonae 19 of the Supreme Court of the State ew York, Third Judicial

Department.

United States vs. Jeffers,

dad Ue. 48-~- meer en naan =~ ao ean enn enw nennen 19

The petitioner, Richard G rays that a writ of

United States vs. Sins, 231

F. Supp. 251---<---------- sven aap io ee an ane een Ny PES EES 13, 15-16 certiorari issue to review the ora of the Appellate Division of

United States vs. Sokolow, the Supreme Covi! of the State o! ¥ York, Third Judicial

32d 324~-5---==5-------~-- Seiaiedetaietaetatatatete 13

Department, dated and entered On August 4 , 1979, which became

Wong Sun vs. United States, (

U.S. 471 --------------~- i apy a an eR 23 the final decision of the highest Court of the State by virtue

of denial of leave tc appeal to the Court of Appeals of the State

of New York, rendered on December : '7/9, by the Hon. Lawrence

H. Cooke, Chief Judge of the State ea York. Review is sought

to the extent the order of the Appeliate Division affirms the

judgment of conviction for intentional murder 2d (Penal Law

§125.25(1)) and felony murder 2d anal Law §125.25[3)).

OPINIONS BELO

The opinion of the Appellate Division of the Supreme

Court of the State of New York, Third Judcial Department (Appendiy

A) is reported at 69A.D.2d 544, 419 .¥.S8.2d 290, The opinion

of the Sullivan County Court denying the suppression motions of

Petitionerjand Richard Lucas, the : ions having been heard

or : vee eee, |

u2 , |

| Jud

| |

together, (Appendix 8) i8 reporte. «. 40 Mise 2a 1019, |

396 N.Y.S.2d 966. QUESTIONS PRESENTED £U

JURISDICTIO 1. Where volice uk into ! Otel room to arrest

The order of the Appellate : on of the Supreme Court of | | Petitioner, know i ne .¢ leep, witnout giving

ee ae Senne: Sane JUCLS epartment, was dated and | | notice of their presence and 23 without giving the

den!

entered on August 8, 1979. eary ie oedine dated and | | | occupants an opportunity to adn yhere the police rely

entered October 5, 1979. | on the claimed «xigencies of tl ‘ a dog (which was not

a eee Se Pee SOUS \ppeals of the State of | | on the premises) and of the possibs+%y tat the occupants might

New York was denied by certificat he Hon. Lawrence d. Cooke, oe armed, was '' tioners’ arrest unc tutional?

Chief Judge of the State of New Yous, dated and mailed December 3, 2. Where Petitioner and his compan: nt to Florida soon

1979, The jurisdiction of this Coure is invoked under 28 U.S.C. after the murder of a couries, wh nad been held by

csgotahbena ; : Petitioner and where the main Con f Petitioner to the

crime is that on of his compan! sen seen near the

courier's bank at least one-half how fore the courier set out

for the bank, did the police have p ‘le cause to arrest

Petitioner without a warrant.

3. Did the police require exigent « umstances to enter

Petitioner's motel room to effect crantless arrest?

4. Did the police have exigent ‘tances to effect the

warrantless arxest of Petitioner «: s motel room?

5. Where evidence is seized in vs scion of the rule of

Chimel ve California, may it and ‘\ts thereof be received

in evidence because giving r.s8e on to “faint prejudice” to

Petitioner rather than of no effect! yond a reasonable doubt?

6. Where the police thoroughly searched the motel room including

the closets, drawers, and chests, and seize every item (but one)

' belonging to the occupants, ave tae | cupants been subjected

to an unconstitutional general searcs?

7. Where the Court uses truthfulness as a eriterion for

determining the voluntariness of Petitioner's confession, should

' the decision that the confession was given voluntarily be

reversed?

8. Where the police had the Lincoln atomobile under yin ee

for four days, having searched the cas under @ warrant on the

firet day, may they search the car 4g#.n On the chird dey without

obtaining a new warrant?

9. Is the second search of the Lincoin improper as part of an

unconstitutional general search?

10. May the police seize the Linouin on the

fourth day of surveillance without of (sining a warrant to do 80?

11. Should Petitioner's confession aad the evidence seized

in the foregoing searches and the fsu.ts thereof be suppressed?

VUO

cranin

|N.¥. Criminal Procedure Law

§120.80(4) (bh):

§120.80 Warrant of arrest; wi executed.

i4. In order to effect the arrest, fficer may, under

circumstances ani in 4@ imanner pres { in this subdivision,

enter any premises in which he reas le believes the defendant

| to be present. Hefore such entry, ist give, or make reason-

| able effort to give, notice of hi ity and purpose to an

| occupant thereof, unless there is: sonable cause to believe

i that the giving of such notice wil

i RERRHKHARRAEREH AHH ANE

(b) Endanger the life or safe of the officer or anothes

person;

N.¥. Criminal Procedure Law

§140.15(4) :

140.15 Arrest without a warrant; nen and how made by

police officer.

RHRKAARORARAKRK EAH ED ,

4. In order to effect such ar arrest, a police officer may enter

premises in which he reasonab .y be uch person to be pres-

ent, under the same circumstances and in the same manner as would

be authorized, by the provisions o! indivisions four and five

of section 120.80, if he were attempting to make such arrest

pursuant to a warrant of arrest.

' ° ' . |

P . uv?

‘

PACTS corridor under surveillance, (R/A 198, 401)

During the first } hour er and his

4 8207 a.m. on October 1975 sk an ala eee ties | there ear niol

his bed in his motel room in “ort , Florida. Immediately |) at entertainmen’ ' ‘J . sense

thereafter, officers of the orid mn of Criminal | plate of their © 1c nformation to

Investigation an’ the Srowar 0 F's Office, accompanied identify it, n been Wa; ‘rrest them.

by New York State Troopers, broke into his room, with pistols (R/A 336-7, 39°

drawn, and arrested the defencant © ' surder, kidnapping, Petitione: , £208 te e motel at about

and robbery of one Craig Mitton, whic Legedly took place on 6:00 wi on Ort L975. (R . Again, no attempt was

October 13, 1975. (R/A 287, 400, 409-109) * made to arrest || although at officers were present

The police entered defendant's room without any notice of any on stakeout. |

kind, gaining entry by use of passke: tained from the motel Police mac Lous cecis they tho.,ht

ili, (R/A 341, 400) the four were 4°) before effect: rest. (R/A 311-12)

The police had no warrant for the arsest of defendant. No Correctly assuminy the four to be « he police broke into

warrant had been issued and no Court proceedings had been the roomat 8:00 o.m. (R/A 345, 49%

initiated. A warrant was not issuec til the next day. (R/A 429) The four had .iaveled to Flor four days earlier |

Police also arrested the defendant's "fiancee" who was in the bringing a doberm n pinscher with th hey had boarded the dog

room with him. ‘She was arrested for the same crimes. (See p. with a vetezhacian several days | » acrest. . (R/A 724-5)

infra; R/A 473, £1706) During the twenty sours of surveill police, naturally, had

In the adjoining room, the police under similar circumstances not heard the dow !erk nor was the he four when they

arrested one Richard Lucas and his giclfriend, Cheryl Kilb. returned to the motel. The police . no information about the

(See page 44, infra; R/A 345-7, 39° 497-8, 71706) dog's whereabouts since the “our he i into the motel.

The police had nad the motel rocus under constant surveillance There was no proof concerning the psoponss ies of the dog, other

since about 11:00 a.m. on the previous day. (R/A 277, 397-8) than ite name. One of the arre ting officers owned a doberman.

During the surveillance the police occupied the rooms on either Ownership of a doberman in Florida was Act illegal im any way.

side of Graham ard Lucas. Each police room had a connecting door (R/A 343) Immediately m entering the coom the police searched for

with one room of Graham or Lucas, whose ©ooms did not inter- guns. There were no guns in the room. (A 345)

The four arrestees were permittec ireas and were taken

connect. The only other egress from the rooms was on to a

to the Broward Cowty Sheriff's office, civing at about 8:30 a.m.

* References are tc the record on appeal, which is numbered :

in two sequences. The suppression hearing pages are numbered (R/A 288-9, 759) All of them, with the exceptton of Cheryl Rilb,

starting at R/A 1, while the trial transcript and other ere handcuffed. (R/A 412, 474)

° ’

documents are numbered starting at R/A-Tl.

| aitte: | ' ‘ |

| | wud

After the four : been reme olice | that Lucas and the defenc aade

| ' : ' plans to leave the area; hough

| began a thor ay! rch of t roe er! wwe neither Lucas nor the def , was registered

| at the Downtowner Motel, ft his car ;

Luc yee They 7 y ba ; \ .nere, rather than at the’ ct; that the ta

K ‘efendant eid Lucas were : sd in the

| ty the erceatea: ling vnly i }locida motil under false s@8;, and

t mp Ie | that Lucas had told a por he Walden,

| $25) A list oo: wu Zed o Thee New York area not to disi ix

whereabouts. Thus, the p id done more

petition at. po {-79 , insea | than merely place Lucas nh bank at

} | about th time of the zol ndeed,

At about Ji 'l ie PP tition: ‘y | | the pol Lee nad reason to that

| Lucas and Graham had fled .. (Pp. 304, infra.)

indicating his ul > give a

: : | |

attorney. (Sup! eg ves | Cn October 1/7, 1975, tha New ¥ police, acting

Petitione: jain questione mi. (R/A | together with the Noward Police I» , and acting under a

353-5, 447-8) (0 the interim th been brought | search warrant, conducted for "se ah’: Aiiobeaaahe: alas

into the rodm in which he was bein aan | of Lucas's car at the Gateway bow tel at Newark, New

Cee Sens Wer iad both Se quea! Ae Seer Jersey. (R/A 144) ‘he search wa iy thorough and they

women (R/A 44". 04, 697-8, 760, / seized fingerprint and neaxly eave. object in the car,

During the jnterveaing period, 's request to see | | including vacumminys. The list o! oised is set forth as

his "fiancee" lion bon denied. (kh | Appendix G, pages /1 aS, inf: a. 4 © was so complete

Petitions: ; a his confes: OO AoMe, that when they revacumed the ca: , 20, 1975, they

finishing it at gout 11:49 am. | 19-23, 353, | obtained no new sweepings., (R/A |

446-6) Therenpo, he was permitte cae" and to After the search and seizure on \7, 1975, the police

have lunch wit!) | | And, at abou hrought kept the Lincoln under constant su. ce until they seized

before a judge ii (he same buildin suppression | it on October 2], 1975, and remover. he State of New York.

| |

exhibit 69-70) | romen Wore XX ay after | (R/A 147-8, 273)

} |

giving stateme! [R/A 480-1, 90%, hi aS SPSS | On October 20, 1975, without ob new warrant the

that both had ! wrested; ‘but 5 lodged againet police searched the car a second t). / sweepings were done ’

either of thom | page 44, An } and new fingerprints were taken, verprints established

Petitioner «1 Lucas had bean : he murder, | for the first time, on the day aft: ‘rest, a connection

kidnapping end sobiery in New ors raig Mitton on | between Mitton and the Lincoln. 4 jorprints are the only

October 13, 1°/

\ The Court fous that the poli \ the following facts ;

to establish peoiisble cause;

Before th y arrested the §

police oft! icers knew: that

the victim of a eObbery anu

Lucas aad another person ly n ‘near

the bank close to the t Line )

arrive; that che dafendant ,

been fi» | tcom the same i

” ‘ :

4 li,

, BEST COPY AVAILABL:

evidence of such a connection. (R/s '435"45)

On the trial, notwithstanding potitioner's confessior,

a substantial issue developed as to whether or not Lucas end

petitioner in fact killed Mitton. Milton Gross, then

Chief Medical Fxaminer of the Stat anecticut and now Chief

Medical Examin r of the City of New Lestified that Mitton

both was shot and died at a time whon the People acknowledge

that Mitton could not have heen ki y petitioner who had

already left for New York on their crip to Florida. Or. Gross

testified that the shooting SCuld have occurred no earlier than

1:00 a.m. on October 14, 1975. (R/A 1203-4) The People's

proof indicated that Lucas and Graham arcived at New Windsor,

New York between 8:00 p.m. and 9:00 p.m, on October 13, 1975,

and left soon thereafter for Newark, New Jersey on their trip to

Florida. (R/A T1093, T1293-4, T1342)

At his suppression hearing, in addition to Fourth Amendment

issues, the petitioner raised the issue of the voluntariness of

his confession. In deciding the ques'ion of voluntariness, the

Trial Court, now affirmed by the Appellate Division, used his

belief in the truthfulness of the confession as a factor in

determining the voluntariness of the confession. (R/A 822-31)

—

T=:

STAGE AT WHICH TSSUNS RAL

Bach of the issu. caised herein wa! first’ raised on

Petitioner's motion in the Sullive: wity Court to suppress his

confession and the evidence seizec in various searches herein,

together with the fruite thereof.

Zach of the issues, with one excep. ; s resolved against

Petitioner in the decision of the County Court. (Appendix B,

p. 33, infra). The issue of truthfulness as a criterion for

voluntariness was resolved against vc oner by the Sullivan

County Court on the record. (p.245 infra).

The Appellate Division held agains Petitioner on all

suppression 18% 10%, except that it assed that the motel serch

was conducted in violation of Chime! ‘alifornia, but concluded

(Appendix A,

that the Petitioner was not prejudice: thereby.

p.28, infra.)

The Reasons for Granting The Writ

1. This case squarely presents the question of

the definition of the constitutional limitations

on noticeless entries t= effect arrest, and thus 7

raises an important question of Constitutional

Law which, to date, has not been, but should be,

éadided by this Court.

The Appellate Division held below thet the noticeless entry

of the police into the bedroom of the sleeping petitioner was not

illegal because of the existence of 6: yent circumstances.

(See page 31, infra.)

The Court relied on the possibic ‘istence of the doberman

pinscher and of guns in the room as coustituting the exigent

circumstances. [ts reliance in that regard is contrary to an

—

almost unbroken line of cases, discussed below, that the possibili

of the arrestee being armed negates . justification for a

noticeless, as opposed to a warrantless, arrest.

Furthermore, the facts relied on by the Appellate Davision do

not warrant a finding of exigent circumitances.

In Ker vs California, 374 U.S.23, Mr. Justice Clark wrote, for

fore vitiate the legality of an accompanying search." (Ker vs

California, 374 U.S, 23, 38.)

to define the exceptions, if any,which would justify a noticeless

ed of noticeless entries have been struck down as not complying

with the relevant local statute or have been upheld as both legal

and constitutional. (Ker vs California, supra; Sabbath vs United

States, 357 U.S. 301; see also, Rodriguez vs Butler, 536 F2d 982

(24 Qy.)

four members of the Court, that "the method of entering the home may

offend federal constitutional standards of rea@onableness and there-

Notwithstanding the recurrence of the issue, this Court has yet

to hold that a constitutional right exists, to define its limits, or

entry. This situation has arisen either because previously complajn-

The existence of a federal, constitutional riohe tea

| recurring problen ’ mi ome Car he avert tet ten Othe Levers

courts on the same vasis as in this nirt., statutory illegality

| or a finding bot’ of legality and constitutionality. (See, for

example, Rodriguez vs Butler, supra United States vs Sokolow,

“430 F2d 324 (stn Cir.); United Sta ve Chapman, 384 F.Supp.

1232 (S.0.Fla); \sitea States vs Sims, 23! F.Supp. 251 (D.Md.);

People vs Floy:! ?) N.Y. 2d 558, 312 N.¥.8.2a 193).

The lower Courts have tended to assume the existence of a

federally proteciad right against noticeless entry or to point

out that its existence remains in question. (See, for example,

Rodriquez va Buller, supra, 536 F2d at %85; United States vs Sims,

Supra, 231 F.Su|. at 255; People vs Floyd, supra, 26 N.Y¥.2d

at 363, 312 N.Y.S.2d at 1956.)

“ve respectfully suqgest that the right against noticeless

entry is too furiamental to be left any ionger to oonjecture.

This Court has noted that:

The requirement of prior notice of

consigned to constitutional limbo.

357 U.S. at 313).

that the arrestees might be armed.

authority and purpose before forcing

entry into a home is deeply rooted

in our heritage and should not be

given grudging application....

Every householder, the good and the

bad, the guilty and the innocent, is

entitled to the protection designed to

secure the common interest against un-

lawful invasion of the house. (Miller

vs United States, supra, 357 U.S. at 313.)

Such deeply "embedded", “traditional fair procedural require-

ments", as notice of authority and of purposes should not remain

(Miller United States, supra,

This case is especially appropriate for addressing the issue

because the Appeliate Division asserted as exigent circumstances

the very circumstances that have traditionally called for a

heightened awareness of the need to give notice: the possibility

This Court, the Court of Appeals of New York (under whose law

5 pies Maal ei

the case wat decided) , and the, Supr. tourt of Plorida (in whose

state the entrios were made) have a) held expressed the view that The requirement of notice assumes the possibility of armed

the tracitional requirement of notice is intended to avoid defense by the unous;socing arrestee. It is just this porsth. lity

violence particularly where the arestee is armed. Time and again, which the requirement seeks to avoid. The requirement of notice

this Court and others nave cited with approval the concurrence of | gives the armed arrestee the opportunity to surrender peaceably.

