Appendix — Carafas v. LaVallee

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oe APPENDIX

‘JOUN F. BAW, CLERK

|__Nov 17 1967

October Term, 1967. —

of&

ce np No. 71

JAMES P. CARAFAS, PETITIONER,

vs.

J. EVIN LaVALLEE, WARDEN.

_ ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

| APPEALS FOR THE SECOND CIRCUIT

; st

== = = —

PETITION FOR CERTIORARI FILED MARCH 20, 1967

CERTIORARI GRANTED OCTOBER 16, 1967

Tas Ruportss OompPany, Inc., New York, N. ¥. 10007—212 RE 2-6978—1967

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Index to Appendix.

| Original Record on Appeal

Docket — A.

‘Dott Entry B. | ea!

Petition for a Writ “ Habeas Corpus ie

Petition and Affidavit for Leave to File and Pro- . me

_ m Forma Pauperis , a eG

Attached Papers to Original a ET A25

Memorandum Sedheiod, Foley, D. J., July 22, — ~~ A30

Notice of Appeal, August 15, 1963 nes A383

oe for Certificate of Probable Cause ........ A35

Memorandum-Decision and Order” Fe a ve ae

—

Application for Bail to- Be Set, Stay of State Pro-

' ceedings, and Admission to Bail Pending

PII ricesnnintincengs seroreenneenen peenneconnee A37

Memorandum-Decision vu Order : - : A41 .

‘Clerk’s Certificate oe | sovtnneenncenne i A42 |

Covering Letter ie: \Jndex Orininal Record ............ A4B

Opinion of the Second Circuit Ordering a Hearing A44 .

ii.

Page

Second Opinion of -Judge Foley *. A49

} ‘Notice. of -Appeal to ourt of Appeals ... ki AST:

oS ae

cs! for Leave to Appeal in Forma Pauperis .. A59

| Affidavit of Appeal in Forma Pauperis nnvontneoransenvs A60.

Affidavit i in Opposition to Apolioktion for tiesive to

Appeal in Forma Pauperis and. ‘Cross-Mo-

_tion to Dismiss ae ceili ddiclacocbiiaseebiesitankien A65

Reply Aff avit of James P. SIN csc ~" A69

Appendix Opinion of Cireuit Zz of Appee AT4

~ "fal

Motion for Rergument of Leave to Appeal in

Forma Pauperis bic cabelas tieulabek . AD

NE. j Affidavit of James J. Cally, Read i in Semaesiit of

- Motion for Re- argument pais blaine nner - AT6

Decision, February 3, 1967 pr ae pears AT77

™‘

ibaa han can NU

ae 7 oe

vo | ; >

} _ Transcript of Testimony A78

* (TESTIMONY. ;

WITNESSES FOR PETITIONER 5

-Carafas, Catherine Mary:

Direct peslshcedd seiioaaskckbaials \. : A89

Carafas, James P.: - S , *

ci a! : A83

Cross \ | A84

A IN heise titenincennicissccans A87

Recalled: = °. :

Direct SEEN. A119

hig. wR F eilbaecieads A120

WITNESSES “FOR RESPONDENT oe

Grim, Edward: : y oe

: | GRR Seniaets KONA | Seemann A101

6 CROSS nena Fae gael A106

Kapler, John J.:

Direct -A91 ©

Cross... *- A94

yRe-direct -: ‘ A100-

+48 ae

eae |

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iv. euah y

is ° . Page -

| Excerpts From the Testimony of Some of the Wit. :

"nesses at the Trial, County Court, Nassau | |

County, State of: New .York, With: Their oe

Identity and Function ..., A124.

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_ Wrryesses ror PEopLe: _ : .

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Grim, Edward: | acs a ;

3 =e NR aasshiecensltccoseacicenr Sede ia : A141 s

’ Haniquet, Charles Bernard: a

“- Direet: .. sicincanhanins hisnnseichioguenliald A125°>—

Kapler, John J.: ;

: DEP OE, 25 -ae0- _ ; At65

ate Re- direct elites valli splat bapulatieliaaaiigktneaiiina A183.

Ww sick William: a -

Direet al easeonegenncensetaifionnednne wessenssseneesneeretevestensense ive A131

“Wrrnesses rof, DEFENDANTS:

aching: Catherine M.: ;

) he *... A159

Carafas, James: Cirasenh. ¥ , ss ites

‘Direct .......... i itlienbepeteeicaine A155 *.

“ Recalled: tae see 2

MI sci Sseceserainntet A189 ,

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bs Carafas, James P.:

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Transcript of Suppression Hearing | tail ao

Ci ewin o Witnesses @0g DEFENDANTS: | |

Carafas, Catherine M.: ~ alg

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Cross. ...: bite

- Direct. ... i

Cross 93. d i nne

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Shapiro, Dr. David:

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tae? ‘Wiryesses For Propi#:

Grim; Edward:

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Kapler, John J... -

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| —_ |

Unitep Starss OF AMERICA ex rel. Sanems P. Cararas,

| Relator-Petitioner,

vs.

Hon. Rosenr E. Munpny, Wandin, Auburn State Prison,

—_— N. . ee

‘Reapondent.

J AMES P. Cararas,

Relator Petitioner, pro:se.

Original Record on Appeal.

. Docket Entry A.

Title of case: |

—~>

Dame STATES OF r AMERICA ex rel. JAMEs P. CaRAFAS,

| Relator-Petitioner,

* against.

Hon. Rosert E: Murpxry, Warden, Auburn State =

Auburn, New York,

enntdink

Basis of action: 7

' Petition for Writof Habeas Corpus.

-s -

Docket Entry B.

Civil 9657 United States of America ex rel. James P.

Carafas vs. Hon. Robert E. Murphy, Warden of Auburn:

State Prison, Auburn, New York. ; |

Aug.

- Aug.

Aug.

Sept.

Filings-Proceedings.

Filed Petition for Writ of Habeas ‘Corpus with

papers attached.

‘ Filed Memorandum-Decision and Order—Foley,

D. J. denying application for Writ of Habeas

Corpus without: prejudice.- ‘The papers shall

be filed without the pre-payment of fee, and.

‘it is So -Ordered—James T. Foley, U. S.

D. J. ° . 2

Filed Application for Certificate of Probable

Cause

Filed Memorandum-Decision and Order—Foley,

D. J. dated August 12, 1963 granting permis-

sion to file Certificate of Probable Cause and |

same to be forwarded to the Clerk So Or-

dered—Hon. James T. Foley °

Filed Notice of —— and Affidavit of Serv-

ice.

Filed Application for bail pending appeal

Filed Ayplicaton for bil ending appeal 2

J.—dated Sept. 4th, 1963—denying applica- ° —

tion for bail pending appeal—So Ordered—

Hon. J ames T. Foley

eee ne ee ee meee

‘Petition for a Writ of Habeas Corpus..

UNITED STATES DISTRICT COURT,

NorTHern District or New York.

. Unrrep Stares or America ex rel. James P. Cararas,

| Relator-Petitioner,

~ against -

Hon. Rosert E. Murpay, Warden, Auburn State Prison,

; ev £ _ —~—Respondent. —

Civil No. 9657

(Habeas Corpus):

—_

To: Hon James T. Foley, J udge,

_U.S. District Court,

"Neston District of New York,

Federal ce Utica, New York.

