# Petition — Graham v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2130%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 446 U.S. 932 ## Text In Thre ~s Supreme Court of tne Ictobe Le al RES ELiE Soaatly Aion: Shp cake saa aa Wee s - ’ ; a P ~f§ ¢ ° ar Q Cy QOD £ : : aA eS ~ ©» 2 . | oS ey er re aD EE ‘ i RECEIVED i | | 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 i 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 = — - + 12 17 19 22 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 23 27 27 28 33 63 65 67 68 71 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- 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.) JL 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- =o 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 | ’ LY 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»:\' ,l 7 ID MICHAEL ZAGER, Fsq. of Counsel Rivhard P, Lue 5S —— -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 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, ae -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 39 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 ti s 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 ef 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 ‘ f S -~ « ~ 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, o 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, > . 7 ~)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- ds 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- fg 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 a 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 © otents, being unsure of the status of the women at the tive of , 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) * i » 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 H 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 ’ 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@ a Ae due; a purchase of Mobile Oil Corp. of July 28, 1975 for the sum gi 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 i to 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 ’ 4 a we 4 ee | 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 sh 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 53 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 Ly —_—~- ss 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 . 21 22 23 License plates of the car Rifle issui £ Several rounds of shotgun shells from trunk 40 41 41 -~ y Pas Fs - --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2130%3A1. Public record. Not legal advice.