Mr. Justice Jackson: New York Cy iminal Procedure Lat §§120,80 and 140.15 are the

i am the less relectant to reach emvodtiment of the common law. (People vs Floyd, supra, 26 N.¥.2d

this conclusion because the method of

enforcing the law exemplified by this at 562, 312 N.Y.S.2d at 194-5). As such the exceptiomin C.P.L.

search is one which not only violates

legal rights of defendant but is certain | §§120.80(4) and 140.15(4) are not intended to do away with the

to involve the lice in grave trouble

if continued. San it aia not do #0 on notice requirement as historically developed, but only to cover

this occasion was due to luck more than

to foresight. Many homeowners in this situations whe: ne police are undes attack or threatened with

crimebeset city doubtless are armed.

When a woman sees a strance man, in attack.

lain clothes, prying up her bedroom

pindaw and climbing in,hexr satural In any event, it is appropriat x this Court, should it

impulse would be to shoot. A plea of

justifiable homicide might result find a constitutional riqht of notice to exist, to determin.

awkwardly for enforcing officers. But

an officer seeing a qun being drawn on also the limits of that right. This Court should determine if

him might shoot first. Under the

circumstances of this case, T should not exception to the right, by way of det mat ion of exigent

want the task of convincing the ju that

it was not murder. I have no aan Pm circumstances, ray destroy the righ* itself.

in condeming as unconstitutional a method

of law enforcement so reckless and so We believe that the argument against such destruction by

fraught with danger and discredit to law

enforcement agencies themselves. (McDonald exception is fully mace by the United States District Court for

vs United States, concurring opn. 335 0-5.

451, 460-1; clted at Sabbath vs United District of Maryland dealing with circumstances strikingly similag

States, supra, 391 U.S. at 589. Miller vs

Onited states, supra, 357 U.S. at 317, to these:

w. 12; People vs ET d, supra, 26 N.Y. .

24a at 5652 312 Need at 5, note; Lest this Court be thought to have

Koptyra vs State, 172 (So 24 628, 631 permitted a legalism to prevail over

Tria’. i manly 6 a conmon sense and to have subjected

4 arresting authorities to an unnecessary

The fact relied on by the Appellate Division that the officers = to preter gc Sgt gp a

performance o eir duty, it is we

armed themselves against the danger ("In fact, one of the arresting bo ny ae is here ay ete eg

rresting o cer may no reak into a

officers had wrapped a towel around his arm prior to the entry for ae gro en Ret sae ee prior P

nd for en , statement of purpose an

, protection against the anticipated attack by this animal. [P.31l , mah gle ae Gear aciet on er ——

5 t emand entry and give notice wou

infra.}), does not vitiate the essential nature of the traditional yen a boar ver te bodily harm

=—— m. 1is is decided because

rule in this regard, the Appellae Division ignored even the New pe Saag gtetery 9 pe ranigt a a

rae o re an ree hundred years

York formulation of the common-law rule: have concluded that when there is a conflict

between these two considerations, the right

pr does the circumstance that the arresting ad agp; Bes ee — rome ae nh eg

officers drew their guns before enterin er society's interest in punishing the

defendant's room abies anything, poses guilty. Here a conflict between these

since they were engaging in the extra considerations could well have been avoided.

hazardous act of entering his room by Defendant's whereabouts were known to the

stealth without notice. (People vs Floyd, FBT. No valid reason appears why defendant

supra, 26 N.¥.2d at 563, 312 N.¥.S.2d at could not have been arresved going into his

Ise -y ° hotel room, coming out of his hotel room e

‘

J16

{n a corridor, public room or the elevator

of the hotel or outside the hotel. By

chooslig to make Che arrest in the legal

equivalunt of defendant's home the agents

subjec sed themselves to the necessity of

giving notice. The failure to give

notice rendered the arrest illegal.

(United States va Sims, 23) F.Supp. Supra ,

at 257-8).

Finally this Court, if necessary, should exercise the powers

asserted by for it by Mr. Justice Clack "to determine whether,

notwithstanding its legality under State law, the manner of

entering the hotise ... offend(ed) teceral Constitutional standards

of reasonableness..." (Ker vs California, supra 374 U.S. at 38.)

May the police reasonably rely on their "fears" of a dog who has

not barked for 1 hours? May they reasonably rely on their

"fears" that ai arrestee is armed in the absence of any objective

proof that he is or that he has been at any reasonably recent time),

if ever?

We respectfully suggest that definition of the constitutional

right of notice before entry is a matter that fully warran‘*s

the attention of this Court at this time.

uh?

2.(a) The decision below monstrates the

continuing reluctance of Nev York Courts to

abandon the reasonable sus» cion standard

(f 2eop1 4.@8, 22 N.¥.2d 45, reversed

tub. nom 69 VB N.¥., 396 U.S. 102, and

'@ adop! cegussive Standard of probable

cause; ())) the absence of probable cause

in this case is so egregious as to warrant

intervention of this Court.

The Appellate Division stated che facts upon which it based

a finding of probable cause:

Before they arrested the defendant, the

police officers knew: that Mitton had been

the victim of a rokbery and murder; that

Lucas and another person had been seen near

the bank close to the time Mitton was to

arrive; that the defendant had recently been

fired from the same job Mitton had; that

Lucas and the defendant had made plans to

‘leave the area; that although neither Lucas

nor the defendant was registered at the

Downtowner Motel, Lucas left his car there,

rather than at the airport; that the

defendant and Lucas were registered in the

Florida motel under false addresses; and

that Lucas had told a person ji the Walden,

New York area not to disclose their where-

abouts. Thus, the police had done more

than merely place Lucas near the bank at

about the time of the roobery. Indeed, the

police had reason to conclude that Lucas and Graham had

fled the area, (P.30-1, infra.)*

It is respectfully submitted that even as to Lucas these

facts give rise only to a suspicion, As to petitioner they

surely give notiing more.

The Appellat« Division reached its conclusion without

citation of authority (except as to flight) and without analysing

the facts.

Its decision and the refusal of the New York Court of Appeals

to hear the case represent a continuing tendency on the part of

the New York Courts to apply the reasonable suspicion standard

ennunciated in People vs Morales, 22 N.¥.2d 55, reversed sub nom,

Morales vs New York, 396 U.S.102, notwithstanding this Court's

decision in Dunaway vs State of New York, U.S, 99 §.Ct. 2248,

nt ee

* The finding that Lucas gave a. false address is totally un-

supported in the record. He gave his correct address, not only at

the motel, but at the car rental agencies and at Western Union.

(R/A 284, 394; Suppression Ex's 49, 50, 54.)

W18

60 L Ed 24 824. (Cf. People vs Bryanc, __ A.D.2d 428

N.¥.8.2d 619 and People va Vese, __ Misc 24 __, 417 N.Y.S, |

24 1015.)

The New York Courts resisted the probable cause stardard

during the ten years between Morales vs New York and Dunaway vs

State of New York. (See for example, People vs Morales, 42 N.Y.

N.Y. 24, 129, 135, cert. den, 434 U.S, 1018; People vs Wise,

46 N.Y. 24 321; People vs Liberty, 67 AD2d 776 (3rd Dept.);

People vs Boyer, 65 A.D.2a 840 (3rd Dept.).)

The decision below represents a continuing application of the

Morales reasonableness standard without invoking it by name.

Particularly, it continues the use of facts placing the arrestee

near the scene of the crime as justification for the police

conduct. (See People vs Morales, supra, 42 N.¥.2d at 134-5; People

ve Wise, 46 N.¥.2d 321, 330.)

Petitioner's sole alleged connection with the crime itself

is that his friend Lucas was seen at the bank, which Mitton may

or may not have arrived at,at least 40 minutes before Mitton

would have arrived there. Peculiarly enough, the New York Court

of Appeals in Morales recognized that placing "the defendant in

the vicinity of the crime" even “at the time of the murder" does

not constitute probable cause (People vs Morales, supra, 42 N.Y.

24 at 135.)

A finding of probable cause in ths case so violates the

standards ennunciated by this Court to warrant granting this

petition, even if the decision below is not part of a pattern of

reluctance.

The facts at best warranted the police in seeking to question

Petitioner, certainly not in arresting him.

Viewed objectively and without hindsight there is nothing in

the facts which justifies a finding of probable cause. (Beck vs

Ohio, 379 U.S. 89, 91; Rios ve United States 364 U.S, 253, 261-2)

Lucas's presence near the bank, even when combined with the

other meager facts, did not give probable cause to believe he had

later waylaid Mitton, transported him 35 miles, robbed him and

| ’

murdered him. (‘Inited States vs Dike, 352 U.S.581; People vs

|Morales, :upxa, 4° > 2d at 135.)

Nor can petit ones 8 aileged “flicht" be consideruc is

affording probable cause. Viewed objectively, the trip to

| plorida was equally nothing more the. 4 vacation jaunt by two

married men wit! women other than ¢)h wives.

Petitioner's arrest was based so) >\y on suspicion based on

conduct that is oe vually innocent as yiilty, and at worst

equivocal. Suc oonduct does not give rise to probable cause, .

(Henry vs Unite! ‘tates, 361 U.S. 98; Taylor vs United States,

286 U.S.1).

The intrusion into petitioner's life was of the highest

nature: he was piaced under arrest end the arrest was made by

warrantless entry into his locked bedroom while he was known to

be sleeping. Such an intrusion requixes the highest predicate for

police intrusion (Terry va Ohio, 392 U.S.1; see also Stoner vs

California, 376 |.S8, 483; MeDonald vs United States, 335 U.S. 451;

United States vs Jeffers, 342 U.S. 46, Johnson ve United State

333 U.S.10.)

3. This case was decided on the authority of

People vs Payton and Paddick, 45 N.Y, 24 S00,

8 Court should grant certiorari herein in

order to be able to dispose of this case in

light of its decision to be cendered in Payton

and Riddick.

The Appellate Division firmly placed its decision herein on th@¢

rule of Payton and Riddick:

Nonethelese, in New York « warrantless

entry to make a felony axrvcost, if based

on probable cause, is permissible,

(People vs Payton, 45 N.Y.24 300...)

(Bage 19, infra

Payton has been twice argued before this Court and decision

can be expected at this term.

Should this Court reverse, petiticocr would clearly be entitled

Teepe ee Semen

uz0 |

to reversal since the Appellate Division did not find that iabeen!

circumstances existed,

However should Payton be affirmed, this case still raises

issues of definition of the extent to which warrantless entry can

be made which warrant the attention of this Court.

a) Should Payton be affirmed, such affirmance would include th¢

heightened indentification found in bo. Payton and Riddick.

In Payton, "two eyewitnesses to the erime -- both of whom

had known defend»:\' <= identified him to the police as the killer.

One of the witnesses also furnished the defendant's address."

(People ve Payton ond Riddick, supra, 45 N.¥.2d at 305.)

In Riddick, "the victims had identified defendant from «

photograph as the perpetrator of the robberies." (People vs

payton and Riddick, supra, 45 N.¥.2d at 307.)

No such direct, eyewitness identification is present here.

Petitioner was arcosted on weak circumstantial evidence which if i¢

constitutes probable cause, bearly does so. This case gives this

Court the opportunity to delineate the nature of the proof of

identity necessary to justify a Payton arrest, should that case

be affirmed.

b) Payton did not justify all warrantless home arrests. The

Court itself pointed out "the specially alarming quality of night~

time entries." (People vs Payton and Riddick, supra, 45 N.Y.2d at

311)

Should Payton be affirmed this case will give this Court

the opportunity to delineate the circumstances under which a

Payton warrantless arrest can be made, particularly in regard to

arrest which "gives the appearance of having been calculated to

cause surprise, tight, and confusion" and succeeded in doing so.

(Brown vs Illinois, 422 U.S. 590, 605.)

¢) Should the Court affirm Payton, this case will give this

Court the opportunity to determine the effect of delay and the

general passage of time on warrantless Payton arrests,

— ™

— he <

~=_

“

uel

The arrests were made four days «tter the investigation

focused O1 Graham an- eucas; two days after the police determined

| Graham and Lucas hac gone to Fort Lauderdale; 32 hours af. : ie

New York Police ecrived in Ploride; at least 20 hours after the

police located the motel room; and two hours after the four

suspects returne’ to the motel and went to sleep. The time lapse

alone belies exigency. the recent words of Chief Justice Burger

apply almost verbatim to this case:

wee It may be useful to note that the

factual setting of this case provides

what seem to me, a classic illustration

of the dividing line between an im-

permissible, warrantless entry and one

permissible under the “exigent circumstance"

exception to the Fourth Amendment warrant

requirement.

...the IRS agents assigned to the

investigation of the fugitive Norman's

tax liability laced the premises under

24-hour surveillance. One night during

the course of this surveillance, the

agents observed cartons and other

materials being removed from the premises

by persons unknown to them. ainst the

background facts, such surreptitious nighttime

activity constituted an exigent circumstance

that would have justified an immediate

seizure of the materials being moved in

order to protect the interest of the United

States. This is especially so since here

the premises were controlled by the alter

ego of an individual who was not & delinquent

taxpayer, but who was, at the time, 4

fugitive from justice, Rather than

acting immediately, however, the agents

chose to wait for approximately a Y

a half of two days before making their

entcy. I agree with the conclusion that

there were no exigent ciroumstances on these

facts; however, the Court holds no more

than that the agents’ delay after

observing these highly Suspicious events

makes that exception to the warrant

requirement unavailable to them. By failing

to act at once, the exigency was dissipated

wee (GM, Leasing Corp vs. United svece.

J.5. ’ S. Ct. ’ °

Any justification for a warrantless Payton arrest would

surely have been lost by the leisurely pace the police set

themselves, which gave more than adequate time to obtain a

warrant.

we ars

—

———

“22

4. The Appellate Division concedes

that the »otel search violated the

rule of Chimel vs California, 395 U.S.

752, but justifies the search and

receipt of the items seized into

evidence on the basis of the confession

which followed and is a product of the

search, such a ruling violates fundamental

rulings of this Court and warrants the

corrective review of this Court.

The Appellate Division assumes that the motel search was

improper but holds that "in light of the overwhelming case

against him once his confession had been admitted, and the

faint prejudicial impact of the fruits of the improper search,

the error must be considered harmless (see People v Crimmins,

36 N.¥.2@ 230, 240-241...)" (p.31, infra)

(Interestingly enough, this is an incorrect statement of the

New York rule. By citing to Crimmins at 36 N.¥.2d at 240-241,

the Appellate Division applied the Crimmins rule for non-

constitutiona] error rule which requires reversal unless

“there is no reasonable possibility that the error might have

contributed to defendant's conviction and that it was thus

harmless beyond a reasonable doubt". (People vs Crimmins, supra,

36 N.¥.2d at 237.).)

There was a serious trial issue, especially in light of

Dr. Gross's testimony that the shooting took place after 1:00

a.m. on October 14, 1975, when petitioner was already in New

Jersey. Surely, the safe deposit keys and other evidence

seized in the motel search contributed to the jury's rejection

of Dr. Gross's testimony. Other evidence such as the safe

deposit box and the money, were obtained from leads given by the

illegally seized evidence, (Nardone vs United States, 308 U.S.

338.) The receipt of this evidence was not harmless beyond a

reasonable doubt and Appellate Division did not even find it to

be #0. (Chapman vs California, 366 U.S. 18, 21-4; Fahy vs

Connecticut, 375 U.S. 85, 91-2)

The Appellate Division justified: the search on the basis

of the confession which was, at least in part, the product of

the search. The Coi.ct may not so support an unconstitut onal

search. The justifying confession is itself the poisonous

fruit of the tree. (Wong Sun ve United States, 371 U.S. 471)

Such misconceptions justify review by this Court not only

to correct the situation in this case but to remind the Courts

that their view of a defendant's guilt cannot be determinative

of the constitutional issues before them.

5, This Court should review the decision

below because the Appellate Division refused

to suppress the fruits of a general search

in violation of principles long and

Clearly enunciated hy this Court.

The police seized everything in the two rooms except the

dog cage. They searched drawers, suitcases, closets, and

medicine cabinets,

Whether viewed as a proper warrantless search or as a search

incident to an arrest, the search was unconstitutional.

General searches, with or without a warrant, are unconstitu-

tional:

General searches have long been

deemed to violate fundamental rights.