James P. Cararas, Relator-Petitioner aforesaid, ad-

- dresses this Honorable Court for issuance of a Writ of

Habeas Corpus ad subjiciendum, pursuant to 28 U. S. C.

2241 et seq. (United States ex rel. Lynch v. Fay, D. C.

N. Y. 1960, 184 F. Supp. 277 et seq.) on the grounds that:

he is in custody contrary to the Constitution, specifically

in violation of the Fourth and Fourteenth Amendments,

whereby he is held under color of Judgment of Convic-..

tion from a New York State court, and which judgment

Petition for a Writ of Habeas Corpus

is unconstitutional, more specifically and in detail estab-

‘lished in the annexed affidavit as a Memorandum of Law:

Dated: June 20, 1964 | :

Respectfully submitted, iy.

m -\ s/ JAMES P. CARAFAS

-Relator-Petitioner, pro se.

James P. Cararas

No. 56228.

135 State Street

‘et : a ~ Auburn, New York. &

‘Stateof New York, - en

County of Cayuga _8S:,

City of Auburn, :

I, JAMES P. Cararas, Relator-Petitioner in the attached

Petition For A Writ of Habeas Corpus, having been duly

sworn; attests that I have this date tendered to the proper

official at Auburn State Prison, a true and correct copy

of the said Petition, together with appendices thereto,

for service by United States. Mail,- postage paid, to the.

below named, as counsel for the Respondent-Warden.

Attorney General of the — of New York,

Department of Law, _

Albany 1, New York.

Dated : June 20, 1964-

s/ JAMES i: ‘CARAFAS

\ Affiant

Sworn to before me this | :

20 day of June, 1963. . .

~ s/ Mrxarp B. Lanp

Notary Public.

Petition and Affidavit for Leave to File and Proceed in

Forma Pauperis.

_ UNITED STATES DISTRICT COURT,

-NorTHERN Disrricr OF New Yorx.

tiasei Tire. ]

a State of New York,

County of Cayuga, ss:

City of Auburn, ,

I, Ja Ames P. Sientinn: Relator-Petitioner in the semanced

Petition for a. Writ of Habeas Corpus, beg leave to file

and proceed in Forma Pauperis, pursuant to 28 U. S. €.

-1915 (a), and, having been duly sworn, attest:

First: I am a citizen of. the United States;

‘Second: That I am dn indigent person, unable to pay

costs of instant action, nor give security therefore;

‘Third: That this action is not frivolous, i is taken in good

| faith, raises collateral issues alleging constitutional viola- -

tions, and is within the jurisdiction of this Court;

Fourth: That I believe —— entitled to the -relief

‘sought herein. ,

~ g/ JAMES P. CARAFAS

~~ Petitioner -

Sworn to before me this

20 day of June, 1963.

s/ Mruarp B. Lanp

Notary Public.

So i A

AT.

—

Petition and Affidavit for Leave-to File and Proceed

aia Affidavit. .

\ state of New York,

- County of Cayuga, ss:

City of Auburn,

M emorandum of Law. |

James P. Cararas, relator-petitioner in the foregoing

petition for a writ of Habeas corpus, having been duly ©

sworn, deposes and says:

First: t the jurisdiction of this Court is 3 invoked :

under 28 U. S. C. 2241 et seq., in that:

(a) He is in custody in violation of the Constitutiori,

being confirfed and held by Respondent under color of a

judgment of conviction and sentence entered in a Nassau

County ‘Court, New York, on October 22, 1960, follow-

ing a trial by jury on charges alleging Burglary, Third

Degree, and Grand Larceny, Second Degree, sentence -

_ being imposed thereon of from three (3) to five (5) years,

the said proceedings and judgment being had on a' denial

_ of due process of law (4th and 14th Amends.) ;‘and

(b) The issue preserved. and raised by objectjons duly

entered on the trial. was: concerned with the introduction

~ of evidence before ‘the jury to convict-which stemmed from

and directly obtained as @ result of the fruits of an un-

“reasonable and unconstitutional trespass and search and

‘ seizure from his dwelling =e (Mapp v. Ohio, 367 U. S.

643 ; 4th Amend., U. S. C...A.); and

peal in forma pauperis granted by ‘Appellate Division,

Second Department on April 3, 1961; with appointment of -

counsel; the constitutional issue was raised on the ap-

peal, same being argued i in October. 1961 term; Appellate

vision affirmed, no opinion, November 6, 1961, order en-

; tered coal 1, 1961; permission ‘was granted t - appeal

indicia isis als ce alates Riise: ee

‘

4 .

_ Petition and Affidavit. for Leave to File and Proceed ‘

- to the New’ York Court of Appeals on the constitutional ~

issue, the Court of Appeals affirming the court,below on |

April $0, 1962;-motion for reargument denied by New.

- York Court of Appeals on October 5, 1962; motion to

amend the remittitur granted and, remittitur amended

to show a federal constitutional question raised (4th and

14th Amends.) necessarily passed on and denied; and

(d) Timely petition to the United States Supreme Court

for certiorari filed, with petition for leave to proceed in-«

forma pauperis; doecketed as No. 846 Misc., October term

1962; certiorari denied on March 18, 1963. 4

Second: That the violation of his constitutional rights

persists, in that there was introduced on the trial as the

prime evidence to convict, over objections by defense

counsel, about 25 photos as being “taken of the alleged

proceeds of the burglary, i. e., furniture and household

goods, in various -settings, ‘whic same were the directly |

obtained fruits of an. unreasonable, unconstitutional, gen-

eral and exploratory search of his private dwelling. with-

out either arrest or search warrants, following an unlaw-

ful trespass by state officers: and. absent probable cause.

Third: That on the date the Supreme Court, in Mapp

v. Ohio, supra, mandated the exclusionary rule (Weeks v.

United States, 232 U. S. 383) on.the States as to non-ad-

missibility of evidence obtained.in violation of the 4th

Amendment, -which date was June 19, 1961, relator was

in an appellate status with the constitutional issue’ para-

mount and thus comes under the protective mantle of the

Mapp, h@ding (People: v. Loria, 10 N. Y. 2d 368, 179_N.

E. 2d 478; United States v. Massey,.291 U. S. 608; United

States v. Schooner. Peggy, 5 U.S. 103).

Fourth: That the writ of habeas corpus should issue, a

full evidentiary hearing should be held to- inquire into the

allegations herein raised (Townsend v. Sain, 372 U.S. 293,

1963; Fay v. Noia, 372 U. S. 391, 1963), the writ should be

sustained and: relator ordered released from custody, on

- the law and the facts i in the instant.

Petition and Affidavit for Leave to File and Proceed

ss . Law and Pacts. ; a I

a Since no opinions were handedsdown by either the —

State Appellate Division or the New York Court of Ap-

peals, both instanées affirming judgment of the court be-

low, and certiorari was denied by the U. S. Supreme

Court, it will be-assumed that this was due to (a) the state

procedural ground of failing to make pre-trial motions to

suppress the unconstitutionally seized ‘evidence, or. demur

to the indictment or (b) the record before the respective

courts was incomplete as to collateral details of. the

trespass and subsequent search and seizure. Either of

these two might have been reason for.the affirmation of

_ what the facts will clearly show was a judgment of con-

_viction absent fundamental due ‘process. | ae

If, since rel&tor meticulously preserved and. made the .

sole issue of appeal the federal’ constitutional question,

the reason why New York. Courts of Appellate review

affirmed was the state ground of failure to object, demur,

or move to suppress pre-trial, then. the question is juris-—

dictionally and properly before ‘this Court (Fay.v: Noia;

372 U. S. 391): This same ground would preclude cer-

tiorari by. the Supreme Court (Fay v. Noia, supra).

