Opposition — New York v. Howard

S43

No. 80~453

SUPREM

IN THE E cour, u.s,

SUPREME COURT OF THE UNITED STATES

1980 TERM

STATE OF NEW YORK,

Petitioner,

Vv.

ARCHIE WILLIAM HOWARD,

Respondent.

APPLICATION FOR LEAVE TO

PROCEED IN FORMA PAUPERIS

TO: THE HONORABLE, THE CHIEF JUSTICE AND

THE ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES

Archie William Howard, respondent herein, respect-

fully applies for leave to proceed in forma pauperis in

this proceeding for a writ of certiorari to the New York

Court of Appeals, and requests that the undersigned be

assigned to represent him in this Court.

Dated: New York, New York

October 24, 1980

Respectfully submitted,

‘A

At Sa

NRY WINESTINE

WILLIAM E. HELLERSTEIN

The Legal Aid Society

15 Park Row - 18th Floor

New York, New York 10038

(212) 577-3420

Attorneys for Respondent

. .

; ;

a vere

No. 80-453

IN THE

SUPREME COURT OF THE UNITED STATES

1980 TERM

STATE OF NEW YORK,

Petitioner,

Vv.

ARCHIE WILLIAM HOWARD,

Respondent.

AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED

IN FORMA PAUPERIS

STATE OF NEW YORK )

) ss.:

COUNTY OF NEW YORK )

Henry Winestine, being duly sworn, deposes and says:

1. I am an attorney on the staff of The Legal

Aid Society, and represented respondent Archie William

Howard on his appeals in the New York courts from his

conviction on January 2, 1979. I submit this affidavit

in support of his application to proceed in forma pauperis

as respondent in this proceeding for a writ of certiorari.

2. Mr. Howard was represented by The Legal Aid

Society in the trial court, as well as on his appeals.

He was incarcerated from the date of his conviction until

July 11, 1980, when he was released by virtue of the re-

versal of his conviction by the New York Court of Appeals.

3. I am advised by Mr. Howard that he did not ob-

tain employment until September 26, 1980, when he began

working for the D & D grocery store, 142nd Street at Lenox

Avenue in New York City. His employment is only for: week-

ends and he receives only $2.50 per hour

3. Mr. Howard also advised me that he has not

received any other income within the past twelve months

from a business, profession or other form of self-employ-

ment, or in the form of rent payments, interest, dividends,

or other sources, and that he has no cash or bank accounts,

or other valuable property. No one is dependent upon him

Lf os ee

Henry Winestine

for support.

Sworn to before me this

o

24th day of October, 1980

Raw we kc. Walls. L.

MYRA kK. WALLACH

WOTARY PUBLIC, STATE ha fh ‘

No. 41.9512 oe

Qualified in Ou eens Ceunty

Term Expwes March 30, 1g

CERTIFICATE OF SERVICE

Henry Winestine, a member of the bar of the

Supreme Court of the United States, certifies that on

October 24, 1980, a copy of the annexed Application to

Proceed in Forma Pauperis was served by mail on Hon.

Mario. Merola, District Attorney, Bronx County, at

215 East 16lst Street, Bronx, New York 10451.

Dated: New York, New York

October 24, 1980

\ oe ee

Henry Winestine

Nv °". RECEIVED af

OCT 27 1980

No. 80-543 OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

1980 TERM

STATE OF NEW YORK,

Petitioner,

v.

ARCHIE WILLIAM HOWARD,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

NEW YORK COURT OF APPEALS

BRIEF FOR RESPONDENT IN OPPOSITION

HENRY WINESTINE

WILLIAM E. HELLERSTEIN

The Legal Aid Society

15 Park Row - 18th Floor

New York, New York 10038

[212] 577-3420

Attorneys for Respondent

TABLE OF CONTENTS

a CED a ge eek ek eee Aa bob a ele

poeneeene OC SRO COOH. ke we tees °

Reasons for Denying the Writ ......... eset

Conclusion . . . . . . 7 ° . . a . . - o - . . .

TABLE OF AUTHORITIES

Cases

Fletcher v. Wainwright, 399 F.2d 62 (Sth Cir. 1968) .

Herb v. Pitcairn, 324 U.S. 117 (1945) ..... a me

Massachusetts v. Painten, 368 F.2d 142 (lst Cir. 1966)

cert. dism. as improvidently granted, 389 U.S.

er NE Wc a is, a) ae ele ee reps 2

People v. Baldwin, 25 N.Y¥.2d 66 (1969) ..... 8

People v. Elwell, 50 N.Y.2da 231 (er -6, 2960)... « x

People v. Hobson, 39 N.Y.2d 479 (1976) .......

People v. Isaacson, 44 N.Y.2d 511 (1978) ......