It is plain that the Amendment

forbids them, (Marron vs United

States, 275 US 1953, 195; see also

Stanford ve Texas 379 US 476)

Since a warrantless search is an exception to the Fourth

Amendment warrant requirement, no greater rights are acquired

by the police in a warrantless search. Warrantless, general

searches are eyually abhorrent as general warrants conducted

under warrants:

General or exploratory searches are

condemned even when they are

incident to a lawful arrest. (Amador-

Gonzalez vs United States, 391

08, 313. see also United states vs

Bravo, 403 F.Supp. 297, -

2. =? 7

ued

Indeed, limitation of searches is one of the two main

reasons for requiring a warrant in che first place. (Coolidge vs

New Hampshire, 403 2 441 67.)

The seizures i, this case fall cisarly within thise

prohibited by this Court in Kremen ys United States, 353 U.S. 346.

Both the police and the Courts appear to require reminder

by this Court that the right to search and seize is a delimited

one.

6. ‘the decision below gives this

Court an opportunity to reaffirm a

principle so basic that it is rarely

stated and oft forgotten; that

truthfulness is not an element of

voluntariness.

The County Court considered the truthfulness of the

confession as a factor in his determination of voluntariness:

THE COURT: It appears to me the truth

and accuracy of a statement would have a

bearing upon its voluntariness. (R/A 732)

THE COURT: I think the truthfulness and

accuracy of his confession has a bearing

upon its voluntariness. It certainly has

to me. (R/A 733)

THE COURT: It's a matter of common experience

and knowledge, Mr. Zager. If a canta sande

are twisted, and the details being given of

some event, and if it's being done under

some compulsion, that he might give details

which are altogether different from the

truth. If he is, on the other hand, making

a voluntary statement of his own free will

and without any violation of any of his

constitutional rights, and in the desire

to cooperate, there is a likelihood his

statement would be more truthful. I think

that the accuracy or truthfulness of a

statement that is given has a bearing upon

the issue as to whether or not it was

voluntarily given. That is the only reason

I'm taking it. (R/A 739)

THE COURT; I will overrule the objection

on two grounds. ...secondly, it relates to

the truthfulness of the confession, I

believe it would have some bearing upon the

issue which I have to decide, which is its

voluntariness. (R/A 823)

THE COURT: The Court is saying, and I'm

saying and I think I have said it very

Clearly, that the truthfulness of the

confession would have a bearing. It's not

Jeterminative, not dispositive of the

Lesue, bt ld have a relationship

or bearing upon the question that the

Court has to determine. (R/A 826)

These rulings, as affirmed, viclate fundamental principles

of she privilege against self-incrimination. They put defendant

to the test, of proving his confession to be false, when that

is not properly a factor.

This Court has clearly rejected the criterion of truthful-

ness, yet the trial Court repeatedly asserted truthfulness ag a

factor in his determination.

Fundamentally, the privilege ayainst self-incrinination

assumes the truthfulness of the confession, but asserts the

society's higher value in freedom from coercion:

Our decisions under that Amendment (14th)

have made clear that convictions fdlowing

the admission into evidence of confessions

which are involuntary...cannot stand. This

is so not because such confessions are likely

to be untrue but because the methods used to

extract them offend an underlying principle

in the enforcement of our criminal law...

(Rogers vs Richmond, 365 U.S. 534, 540-1.)

rrom a fair reading of these expressions,

we cannot but conclude that the question

whether Roger's confessions were admissible

into evidence was answered by reference to

a legal standard which took into account

the circumstances of probe te treet or

falsity. And this is not a rmissible

standard under the Due Process Clause of

the Fourteenth Amendment. The attention

of the Trial judge should have been focused,

for purposes of the Federal Constitution, on

the question whether the behavior of the

State's law enforcement officials was such as

to overbear petitioner's will to resist and

bring about confessions not freely self-

determined -- a question to be answered

with complete disregard of whether or not

titioner in fact spoke the truth. T Rogers

vs Richmond, supra Res U.S. at 543-4)

(emphasis sapat ied’

The use of the incorrect truthfulness standard should have

resulted in reversal of the finding that the confession was

voluntary:

We are barred from speculating--it would

be an irrational process -- about the

weight ettrihuted to the impermissible

consideration of truth and falsity which,

enterine intc the Connecticut trial

court's deliberations concerning the

admissibility of the confessions, may

well have distorted by putting in

improper perspective, even its findings of

historical fact. Any consideration of this

"reliability" element was const’ tur ronal ’y

recluded, precisely because the force w

carried wit e trial judge cannot be

known (Rogers vs Richmond, supra, 545)

TEmphasis Supplied)

In light of the fundamental misconception of the privilege

by the Courts below, it is proper that the Court reaffirm the

irrelevance of truthfulness to a determination of voluntariness.

7. This Court should review this

case because the Courts below have

failed to follow the mandates of this

Court concerning multiple searches.

The Courts below did not resolve the question of whether

the second search of the Lincoln on October 20, 1975, was

warrantless or not. In either event the search was conducted

in violation of the mandates of this Court.

The October 20, 1975, search cannot be justified under the

warrant of October 17, 1975, which had been fully and thoroughly

executed.

A search warrant authorizes only one search; it does not

allow the police two bites of the apple. The Fourth Amendment

prohibits “a series of intrusions, searches, and seizures

pursuant to a single showing of probable cause." (Berger vs New

York, 388 U.S. 41, 59.)

Beyond that statement, the rule appears to have been

developed in the lower courts. (Mellet & Nichols Brewing Co. vs

United States, 296 Fed.765, 768-9; United States vs American Brew

Lng

Co.296 Fed.772, 777-8; Coburn vs State, 78 Okl. Cr. 362, 148,

P.2d 483, 484; Duncan vs State, 11 Okl Cr. 217, 144 P.629, 632;

State vs Moran, 103 W.Va. 753, 138 S.E. 366, 368; State vs Pina,

383 p. 24 167, 168-9; McDaniel vs State, 197 Ind. 179, 150 N.E.50

uZ7

State vs Parsons, 83 N.J. Super. 439, 200 A2d 340, 350.)

Viewed as warrantless, the search of October 20, 1975, was

equally uaconstit (Vincey vs Arizona, _U.S._, 98

S. -Ct. 2408; Coct'! ‘2, Hamp: hice, 403 U.S. 443, 458-6,;

cf Caldwell vs Lewis, 417 U.S. 583).

This case especially gives the Court the opportunity to

distinguish between surveillance ana seizure of a motor vehicle.

The police had the car under surrveillance from October 17

to October 21. They searched the car on October 17 and on

October 20, seizing and carrying away most of the evidence.

On October 21, without a new warrant, they seized the

car itself. We believe that it is proper for this Court to

determine if such a seizure, independent of the searches, is proper.

8. We urge that this Court should

review this case because the lower

Courts were so enthralled by

defendant's confession that the

entire proceedings were distorted so

that constitutional issues were decided

in general in violation of existing

principles denying petitioner a fair

hearing.

It is respectfully suggested that the constitutional issues

herein were resolved not on their merit but on the strength of

the Court's overwhelming belief in petitioner's guilt , thus

denying petitioner a fair hearing on the issues.

This Court, both to protect the rights of petitioner and to

remind Courts of the independence of guilt and denial of

constitutional rights, should review this case.

Petitioner

should be entitled to have constitutional issues decided

, dispassionately on constitutional principles.

CONCLUSION

For the reasons stated herein, thg@)petition for a writ of

certiorari should be granted. g

Daed : February 28, 1980 T

ST N L. OPPENHEIM

Attgrney for Petitioner

—— 3

———

- ts :56

~ UF wkw WRK ?NL.i£ COURT

4. PELLALE DIVISION TRIKD DEPARTMENT

ThE PEOPLE OF THE STATE 0. WEW YORK,

Respondent,

- against -

SIiCHARD 3. GRAHAM,

Appellant.

éxrgued, June 4, 1979.

Before:

HON. A. FRANKLIN MAHONEY,

Presiding Justice,

HOW. MICHAEL E. SWEENEY,

HON. T. PAUL KANE,

HON. J. CLARENCE HERLIHY,

Associate Justices.

AFPEAL from a judgment of the County Court of Sullivan County

(Louis B. Scheinman, J.), rendered November 3, 1977, unon a verdict

c-nvicting defendant of two counts of murder in the second degree,

1é@ intentional and the other felony murder, kidnapping in the first

--gree, and robbery in the first degree.

STEPHEN L. OPPENHEIIi, for appellant, 253 Broadway, Monticello,

New York 12701.

STEPHEN LUGE, as Special Prosecutor, 6 N. Main Street,

Ttlerty, New York 12754.

OPINION FOR MODIFICATION

o2e 32356

pes wv ry, gt P

‘o be found in the reported

A complete recitation of the facts c:

ceciston a the defendant's pre-trial suppression motion (People v.

Mise 2d 1019). Briefly, Craig &. Mitton, who collected

Sele revenues from ai stations for his employer, ere

Petroleum Corporation of Newburgh, New York, disappeared ay

leaving company offices late in the afternoon of wight pel

to rake a ceposit, His body, bearing three bullet wounds a tn

of a blow to the head, wes discovered in Sullivan County gaits ore

leter. Over $25,000 in collections were wissing. By tho evening .

of October 18, the police had learned that the defendant, — an ‘

two wouen weve registered in rooms 307 and 308 of the ore Se ba

Motor Lodge in Dania, Florida, The rooms were empty when the ye c

arrived end surveillance was continued throughout that pe oid

approximately 6:00 A.M, the next morning, the defendant _ Be r

party returned to their rooms, Due to 4 misunderstanding Panag

nications with State Police headquarters 16 ag pe eben Be ‘

the State Police officers assisting the Hroward County Sher . ,

office in the investigation and arrest believed that a gh og ~

been issued for defendant's arrest at 7;00 P.M., October 18, in “a

York. Therefore, at 8:00 A.M., on October 19, the police or

the motel rooms and arrested the defendant, Only later did : e

police learn that the warrant had in fact not yet been issued,

fter his arrest, defendant gave a full confession to the

dees This confession wes so detailed and consistent with = ;

fects which the police had independently uncovered as to aonet stv e

overwhelwing pcoof of guilt, The defendant's briefs, if a or

duction which numbered over 300 Sew arn dhiy resp rg

later v. Gallman, 38 N.Y 2d 1, , when reduced to jigni-

pol ph Reh essentially challenge the sdmissibility of sgh

confession in light of an allegedly defective arrest procedure under

thet)

i ~32356

the Federal Constitution and Florida lew. Of course, if the arrest

was cefective the subsecvuent confession could not be admitted

because the connection between the arrest and the inculpatory state-

vant had not yet become so attenuated as to dissipate the taint

(Brova v. Illinois, 422 U.S. 590; People v. Stewart, 41 N Y 2d 65),

But we find no error in the arrest proccdure, a

A werrentless arrest is authorized under New York law (CPL

140,05, 140,10) and Florida law (Fla, Stat., § 901.15). Such an

arrest msy be made where the arresting officer has probable cause

to believe that the person to be arrested has committed a felony,

As yet, the United States Supreme Court has not prohibited warrant-

less arrests following entry into a suspect's home even in the

rbsence of exigent circimstances (United States v, Watson, 423 U.S,

411, 418, mn, 6). Therefore, the legality of the arrest “{n this

cese turns on state law.

A wotel room is entitled to the same protection under the

Fourth Ansndment as the home (People v. Wood, 31 N Y 2d 975).

Nonetheless, in New York a warrantless entry to make a felony ariest,

1f besed upon probable cause, is permissible (People v. Payton, 45

N Y 2d 300, oral arg. before U.S. Sup, Ct, March 26, 1979 [47 U.S,

Lew Wk. 3651)). The same result obtains under Florida law (State v,

Perez, 277 So 2d 778 [Fla.}], cert, den, 414 U.S. 1064; West v. State,

355 So 2d 489 (Fla, App.]). Thus, despite defendant's centention

otherwise, this case presents no choice of law issue. Once probable

ig Ae established, the arrest procedure employed against defencant

6 valid,

Cn the facts before us, we find sufficient probable cause to

justify the arrest. Sefore they arrested the defendant, the police

officers knew: that Mitton had been the victim of a robbery and

mzder; tat Lucas and another person had been seen near the bank

close to the time Mitton was to arrive; that the defendant had

recently been fired from the same job Mitton had; that Lucas and the

cefendant had made plans to leave the area; that although neither

Lucas nor the defendant was registered at the Downtowner Motel,

Lucas left his car there, rather than at the airport; that the

cefendent and Lucas were registered in the Florida motel under false

eddresees; and that Lucas had told a person in the Walden, New York:

erea not to disclose their whereabouts, Thus, the pilice had done

nore than merely place Lucas neur the bank at about the time of the

robbery. Indeed, the police had reason to conclude that Lucas and

lid]

the defcndent had fled the area, Flight is an dnportant element in

esiablishtng probabl: cause (see Peters v, ! York 2 'U.8,. 40,

66; People v. Kretchman, 37 N ¥ 2d 693, 699)

Defendant also challenges the ar: the lice did not

give notice of their authority prior to ent th New York and

Florida, however, permit noticeless entry for the purpose of making

en arrest when the rafety of the arresting offtcers might otherwise

2 ridengeved (see CPL 120.80, subd. 4; 140.15, subd. 4; Fla, Stat.

8§ 901,17, 991.19, cone {1)), See also Benfieldv. State, 150 30. 272 636

rhe .)). At the time of the arreet, the peoltee knew that the

tofcncant and his compenions had taken a Doberman Pinscher with them

to Florida, Im fact, one of the arresting officers had wrapped a

to.el around his arm prior to the entry for protection against the

ontietpated attack by this anfmal, Furthermore, it was reasonable

for the police to belfeve that defendant, a fugttive fram a homicide

in which the murder gun was still missing, might be armed, There-

fore, defendant's objection to the noticeless entry ts without merit,

Assuning the varrantless search of defencent's motel room

conducted after his arrest was {mproper (see Chimel v, California,

395 U.S. 752; People v. Evans, 43 N Y 2d 160, 165), in ligne of

the overwhelming case against him once his confesston had been

adaitted, and the faint prejudicial {mpact of the “rvits of the

iuproper search, the error must be sensidered hairless (see People

Vv, Crins ins, 36 N Y 2d 230, 240- 241; ez, People Vv Grant, 45 N Y 2¢

366, 378. -479), Defendant also caintains that itens seized from

Lucas! vehiele should have been suppressed because the warrant was

cefective, Even if defendiunt had stending to make such

a chalte: (see Rekas v. Illinois, 9.8, , 99 S. Ct. 421), the

Vsrrane Agata for the seerch of Lucas’ Lincoln Continental in New

Jersey was not fatally vague, It authorized a search for “other:

cvic nce of a homicide" and because {t so linitted the scope of the

scerch to one perticular ccime {t cs:

tutional general warrant (see Ancres

See elso Lo-Ji Sales, Inc, v, Beate of New York,

e was properly adaitted,

ll,

not persuasive,

1979}).

Therefore,

, this evide

inot ve cone ice red an uneonstl-

427 U.S. 463.

sen v, M aryl, nd,

U.S.

_ ([Jure

Defendant's remaining complaints of illegel police activity are

However, two iesues affecting sentencing remain,

Defer dent asserts that since he was coavicted of bese, wurder, the

kies

{ne

)

pping snd robbery charges should have bs

uced ‘Ofsenses, Si

Foate

» felontes (se

)

n dismli:

he enu

ig a

ed as lesser

rated

juisite

aya

ae 932356

of the crfwe of felony murder, if the defendant ts convicted of

felony mercer, the predicate felony charge must be dtsntssed (People

v. DeGsta, 64 A D 2d ° 9, lv. to app. den. 45 NY 2d 841; People v.

Rer’cs, 60 A D 2d 654; cf. People v, Shumen, 37 N Y¥ 2d 302, 305,

But see Peaple v. Nichols, 230 N. Y. 221, 225-226, cf. Pe ople v,

Forez, 45 NY 2d 204), In addition, the kidnapping charge Lerged

with the robbery since the abduction d!. not eyceed 12 hours before

the victim Mitton died, and because it was incidental to and

insep veble from the crime of robbery (see People v. S-ith, 47 NY

2d £3; People v. Cassidy, 40 N Y 2d 763). Mitton was caly estducted

in order to get the money he was carrying, Therefore, stice the

kidnapping charge merged into robbery, only one predicate felony

survived end it must be considered included in the felony murder

conviction, The jucg:ents {nposed for conviction of kidsapptng in

the first Cogree and robbery in the first degree must necessarily be

vecated,

The fudloent should be osdified, on the law and the facts, by

reversing tre convictions of kidnapping in the first degree and

robbery in the first degree and dismissing the counts of the

indictwent cherefor, and, as so modified, affirmed.

‘

MRE CH

of:

;

are

bite OF NEW YORK °

NY COURT ¢: COUNTY OF SULLIVAN ‘

ich at aires ee cs tan se we nh ew to el “x

PEOPLE OF THE STATE OF NEw Yo!