' (Relator is proceeding in petition as an indigent person .

and would respectfully request that this Court obtain the

state records under authority of 28 U. S.C. 1651.)

_ The record of the trial will clearly: show .relator’s ob-

jéctions to the introduction of the tainted evidence, in this

_ instance some 25 photographs of the unconstitutionally

seized evidence. ‘These exhibits, and the testimony of state

officers as to how they were obtained, constituted the ma- a

‘jority evidence to convict. Th omy other evidence: pre-

.- sented of consequence was the testimony of state officers

as to some oral admissions allegedly made by relator

and his wife (co-defendant) to the officers following. the

‘illegal seatch and seizure stemming from it and obtained

following severe brutal treatment by the officers: These

physically coerced oral admissions would not have, of

“ee

> sina ran yee

~ Al0

Petition and Affidavit for Leave to File and Proceed pS

themselves, sufficed to convict and are’ not before this

Court as an iasue, referred to merely as background of

fact. -

‘Prior to Mapp v. Ohio; 367- U. S. 643 (June 19, 1961),

New York adhered to the common law principle of ad-

missability of illegally obtained evidence (People v. De-

Fore, 242 N. Y. 13, 150 N. E. 585 é¢ seq.).. Following

Mapp, the New York. Court of Appeals ruled that in all

eases tried before Mapp but in a state of appeal on

June 19, 1961, the Supreme Court’s mandate would be

applied - (People v. Loria, 10 N. Y. 2d 368, 179 N. E. 2d

478 et seq.); However, judging from opinions in that

‘Court where some cases were affirmed, others reversed °

on the Mapp ruling, it appears that unless the: defendant

‘at his pre-Mapp trial made the objections on constitu-

tional grounds, the procedural default. served as a bar

to relief on the federal question. See People v. Friola,

11 N. Y. 2d 157; People v. Muller, 11 N. Y. 2d 154. But |

' see People v: O’Neill, 182 N. E. 2d 95, where,‘ as in re-

lator’s case, objection to the trespass and search was

- made at the time (see details hereinafter described) and

objection made on the trial to the admission of the evi-

dence; O’Neill was reversed. |

Where, as here, there were changes in laws, procedures,

or rules of. evidence, . effective after trial but while a de-

fendant is in an appellate status and thus before final

judgment, relator submits as still controlling the view of

Chief Justice Marshall as es for the Court (in

1801) :

“It is in the general true that the ‘province of an

appellate court.is only to inquire whether a judg-

__\, ment when rendered was erroneous or not. But if -

subsequent to the judgment and before the decision

of. the appellate court, a law intervenes and posi-.

tively changes the rule which governs, the law must

be obeyed, or its obligation denied. If the law be

constitutional, and of that no doubt in the present

Ail

° 0

‘Petition and Affidavit for Leave to File and Proceed

_ ¢ase-has been expressed, I know of no court which

can contest’ its obligation.”” © °° *-

. United States v. Schooner Exchange, 1 Cranch,

at 110; quoted in Robinson v. Robins Dry Dock & .

_ Repair Co.,.238 N. Y. 271, 281 (1924). .

It will be seen without question that the mandate of

Mapp on June 19, 1961, while relator was still before the

Appellate Division, was applicable in the instance. There-

— fore, since the federal question, i. e., the flagrant viola-.

tion of the 4th Amendment and use of evidence so ob-

tained: on the trial, has not been resolved in the State

courts, under the rules in Townsend v. Sain, supra, ‘and

the rationale of Fay v. Noia, supra, this Court’s jurisdic-

tion is properly invoked. e :

If, then, the. affirmation by the New York ‘Appellate

- eourts, and denial of certiorari by the Supreme Court, is .

for. the reason that the record of proceedings falls short

of furnishing factual details of the alleged unconstitutional

search and seizure, the need for a full and collateral evi-

- dentiary hearing in this Court is well apparent.

The events leading up to the illegal search and seizure -

of relator’s private dwelling are here briefly enumerated.

_ Some of the facts were admitted in testimony on the trial

by the county detectives, others were not fully developed,

and some remain in a highly controverted state. Where ;

testimony elicits subject facts mentioned, the page num-

bers of the transcript on appeal are shown. Pe

‘Nassau County detectives Grim and Kapler were en-—

gaged in the investigation of the larceny of séveral pieces

of furniture and household goods reported as “missing”

_ from a model home (vacant) in a real estate development

at Oceanside, Long Island. This. complaint by the owner

or the agent of the model home -was Tegistered in ‘the

morning of une 3, 1959. At this: time, there was no

mention of burglary (a felony), nor was there any value

established on.the missing furniture (pp. 69 et seq.).

' Detectives Grim and’ Kapler, engaged in following up |

the complaint of missing pieces of furniture (2 chests of .

A12

Petition and Affidavit for Leave to File and Proceed

drawers and several smaller items), learned from a resi- -

- dent of Oceanside, living nearby the model house, that

a gray Cadillac with an orange-cdlored trailer ‘attached -

had been stuck in the sand in the vicinity of the model -

‘home in the early morning. of. June 3, 1959. ‘This party °

told the detectives that a tow car had pulled the Cadillac.

and trailer out. The officers then learried the license -

. number of the automoblie, registered to relator (See pp.

117-124).

At about 1:00 p.-in. or shortly thereafter on June 3rd,

the detectives went to relator’s address, a two-story dwell- * |

ing at 35-53 30th Street, Astoria, in Queens County.

‘ . Nearby, -not exactly‘in front of the house, the gray colored

Cadillac and the orange colored: trailer were parked. The

lower floor of the dwelling was at the time rented from:

‘relator by a Doctor Shapiro as an outpatient office. Just

inside the street entrance door is a‘small vestibule, leading

also to a hall way. The doctor’s waiting room entrance

is to the left upon entering the vestibule and to the right

is a doorway,:just -beyond which is the stairway leading

to the second floor which was occupied by the owners of

' the dwelling who were, at-that time, relator and his wife.

Outside the street entrance were two bells with name-

plates, showing Doctor Shapiro and relator—Carafas—

neither of ‘which were known to the detectives. The of-

ficers did; however, have the name “Carafas” as registered

owner of the gray Cadillac—and the proper.. address.

Alongside the doorway to the stairs leading to the

second floor were also two mailboxes and bell push-buttons,

clearly labeled with the respective names. The vestibule -

was -well lighted and the push-buttons in plain sight.