Reid v. Georgia, U.S. , 48 U.S.L.W. 3847

ee ey I gg ts a a a elite ee eo

pee, We Ge, 293 Vis. 2 CAOGOE «wt tt kkk

United States v. Johnston, 268 U.S. 220 (1925) a a

Zacchini v. Scripps-Howard Broadcasting Co.,

wae. Wee Ee: ENTER ooo We 8 ee ee ew wo

Constitutions and Rules

New York Constitution, Art. 1, §12 .....e.se- ‘

United States Constitution, Fourth Amendment ...

Rules of the Supreme Court

eG aw ace olh Se ee ig, aha ata eas Veen

BN, Sa 6 ee ee we a ce ete es at erate

Other Authorities

85 Federal Rules Decisions 435, Advance Sheet No. 2

(May 1980) . . - - . . . . .

12 Moore's Federal Practice .....

ae eee oes ee ep cenneee ne eee te ee

New York Law Journal, April 15, 1980 .......e.-.

28 United States Code Annotated, vol. containing Rules

of the Supreme Court, pocket part distributed

See: eee Fw ce ee RD eo ee. a Soca bere © Xs

63 United States Supreme Court Reports, Lawyers

Edition, 2d Series, Advance Sheet No. 4 (May 1L5,

Ree, ‘6.0 ei- 6 Oe Oo ee 6 8 BSS ee ce Be ee

48 United States Law Week 4339 (April 15, 1980) ...

No. 80-543

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

STATE OF NEW YORK,

Petetioner,

Vv.

ARCHIE WILLIAM HOWARD,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

NEW YORK COURT OF APPEALS

BRIEF FOR RESPONDENT IN OPPOSITION

QUESTIONS PRESENTED

1. Should the petition, filed four weeks

out of time, be considered by the Court?

2. Is review by this Court barred where

the decision of the state court is based

upon adequate and independent state grounds?

3. May a police officer lacking reasonable

suspicion that a crime has been commited,

seize a citizen who has walked away from an

inquiry and then flees when the officer at-

tempts to physically stop him?

4. Should this Court review a factual de-

termination by a state court that a suspect

did not intend to abandon property, and if

review is warranted is the state's conclusion

correct as a matter of fact or on:+the alterna-

tive ground that there can be no abandonment

when property is discarded during an illegal

seizure?

STATEMENT OF THE CASE

Respondent adopts petitioner's statement of the case,

but adds one additional fact:

Officer Brosnan testified that as he emerged from his

police car after respondent had already walked away from

the first inquiry, he intended to stop Howard, using physical

force if necessary.

REASONS FOR DENYING THE WRIT

A. The petition is untimely

The judgment of the New York Court of Appeals was

entered July 3, 1980. The petition for certiorari was due,

under new Rule 20.1, on September 2, 1980. The petition

was not filed until October l, 1980, four weeks out of time.

Petitioner, without secking an extension of time pursuant to

Rule 29, asserts unawareness of the new Rules and asks the

Court to accept the petition.

Rule 20.1 provides that an extension of time for filing

a petition for certiorari shall be granted "for good cause."

Not only has petitioner failed to make proper application

for an extension (presumably because:such an application

must be made within the period sought to be extended) but

has failed to show good cause.

Lack of awareness of the new Rules is not an excuse.

They were adopted April 14, 1980, with widespread publicity.

They were promptly published in at least the following widely-

read sources:

48 United States Law Week 4339 (April 15,

1980)

63 Lawyers Edition 2d Series, Advance Sheet

No. 4 (May 15, 1980)

85 Federal Rules Decisions 435, Advance

Sheet No. 2 (May 1980)

28 United States Code Annotated, volume

containing Rules of the Supreme Court,

pocket part distributed April 1980

12 Moore's Federal Practice

The New York Law Journal* of April 15, 1980, contained a

front-page article concerning the new Rules. It expressly

referred to the shortened time in which a petition may be

filed to review a state court criminal case.

It is perhaps reasonable to excuse late filing by a

pro se criminal defendant or a practitioner without ready

access to an adequate library. It is another thing al-

together for the Appeals Bureau of one of the nation's major

prosecutor's offices to seek to avoid time restraints be-

cause of ignorance.

Petitioner urges that the untimely petition be con-

sidered because of the "seriousness of the issues" (petition

at 2) and the "burdensome" and "dangerous" effect of the

decision on law enforcement (petition at ll, 12-13). Re-

spondent disputes those characterizations, but if they prove

to be well-founded, other appropriate cases will certainly

arise in which this Court can consider the issues.

B. The decision of the New York Court of Appeals rests on

adequate state grounds.

It is clear that the New York Court of Appeals assumed

that the search and seizure clause of Article 1, Section 12

of the New York Constitution and the Fourth Amendment to the

United States Constitution are congruent as far as this

case is concerned. Repeated references are made to both.