-aAgainst=- OPINION

"WECAARD By GRANAM

Aki) P, LUCAS,

Defendants,

PANE Pe aa Re EEE EH eee: “xX

\ WtES?3

EMANUEL GELLOAN, Pistrict Attorney

Sullivan County, Court Hot e,teaticello,

New York 12701

By: STEPUEN F, LUNGEN, Assist unt

Vistrict Attorney of C ©o]

STEPHEN: L, OPMENUEIM, "sq

2583 Broadway, Nontice)

Attorney for Pefoneant

LEGAL AID SOCILTY OF

lo, “ow York

Richard 8B,

SULLIVAN COUN

}

;

}

26 Landfield Avenue; “‘tonticello, New York

By:

Attorney for Nefendaunt

- “{>,l 7 ID

MICHAEL ZAGER, Fsq.

of Counsel

Rivhard P,

Lue

——

-2- 4

Pheeeye ate wotaome ty dete t t wi presS certain

tungible evidence setied pursuant Co search warrant ind also a

warrantless arrest, and to suppress certain Contessions or

admissions, ,

The indictment charges defendants wi the crimes cof

murder in the second degree, kidnapping and robbery. |

Although the cases have |} vered for trial, these

hearings were combined and held jointly, pursuant to stipulation,

This opinion will set forch the fucts found by this

Court in making its determination (C.P.L. 710.60 subd, 4). Althoogh

different standards of proof are required on the several types of

Suppression sought (Peo, v. Vobliner, 32 N.Y, 2d $56, clear and

convincing evidence test on motion to suppress evidence other than

a confession, and Peo, v, Iluntley, 15 N.Y, 2d 72, beyond a

reasonable doubt test as to voluntariness of a confession), this

Court has found all facts mentioned beyond a reasonseble doubt,

At about midnight of October 13, 1975, one Craig Rk,

Mitton was reported missing by his wife, It was Teuined by the ‘ew

York State Police that he hud been employed by the Mid-Valley

Petroleum Corporation of Newburgh, New York, as a route sales

supervisor, whose duties included collecting money from gas stations

operated by his employer and depositing same each afternoon at about

4:00 P.M. in a night depository at a certain local branch bank,

The police learned from cowpany officials that on

said date of October 13 he had made up the deposit, which included

cash in four bags, and left Fan:abe nearby bank at a time which sas

betwoen 4:00 o'clock, and 4:45 o'clock

o).?

P.M, on that date, He was not seen ov heard from thereafter, and

the seid deposit in excess of $25,600 Aad nat been wade

On October 15, 1975, his body was found in Sullives

County, with clear evidence that he had bien the victim of foul

play, his body evidencing 3 bullet holes, 2 in the head and 1 in the

bak, and a blow to his head,

The vehicle used by the deceased, which belonged to

his gleyer, was found abandoned in anvuther location, with a

chenuge box,

The police learned from one Cloria Baker, who

psrsonelly knew defendant Lucas, that avs Ook y.M,. on October

13, she had seen cefendent Lucas sitting in «a Lincoln autorobile

with «nother unideaatified person at the brunch bank where the

deceased was to have wade the deposit, Gloria Baker also advised

the police that defendant Lucas had cohabited for a tiers with one

Naceline Mead, enployed at the Middlehope Service Steticn, and

‘that cefendant Graham had also been employed at sid se.,ice

Station, The police also learned from a Julia [ibby, that her

sister, Sherryl Kilb had gone on a small vacation with defendent

",cas, ‘other girl, Birdie, and another fellow, "Richie",

The police also learmed frow cosapany otficials that

defendant Graham had held the same position with Mid-Valley

Petroleum Corporation as the deceased, but had been fired about 2

weeks earlier for taking howe a deposit of approximately $30,090

without depositing same in the night depository at the sare bank

branch,

Julia Tibby had also told the police that Grahas

possesseda handgun, Further inquiry disclosed that he had no

pernit for sare,

The polices were also advised that defendant Grahar

wore a gun holster on his person,

The police also learned that the defendents were

friends, end that they and the girls Sherry! kilb and Roberta

Grahaa had left the area in the evening or night of October 135,

One Georgia Shorey had also advised the police that

Luces, Sherry] Kilb, Graham and one Roberta Holmes were together in

the New York City area, and that Georgia Shorey had a soney-gram

waiting for her at the Newburgh Western Union office, subsequently

learned to bein the sum of $160, frow one of the defendants in

Florida,

Gloria Baker had also advised the police that about

a week earlier, Lucas had called her to obtain the hoys to the safe

at the Middlehope Service Station, as he was in need of seisy and

that no one would be hurt. She refused, and subsequently the

received a telephone call from Lucas telling hey that if she told

eayone of their conversation he would shoot her, On that sane

evening the said gas station was burglariied and money sad cigarettes

stolen,

Subsequently, the polico learned that Georgia Shorey

received a telephone call from Lucas advising her not to reveal the

shereabouts of the two defendants and the girls to anyone,

The police launched a search for defendants and

checked airports in the New York metropolitan area and located the

1974 Lincoln at the Gateway Motel in Newark, New Jersey, near

Newark Airport, during the early morning hours of Octcber 17,

The Motor Vehicle burea confirmed that the car

belonged to Lucas, A bartender at the mote] identified ea shoteprank

of Luces, and advised the police that he had been tipped with a paper

bag containing about $8.00 in change, there heving been change

vissing from the change box found in the compeny car driven by

‘3 decoused victin,

The police also learned that csfendent Lucas had «n

caxtaunsive arrest record with one or two convictions, The crises

sati ued on his record included crices of violence and the use

of firesarns,

A check wado with the Motor Vehicle Sureau revealed

that the Lincoln eutcovodile ewned by Lucas was a 1974 wodel, and

its license plates nuvber, which matched the plates on the car,

Following the location of the auto. »bile, the sare

was placed under discreet surveillance by the \ew York State Police,

cnd that «afternoon other New York officers arrived, Subsequently,

-at about 4:00/bh' the 17th, Investigators Chendler and Ovens,

tujsther with a :ewber of the local prosecutor's office, appeared

before a Superior Court judge of the State of New Jersey and gave

testinony under oath before said judge in their application for a

search warrant of the automobile, A transcript of said proceecings

wes received in evideice, shovisg that thore was preliminarily a

discussion with the Court, after which the Court placed the oral

application on the record, the Court capsulizing or sumwarizing

the facts giving rise to probable cause on the record,

An issue was raised at the hearing as to whether

the officers were sworn curing the recorded phase of the record,

which contains most of the facts shovenenelogse, or, 45 investi gat yy

Chandler testified, when the initial aiscussion with the Court

coumenced off the record, Defense counse! were given the opportunity

to confer with the Mew Jersey Court, and to call the judge as a

witness to controvert the testimony of Investigator Chandler,

/ithough one of the defendant's attorneys conferred with said judge,

he was not called,

This Court finds beyond a reesonable doubt that all

of the foregoing facts were laid before the hew Jersey Court,

under cath, which, in the transcript in evidence held Ton

satisfied that there is probable cause to believe that a crime has

teen committed and that there is probable cause to believe that

the autowobile sought to be searched and seized hes been

sufficiently established as the connecting link betucen the

commission of the homicide and evidence of the crfii:3," and sijned

the search warrant (People's Exhibit 24A, p.1)).

A search of the car was then conducted by a New

Jersey police officer with 2 New York State Police officers in

attendsnce and assisting,

It should be noted, parenthetically, that the rersen

the application for the search warrant was made by sworn testimo.ry

rather than by affidavit is recited in the New Jersey transcript

in evidence, i.e., that the application was nade on a Friday, at

about 4:00 o'clock P.M,, and that there was, therefore, insufficient

tine to prepare papers for the Newark pro ~cutor’s office and the

probable unavailability of a judge on the weekend, .

The search of the Lucas’ vehicle yielded

siscollaneous psepers belonging to defendants Graham and Lucas and

a Dobra Kilb, a rope, a rifle, shotgun shells, @ hair from the

tronk wrea, and other iters of prope:

All items of personal property found.in the car, end

tha car itself, were inventoried and, with the approval of the h.w

Jovsey Court, rewoved to New York Stat Police headquarters in

hew York,

A check with the airlines in Newark rovealed that «a

"ur, and Mrs, Richard Luces" and a’Mr, and (rs, Richard Grehawa" had

departed ons 9:05 P.M, flight from Newark to Fort Lauderdale, Florica,

ca Octcber 14. ‘The police also learned that defendants had @

Dobervan Pincer dog with them,

A nuaber of New York State Police officers flew to

Fort Leuderdale on the night of October 17, fhe following dey,

C.tehber 18, the police lesrmed from the Western Unton office in

Florida from which money-grams had beea sent to the Newburgh, N.Y.

toca the eddress of a-motel in Dania, Florida, which defendants

hud given to Western Union, It was further learned that Lucas and

Graham had sent an additional money-gram each to the Newburgh, N.Y.

area,

It was also learned that defendants had registered

at this motel under their own names io 2 roors, but had given falce

eidresses, and had also rented a car and motorcycle, that they had

=8s ud ()

4 a large amount of money with them in Cravelers checks,

On the 18th, the New York State Police officers met

with officers of the Broward County Shoriff's departe-nt anda

menber of the Florida Division of Law Enforcement, filled them in

on all of the foregoing facts, including those earlier montioned

herein in dealing with probable cause for the automobile search

warrant obtained in New Jersey, and @ surveillnence was maintained

of the 2 »2tel rooms occupied by defendants,

The Florida police requested a teletype nessage from

New York, describing defendants as fugitives. The New York police

ade such request by telophone, a nd also for an arrest warrant

to be obtained in New York, The teletype wessapge directing the

arrest was received in Fiorida before 8:00 P.M, on tho 18th, Hovover,

it appears that although the officer in charge of tho investigation

in New York requested that an arrest warrant be obtained hore, the

Sano was not obtained until October 20, Siowever, the officers

believed that the warrant had boen obtained and was in existence

prior to the arrests,

% Defendants and the 2 women with them returned to the

iOtel rooms at 6:00 A.M, on the 19th, Believing them to be arved and

with a vicious dog, the police waited until 8:00 A.M, when without

warning or notice, the police officers simultencously, with the

use of a passkey to one room, and through an unlocked door to an

edjoining room, entered both roows with drawn guns and one officer

with a towel wrapped around his arm asa precaution against the dog,

end arrested the defendants, who, together with the 2 women, were

teken to the Sheriff's. Department in Fort Lauderdale, where they

eivived at 9500 AWM, There was no dog in tne room, it having born

placed with @ veterinar.an a day or 2 earlier, nor any guns found,

Defendant Graham was given his full “Mirende"™

waiinhings 4 times, once in the motel room, upon arrives) at the

Sheriff's Department, before making his confession, oni at the

beginning of his confession, which was tape recorded, On

2 occasions, at 9:00 o'clock and 11:00 A,M,, he signed written

weclnowledgments of having received these warnings and, specifically

woived cou:sel, as he also did orally at the comsencenent of his tape

recorced confession,

A typewritten transcript of Graham's confession was

c2ceived in evidence at the hearing, (which Craham subsequently

refused to sign) and this Court listened, in carcera, to the tape

recording of the confession (by sp{pulation), This Court is

satisfied teyond a reezsonable doubt that Graham knowingly,

intelligently and voluntarily waived his right to rewain silont and

to counsel,

The confession, which took 45 rinuvtes to topa, wus

co.,pelted orally at 11:45 (the same day as the arrest) and in brief

substance sets forth the following:

Lucas, who was hi? friead and drinking companion,

ond fastliar with handling of the moneys at Mid=Valley Petroleus,

suggested the robbery of Craig Mittun to Graham who agreed to

participate, On October 13, they waited for the victim st the broich

benk, held him up, Lucas ordering Mitton into Lucas’ car, Grahaa

following in Mitton's station wagon, They drove to a les@ly courstiy

rea where they abandoned Mitton's car, ordering -itton into the

trunk of the Lincoln. They then crove to another isolated area,

Lucas and Graham discussing the fact that Mitton knew Graham as

co-enployees of Mid-Valliey, Lucas insisting, therefore, that they

had to “blow him away", then the car was stopped, Craham opened

the trunk, Mitton was ordered out, Graham hit him over the aoad

ybaocking him down with a club, and while “itton was on the ground,

Lucas shot him in the head and hack area several times until his

gun jammed, and then left the body of the victim there, left the

vurder scene, picked up the 2 women, disposed of the handgun used

in the hilling in &@ stream in New Jersey, etc. He told of taking

the woney, about $26,000, including change from the change box, he

and Lucas placing wost of the money in safety deposit boxes in 2

banks in Newark, purchasing travelers checks, and leaving for

Florida, He exonerated the 2 wonen from any implication in or

knowlecye of said crines,

Lucas refused to make any statements to the police,

On Oct, 21, both men were taken before a Court in

Florida, and waived extradition to New York, jvcas efter conferring

with counsel which he had requested,

It should be wantioned here that Graham testified

in his own behalf at the heaving, and claimed that he had been

‘eaten by an officer Reidy of the New York State Police about 10:00

A.M, while in the Sheriff's office in Florida and his confession

thus coerced, This Court is convinced that said claiw is a pure

fabrication, as Investigator Reidy had little or no contsct with him

subsequent to the arrest and prior to the confession, Keidy having

remained at the motel after the arrests and removal of defendants

sssisting Florida Police in inventorying the property found there,

———— = «+

o1}-

Ody

Also, Graham Claiwed morks on his terse from the wlleyed beating,

having evidently forgotten he testified that «hen processed at the

N.Y. State Posice barracks upon his return he had been pho*cgraph:*

froat and rear, with absolutely no evidence of same, nor had he

complained of any mistreatment to any other police officer nor to

she Florida Court when he was brought before said court.

The hearings also covered an inculpatory statencnt

made by Lucas on the airplane trip back to New York, It is clear,

even from the testimony of Lucas at the hearing, that he was not

mistr: ated im any way, and that his remarks to the police officer

seated next to him on the airplane were volustary, unsolicited, asd

after being warned before he spoke that his staterent could be used

zeceiust him, Nor was such staetenont the result of ary interrogation,

Lucas vorely dented making the statenont, and whether he id or cid

sot would be for a trial jury to decide, |

An issue developed regarding a cowboy type hat worn

by Luces, This hat had been returned to Lucas in florida, snd he

wore it on the trip hack to New York, However, after processing at

the state police barracks, he inadvertently left it there, The

police, then realizing it had evidentiary value, kept it as evidence,

Licas also seeks its suppression,

Based upon the Graham confession and its mention of

the hiding of the moncy proceeds in safety deposit boxes in Newark,

the police obtained the names of the banks and the numbers of the

‘accounts, and applied by written sworn applications to the same

Kew Jersey court for search warrants on these 2 banks and respective

safety deposit boxes, obtained the search warrants, and searched and

seized the boxes and bank records pursuant thereto,

Returns on all search warrants were duly furnished

to the New Jersey Court, and upon order of said Court, all set2ed

property was returned to New York State (including the car and its

contents).

ms Lucas's safety deposit box yielded $10,342.00,

Civhaa's safety deposit box yielded $19,293,00,

It should be noted here that defendants called

neverta itolves and Sherryl Kkilb as their witnesses, ile woren

testified that they were taken also to the Sheriff's lepartnent

in Floriva, wore given Miranda warnings and both made statements

to the police, They wers weJl treated, tahen back to the wotel, the

police ssking the arrangerents for their return to New York and

transportation to their respective howes, Graham had given Roberta

llolmes the keys to the safety deposit box which she kept in her

purse, end she had no objection to the police taking the heys,

fhese keys wore of the safety deposit box rented by Cream, Licas’

keys to the safety deposit box rented by him were #: ongst the

property romoved from his room,

An issue also developed at the hearing as to whether

the 2 woren were arrested in the motel rooss, This Court finds from

the evidence that they were, in that their movements were restrained,

they were taken to the Sheriff's office and not advised they were

free to leeve until after they were interrogated and after Crahsa'’s

confession when the police were satisfied that they had no knowledy;e

of the crinos,

This Court further finds that tue to the foregoing,

and the police initially not expecting the woren to he returned to

office fo

‘

tel, that all tie contents’ of tie rooms occupied hy the

endants were inventoried and removed to the Florida sheriff's

safekeeping, and, after certain lLelongings were

‘turned tc the women upon their release that day, all the rest of

property was turned over to the New York State Police for

eturn to New York,

On October 20, while the 1974 Linceln was still in

‘w Jersoy, the trunk interior #as dusted for fingerprints,and

iprints of the deceased, Craig Mitton, found,

Defendants seek suppression of all items of evidence

ized in New Jorsey, claiming absence of probahle cause for the

‘arch warrants issued by the New Jersey Court, and suprression

sf all evidence obtained in Florida by reason of the clairned

lleyality of the arrests there, including suppression of the

oniesston by Graham as a result of said arrest, and of the

iculpatory statewent wade by Lucas, They also scebh suppression

f the fingerprints found in the trunk of the car, of 'ucas’ hat,

oti ‘tiscellaneous other prounds are sugrested by defendants for

ippression of all the foregoing.