According to the officers testimony (129-134) the bells

were noticed, showing which was upper and lower apart-

ments, with the names, but the detectives rang only the

doctor’s bell. The officer, so he said, asked whom he de-

scribed as the doctor’s nurse, where relator lived and if

; she knew whether relator was at home. Peculiarly enough,

| sadam nS

Ai3

Petition and Affidavit for Leave to File and Proceed

the fact is that Doctor Shapiro had no nurse, nor re-

ceptionist at the time. S 4 |

Then, without ringing relator’s doorbell, admittedly seen —

at the side of the door beyond which led:to the stairway,

the detectives started up the staits, Detective Grim lead-

ing, Kapler following. .Detective Grim said that when he’

was half-way up the stairs he could see on the landing at

the top a chest of drawers he “recognized” as. being one

of the pieces of furniture missing from. the Oceanside

‘ home (116), and that he then -calle® out relator’s name

loudly. Grim said relator came onto the landing from the ~

open door of his apartment, to the head of the stairs

(131). , | i We

Grim said he identified himself, asked relator if the

piece of furniture on the landing was his ( relator’s) and

upon receiying an affirmative reply, told relator that he

was under arrest. Both officersgthen backed relator into

the living room of his sesidteadat ia commenced a general

search of the premises. It was admitted that relator and

his wife protested (135), repeatedly asked if officers had

Warrants, and that Mrs. Carafas shouted out the window

for help. (137); both officers admitted she made physical . .

' efforts to put them out of the apartment and they hand-

cuffed her to a door. . ,

To the above, relator and his wife telt-a different ver-

sion—attested here to be the truth. Relator said that in

view of the hot weather the upper apartment door was

open and likewise the lower doors, from the stairway and

_. from the street, were open. He was napping on the living

room couch, while his wife was in the next room scrubbing

the floor. He was awakened by the ‘officers who were

standing over him. They identified themselves and asked

if the piece’ of furniture outside the living-rogm door, on

the stair landing, was his. When he told them “yes” they

_ then said he was under arerst (pp. 169-171). They then

“proceeded on the general search of the apartment, but

first had to manhandle, subdue and handcuff his wife be-

cause she, as well as himself, protested vigorously the

ery een an re

A114

Petition and Affidavit for Leave to File and Proceed

flagrant and unlawful invasion of their constitutionally.

guaranteed privacy. She testified to essentially the same

facts (295-298). Mrs. Carafas also said, as did relator,

that when she first asked the officers for their warrant,

Kapler slapped her across the mouth and told her. “this

is ‘my warrant.” Kapler denied this (334-337) as did

Grim (135-136) but both admitted she asked repeatedly

for a warant ‘and also that she had to be subdued and

handcuffed to a door. There was ‘certainly -no consent. .

Relator submits that at the time the state officers com-.

mitted unlawful trespass ‘which. developed into a. flagrant

* invasion of privacy, a general and exploratory search con-

_Stitutionally unréasonable, and the subsequent seizure,

they had nothing beyond .a bare suspicion. Atghe time, |

several hours. after a complaint of “missing furniture”,

with no evidence then as to felonious entry of ‘the model

honie, or burglary; they were engaged in running down a -

~ clue. This was because of the word of an unknown person

living near the ‘model home that a gray Cadillac with |

orange trailer was stuck in the vicinity early on that morn- é

ing. The tow truck driver furnished the license number.

But no one had placed relator and his wife at or near the

model home—nor was the corpus delicti of a felony,

burglary, of knowledge to the officers. Not even the value

of the missing furniture was at the time of record, thus

differentiating the question of larceny as to being a mis- |

demeanor or felony.

Grim’s testimony (bottom p. 115) shows search began

before the actual arrest; that the intent of both officers

at the time of trespass was a search (p. 116) (also middle™

‘ of p. 121); and further proof of arrest. being an incident

of the search, not vice versa (p. 131) (also. p. 133} and

- ptoof of a general search, no warrants needed and viola-

tion of civil rights (at 135-137). Also, although officer

Grim claimed to have “recognized” the chest of drawers

on the lading after both officers. had trespassed and were

half-way up the stairs, as having come from the Oceanside _

model home—as his excuse to claim a legal arrest—it is

. AW

Petition and Affidavit for Leave to File and Proceed -

significant that within a few. ‘minutes afterwards and be-

fore removing the “e

vidence”, the officers called Mr.

Wedgewood (real estate agent from Oceanside) to identify 7

'. with certainty the various other items also in the apart-

ment as well as the chest of drawers (117-120)...

_ For the record, at this point the Court is advised that

‘the tenancy of Dr. Shapiro, by lease, covered only the first

floor quarters he wa’ using as an office, waiting room, etc.,

with common law easement for entry and egress through

the vestibule or lobby.

Starting at the doorway off the

vestibule immediately beyond which the stairs commenced,

and upwards and including the entire second floor, was

all the private domicile

—relator and his wife. .

hearing hereinafter pr

of the dwelling owners at the time

To. be presented on the evidentiary

ayed for in the instant, will be

properly executed blueprints for the Court’s edification.

Following the unlawful trespass, illegal arrest, and sub-

_ Sequent search, the officers called the 114th Police Precinct

for help in removing all the evidence. Nassau County

Detective Sarant said that, following relator’s arrest he

and other officers took the Cadillac and trailer “plus fur-

niture from .the apartment” to Police Headquarters in

Mineola, Long Island (496). Police Sgt. Wendt said that

there had been sometime earlier

. .&@ burglary and larceny of some furniture reported as from

truck, was, however, introduced Over defense objections

on the Oceanside trial (instant case),

Di icaicinsiiinsiecies satan

. .

ncaa antici de palates RR ee ee EC ee tee

. = ~

A 16

_ Petition and Affidavit for Léave to File and Proceed

| Of significance, is the fact that on the Bethpage indict-

ment (Nassau County, No. 15771) a motion to suppress

this’ same- evidence as illegally seized was granted on

a Nassau County Judge.

_ Aan Paice Oni ly

+ January 11, 1963, following a full evidentiary hearing, by

‘Even assuming that the police officers in “their routine

of following up the clue of the gray Cadillac and orange

trailer, were within their rights to enter the vestibule from

the street without announcing their presence, their right

ended there. They could have knocked or rang the bell

at the street entrance. But going one step beyond the

vestibule—a common law easement for both the doctor and

relator—was ah unlawful trespass.

Grirn and Kapler had neither an arrest warrant nor a

search warrant.. They had never seen nor heard of relator

or his wife before. They had no certain knowledge: at

the moment as to whether a felony had even been com-

a complaint of some “missing furniture” which might. or

might not have been taken in a felonious act. They had

the word of a stranger that he had seen a gray Cadillac

- mitted. They were merely in the process of investigating. .

and orange trailer early on the morning that the furniture -

was later found to be missing, in the vicinity of the model

house. It had been stuck in the sand and a tow car man

called. to pull it out. No one had seen or described as a’

matter of identity either relator or his -wife in the vicinity

of the model house—nor ‘even that they were- the actua!

occupants of the Cadillac at the time.

The detectives did have the license number of the wabiisle

obtained from the tow car man’s records, and had learned.

_ who it was registered to and the address, relator’s name

and address.’ They were completely within their rights — .

* as police officers in following bed the clue and asking ques-

tions on the matter.

They were completely lacking sufficient facts, evidence .

or information on which to’ obtain a warrant. They had

not the slightest justification, either as‘ police officers or

private: citizens, to commit the unlawful offense of tres-

_ pass on private property.

AT _

Petitiqn and Affidavit for Leave to File and Proceed

Section 2036, New York. Penal Law, provides that a

person who intrudes upon a lot or piece of land, including

any buildings thereon without authority or consent of the

owner to do so, is guilty of a misdemeanor (People v. Law-

son, 38 Misc. 2d 611; People v, Stevens, 109 N. Y. 159).