But it is apparent from the multitude of New York cases re-

lied upon and the numerous citations to the state constitution:

that state law as well as federal is being expounded, and

that the court's decision was based as much on the state

constitution as the federal. New York is free to adopt

stricter constitutional standards than those contained in the

* The New York Law Journal is a daily newspaper which is the

official publisher of calendars and decisions of the state

and federal courts in New York City.

United States Constitution and has expressly done so in the

past. E.g., People v. Elwell, 50 N.Y¥.2d 231, 235 (May 6,

1980); People v. Isaacson, 44 N.Y.2d 511, 519-520 (1978);

People v. Hobson, 39 N.Y¥.2d 479, 483-484 (1976). Moreover,

the New York court also grounded its decision on the state's

"stop and frisk" statute, New York Criminal Procedure Law

§140.50, (appendix to the petition 4a-5a), which does not

implicate “the United States Constitution in any respect in

the context of this case.

This Court "will not review judgments of state courts

that rest on adequate and independent state grounds." Herb

v. Pitcairn, 324 U.S. 117, 125 (1945). And where a state

court decision is based "on both state and federal grounds,

either of which would have been dispositive," review is

Similarly barred. Zacchini v. Scripps-Howard Broadcasting

Co. 433 U.S. 562, 568 (1977).

C. No issues in this case merit review

Respondent's flight

The petition misstates the issue decided by the New

York court as dealing with a suspect who flees after an

attempt by the police "to lawfully stop" him (petition at 9)

and "flight by suspects from the exercise of reasoned

authority" (petition at 11). Those statements beg the question

by assuming that a stop was proper in the circumstances. The

real issue was whether the initial attempt to stop was lawful.

Petitioner fails to consider the. facts leading to res-

pondent's flight: the officers, having no information which

justified more than a mere inquiry, sought to question res-

pondent, but he “look[ed] directly at the officers, ...

ignored them and continued walking" (as stated by the New

York Court of Appeals, appendix to the petition 3a). It was

only after respondent walked away that the officers repeated

their request as one of them emerged from the police car

to stop him, precipitating respondent's flight.*

Petitioner does not argue that the officers, prior to

the flight, possessed the reasonable suspicion which would

have justified physically stopping Howard. Such a stop would

have been a “seizure”, defined by the majority in Terry v.

Ohio, 392 U.S. 1, 16 (1968), as well as the concurrences,

392 U.S. at 32-33, 34, as interference with a citizen's

"freedom to walk away." Having exercised his right to walk

away, Howard's flight when the officer's persisted was

certainly an appropriate response.

This view is supported by Reid v. Georgia, U.S. P

48 U.S.L.W. 3847 (June 30, 1980), in which a Georgia court's

judgment was reversed in a strikingly similar case. The

per curiam opinion recites the alternative holding of the

state court that probable cause to snarch existed after the

defendant, stopped by officers, discarded his shoulder bag

and fled, but the Court vacated the conviction without dis-

cussion of the suspect's flight.

Beyond the issue of the correctness of New York court's

decision is the question whether this case warrants review.

Contrary to petitioner's concern about the effect of the

decision below on law enforcement, it will have few reper-

cussions. As the New York court observed, "There are

surprisingly few cases" dealing with cititzen's refusal to

respond to police inquiry (appendix to petition 8a), and

there is no reason to believe that a significant number of

* Although not mentioned in the opinion of the Court of Appeals

Officer Brosnan testified at the hearing that his intent was

to physically stop and question respondent. The fact of

Howard's flight indicates that he was aware of the officer's

intention. Whether this perception was based on street wisdom

or a non-verbal communication from the officer is of no im-

portance. An attempt to seize respondent occurred when Brosnan

emerged from the car, before Howard took flight.

new cases will emerge. The impact of the case will be

minimal, and hardly warrants review by this Court.

The abandonment issue

The court below found that under the circumstances

established at the suppression hearing, respondent did not

intend to abandon the case he was carrying. Although the

court characterized the matter as "essentially a question

of constitutional law" (appendix to petition lla), it was

determined as a factual issue. It therefore presents no

question appropriate for certiorari. United States v. Johnston,

268 U.S. 220, 227 (1925). In deciding as it did, the New

York court did not reach the alternative ground which had

been argued and which respondent believes to be compelling:

that where property is discarded in the course of an illegal

detention, as a matter of law there can be no abandonment.

Fletcher v. Wainwright, 399 F.2d 62, 64 (5th Cir. 1968);

Massachusetts v. Painten, 368 F.2d 142, 144 (lst Cir. 1966),

cert. dism. as improvidently granted, 389 U.S.560 (1968);

People v. Baldwin, 25 N.Y.2d 66, 70 (1969).

CONCLUSION

THE PETITION FOR CERTIORARI SHOULD

BE DENIED.

Respectfully submitted,

HENRY WINESTINE

WILLIAM E. HELLERSTEIN

Attorneys for Respondent