Defense counsel argued strenvously that, with resect

the New Jersey searches, the Florida warrantless arrest, search,

seizure and confessions or admissions, that New Jersey and Florida

wS, Fespectively, apply. They maintain that under the laws of

uch States, the evidence obtained in said States should be

ppressed pursuant to applicable case and/or statutory law in said

‘ates, respectively,

This Court is by no means convinced that New Jersey

r tlorida laws differ siguaificantly in their application to the

a Of

fects ‘tre from New fork law, No oxpert testicony was offered with

resnect to the laws of such States, although citations of New Jersoy

aod Florida cases and Florida statutes wore wade in their briefs,

Thus, a threshold question must be doternmined by this

Court, 1.e., whether the lews of such States are to be applied with

r4ssoct to the evidence scught‘to be suppressed obtained in such

States, of whether our ovn laws govern with respect ta the

accisssbility of such svidence,

Counsel have cited no casos bearing upon this

conflict of laws question, and, indecd, this Court has not been able

to soecrth any Naw York case doaling with this conflict of laws

problem in the criminal lew aroa,

Turaing to other jurisdictions faced with this

ae ahiae, there sre cises persuasive, however, on this pelat, In

Burpe v, Stute,443 Si 2d 720 (1969) the defendant was convictsd of

burglary and stteuptod rape in Texas, He was a resident of the

Stete of Uklahoza, ond while he was in Texas custoly, his wife,

at his Oklehoma residence, permitted police officers to search their

hoes in Oklahosa without a warrant, Contrary to Texas law,

O€laho-a grants to each spouse a personal right to demend a search

wepcont for the search of the aarital residence, Upon said search

which wes sade without the consent of the defendant, incriminating

evidence was found and adwitted at the Texas trial.

The Texas Court found the question to be evidentiary

and procedural i. sature, and thus governed by tho law of the

forum, md affirwed the canvictioa,

In People y. Saiken, 49 111, 2d 504, 275 NB, 2d 281

(1971), the Supreme Court of Illinois, faced with the sane probles,

> .

~)5- go”

‘

atooted a broader sypprouch, applying the "significant relationship”,

wr “center of gravity”, conflict of laws rule, The ‘lefendane in

said casa was convictod in Lllinois of conspiracy to ohatruct

justice by concealing the body of a wurdered victim on his fare in

the State of Indtans, The victia hsd been murdered in Illinois,

thor body transported to-and buried on the defendant's farm ia

[ :+iane,

As a result of certain inforxation obtained by the

; ) eS to where the body was buried in Indicna, an Illinois

pollee officer obtained a search warrant from a judgo in indlana,

eycird at the farm and recovered the body of the victia, The

ifficevit Gpoa which the search warrant was predicated was based

u,on hearsay inforzation ind conclusioas of the police officer,

cloraly insufficteat uncer Iadiana law, although adequate under the

lw of the forum state, Illinois, The evidence was admitted at

the Jllinois trial,

The Illinois Suprema Court, citing Jurve, supra,

(sd other authorities, uphold the conviction,

Tha Court polated out that, traditionally,

contlicting principles prescribed that issues of clearly procedural

ture nr@ gevarcsd by the lews of the forum, whereas substantive

wittords are controlled by tho Jaws of the state whore the transaction

occurred, Yet, with respect to conflicting state views concorniig

Fourth Awcnudment and other rights, the law has teen chenuging asd

the older rules are being replaced by moro flexible rules such es

the nile "significant relationship” with each of the states in

qvestion, The Court went on to say that if the problem presented vas

sidered from the procedural-substaace viewpoint, that the

°16-

evidence was properly adeitted for two rersons, 1,0¢., thet

evidentiary questions are generally governed hy the laws of the

forums end secondly, that if the conflict concerning the -hodce of

lv favolves the prelizinarcy issue of whethor the evic ace was

wrongfully obtained, a substentive matter, thea from the viewpoint

of the “significaat relationship” or “center of gravity” rule, the

si. sifie at contacts in that case were with Illinots in that the

cri)2 425 committed there, was being prosecuted there, defendant ~«s

ai-cid nt thero, the grvat majority of witnesses were Illinots

pesiv ats, that Indians had no vital contect with the crime, and

that the application of Illinois evidentiary law would not offend

the cooLty of interstate relationships between Indiana and Illirots,

gid cf{firvod the cenviction,

Thus, we seo that the Illinois Suprese Court sppliod

the nodem conflict of laws rules applicable in the civil erea to

the crininal cese before it,

We crn also snalogize, in tho civil #rea, to New

York ceses om the subject, The trond in our stato hes elco been to

apply the law of the stato which has the strongest Interest in the

“resolution of tho particular issue presented, leference here to

oily several of the anny ew York cases on the subject should

suffice,

One of the earlior and leading cases is Babcock v,

J.ckson,12 N.Y. 2d, 473 (1963), dealing with tort liability. In

for a weekend trip to Cxnada, An accident occurred in ‘rterto

caustog porsonal injuries to one of the New York p»essenypers,

Ontario forbade a suit by the passenger against the driver owner,

o}7-

Te the ‘teow York suit, defendint woved to dississ the complaint oa

the besis of Ontario lew. Special T ra granted the motion, and the

peilate Division affireed,

The Court of Appeals reversed, Reviewine the

Listory of this conflict of laws question, the court bela that te

sibetrative law to bo applied would be that of the state which hes

t?e frotgest interest in the resolution of the particular issue

pres nted,

This approach has beon séheteed to as the “interest

lysis” appreach,

In. Fucber v, Swoleck, 20 N.Y, 24 198, another

negliscoce case, all parties were residents of New York, Defendant

the ovper of the autormbile loaned to the others for a trip to

Floitda, On the seturn trip, and in North Carolina, there was an

acci¢o yt as @ result of which an action was brought in New York by

the eietaistrator of one of the deceased passengers killed in the

cciveat and guardian of an tafent injured therein «5s » 11 as by

ther passenger, Thers wes a difference between Now “ork and

North Carolina law with respect to the issue of ilability of the

donor, The North Carolina law required the fury to find that the

use of the automobile was for the ebsentee ovner's Senefit in order

to S.,ose timbility., The court followed Babcock, also citing

Maccy VW. Kotbicki, JB N.Y. 2d 289 (1900) in applying New York lew,

Also foliowing the “interest aualysis” op yrooch

with respect to a contract involving the Statute of Frauds is

Intercontinental Planning, liaited v. Daystrom Incorporated, 24 N.Y,

“=

26 372 (1969(, tu which the court said;

“ilowover, as we view this case, it is

» jt

unnecessary ta characterize the Statute

of Frauds us ¢itier substantive or

procedural since New York law should bo

applied in cither event, If the statute

Ig Rat oy ag ge coofesstons made in violation of Fourth and Fire (and

pieuds would be applied ag in of Fourteenth) Amendment rights are to be suppressed wherever made,

hr raphebnigs IgA, ties A or inks i ‘lowever, @ forum court can make its own determination of

ia she sppitesiien oe its bow te tae constitutionality, subject to overriding federal case guidelines,

SP eTRSt fecitracm Cian ee ‘here evidence is illegally obtained, in violation of local law

478, 480; cf, Miller ve Willer, 22 N.¥.2d 0k eae ANA bm ela bt gi eden Meh beeHab ies thee Bits as bas :

12, 1$-16.)”

can select the law to be applied, and consider, in addition to the

See ulso Tooker v. Lopez, 24 N.Y. 2d 569, (1959), an

eding } hes a?

automobile accident case in which both the sajority and minority of ing approaches of Burge, supra, and Saiken, supra, the

Jeterrenc

the court used the “interest analysis" approach, but differed with Perey: cinta

In People vy Orlosky, 40 Cal, Kpp, 3d 935, 115 Cal,

res,ect to its application to the facts in that case, referring also

”

IE RAMI See i aaa Raptr. S98 (1974), Indiana nolice received consent from defendent's

“contuct theory or gove cnmental interest theory” (p.596). The Bec oat anc ng! Veer pet nae deca ated Sor th,

dissenting Justices felt that the law of the place of the accivent seepage ibs nit ahs Aaa cach toss oh arly ade

A eel RN a Jeiathibtse tek obetih a soca: Cabiferota crime, sad transmitted same to California authorities

Sg Pate weear iad tie ee elo initiated a prosecution there, the court holding such evidence

situstion where the localization of persons and conduct ts PE tre arena een eh ae Sees aptipmadgaranas

adventitious, They felt that under the particular facts of that diaspora rica serial phe cy ica nt td he

case the greater contact and stronger interests wore with the stete bins i ls alana bat tea axle Ser en eee

TERE 2 RC EM PO RES ee for the exclusionary rule, and found that police conduct in

Associate Justice Jasen, concurring in the dissent, had authored te ee POEM eT he ay were nen ee

police conduct was proper under Califormia law,

moran,

opinion for the majority in Intercontinenta) Planning, Linited,

A Now York case dealing with a confession wade in

hended down two weeks carlier,

Califurnta is People v, Davis, SS A.D, 2d 969, Although the

A third line of cases refer to the deterrent effect on

volice conduct Lf an illegal search in a different jurisdiction «ere conflicts of laws question was not discussed, the Second

Of course, we all understand that searches, arrests and vepartoont held, with citation of Federal and several ‘iew York

suppressed,

cuses, that a confession

eF()-

(W532

ovtatned frow defendant upon is arrest ta California violated his

bth anendnent right to counsel, and suppressed the same, The cases

cited by the court, and relied upon by the court, did not involve

confliet of laws questions, The Second Departieant evidently sinply

applied New York decisjonal Taw in determining whether the

California confession should be suppressed,

Applying the foregoing principles to the case at bar,

it is apparent that the State of New York has the greatest interest

{n this case, including the New Jersey searches, the Florida arrest,

searches and confessions or aduissions,

The alleged curder, kidnapping and robbery occurred

in New York State, of a New York State citizen, ihe defendants werg

at leest residents, if not domiciliary, of Now York, Almost all

witnesses in the New York prosecution are New Yor) icsivents,

This Court will not say that neither New Jersey oor

Florida have any interests in this case, as undoubtedly those

stetes do have an interest in nolice conduct towards trensients or

visitors within their scospective territories, Aut such Interests

ere winor when compared to the overwhelming cw York interests in

prosecution of such heinous crimes as here committed anongst its

cvn residents on its own soil, Indeed, the police activity in New

Jersey and Plorida was aainly conducted by Yew York State Police

officers with the assistance of police officers in said states and

the use of facilities in suid states in aid of the New York “State

police officers,

Further, the application of New York law in this

instance sould not offend the comity of interest relationship betscon

ew York and the other states involved,

BS ES |

Yor weedd the police conduct in iew Jersey or *lorica,

if illegal (which this Court does not find) require suppression as

1 deterrent,

Accordingly, this Court will apply New York law with

spect to the New Jersey and Florida transactions, subject only to

verriding federal law dealing with safeguarding Fourth and Fifth

‘neésent rights of these defendants.

The facts isade hrown to the New Jersey Cousk tara

Jooe so under oath, ven though the transcript of said application

isdicates the oath having Leen administered to Investigators

Chandler and Ovens during the recorded and transcribed portion of

the proceeding, Chandler's testimony that said oath was sctually

talen by him prior to Sis onrecorded testineny to said court is not

only uncentradicted, Lut defendants were yiven the opnortunity to

verify sowe with the New Jersey Court and call the judge as a

witness, which this Court would arrange, but, after discussion by

counsel with said court, they did not call hin,

In determining whether or not there wae probable

cose for the issuance of a search warrant, the critical facts and

cireusstances for the reviewing court are those which were wade

loown to the issuing magistrate at the tine he determined the

arract application, (People v, Nieves, 36 N.¥.2d 396, 402;

People v. ilendrichs, 25 N.Y. 2d 129, 138; People v, jelago, 16 N.Y,

2d 289, 292, cert. den. 383 U.S, 963; People v, Rainey, 14 N.Y. 2d

35,58). See also People v. Brown, 40 N.Y, 2d 183, in which @ search

earrant was upheld even though an informant was interviewed by the

issuing magistrate without being under oath, and witout his

testimony being recorded, although the sane was referred to later by

the court on the record,

+22 i od

The Fourth csaendnent to the U.S, Constitution, and

A-thele L, Section of the New York Constitution require that

carch warrants be issucd only upon probable cause suported by

oath or affirmation, A written application in affidavit form is

‘not ebsolutely required An exawple in New York is tho People vy.

“Brown caso, Supra, whare an oral application under oath by the

police officer, and an off-the-record discussion with the inforsrot,

whese information was cssential for probable cause,was held to be

“sufficient, and in substantial, if not literal, coaplience with

C.P.L. 690.35 (1). ‘

In the caso at bar, there was clearly a sufficient

besis for the New Jersey Court to find probable couse for the

iesusoce of a warrant for the search of the Lincoln automobile,

fod the securing of a warivant by the police will presuue their

Lena fides end the subsequent serrch upheld in @ doubtful or

,arginal case (People v, Hanlon, 36 N.Y, 2d 549, 558), although I

¢o not consider the probable cause issue here to be doubtful or

ceginal, See also(Ker v, California, 374 U.S, 23).

The sutowobile itsolf becare evidence in this case,

porticularly after the finding of deceasod's fingerprints in the

trunk Interior, and, with the authority of the New Jersey Court,

proparly removed to hew York.

Nor does the clain by defendants that the car was

searched on October 17, and again thereafter, and dusted for

fingerprints on the 20th indicate any improper or unsuthorized

conduct by the police, The car was constantly under surveillance ty

the police, and after obtaining the search warrant, they took

;ossession of the heys and ssintained constant control over the car

in carsying. out the search and testing for fingarprints, which they

Fede)

wero authorized to do,

This Court also dcetersines that the arrest of the

Jofsnewunts in Florida, as it turned out to he without a warrant,

Y jewful upon several grounds,

fhis Court {finds as fact that the arrest of the

fendants was for the purpose of apprehension and prosecution for

t wentioned criass, and not as a subterfuge for an otherwise

valawful search or interroyation,

At the outset, it is clear that an Interstate

bulletin (teletype message) can furnish probable cause for a

warvantless search (Neople v. Lypkajo N.Y. 2d 210). So, too, can

police officers :ake an arrest upon a radio bulletin, telephone or

teletype alert Fron fellow police authority (Whitely v, Warden, 40)

U.S, 540, 568; People v. ‘lorowitz, 21 N.Y, 2d SS, GM), Slowever,

cespite the foregoing, on a suppression hearing the defendant say

question the basis for such coumunication, and ultivately, upon «uch

foaring the People wust dsvonstrate that the sender or sending

oyency itself possessed the requisite probable cause to sct (Peonle

vy. Lypka, supra, and cases cited therein),

Under C.?.L. 140,10 wa police officer way arrest uron

",easonable cause" to believe that the person has cormitted a cri-ve,

“Censcnable causo" in such context is the sane as "srobable cause"

os such lattor terw is used in the Fourth Amendment (Uraner v. U.%.

358 U.S. 307, 3103 People v, Fields, $0 A.D, 2d 870; People v.

Loacardi,l18 A.D, 2d 177).

"Probable cause” has been defined as a reasonable

,round for belief of guilt, which is less tuan would justify

——

ter N3b

conviction (Brinegar v. J.5., 558 U.S. 160, cople v, lields, supra).

Not only did the Florida police have the toletype

co munication directing the arrest, but the New York State police

oificers were physically present and had conferred with the Florida

police officers, filling them in on ell the facts which were the

vesis for probable cause,

Accordingly, finding probable cause for the arrest

of defendants, this Court holds that same was lawful,

Additionally, the police officers had the genuine

belief that the New York arrest warrant had been issued on the

Leth.

Phe Florida police, in effecting the warrantless

arrest, did so in a eanner consistent with New York law, Under

C.P.L. 570.34 @ police officer may arrest a person without @

werrant “upon reasonable information" that the accused stanus

charged in another state for a felony,

The arrest of the defendants did not violate any of

heir Fourth Amendment rights,

: The entry into the motel roomas by use of a passkey

chtained from the wotel manager and by entering through an

unlocked door from an adjoining room, but without advance notice

was justified in view of the facts that the murder weapon had as

yet been undiscovered and there was roasonable grounds to believe

that defendants were so arwed, that they had a vicious dog, all

of which would endanger the safety of the arresting officers, and

-i5e

(\57

could also result in the destruction of evidence (C.P.L. 140.15,

subd, 4, and C.P.L. 129.80, subd. 4). (See also Warden v, Hayden,

3£7 .5.294).