Detectives Grim and Kapler, officers sworn to uphold the.

law, deliberately and under color of their office, violated.

the law when they took the first step on the stairs leading

to the second floor from the lower entry-way—without

“probable cause”, without ringing the bell before their

eyes, announcing themselves and being invited to enter

relator’s private: property. . xc ae fae

Relator concedes that an arrest without warrant may be

made under certain circumstances. And that the validity

of such an arrest is determined by reference to local law

(United States v. Dire, 332 U. S. 581), to wit, Sections

179, 178, New York Code of Criminal Procedure. Relator

. submits however, that the court in Mapp v. Ohio, supra,

while admitting that the rule in Dire still prevails, never-

theless qualified such as to fall within the same metes and

bounds as arrest without warrant may be justified: for 4

federal officer (18 U. S. C. 3052).. Which means that’an

‘arrest under’ these circumstances (felony) is restricted to

offenses- “committed in their presence” or to instances -

_ Where they have “reasonable grounds to believe that a

_.. person to be arrested has ‘committed or is committing” q

. felony (Henry v. United States, 361 U. S.-98). For, as

— ° the. Mapp court held: “Arrests on- mere suspicion collides _

. Violently with the basic human right of liberty” (See .

Hogan. and Snee, The McNabb-Mallory Rule: Its Rise, -

Rationale and Rescue, 47 Geo. L: Journal i

At the moment the state officers put foot on the stair-

way, committing Statutory ° trespass by invasion of re-

lator’s private quarters, they had even less ‘than “mere

- Suspicion” infact, their own Sworn testimony admits that;

~it also admits that they inquired first from someone in

the doctor’s office as to where “Carafas” lived, were told

¢ “upstairs”, were told he was at home, and saw clearly,

A 18

” 7d en", ae

_ Petition and Affidavit for Leave to File and Proceed.

| before putting foot on the ‘stairway, a doorbell with his

name under it, beside a mailbox with his ngme on it.

The law in the instant holds that no officer may ever

enter premises (without consent) unless probable cause

to arrest exists before such entry. This includes hallways

of apartments, outer doors, yards and the curtilage of

private premises. Thus if entry is made ‘into such halls

or yards merely to observe and thus’ obtain probable

cause, the entry, the arrest, and the incidental search are

unlawful (McDonald v. United States, 335 U. S. 451, 454;

Burks v. United States, 287 F. 2d 117, 124; Mattingly. v.

Comm. of Kentucky, 247 SW 938; People v. Woodward,

Mich., -183- NW~901).

"Briefly stated, police may not enter vekvete premises

and seize contraband, or the instrumentalities or fruits of

a crime without a lawful entry by warrant or probable

cause; this is seizure as. a result of a -trespass falling

squarely within the protective ambit of the 4th Amendment

(Abel v. United States, 362 U. S. 217; Hester v. United -

States, 265 U. S. 58). Grim and Kapler did not have

even the faintest support of “probable cause” when they

made the first step of trespass ; they did not have ground

- for a warrant and they had no warrant.

ASSURE, arguendo, that there had been sgutualite

cause” and for unexplained reasons, in the interest of

expediency, they had no time in which to.obtain a warrant.

‘Mapp v. Ohio, supra, mandates on the States the Federal

Rules governing such matters relating to a search and —

seizure. Title 18, U. S. C. 3109 requires that entry under .

_ lawful means, with warrant, or without but on. probable

- cause,.must be preceded by giving proper notice of author-

ity, reasons: for entry, ete. (Miller v. United States, 357

U..S. 313).

Admittedly, a push bell with relator’ S.name on it was

staring detectives Grim and Kapler in the face before

they stepped onto the stairs and illegally entered relator’s |

private premises. No, the leading officer, Grim, was by -

his own admission at least half-way up the stairs B before

ee. pres

| : A19

Petition and Affidavit for Leave to File and Proceed.

he saw what he claimed to be able: to “recognize” as a

chest of drawers alleged to be missing from the model .

home in Oceanside. Then, for the first time he yelled re-

lator’s name out and when, so Grim testified, relator ap-.

peared on the landing, the policeman identified himself

and his purpose. hers, ware

_ Holding strongly to the constitutional right of privacy,

Mr. Justice Jackson, in a concurring opinion in McDonald

v. United States, 335 VU; S..-451,-setd on page 459:

“Having forced an entry without either a search

warrant or an arrest warrant to justify it, the 7

felonious character of their entry, it seems to me,

followed every step @€ their journey inside the

house and tainted its its with illegality.

"Ch. Weeks v. United States, 232 U. S. 383; Taylor v.

United States, 286 U.S. 1; Johnson v. United States, 333

U.-S. 10 "e 3 corks

a? oe Re uc. shocking proposition that pri-

vate homes, even quarters in a tenement, may be

indiscriminately invaded: at the discretion of any

suspicious police officer engaged in following up

offenses that involve no violence’ or threats of

it * * *” : ; .

_ Although in their testimony, Grim and Kapler made no -

effort to claim that, in following the clue of the gray ,

’ Cadillac,—a routine investigatory practice—they had eYen

the least suspicion that any of the missing furniture was

- In relator’s private residence; had they had such a sus-

picion, or even a sound, belief, this would still have not

justified their unlawful. trespass’ or entry without a war-

tant: Controlling, and.in point under this premise, is the —

Court’s holding in Agnello v. United States, 269 U. S. 20,

33: lies '

“Belief, however well founded, that an article |

- Sought is concealed in a dwelling house furnished

no justification for a search of that place without

’

p aides ;

ices

LOB CEL EE ~ ge Ae

- 20

Petition and Affidavit for Leave to File and Proceed

a warrant.. And such searches are held unlawful

notwithstanding facts unquestionably showing: prob-

able cause.”

Cf. ‘Johnson v. United States, supra; Tropiano v. United

‘States, 334 U. S. 699; McDonald v. United States, supra;

United States v. Jeffers, 342 U. S. 48; Taylor v. United

. States, 286 U. S. 1.

As to any consent, the record itself is clear that both

relator and Mrs. Carafas not only failed to give the

’ slightest: consent, both immediately protesting the officers

illegal trespass and search, withythe wife. actually protest-

ing physically and with such, vehemence that she had to be

subdued and handcuffed to a door.

If, on- the one hand, the officers could contend Gand i on .

the record they made no effort to do.so) that they had

“probable cause” to make an arrest before entering the

premises (i. e., on. the flimsy suspicion’ relative to the

automobile and trailer clue), then . ‘they evaded lawful

process in two ways: :

(a)-The suspects were not fleeing, were not ina moving :

vehicle, .and the type of evidence they would be concerned

with could not be readily destroyed nor further secreted—

the officers could have obtained the necessary: warrant ‘or

warrants (Hobson v. United States, 226 F. 94 890; Work ©

v. United States, 243 F. 2d 660).

(b) With or without warrants, they ‘could have an-

nounced their p ‘presence, their identities and purpose before, ©

stepping across the threshold of relator’s private quarters

thus committing the statutorily proscribed act of unlaw-

ful trespass (Maller v. United States, supra; 18 U. S. C.

3109; Mapp v.°Ohio,- supras Woods v. United States, 240

F. 24 a

The only alternate to the above premise is the plain, |

self evident fact that they invaded private: premises, com-

_mitting unlawful trespass, and once inside the private

premises saw, that is they claimed to “recognize”,.a piece

A 21

Petition and Affidavit for Leave to File and Proceed [rs

. ae

of furniture reported to be “missing” from an- Oceanside ~

model house, and thus made an arrest incidental to un-

lawful entry. ey then proceeded to violate relator’s

- civil rights further by a general and exploratory search.

The evidence thus, obtained by an unreasonable search

_ Was introduced on \the trial contrary to Mapp v. Ohio,

supra (4th Amend.) | Sse,

_ As the court has noted from the facts of record, the

actual pieces of furniture were not,-in themselves, shown =

to the jury.* Instead, some -25 photographs of such, in

various settings, were actually introduced. This -goes of.

"course, to “the fruit of the poisonous tree” doctrine (Sil-

verthorne Lumber Co. v. United States, 251 U. S. 385),

specifically forbidden (United States v: Coplon, C.A.N.Y.

1950, 185 F. 2d 629). a a eae Agee oN

The. exclusionary rule (Mapp v. Ohio, supra,) does not

extend solely to inanimate objects illegally. seized. Also Hace

excluded is evidence.of what the police saw or observed

in the premises. Williams y. Upited States, 263 F. 2a

487; McGinnis v. United States, 227 F. 2a 598; Joyce v.

State, Miss., 87 So. 24 92).. See also McDonald _v. United

States, 233 Fed. 481; People v. Berger, Cal., 282 P. 2d

509 ef. Matter of Silfa v. K ennedy, 5 Mise: 2d 325, aff’d

3 A. D. 2d 818, aff'd 3 'N. Y. 24 734; and further see

People v. Laino, 10 N. Y. 24 ee |

To protect the individual's inalienable right to privacy

in his home, every unjustified intrusion upon that privacy ~~

by police officers miust be deemed a violation of the 4th.

Amendment. Mr. Justice Brennan,. in Miller v. United

State, supra, 357 U.S. at 313, expressed it:

“Every householder, the good and the bad, the

guilty. and the innocent, is entitled to the protection “ 4

designed to secure the common interest against un-

_lawful invasion of the house. The petitioner could

not be lawfully arrested in his home by officers

breaking in without first giving him notice of their

‘ authority and purpose.” - |

" . n wen 7°

» m ftom ; : 2 ,

weit

1 em Rae

“A22

Petition and Affidavit for Leave to File and Proceed

It is true that / detectives Grim and Kapler’ did not

‘break in” relator’s door; they did, however, commit the

unlawful offense of trespass (New York Penal Law 2036)

through an open doorway, without even the merest claim

of suspicion, let alone any pretense of “probable cause”

for so doing. Then having trespassed unlawfully, they .

- climbed 7 stair-steps (half-way up a 14-step stairway)

_. and saw what Grim claimed to be a missing piece of

furniture concerning which he was then investigating.

The question here under the constitution turns not upon

any probable cause for an arrest and a search incident |

thereto, but upon the unlawful invasion of a citizen’s pri-

_ vate dwelling place without even a fair claim of ‘suspicion.

Relator submits that this Court readily agrees with the

constitutional premise advanced in United States v. On ~

Lee, 2 Cir., 1951, 193 F. 2d 306, 315:

_-“A man can still control a small part of his en-

vironment, his house; he can retreat thence from

outsiders, secure in the knowledge that they cd4nnot

get at him without disobeying the constitution. That

is still'a sizeable hunk-of liberty—worth protecting

from encroachment. A sane, decent, civilized society

must provide some such oasis, some shelter from

public scrutiny, some isolated enclosure, some in-

violate place which is a man’s castle.”

Relator suggests that if constitutional rights are a

for all of the people we cannot be sure of them for any

+ one individual. One of the greatest reigns of terror in

modern times was; this Court will agree, by law enforce-

ment -officials—The Nazi Gestapo. They have their coun- |

terpart today in the secret.police of other nations that are

more concerned about results than about constitutional

rights. -

- To keep a defendant in wiaiaites where his judgment of

conviction or other color of law holds him when such

custody is founded: on flagrant violation of the Constitu-

tion leads directly’to the dreaded knock on the door at

. i lcs

, ——«,

Petition and Affidavit for Leave to File and Proceed —

midnight. The State of New York, by admitting evidence

unlawfully seized :(in relator’s case the “fruits” of such

evidence, i. e., the photographs), servés- to encourage dis-

obedience to the Federal Constitution which its Courts

have sworn to uphold. |

It is often possible that, as the Mapp Court held, “the

eriminal goes free, if he must, but it is the law that sets

him free. N othing can destroy a government more quickly

than its failure to observe its own laws, or worse, its dis-

regard of the charter of its ‘own existence.”

The detectives unlawfully entered relator’s private prem-

ises, a statutorily proscribed offense under the Penal

Law of New York (2036), without the slightest excuse at

law but under color of their office. The photographs taken:

of the evidence seized following the illegal entry and un-’

reasonable search were inadmissible on the trial to con-

viet (Mapp v. Ohio, supra). See Nardone .v. United

States, 308 U. S. 338. % rs

Decency, security, and liberty alike demand that a

State’s law enforcement agents shall be subject to: the

same rules of conduct that are commands to its citizens,

Ina Government of: Laws, existence of the Government

will be imperiled if it fails to observe the law scrupulously.

If the State becomes a law breaker it breeds contempt, for

the law; it invites a man to become a law unto himself ¢

it invites anarchy, To declare that in the administration

of the criminal law the end justifies the means—to. declare

that a policeman may commit erimes in order to secure

the conviction of a private individual—would bring ter-

rible retribution. Against that pernicious doctrine this

‘Court should resolutely set its face. The “imperative of

judicial integrity” (Elkins-v. United States, 364 U. S. 206,

222) holds with the’ Court in this.

_ Relator respectfully submits that under the rules and

holding’ in Townsend v. Sain, 372 U. S. 293 ( 1963); this .

Court should inquire into the constitutional issues raised .

‘and hold a full evidentiary hearing in the instance.

Affirmation

WHEREFORE, pelator prays the Court to” issue the Writ

_ of Habeas Corpus ‘commanding respondent Warden to pro-

duce relator before the Court at a term, on a day and at a

time ceriain to be named,. for a full evidentiary hearing

a to be held on the issues raised herein; and on the results

‘of such hearing to sustain the writ and order relator dis-

charged from custody forthwith and/or remand back to the

State court of original impression for further proceedings

as may be instructed; and for such further and other

relief as “to. this Court may appear. proper and just.

ps ae Respectfully submitted,

bs s/ JAMES P. CARAFAS

Relator-Petitioner, pro se

Nee

rs: ¢ . Affirmation,

JAMES P. Cararas, being duly sworn, deposes and says:

That he is the petitioner in the foregoing action; that

he has personally prepared the foregoing and knows the

contents thereof; and that the same is true to his own

knowledge, except as to those matters therein stated to

be alleged on information and belief, and that as to those

matters he 80 believes them to be true.

s/ JAMES P. CARAFAS

". 7 Affiant '

‘Sworn to before me this’ =

20 day of June, 1963.

8/ Millard Land: —.

Notary Public, State of New York

| Qualified in Cayuga County #960

Commission, expires March 30, 1965.

Attached Papers to Original Petition.

At a Court of Appeals for the State of N ew York,

held at Court of Appeals Hall in the City of |

Albany on the Fourth day of October, A. D.

1962. |

Present,

Hon. Charles S. Desmond, Chief Judge; Presiding.