The Court finds that the search of the 2 »otel rooms

occupied by the defendants and their female companions did not

Violate their Fourth Axvendnent rights, for 2 reasons, i.e., as

incidental to the lawful arrests the police were entitled to

search within the room of each defendant for the murder weapon and

vidcnce (Chimel v, California, 395 U.S. 752; People v, Fitzpatrick,

32 N.¥. 2d 499, S08; Amador Gonzales v. U.S., 391 F, 2d 308 with

respect to fruits of the crime, instrumentalities used to commit

the crine, contravand, material which constitutes evidence of the

CYiwe of that the arrestee committed same), and secondly, the need

for the Florida police to inventory, remove, and safesuard the

the «rrests of the defendants,

The confession of Graham after extensive and ieneat.4

"Vtiponda" warnings, comvenced within 3 hours of his arrest and 2

tours after his arrival st the Broward County Sheriff's office, was

voluntary and after intelligent and knowing waiver of his rights to

,.c4in silent and ccunsel, There is no credible evidence in this

secotd of any overreaching by the police, mistreatment, or any

other police conduct to taint the same, This Court has also ‘ad the

Lesefit of listening to the tape recording of sane, and agrees wit

the testimony of the police officers that Graham desired to he

"cooperative",

It should here be pointed out that if, arguendo only,

there were any infirmity in the arrest, that the confession is

nevertheless adwissable,

In People v, ‘fartinez, 37 N.Y. 2d 662, the court

held that a confession made after an unlawful arrest and search was

so attenuated from the search as to permit use of same,

However, in suppressing a confession made immediately

after an unlawful arrest, in People v, Stewart,41 N.Y. 2d 65, 70,

tis Ceurt shed more light on when a confession is or is not to he

considered so integrally related to the unlawful arrest as to

require suppression, or so attenuated as to permit the same in

evidence. Im Stewart, supra, the police officer stopped dofend:nt

on the street pursuant to a police radio call based upon an

enesy ous tip to the effect that a person bearing defendant's

de,cription had a gun, fristed defendant unlawfully, searched and

seized bullets and a gun, Upon questioning at the station about

the yun seized, Stewart confessed to a robbery during which he

acquired the gun, The i-ems were suppressed, the Court saying:

"In contrast to Martinez, the interrogation here was conducted by

the same officer within a limited time frare, and the fruit of the

.coest, the gun, wes an integral part of the subsequent admission

(70).

In distinguishing Martinez, the Court said: "The

key fuctors in Martinez were the absence of a purposeful expleitation

of the initial illegality by the police, the lack of a casual link

hetacen the challenged police conduct and the staterents sada ond

the existence of a valid independent basis for the subsequent

interrogation,”

This Court believes the Martinez key factors to be

present here, In arresting Lucas and Grahaw the nolice acted in the

ee ee

-,)- 7

1.7

pood faith belief in probable cause, and their purpose was not

interrogation, but prosecution, There was no “purposeful

exploitation” of the arrest, as all the probablo cause factors, if

rot justifying an arrest, warranted interrogation of the defendants,

at the very least, for which there was a basis valid and

independent of the arrest. For the same reasons, the arrest was

t ihe cause for the interrogation,

In Brown v. Tllinois,422 U.S. 590,,6 member majority

of the Court suppressed 2 confessions made after an illegal arrest

id search, The majority pointed out that the exclusionary rule is

‘lculated to deter the police from engaging in violating

covstitutional rights by rewoving the incentives to disregard them

(£99,600) but nade clear that despite its broad deterrent purpose,

che rule has never been interpreted to proscribe the use of

illeyally seized evidence in all proceedings or against all persons,

citing cases (600). Tle majority then went on to hold that the

Michiyan Court's reliance solely upon intervening “iranda warnings,

25 a lifth Amendient safeguard, wes insufficient to cleanse the

Fourth Anendment violation (to which the purpose of Jeterrence also

attaches), The majoriity then went on to point out the evil of

s)4 fo) searches and seizures for the sole purposes of investigation

Or interrogation, The majority suppressed the confessions because

the search of defendant's apartment and his arrest were clearly

witicut probable cause, known by the police officers ro he

urlewfol, “the flagrancy of the official conduct", the police

admitting in their testimony that the purpose of the arrest was

“fey icvestigation" for “ yuestioning™ (604,605),

The rersiving 3 justices wrote 2 concurring opinions

wierein Mr, Justice White concurred on the grounds that the police

“inew or should have hnovn” that the arrest was absent probable

cause, while the rewainins justices, concerned with the cost of

\-plytng the exclusionary ‘ule as a deterrent, would apply the sa-e

to flagrant official misconduct, and would allow the confessions

where “etfective” Miranda/Were viven, and the ensuing confession

-ere voluntary in the Fifth Amendment sense (612),

It can thus be seen that as recently as June 26,1975,

it wes the feeling of all of the justices of the Supreme Court that

even though the search or ariest may be unlawful, if the police

acted in good faith, believing there to have been probable case

(believing am arrest warrant to be in existence), the arrest being

for the purpose of prosecution and not for the purpose of

investigation or questioning, having an independent basis for

questicoing, and the intervening effective Nivanda waisings, that

the confession should not be suppressed,

The foregoing discussion in this opinion «hich

assuues, arguendo only, that there was inadequate probable cause for

the arrest should not be interpreted to wean that this Court doubts

there was probable cause, but, instead as merely a recognition oe

its fallibility.

The inculpatory statement made by defendant Lucas

on the airplane returning to New York was made without there having

been any violation of his constitutional rights, After having been

civen his Miranda warnings on several occasions in Florida, he

refused to talk to the police officers, According to his own

efl2ons

Stiueny ‘e was well treated and not questioned further, % his

a, pearance before a Florida Court where he waived extradition, he

sted,and was furnished, with counsel to whom he spoke. On the

>, defendant initiated a conversation with Investigator

y, ond was again advised that anything he said would be used

a, inst him, Despite this warning, and without «ny interrogation,

ired about whether he could deal with the District Attorney,

that he way have been involved in the crime, but did not do it all

elf, or words to that effect. Tefendant, in his testirony

rely vented naving made this statement, This issue will be for

tricl jury to determine,

There is no requirement that the police stop a

person from velunteering a confession or admission, nor are such

—

564 U.S, 436, 478; lcople v, Gary,31 N.Y. 2d 68; People v.

Kaye, ay Fe id 1359).

The search warrants of October 29 for the 2 safety

do osit boxes in 2 New Jersey banks were supported by affidavits

ol ly showing jrobable cause, based upon the evideice used to

obtain the search warrant for the car, the confession «aade by

Seevamw who described the transactions with the banks and the hiding

by Nim and Lucas of money from the robbery therein, Search warr nt

jeturns were ajl filed with the New Jersey Court and said court, by

order, authorized a11 seized items (including the car) to be

toroved to New York,

In this regard it is important to note that Foberta

‘Nolees, called by defendants, testified that she had no objection

the police taking the keys from her purse, foth she and

7 W652

vefen cunt Graham testsfced that Grahsm had piven her the heys on

Gotober 14 in New Jersey, Consequently, the safety deposit hoxes

in New Jersey would have been discovered by the police in any event,

For reasons previously stated, the cowboy type hat

inadvertently left by Luces at the New York State Police barracks

safter being processed was not the product of any search, Up on

so -biting that it had evidentiary value, the police Siuply kept and

have refused to retum it,

it appears that the police are still in possession

of saay itews of personal belongings and property of the defendants

‘which were the result of the automobile search and inventory in the

“tel foo s, which have no evidentiary value. The District Attorney

shell be directed to turm these non-evidentiary ite»s over to such

persons es the defendants, presently incarceratec, shall direct,

All motions to suppress physical evidence, the

confession of Graham and the inculpatory statement of Luces are

fenied,

Tho District Attoincy shall subwit the oder hereon,

NATED?

June 16, 1977,

=> .-2-.6

j Ci poeey pp

ao aeall si) *

» rod

‘

At a Term of the Appellate Divi-

/ sion of che Supreme Court of the

State of New York, held in and for

the Third Judicial Department at

the Justice Building in the City

of Albany, New York, commencing

on the 29th day of May 1979.

NT:

‘on, A, FRANKLIN MAHONEY,

Presiding Justice

Hon, MICHAEL £. SWEENEY

T. PAUL KANE

J. CLARENCE HERLIHY

' Associate Justices

we .-—— eae oe Om & eer rt tT) |

THE PeOPIE OF THE STATE OF NEW YORK,

Respondent,

~egainst-

aiciAnD B. GRAHAM,

Appellant.

o oe Oe ee anaee on Heme cee eresnamasaacnnX

The defeudant, RICHARD B. GRAHAM, having appealed from

a judgment of conviction of the County Court, County of Sullivan,

reivdeced on the 3rd day of November 1977, from a jury verdict

cow ricting defendant of two counts of aurder in the second degree,

kidnapping fm the first degree, and robbery in the f'rst degree,

an’ celd \ppeal having been prenented during the above stated

tera of thie Court, and having been argued by STEPHEN L. OPPEN-

a .

*4 > ” ‘ US

‘ | - a 4

| | | \|

| | | At a Motion Ter il

nh Serm of the fuprer

‘ ; {| Court of the £&t > "New Y

| . | f “te of New York

; | in and rune Third Judicial

Pies Be vepartrent held at the Justice

y re Wager ah ii Building tn ¢) .

| Pullaing in the City of Albany,

—— | New Y rk on the 20th day of

igu u, 1479

i, §SQ. of couneg. for appellant and by STEPHEN F. LUNGEN, ane

EG}, a8 ‘special prosecutor for the Sullivan County District HON, A. FRANKLIN MAHONEY, Fres!

VON, MICHAPS BE, SWSFNEY

Tr. PAUL KANE

Attorney's Office for respondent, end, after due deliberation Pee

N. J. CLARENCE KURLIHY, Asse te Juatteds

tis Corct having vwendered a decision on the 26th day of July ne rerio ot

/ j ‘wi ¥ EW YO!

Mews ake [#D DEPARTMENT

197), ie is hereb:: IHD D2 PARTMENT ;

ORDERED thet the judgment should be mod! fied, on the " A RK,

i? % nt .

leo» and the facts, by reversing the convictions of kidnapping in Ne spon

ah ORDER

the first degree ind robbery in the first degree and dismissing |.

the counte of the indictment therefor, and, as so modified,

affirmed,

. ----X

/s/ John J. O'Brien

Clerk

rm Of Court ‘n re retitled

DATED AND ENTERED: August §8 , 1979 ;

! aii "sa lé ‘a . ro 44 4

7% TRUE COPY: 4 4 i ) ave to re arzue he a peal here iw and |

cars bo reverse the judguent appealed from,

_ Gite BOO nism | |

erk , after 1g and filing proof of due service r

f rt ny 4 aft ‘avit of STEPKEN L. OPPEMHP IM, fworn to ;

ENTER | |

tion (ong been nade by the deferdsr: Js |

ay OF AuGusty 1979 in support of the moti Nn, «td

i 1 c f ’ < an . a -

j ra ke ne, . EE Pe “nN to ine 17th iy ofr 4 AY ¢

ios

ves eh “Ah tey COM, Ob 67

i979 tn opposition thereto, and the Court having rendered a Oat (il ZN) Malte

~s , / " pow 7 A?

‘

4ccieton on the 27th day of September, 1979, it is hereby

GRUSKED, tha’. the defendant-appellant's motion for “ } AWRENCE H nk, Chief Judge

Bertin ! 1A Lat Ms ped judg

reargurent be and t! se hereby is denied. a

| oo" =

1) antl : |

H aay Gr IME STATE O i KK ,

ed es ee Respel oad CERTIFICATE

it ,’

! “ ‘ ns DENYING

\ | . YING.

i pkAve

j SHAN,

! . /s/ John J. O'Brien , |

1 “Clerk - a ssi

1 J sWHENCE H. CCH” of lodge of the Court of Appeals of the State of New

ko an bh rERET tobe . | .

oO and Vi ED et ie 1979 ' » eG by certify that, vpn : { tits dy ide by the above-named apy Want for a

eRe evs veri ' nt to CPL 4:4120 ij the seoord and proweer dings herein,® there 6 no

moe et ty Hed which oujht to be seviewe 1 by the Court of Appenls and permdssion

( - ~ t

« lp Fas ; : BER Pl

[ye ) 4 | wo 4 art “ff a ‘ MS | ey rive da

fF Rl ee eel

Clerk

Mtg at ‘cello , New York

Secesser 2: 7 7?

| Lesorei « Jd ale %

Chick Judge

i |

ar . £€ Order: Order of the Appellate Div ision, Third Depe:

: od Acgust 8, 1979, Jifying on the law and the facts,

tot sent of the County Court, County of Sullivan, rendered Novert ot

997, °1 «.ersing the convictions of kidnapping in the first ‘é, +2

aq roltery in the first degree nd dismissing the counts of the

as so modified, affirming the judgrent cone

ent therefor and, as

of murder in the second deurce.

‘e'tng «, pellant of two counts

“68

AP SNDIX PF

Items Seized at Search, Airport Motor Lodge, Fort Lauderdale

(Mania), Florida - Ocvcober 19, 1975.

Described at

Exhibit # ription of Items R/A page

46 Appx ximately 100 photos

in ar album 526, 555

47 Trav: Llers checks taken

from wallet 526, 527

48 Chec]l: book 526

49 2 Weetern Union receipts

and Travel Lodge receipts

taken from wallet 526, 528

£0 Hcnda key and rent-a~

cycle receipt taken from

wallet taken from pants 527, 528

51 Receip. for safe deposit

box and key found in wallet 529-530

52 Claim check for var in

Newark 530

53 western Union receipt,

airline ticket receipt,

American Express receipt

for checks 531

54 National Car rental

contract taken from

briefcase 531

55 Times watch, miscellaneous

receipts, nail clipper,

shield number from hook

and ladder company in

Walden, New York 531

56 Eastern Airlines ticket

receipt taken from

brown briefcase 532

57 Black address bock,

$145.88 in cash, comb

taken from pants pocket 533

58 Receipt for safe deposit

box, two red key cases

each containing a key

taken from purse of

Roberta Holmes 533

ath

59 Taxi business card of

Neil R. Bucklin taken

“rom wallet 533-4

60 Tray lL Lodge receipt

take. from pants pocket 534

61 Wallet taken from

pants pocket 536

62 Longine watch, silver

necklace, man's necklace

man's gold wedding ring 536

63 Dog race track paramutnal

ticket and program 536

64 Brown plastic briefcase 536-537

65 Black leather briefcase 537

66 hat 537

4 Delta Airline ticket

envelopes 570

One pair of two-tone blue

jeans 593-595

One maroon T-shirt with collar. Pair of panty hose. One blouse,

lady's blouse. Child's sweatshirt, “Parrot Jungle, Miami, Florida

weitten on it. Second child's sweatshirt, "Parrot Jungle," written

on it, Lady's one-piece body shirt, A movie camera, taken from

the room of R. Graham, Dania, Florida, Travel Lodge Motel, a

Kodak Ektasound 140. And an OKAY used vehicle dealer warranty to

Cheryl Kilb of Newburgh, New York. A mascara applier. A chain

containing a Jewish star in silver color. A plastic bag from

Parrot Jungle with the name Cheryl on it. Paper bag. A Kodak

camera case, town tones, of brown leatherette, containing an

instruction book for Polaroid SX-70 Land Camera. And two SX-70

Polaroid Land Cameras. That completes the contents of the brown

suitcase,

In the first box is a pair of chino men's pants. Pair of brown

men's pants. A brown embroidered western man's shirt. A brown

man's suit jacket. A green, white and blue man's Hawaiian type

shirt. Brown man's leisure suit jacket. A brown type work

leather belt. A white T-shirt, man's, with “Fort Lauderdale,

adn

JtO

Florida," and birds on it. A man's green shirt. Pair of red and

white polka-dot men's swim trunks. A white man's sleeveless

T-shirt, undershirt ‘nothe. unuershixt. A third undershirt.

Two pairs of men's white Jockey shorts. Pair of blue socks.

Pair of black socks. Two black combs. A tie clasp in the form

of a truck. And another tie clasp with two horse symbols.

In the second box is a men's beach shirt which matches the swim

suit. A blue floral shirt. A blue and light brown and gold

man's shirt. Pair of under shorts, red, black and blue and

white. Another pair of under shorts, red, blue and white in

block design. A man's white sleeveless T-shirt. Pair of man's

brown pants, A man's blue with light piping cabana shirt. A

pair of swim trunks wich macches tue cabana uuirt. A olue man's

leisure suit jacket. A light blue pair of pants. A man's light

blue leisure jacket that matches the last pair of pants. A man's

brown leather belt. A pair of dark blue and light blue diamond

pattern design -- two pair of black men's socks in original

wrapping. Pair of brown socks. And another belt, leather on one

side, suede, rust color, on the outside.