- 2 Mo. ‘No. 41

——-

Tre Propte. &e., et

Respondent, -

CaTHERINE M. Cararas and James P. Cararas,

1 Appellants.

A motion for a. reargument of the above cause having

' been heretofore. made. upon the part of the appellants

herein and papers having been submitted thereon and

due deliberation having been thereupon had, it is

OrverED, that the said motion be and the same hereby

is denied. :

A. copy. .

GEARON KIMBALL

i Deputy Clerk

(Seal) . |

A 26

Attached. Papers to Original Petition

Pleas’ in the Court of Appeals, held at Court of

_. Appeals Hall, in the City of Albany, on the

26th day of April in the year of our lord

one thousand nine hundred. and sixty-two,

before the Judges of the said Court. —

Wilaes,

The Hon. Charles S. Desmond, Chief J udge, Presiding,

Raymond J. ——— Clerk.

‘Remittitur, April 26, 1962.

2 . No. 41

Tue .Propte &e.,

Respondent,

Ms.

CATHERINE CaraFras and JAMES P. CARAFAS,

ee ‘ Appellants.

. — : ;

Br rr REMEMBERED, That on the 8th day of February in

the year of our Lord one thousand nine hundred and sixty-

two, Catherine M. Carafas and James P. Carafas, the ap-

pellants in this cause, came here unto the Court of Ap-

peals, by Lawrence W. McKeown, their attorney, and filed

in the said Court a Notice of Appeal and return thereto

from the Judgment of the Appellate - Division of the .

Supreme Court in and for the ‘Second Judicial Depart-

ment.. And The People &e., the reSpondent in said cause,

afterwards appeared in said Court of Appeals by Manuel

OW. Levine, District Attorney.

Which said Notice of Appeal and the return thereto,

-. filed as. aforesaid; are hereunto annexed.

Attached Papers to Original Petition

iii, The said Court of Appeals, after due de- -

liberation had thereon, did order and adjudge that the

judgment of the Appellate Division of the Supreme Court

appealed from herein be and the same is hereby affirmed.

And thereafter a motion to amend the remittitur having

‘been granted this remittitur is hereby amended by adding

thereto the following: Upon the appeal herein there were

presented and necessarily passed upon questions under the

Constitution of the United States, viz: Appellants con- -

tended’ that they were convicted on evidence obtained by

unlawful search and seizure in violation of their rights

under the Fourth ‘Amendment of the Constitution of the .

_ United States and that such unlawful search and seizire .

deprived them of their constitutional right to privacy un- -

der the Fourteenth Amendment of the United States.

The Court of Appeals held that appellants’ constitutional

rights were not vidlated. |

And it was also further ordered, that the record ‘afore- :

said, and the proceedings in this Court, be remitted to

the County ‘Court, Nassau County, there to be proceeded

upon according to law. .

THEREFORE, it‘ is considered that the said judgment be

affirmed, &¢., as aforesaid.

And hereupon, as well as the Notice of Appeal and re-

turn thereto aforesaid as the Judgment of the Court- of

Appeals aforesaid, by it given in the premises, are by the

said Court of Appeals remitted into the County Court, -

Nassau County, before the Judges ther eof, according to

the form of the statute in such case made and provided,

»to be enforced according to law, and which record now re-

mains in the said County cee before the Judges thereof

RAYMOND J. CANNON,

Clerk of the Court of ee of the

- State of New York.

Court of Appeals, Clerk’s Office,

Albany, April 26, 1962.

(Seal)

vn aad&

bilan Haba ts waht tht A dwscediahtalp

—~ ~ ‘ a ra : 2 ~ ey

. _ ~ — i ni LOE tii . aden en san De Ae a ee EO BOR RE NS Sheet aad

A 28

Attached Papers to Original Petition

I hereby certify, that the preceding record contains a we

correct transcript of the proceedings in said cause in

the Court of Appeals, -with the papers —_—n filed

therein, attached thereto.

RAYMOND J. CANNON, .

Clerk.

OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

beatae 29, D. C.

* March 18, 1963

_ Re: Carafas, Et ‘Ux. v. New York, |

No. 846 Misc., Oct. Term, 1962

| Dear Sir and Madam:

The Court today dusied the petition for writ of cer-

tiorari in the above-entitled case. borer

' Very truly yours,

JOHN F, DAVIS, Clerk

By s/

Assistant

Mr. and Mrs. James Carafas

35-53 30th St.

Long Island City, N. Y.

Attached Papers to Original Petition

State of New York,

County of Cayuga, ss:

City of Auburn,

I, James P. Cararas, Relator-Petitioner, in the attached

Petition for a Writ of Habeas Corpus, having been duly

sworn, attest that I have this date tendered to the proper i

' official at Auburn State Prison, a. true ‘and correct copy

.of the said Petition, together with appendices thereto,

for service by United States Mail, postage paid, to the

_ below named, as counsel for the Respondent-Warden 3

Attorney General

State of New York

Department ‘of Law

Albany 1, New York |

s/ JAMES P. CARAFAS >

Niet ** ee Affiant

- Dated: June 20th, 1963

‘Sworn to‘hefore me this

20 day of June, 1963. .

~ 8/ Millard Land ;

Notary Public, State ef New York

Qualified in Cayuga County #960

_ Commission expires March 30, 1965.

1 ae TERRE {

i :

tA a sic cin sie Socedinde wale SAR KON etn

bd » *

A30_ ; }

Memorandum Decisions, Foley, D. J., July 22, 1963.

"UNITED STATES DISTRICT. COURT,

| NortHern District or New York.” |

Memorandum-Decision and Order. -

James T. Forey, D. J.:

The petitioner, confined at Auburn State Prison, sub-

mits a typewritten petition that as.far.as the typing is

concerned would be the envy of a first-rate stenographer,

and for content, factually-and legally, many lawyers would

be unable to match. He was convicted in Nassau County

after trial by jury of Burglary, Third Degree, and Petit ©

Larceny, and sentenced October 22, 1960 to a term of three

- to five years. The judgment of conviction was affirmed

-.. by the Appellate Division, Second Department (14 A. D.

24-886). The Court of Appeals granted permission to ap-

peal and affirmed without opinion, and: later. amaended its

remittitur to show a constitutional question was passed

upon. (11 N. Y. 2d 891; id. 969). Certiorari was denied

‘372 U. S. 948:

The federal question presented is one that promises to-

be troublesome for the District Court and needs, in my

_ judgment, definite ruling in the federal Appellate Courts

to diminish to some extent. the confusion, disorder and

‘uncertainty that is not only increasing in the State Courts

but in this District Court as well. The claim is that

photographs of evidence allegedly seized by illegal search

were introduced at the state trial over objection. The

preface to the Court of Appeals decision (11 N. Y. 2d :

891) indicates no objection was made-to the photographs

inasmuch as they were not connected with the search and

seizure. It is not clear whether the Court of Appeals so

found, bécause it did: not write, but it is significant that.

the petitioner in his competent pleading does not refer

to any page of the trial record to show that a lawyer

See" ‘

A31

Memorandum Decision, Foley, D. J., July 22, 1963

| stood on his feet and said “I object”, although there are

other numerous page references to the trial record. The

failure to object is of extreme importance under New

York rulings and its necessity is stilt uncertain in habeas

corpus proceedings. (Hall -v. Warden, Maryland Peni-

tentiary, 4 Cir., 313 F. 2d 493. Cert. den. sub nom. Peper-

sack v. Hall, U. S. Supreme court, 6/10/63; Ker v: Cali-

fornia, U. S. Supreme Court, 6/10/63). The New York

Court of Appeals previously held such objection was neces-

sary for review by it. (People v. Coffey, 11 N. Y. 2d 142;

People v. O’Neill, 11 N. Y. 2d 148; People v. Friola, 11

N. Y. 2d 157). The Court of Appeals, Second Circuit, has

avoided consideration of the effect’ of Mapp v. Ohio, 367

U. S. 643 on convictions in state courts which preceded

that decision. (U.S. ex.rel. Vaughn v. Lakallee, Warden,

’ Decided June 17, 1963). |

There will be much more writing before the district -

courts and state courts will be able to find their way with

any semblance of confidence. However, there does seem

to be an indication in the Court of: Appeals, Second.