Items Seized bul later returned to other persons

Description Described at R/A page

Automobile 366

Motorcycle : 366

2 While motorcycles helmets 369, 569-70

Brown lady's purse 369

Miscellaneous papers of Cheryl

Kilb 369

$47.87 in cash 369

Brown suitcase with

miscellaneous women's toiletries 369

Lady's suede purse 370

$24.54 in cash ? 370

Items of men's clothing 587

-3-

== =

APPENDIX G

Items Seized in Search of Lincoln Automobile at Gateway Downtowney

Motel, Newark, New Jersey, October 17, 1975. ;

bxhibit # Description of Items Described at

page

1 Bag with assorted rags 33

2 Vacuum sweepings from

various areas of car 34

A. Vacuum sweepings from

right front inside 34, 55

B. Vacuum sweepings from

rear seat 34, 56

Ci. Vacuum sweepings from

left front 34, 56

b. Vacuum sweepings from

left rear 34, 56

E. Vacuum sweepings from

right front interior 34, 56

F. A hair from trunk 34, 56

G. Vacuum sweepings from

right rear interior 34, 56

H. Vacuum sweepings from

trunk interior 34, 56

I. Ashtray contents 34, 56

3. Miscellaneous papers from

trunk of car consisting of: 34, 57-62

envelope of the Empire National Bank stamp dated August 19, 1975,

and ah envelope of one Geldenning Place stamped date July 15,

1975, sealed. Mobile receipt for $10.30, January 28, 1975.

Empire National Bank 24 hour teller receipt of July 1, 1975 the

amount of $50, 1520297. A piece of small note paper addressed

with Honey and signed Sheryl. A box rent receipt, United States

Post Office, Walden, New Yor, June 19, 1975 to R,. Lucas, #233.

Bank Americard receipt for $5.25, June 25, 1975 to Richard

Lucas, Bmpire National Bank receipt for the sum of $300 dated

June 25, 1975, serial number 151461. A receipt. truck stop of

Pennsylvania, amount of $7.06, June 6, 1975. A receipt of Jet.

Russa & Son Jewelers, Walden, New York, dated March 26, 1975 in

sum of $31.20; A note on the back of a piece of paper headed

miscellaneous general voucher containing the name Leland Sisson

a letter of Highland Telephone dated August 6, 1975 addressed to

Richard P. Lucas; a receipt of Rhulen Sisson to Richard Lucas

Lucas dated May 29, 1975 showing a bank balance of $100; a

receipt of Rhulen Sisson to Richard Lucas dated May 29, 1975 for

$160 rent; a receipt of Leland Sisson to Richard Lucas dated

August 7, 1975 for $1609PEnt; a Bank Americard receipt for

$10.30 dated June 26, 1975 for the of East Stroudsberg,

Pennsylvania; Union 66 receipt of June 5, 1975, $7.85 to

Richard Lucas; Empire National Bank 24 hour teller receipt dated

July 17, 1975 the sum of $239.36, 153200 is the serial number;

mapire National Bank 24 hour teller receipt dated July 9, 1975

for the sum of $250, number 152673; a wage deduction sheet of

Cooper-Jarrett, Inc. for June period ending June 14, 1975

showing the net pay of $395.50, check number 276011; Empire

National Bank 24 hour teller receipt of June 5, 1975, the sum

of $190.77, 1150565; a Carrol's matchbook with wrfting figures

on it; a small piece of note paper dated May 3, addressed to

whom it may concern, signed Carol A. Lucas; an Empire National

Bank checking account miscellaneous debit of March 24, 1975

contains inward to close the account; an envelope with a

window containing a notice from the general notice acceptance,

layed claim due dated August 5, 1975; a Bank Americard receipt to

Richard Lucas from Rob Rohl, Inc., in the sum of $6 dated June

21, 1975, Bank Americard receipt to Richard Lucas from the Truck

Stops of America dated June 22, 1975 in the sum of $8.25;

Empire National Bank 24 hour teller receipt of August 7, 1975,

serial number 1545, $276.50; Empire National Bank 24 hour teller

receipt Dated August 2, 1975, 154227 in the amount of $236.83;

Empire National Bank 24 hour teller receipt dated July 21, 1975,

153511, in the amount of $50; Empire National Bank 24 hour

teller receipt dated July 24, 1975, 153652 in the amount of $50;

Empire National Bank 24 hour teller receipt dated July 26, 1975,

153762 in the amount of $25; Empire National Bank 24 hour teller

“receipt of July 26, 1975, 153761, $25; Empire National Bank 24

re ie

hour teller receipt of August 7, 1975, 154523, in the

amount of $50; Empire National Bank 24 hour teller receipt of

August 7, 1975, 154524 in the sum of $25; Empire National Bank 24

Mreceipt of August 14, 1975, 155013 in the amount of $50) a check

of Richard Lucas, 198 drawn on the Ewoire National Bank to

Night Market, $10; check to Richard Lucas, 191, of August 7, 1975

to Leland Sisson $160; check of Richard Lucas, 189, Leland

Sisson, $190; check of Richard Lucas number 195, August 12, 1975,

Grand Union, $10; check of Richard Lucas, 197, August 13, 1975,

Commissioner of Motor Vehicles, $10.25; check of Richard Lucas,

#194, Night Market, August 7, 1975 for $10; check of Richard

Lucas, #196 of August 13, 1975, Daniele & West, $17.53; check

of Richard Lucas of August 5, 1975, $193 to the Grand Union,

$10; check of Richard Lucas, #188 of July 21, 1975 to the Grand

Union, $15; check of Richard Lucas, #190 of August 1, 1975 to

the General Motors Acceptance Corp., #154 then I have a check of

#185 July 22, 1975 to Charlie's Market, $10; check of Richard

Lucas, #187 of July 27, 1975 to Florence Lucas, $25; #186, pei:

Graham of July 25, 1976, $24; a check of Richard Lucas #184

July 17, Prudential Insurance Company, $25.42; check of Richard

Lucas #182 Metropolitan Life Insurance Co., $27.95 of July 17,

1975; check of Richard Lucas #174, to the Prudential Insurance

Co. for the sum of $25.42 of June 30, 1975; #1832 BAC, July 17,

1975, $50; statement of acccunt of Richard Lucas for the period

opening July 18, 1975 and dated August 15, 1975; an envelope of

the Highland Telephone Co. addressed to Richard Lucas, wage

statement of Cooper-Jarrett, Inc. for the period ending July 12,

1975, in the sum $239.36 for check #281637; wage statement of

Cooper-Jarrett ending for the period of July 26, 1975 in the

amount of $236.83, check #284269.

MR. OPPENHEIM: Wage statement for check #278859 for the period

ending June 28, 1975, net pay $51.04; wage statement for check

#2828-16 for the period ending July 19, 1975; wage statement for

check #780108 for the period ending July 5, 1975; wage statement

for check #27-3€85 for the period ending May 31, 1975; Bank

Americard receipt. from the Truck Stops of Pennsylvania tc

Richard Lucas, dated June 22, 1975 for the sum of $8; wage

374

statement for check #274421 for the period ending June 7, 1975

to Reichs Banknotes for 20,000 marks but I don't know what kind

Of marks; a personal money order receipt of the Empire National

Bank of April 28, 1975, #145628 to the Orange County Probation

Department; a wage statement for check #2727 -- period ending

June 21, 1975;

Described at

Exhibit #¢ Description of Items R/A page

4 Miscellaneous papers 35, 65-6

from the car consisting

of:

a plastic flag, from Great Adventure, Sheryl; a drawing signed

Bevins, dated October 11, 1975 with writing on the back,

Virginia Bevins; a printed slip of Eastern Airlines bearing the

writing flight number 157 having bi-centennie> terms on it; a

receipt #260941 Holiday Inn of Daytona Beach, Florida, covering

the period of October 8, October 12, portion of an Eastern

Airline ticket, stamped October 8, 1975, NYC Kennedy to Daytona

Beach; a card with back writing including flight number 157;

a piece of lined note paper with various writing including,

"dad, wake me up before you go to work"; an American Express

Card application, signed Richard B. Graham, Sr., October 8,

1975, Eastern Airlines envelope with a ticket -- package stub

attached for flight 157 to Daytona Beach, that's flight 157Y; an

envelope of the Holiday Inn west of Daytona Beach addressed to

Mrs. Anthony Parisi with a letter inside dated October 8 addressed

Gram and signed “love always, Richie."; portion of an Eastern

Airlines special service ticket #229623, stamp dated October 8,

1975; small piece of unlined note paper having on it various writings

including Avis 253-8183; an envelope addressed to the Spivak Agen¢y,

Inc. having a handwritten notation on it of flight 106;

Exhibit @ Description of ates Described at R/A page

apers from r ront

of car consisting of: 35, 66

acmmpled package of Benson & Hedges cigarettes, a package of

four cigarettes, wrapper from a piece of Wrigleys doublement

chewing gum) a matchbook, more cigarettes; a matchbook, Foodtown;

' | ‘ ’ |

‘

re Cardboard Paper from

? @ driver's daily, log book of

first entry July 2

Descri tion of Items

Black Wall

of Richard GreneaPsPers

Consisting of

Described at R/A sal

Hannah

1973,

+ Central

deposit #435299, Grand

t November 7,

Of payment

receipt .. withdrawn,

to the Milk Drivers and a

it Says

er of Richard

Security account number of

42-8995

} Member of the Internationa)

number; a receipt

li .

Of paper with the

Ceipt of

9, September 24

e 197)

le who is on pi:

at the Period; a re-

er 8

name Jimny,

James Flannery,

@ Card of Nycrest Corp,

name of

DVM 18422 of Octob

+ 1975

With writing on the coe

back including the

g ’ Inc,

| Richard B. Graham, II,

Ud6

1521542139700; a receipt of Tony's Parking and Lockers #2341; a

membership card in plastts Koew. FPaew and Gaue Club,

1017; a plastic card of the Wife Swappers Club International a

membership card of Blackrock Fish and Game Club, #186; a receipt

of J.C. Penny Co., Inc., 678631 for the sum of $56; a color

photograph in the bag says to Jeff with love always Birdie;

another card of Nycrest Corp., #5619951; a group information card

of the Hartford Life Insurance Co., Hartford Life and Accident

Insurance Co., Hartford Accident and Indemnity Co., policy holder

being the Nycrest Corp; a slip of paper receipt of May 9, 1975

for $140 from Jay Jay McCort; a green office memo of July 19,

1975 being a thing of certain items sold to Edward J. Halford;

slip of paper with the name Dana to Reesa Wolhrab and other writin

a claim check of Radio Shack, May 24, 1975, #154875; a receipt of

Walden Auto Parts, Inc., #10257 of January 30, 1975, the name of

Walt Kendy on the back and other figures; a receipt of Gulf,

#B2549682, $25 marked paid in full; a repair tag and invoice of

Radio Shack, #083886, dated May 10, 1975; a club member card of

Ice Cave Mountain, 1974 in the name of Iris Agroyan; a card of

Newburgh Part Motors, Inc. with the word Tex and numbers on the

back; a penny arcade photo of a girl with writing on the back,

"to Richie with all my love"; selectiv, service registration of

Richard Barcley Graham, Jr.; notice of classification of Richard

B. Graham, Jr., July 9,1969; receipt of something Weaverco, Inc.

of June 17, 1975 in the sum of $25.80; customer signature card of

Richard B. Graham, #634-BL7 and a resident fishing license

#RF610309, for the period October 1, 1973 to September 30, 1974;

Exhibit ¢ Description of Items

9 ; Miscellaneous papers

from glove compartment

consisting of:

37, 69-81

a red leatherette Texaco road atlas; envelope, P.O. Box #861,

Middletown, New York, of August 25, 1975, containing Bank

Americard statement to Richard Lucas for the billing period

Described at R/A pag@

due; a purchase of Mobile Oil Corp. of July 28, 1975 for the sum

us?

8/21/75, also including a blue notice, Bank Americard is now past

of $10.30; and a pamphlet which starts, "most people like puzzles,

but not when it comes to paying bills."; envelope of P.O. Box #861

of September 25, 1975 containing a Bank Americard statement, billihg

period September 22, 1975, a blue slip saying, “your Bank

Americard is now past due"; and a card dated October 17, 1975

showing a balance of $804.39; a purchase of Sunoco of $11.75 of

August 31, 1975; a purchase card of Sunoco of August 30, 1975, $12

a purchase card of August 29, 1975; Exist 31 Motel, $31.03; a

purchase card of Blue Ridge Motel of August 30, $29.96; a

purchase card of the Mohawk Motor Lodge of August 27, 1975, $23.54);

a Bank Americard flier headed “you may now request a cash advance

from $50 up to your available credit line balance; mailing

envelope flier; Bank Americard for the purchase of an all-weather

jacket; an envelope of the Empire National Bank of Newburgh dated

September 18, 1975 with a statement of Richard P. Lucas dated

September 16, 1975 containing an Empirye National Bank white and

gray unfilled out check of Richard P. Lucas; 205, August 23, 1975

a Neil Buckland, $12; check 277, September 4, to Beneficial Finance,

$26.61; a check of Lucas, 202, August 20, 1975 to the Grand

Union, $15; check of Lucas, 218, September 6, 1975, Village of

Walden, $4; #214, August 28, 1975 for cash, $30; check of Richard

Lucas, #199, 8/14/75, Charlie's Market; check #211 dated

August 28, 1975, BAC, $50; #209, Leland Sisson's, in the amount of

$190 of August 28, 1975; #207, August 26, 1975, Mike's Market,

$10; #215, August 2 to the Holiday Inn, $2.26; check #216,

September 2, 1975, cash, $30; #206, $8.25 to the Grand Union --

$25; #203, 8/21/75, to Charles Rakowski for the sum of $100;

#204, Richard Lucas, Capitol Finance, $8.28; a check to Richard

Forsyth in the sum of $180; check #208, August 27, 1975 to the

Grand Union for the sum of $35; notice if insufficient funds and

charges of the Empire National Bank, August 29, 1975, $15; notice

of insufficient funds and charges, August 28, 1975 for a check of

u78

$10; notice of insufficient funds of August 26, 1975 for two

checks, one of $15 one of $42; au insufficient fund non-

collected funds, returned check credited of the Empire National

Bank, August 26, 1975, for the sum of $15; insufficient funds

and uncollected funds, and return check credit of August 28, 1975,

for $10; Bmpire National Bank 24 hour teller receipt of August 25,

1975 marked paid August 25, 1975, dated August 23, 1975, 155576 fo

$25; Empire National Bank 24 hour teller receipt of August 21,

1975 #1155446 for $25; an envelope of the Highland National Bank

of Newburgh, September 2, 1975 containing a Continental Insurance

Co. certificate of insurance on loan or account 00-18-6-2109; a

Highland National Bank of Newburgh payment book which only payment

stub one is taken out. The rest are here on account number

318002109; New York State Insurance indentification card issued to

Richard P. Lucas, effective date September 12, 1975, expiration

date, March 12, 1976; a plastic envelope containing a certificate

of registration issued to Richard P. Lucas for a 1974 Lincoln,

9000-HQ; a retail installment contract signed by Richard P. Lucas,

Daniels & West, Inc., dated August 12, 1975; a letter of Daniels

& West, Inc., form letter with warranty, dated August 12, 1975; an

nvelope of New York State Department of Motor Vehicles dated

ugust 21, 1973 containing a certificate card saying “contains

rtficate of title of a vehicle", New York State Indentification

ard to Richard P. Lucas, period June 12, 1975 to March 12, 1976;

form, NV50.2, used vehicle certificate of the Department of

tor Vehicles; odometer certification, Daniels & West, Inc. for

1973 Chevrolet that's a yellow one; another one, odometer mileage

rtificate of Daniels & West, Inc. for a Lincoln Continental; a

ales statement of Daniels & West, Inc. to Richard P. Lucas

overing the 1974 Lincoln dated August 12, 1975; all of those

tems being in clear plastic envelopes; an envelope of William E.

leary, Metropolitan Life, 603, Port Jervis, New York addressed

Richard P, Lucas containing a lot of blank envelopes stamped

William E. Cleary, Metropolitan Life, Box 603, Port Jervis

’

a we

| check 275 with unused deposit slips at the back; another check-

1379

New York, the exact number of those envelopes, white envelopes,

is ten; Western Union money order receipt, Mod, 905688, $100 to

Carol Lucas) a box of the Empire National Bank addressed to

Richard P. Lucas, inside the mailing box is another box, Spirit

of America, inside that box is a flier for the Bicentennial

innétons Sebeledion, Spirit of America checks; a green and white

form bearing inspection #32695; a checkbook of Richard P. Lucas

of the Empire National Bank going from check 251 to and including

p00k going from #276 to 300 with unused deposit slips on the back;

and an envelope in green and white which has open lines for

addresses, no addresses on it; and envelope with the printed stamp

of Morristown, New Jersey, containing therein a receipt fo the

Beneficial Finance System of September 17, 1975 showing a payment

and other credit of $54; a flier of the Beneficial Finance

System, special announcement for cousins, parents, etc.; a gray

envelope bearing no writing on the outside except first class

mail, place postage -- necessary postage here containing two

windows; a form, BC30NYED, January '75 which starts out according

to chapter 20, article 34 of the general business law of New

York; an envelope from St. Lukes Hospital, Richard Lucas spelled

L-U-K-U-S which as not been fully opened from which I can extract

a balance due, bill of August 9, 1975, the sum of $69.25; a card

of the Double R Electric Service, Inc. with writing on the back;

a paper napkin; and a card of Brownell Motors, Inc.; card of the

Mohawk Motor Lodge; receipt of Sun Oilof August 30, 1975, ticket

7020021 in the sum of $12; A Bank Americard receipt of August 31,

1975,, Mohawk Motor Lodge, $23.54; half a match cover of H.E.

Harris & Co.; envelope with the words L & D written in hand out-

side and contained therein a summons with notice and action,

Pearl Appliances, Inc. against Richard Lucas, to which is attached

a schedule A, a bill of Pearl Appliances; an envelope from P.O.

Box 563 addressed to Richard Lucas and containing therein a memo,

Mgt., Finance Service, Inc., dated August 15, 1975; gnd a notice

to Assignor dated August 15, 1975 signed by R.G. Cervo; a

checkbook of Richard Lucas contiring one check filled out #213

dated August 28, 1975, Valley National Bank, and containing some

money; unused deposit books; notebook page, September 9, 1975,

Dear Luke, signed C and Tom; a card, pink card tatooing; a

receipt of the Chauffeurs Warehousemen and Helpers of America for

$12, August 15, 1975; another receipt of the Connecticut Turnpike

for $50; customer receipt for United States money order,

#19252126923, $25; the date is July 21, 1975; a piece of lined

note paper, headed one-half cup cider, vinegar; a payment receipt

of the Financial Service, Inc. for $8.21 of August 21, 1975; an

envelope, first class mail prestamped, Des Moine, Iowa containing

therein a receipt statement from the Financial Service, Inc.,

to Richard Lucas, dated September 23, 1975 and shows amount due of

$92.25 and also contains therein an envelope with windows --

three windows and inside shows pink and white candy stripes; a

card of Rick Forte with writing on the back; Bank Americard

receipt to Richard Lucas of 8/29, sum $39.03; a book of matches

from Shopwell; a comb; a Jarrett wage statement for check #228965

of August 9, 1975; a receipt of the Chauffeurs Warehousemen and

Helpers of America, May 14, 1975 for the sum of $12; another card

of tattooing with the word Richard and the #652-0950 written on

it; a drawing card of the Wallkill Fire Department #117, another

drawing card of the Wallkill Fire Department #123 and a Mobile

receipt of $10.50 from L. Mirtallo; a receipt of the Chauffeurs

Warehousemen and Helpers of America for $12, July 25, 1975; a

receipt for voluntary surrender of registration of plates issued

8/12/75 to Richard Lucas; an envelope of the Motors Insurance

Corp. dated July 18, 1973, Albany, New York containing a letter

of Motors Insurance Corp. dated July 19, 1973 addressed to

Richard P, Lucas; a form headed “agreement to provide physical

damage insurance” dated July 19,1973; New York State Insurance

identification card to Richard P. Lucas effective date March 12,

iP. Tucas dated May 7, 1973; certificate of life insurance

jprotaction issued to Richard P. Lucas of the Credit Life Insurance

ICo., #A9576 effective July 19, 1973 and attached to that a

"Sy

1974 to March 12, 1975; business reply mail postcard to the New

York State Department of Environmental Conservation regarding a

deer report; a registration to Ricnard P. Lucas for a 1973

Chevrolet pickup expiring April 30, 1974; odometer mileage

statement on a Chevrolet dated July 19, 1973 attached to a car

invoice, #9813A of Barge Chevrolet, Inc. dated July 19, 1973; a

letter from the Depatment of Motor Vehicles addressed to Richard

certificate of accident and health insurance of the Credit Life

Insurance Co. of July 19,1973 bearing the #A9576 also, a pamphlet

for the official New York State Bicentennial Medal; retail

installment contract between Lucas and Barge Chevrolet, Inc. of

July 19, 1973; an envelope pamphlet of the New York State Departmen

pf Motor Vehicles with the heading “suppose your license were

taken away"; a brochure, 1973 Chevrolet , light duty truck emission

pontrol systems; a warranty, 1973 Chevrolet truck, dated July 19,

973; also contained in that envelope I am presently describing is

nother envelope of the Motors Insurance Curp. of August 1, 1973 in

hich there is a notice headed “important, your C.I.M. policy is

nclosed"; a Motors Co. physical damage policy, family automobile

form; an envelope addressed to the Motors Insurance Corp.;

dentification card, back headed "what to do in case of accident";

Motors Insurance Corp. amendment, termination provision for New

ork; a statement for the policy covering period July 19, 1973 to

uly 19, 1974; an address book with invitations, wood grain cover,

=. a;

the back including grandma; a corner of an envelope with the

ctually, it's not stamped on the front cover, A’to A, index note-

ok, it contains addresses; a card of the Crawford & Co., writing

er 561-6177; a room assignment card of the Exist 31 Motel of

ugust 29; a card of the Walden Insuring Agency with writing on the

pack, 564-1660; 24 hour teller receipt of the Empire National Bank

- August 14, 1975, #155012 in the amount of $244.85; g piece of

paper headed with the name Wayne on ity 24 hour taller rauelyt ot

the Empire National Bank of August 21, 1975, #155445 in the

amount of $188.61; a card of Daryi’Porn, Mgr., Texaco, writing on

the back headed “Evelyn"; adposit receipt of the Empire National

Bank of August 3, 1975, -- no, that is September 4, 1975 in the

sum of $200; a Bank Americard receipt of August 30, 1975 in the

sum of $29.82, Blue Ridge Motel; Sun Oil Co., receipt August 31,

ly/5 sum of $11.75; a sheet of note paper headed “Joe Short.";

an envelope, part of the envelope dated July 18, or June 18, 1975

It's not clear, it is addressed to Cheryl Crone with writing on the

inside of the envelope; a card of Burtling Realty, Inc. with

writing on it. Writing on the back headed, "mom"; a stub,

Valley National Bank, Walden, New York of July 8, 1975 in the

amount of $49.70; a receipt of Marie Boat, $4.00, September 6,

1975, #3305; a Mobile travel map of Colorado and Wyoming; a

Texaco map of New York; a Sunoco map of New York; a Texaco map

of Delaware, Maryland, Virginia, and West Virginia; a Texaco map

of Maine, New Hampshire, and Vermont, and an unused self-postal

envelope with a U.S. postage, Boston, 10 cents; an envelope of the

Travelers dated September 18, 1975 including therein a card

addressed, “Dear Policyholder."' a card in a red and white

envelope with a Sears and Roebuck Co. dated August 18, 1975

containing therein a statement of of August 15, 1975 total due of

$15.75; also containing a Sears advertisement for Charlie's

perfume; business reply mail card to Allstate Insurance Co. and

the business reply envelope to Sears, Roebuck & Co.; an envelope

of P.O. Box #999, West Port, Connecticut stamped August 21, 1975

containing therein to the Danbury Mint, Medallic History of

America, two coins in a card, an envelope addressed to the

Danbury Mint and billing statement for $31 dated August 22, 1975;

an unopened Bic Click Blue refill; a black Write Brohers medium

point pen with cover; a shocking pink Bic Click pen; a piece of

rubber tubing about two inches long; a red and clear plastic Bic

pen; a 5 cent piece, Buffalo, and another paper Napkin;

| envelope addressed to Casualty and Insurity, Davis and Life

Exhibit # Description of Items Described at R/A page

10 Papers secured from

sun visor of car

consi... J. -7, 81-33

White envelope, State of New York Department of Motor Vehicles

dated September 9, 1975. Inside the envelope is a certificate of

title of Richard P. Lucas, #C1868132 with a letter entitled,

‘enclosed is the certificate of title of your vehicle."; a white

Casualty, Richard P, Lucas; white piece of paper with a yellow

caution sign, caution sign which says, "your annual key fee is

past due from Playboy Club."; a bill from the Playboy Club

to Richard P, Lucas in the amount of $183.01, dated September 28,

1975; a letter addressed to the Play Boy Club International, Inc.

on the face of the letter indicates "don't move an inch" with a

picture of an optical tape measure; a document from the U.S,

Department of Agriculture, Farmers Home Administration with an

option to purchase real property, with a description of the

property which should be conveyed to Barbara S. Paust, containing

a description of the property, total price of $19,000 envelope

dated October 6, 1975 containing a statement from the Playboy

Club, inside it has an advertisement for 15 day free txal for a

tire inflator; a base mail reply from the Playboy Preferred, Inc. ;

an advertisement for a suede cowhide jacket; a piece of white

scrap paper with the number 77813977 with the name Ronnie on the

back and several numbers and figuring on the side; a white

envelope from Etna Life & Casualty dated September 29, 1975,

containing a letter to Richard P. Lucas from the Etna Life &

Casualty; report on an accident dated 9/1975; an envelope from

Sharon Yankow; an envelope from the Travelers, Hartford, Conn.,

dated September 10, 1975 containing policy identification

number, Travelers Insurance Co. number 0069660841011; also

containing a black-blue envelope; white and green bordered first

class mail envelope with no address containing a receipt from the

Vs4

Beneficial Finance Co; also containing a special announcement

to cousins, uncles, grandparents, friends, containing two of

those I just read; yellow paper reciting the law according to

chapter 20, article 24 of the general business law of New York;

also containing a gray blank envelope dated -- Hartford,

September 9, 1975 from the Travelers Insurance Co. containing

New York State identification card for one Richard P. Lucas;

also containing a copy of the New York State insurance identificat

card for Richard P. Lucas and a letter entitled "Dear Policyholder

here are your new insurance identification cards."; an agreement

between Leland Sisson with Richard P. Lucas dated July 26, 1971,

Gerald N. Jakobowitz, Counselor at Law, Walden; envelope dated

September 11, 1975 from the General Motors Acceptance Corp.

containing a thank you for your last payment to Richard P. Lucas

also containing a retail installment contract:, by your name

Richard P, Lucas, describing a new 1973 9 cylinder Chevy crew

cab for a 1972 Dodge sports van; letter ss bh September 31,1975

to Richard P. Lucas from Charles Roskoski with a letter from

Charles Roskoski to Richard P. Lucas dated September 10, 1975;

white piece of paper via Cooper-Jarrett with half of 9/20/75

gross 14029.23, WH, 2,174.60; ST 701.40 via, $824.85 $828.68 was

the F.1.C.A.; one drivers daily log book starting with 9/1/75

going to the date 10/1/75; one leather buckle type log book

cover containing a travel map, North East, including New York,

New England apa; travel aid interstate map and directory cover;

Sunoco New York map; an envelope of the C.J. Shuttle Service

containing a color picture of a man; two pages of a poem headed

"These men with broken hearts"; four Cooper-Jarrett road driver's

daily round trip pay sheets, one for October 10 and one for

October 9, and one for October 8 and one for October 4; sixteen

Massachusetts Turnpike /.uthority charge trip authorizations;

six New York State Thmuway charge trip authorizations; six

New York State Thruway charge trip indvantinapiane and a photo-

static article headed "To our leway"; and a pocket of a leather

ion

| unidentifiable piece of something, paper, a letter of the State of

| Connecticut, Surrogate Court, third circuit of July 3, 1974;letter

OS5

case is a blue piece of paper postage will be paid and a 50 cent

piece, and a Franklin piece; also in the container is a shocking

pink and red ballpoint red pen; and a log book of October 2, 1975,

to October 10, 1975, Cooper-Jarrett; piece of green paper foil and

miscellaneous pieces of paper foil wrappers and foil; an old

raisen and a piece of stone; Holiday Inn matchbook, a matchbook

folded up in a Kool pack; copy of Deliverance by James Dicky; an

of the New York State Executive Department of Youth of October 6,

1975 to Carl Lucas; a Ford passenger invoice for serial #832128;

an envelope from the New York State Executive Department of Youth,

October 6, 1975 addressed to Mr. Carl Lucas; a blank form headed

"Your child is allowed to make one call."} a pamphlet of the

Division of Youth, Goshen Center, medical card, "I hereby give my

permission, etc" clipping from newspaper, Monticello entries on the

cack, a picture of Jim Migli; seven wage payment envelopes of the

Pirst National Bank of Highland; a toothpick in a paper container;

seventeén deposit slips on the First National Bank of Highland, New

Paltz, New York; a memorial for a friend and relatives for Lloyd

D. Graham, Sr.; a form of the Wright Employment Agency with the

name Mark Green written on it; a paper napkin with red lines and

zags written all over it; and some handwriting on it; envelope of

the Orange County Department of Social Services addressed to

Richard Graham, September 22, 1975, containing therein a brochure

of public assistance programs and a letter of September 13, 1975,

decision form, 0.C.P.A. 132; a small piece of note paper writing on

one side headed "Scott's Corners"; a piece of note paper with

writing on it one side headed "Al Serv", a tape from an adding

machine; 252717A, tape $20.30 on one side and headed telephone

Comp.; a picture badge showing Santa Claus, a woman and a child;

six posteard of the Holiday Inn, Dayton Beach, Florida; a pink

lady's wallet containing a picture of a young man headed, written |

n the back to Iris, in the beginning; a picture of thp Defendant,

S6 |

Graham from a penny arcade machine, written on the back, husband

and Richard, first year; a social security card number for Iris

K. Graham and employment identification card of the Public

Employment Service for Iris Graham, only date on it February 3,

1973; a student identification card, Newburgh Free Academy to

Iris Gineis embedded in plastic; a picture of a man and a dog;

identification card of Iris Graham, 63 Pierpoint Avenue, Newburgh

the passenger registration to Iris K. Graham, expiring December

31, 1972; a picture of a little girl, postage size, another

cicture of another girl, torn, black and white picture, a picture

of a young lady and what appears to be a money. Written or the

back, Iris and Che Che, 1968; two postage size pictures -- four

postage size pictures of young children in color; a picture of

Christ in a plastic container; a billfold, another picture of

Christ; a picture of brother at graduation; picture of a baby and

a young girl Mary Molinski; picture of a young lady to Iris, words

i el describe; picture of a young re headed on the back partial

pL, up to Iris, "best of luck"} pictube of Defendant Graham taken

in a penny arcade machine. That's it. A Zerox list of numbers

headed Lake Street, Extra, #5342384 and with some handwritten

items on it; a receipt of Scott's Corners Service, September 25,

1975, $552; another deposit slip of the First National Bank of

Highland, New Bitz, New York, blank; a receipt of the Holiday Inn

of Daytona Beach, 260941 and a blue and white Bic pen, Mid-

Valley Oil Co. written on the First National Bank of Highland

receipt; }

Exhibit # Description of Items Described at R/A page

13 Miscellaneous books,

papers and otheritems

from rear left floor of

car consisting of: 38, 88

book, Ferdinand by Monroe Muneo Lief; a Storytown coloring book;

copy of Oud magazine for November, 1975; a copy of Playboy

magazine for November, 1975; a Ginn basic reading, Fun with

Tom and Better of Deborah Kilb; a blue sock and a child's

—_—~-

US7

school paper, very light writing, and I see the words "the best

Ex.ibit # Desc. iption 2. Items Described at R/A page

14 Mirror removed from sun

visor of car with

fingerprint ? 38, 88

15 Scraping of dry oil

of all" on it;

from front bottom of

car and scrapings of

dirt from under car 38, &8

16 Miscellaneous papers,

ma*cnabooks and watch

consisting of: 39, 88-89

matchbooks, one thousand personaJized address labels; Winston, all

names of matchbooks; Shurfine, Veretti House, Gerrys Corner Inn;

another Shurfine; Costa beverage, another Costa beverage, four

Bic pens, name of a matchbook cover, Foodtown, the Finast Food

Markets; another Shurfine, another Costa beverage, Macke Food and

Vending Services; another personalized note stationery; Cocoa

Cola and Writewell Co; a Mickey Mouse watch; eighteen rectangular

paper plates, empty; a Times /Herald-Record of May 24, 1974; a bag

headed Stationery, Holiday Inn, containing two envelopes blank and

threepieces of blank Holiday Inn stationery; two personalized bath

mats and one in paper and one in cardboard; another bag

containing Holiday Inn stationery; a bag also saying Holiday Inn

stationery with two evelopes, three pieces of paper; a Taggart

Driving School matchbooks and a Winston Cigarett matchbook;

“> 4

Exhibit ¢ Description of Items Described at R/A page

17 White rope 39

18 Book of matches from

? Holiday Inn, Ramsey 39

19 One expended round of

12 gauge shotgun

ammunition 39

20 Car key, trunk lid, and

entire car 40, 108-106

j 4) ;

i |

|, uj .

License plates of the car

Rifle issui £

Several rounds of shotgun

shells from trunk

-~ y Pas Fs -

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.