Circuit, by recent decisions—and. I think it wise policy—

that the State, whenever there is available remedy still

open, be given the courtesy to review its previous rul--

ings in view of the recent Supreme Court rulings described

by. the dissenters as an abrupt break with the past.

(U. S. ex rel. Rivera v. LaVallee, Warden, 2 Cir., 6/27/63;

U. S. ex rel. Floyd Edgar Martin v. Murphy, Warden,

2. Cir., 7/2/63; U. S. ex rel. Kling v. LaVallee, 2 Cir.,

306. F. 2d 199). See also Otten v. Warden, (D. C. Mary-.

land), 216 F. Supp. 289. I have already written. in

oe Mapp ruling not retroactive. —

U. S. ex rel. Wilson v. Murphy, Warden, memo-decision

dated June 11, 1963, that to lessen to some degree the con-

fusion and shopping in this District I would follow the

, previous decision of Judge Brennan following the New

York Court of Appeals decisions which in effect hold the

/I always avoid whenever possible putting a petitioner

pack ‘on the merry-go-round of our endless system of

rere ves

“A32—

bsiacev sail Decision, Foley, D. J., | July de, 1963

review. However, there does Seem good reason Tale =.

the case of People v. Kelly, 12 N. Y. 2d 248, the Court of

Appeals, New York, clarified its previous rulings as to

the necessity for objections or exceptions in these un-

reasonable search and seizure problems. It was flatly

held that» intermediate appellate courts may,: regardless

of objections or excepti ns, reverse in the interest of

weight of the evidence. In view of this new development,

I think it beneficial to the interests of justice and the vital

federal-state comity relationship.that the petitioner should

reapply to the Court of Appeals, New: York, or the_

' Appellate Division, Second Department, for possible re- ¥

consideration in view of the Kelly ‘decision. (U. 8S. ex tel.

. Allen'v. Murphy, 2 Cir., 295 F. 2d 385). se

The petition is denied without prejudice. . The nabere -

_ Shall bee-filed without prepayment of fee, and it- is.

o So Ordered.

"Dated: Albany, N. ¥” as Me 7

Tuly 2, 1963 3 :

_ JAMES T. FOLEY“

United States District Judge .

_ justice or because the trial court judgment was against the -

wae A 33

‘ele Appeal, August 15, 1963.

_ UNITED STATES DISTRICT COURT, ;

Napier Distaicr or NEw Yorx. |

| [Same ‘Tire. ] |

James P. Carafas, relator-petitioner aforesaid, hereby

appeals to the United States Court of Appeals, For the

’ Second Circuit, from an order entered in the United States

District Court, Northern District of New York (Foley, J.)

on July 22, 1963, denying and dismissing without prej- i

udice a petition for a writ, of habeas corpus and, -upon

application, granting a certificate of probable cause

(Civil No. 9657) with permission to file N otice of Appeal

without payment of fee; and from each and every part.

of the-said order. ; : 3

Respectfully submitted,

S/ JAMES P. CARAFAS

Appellant, pro se.

James. P. Cararas,

7" No. 56228 -2

. 135, State Street,

_ Auburn, New York @

“PS i

“Date: August 15, 1963

A 34 | +

Notice of Appeal, August 15, 1963

Certificate of Service -

‘ State of New York, — 8

County of Cayuga, ss: ee \

- City of Auburn, \

_ I, James P. Cararas, appellant. in\ the attached Notice

of. Appeal, having been duly sworn, attest- that I have this

date given a copy of the said Notice to an official of

Auburn State Prison for service by United States Mail,

- . postage paid, to counsel’ for respondent, | whose name and

address appear below:

. Hon. Louis J. Lefkowitz, Ts aes cee

Attorney General of New York,

State Capitol, |

Albany 1, New York. 5

S/ JAMES P. CARAFAS

‘Date: August 15, 1963. :

Sworn to before me this

15 day of August, 1963

_S/ Millard B. Land

Notary Public, State of New York

Qualified in Cayuga County #960

' Commission expires March 30, 1965. °

Affiant —

——e

ts 5 A35

Application for Certificate of Probable Cause.

_ UNITED STATES DISTRICT COURT,

NorrHern Dideaiin or New York.

[Same True]

To: Hon. James T. Foley, District . Judge, United States

District Court, U. S. Courthouse, Albany 1, New

York. 7 | ° — |

Sir: (

3 Jawes P. Cararas, relator aforesaid, as petitioner ‘in

‘a Petition For a Writ of Habeas Corpus filed in this

Honorable Court on or about June 22, 1963, and the same

“« having been denied and dismissed by Memorandum-De-

cision and Order entered on J uly 22, 1963 at Albany, New .

York (Foley, J.), it is respectfully requested that a-Certif-

icate of Probable Causé be ‘issued (28 U. S. C. 2253) in

order that appeal jo the United States Court of Appeals,

Second Circuit,’xnay be taken from the said order, peti-

- tioner.as proceeding in forma pauperis. - . :

Dated: August 8, 1963

_. .° Yours ete.,

. .S/ JAMES P. CARAFAS

Relator, pro se.

James P. Cararas

: | No. 56228 |

sae | 135 State Street

.. Auburn, New York

- James’T. Forey, D. J.:

hs Adages ih tals lanai cdl

Memorandum-Decision and Order. |

UNITED STATES DISTRICT COURT,

fs NorTHERN District or New York.

[Same Trix. ]

Memorandum-Decision and Order

The petitioner files an application for a certificate of

probable cause in relation to my memorandum-decision

and order dated July 22, 1963 denying his petition for

a writ of habeas corpus. ' Upon a review of my decision, ~ .

it does seem there is sufficient substance to the question

~ to warrant the issuance of the certificate, and such certif-

icate of probable eause is hereby issued, and the —

a tion for the same granted.

A notice of appeal, if: forwarded to A\e Arthur Degas,

Clerk of this Court, Federal Building, Utica, N. Y., shall — |

_ be. filed by him without the ~~ of the statutory

fee.

It is So Ordered...

~ Dated: Albany, N. y RS.

* August 12, 1963.

...° . -: JAMES T. FOLEY.

| _ United States District Judge ©

—

A37 |

Application for Bail to be Set, Stay of State Proceedings,

_. and Adinission to Bail Pending Appeal. . -

UNITED STATES DISTRICT COURT,

NorTHERN District oF NEw York.

* , (Same Trrze.].

To: Hon. James T, Foley, Judge, United ‘States District ‘

Court, Northern District of New York, Federal

Building; Albany 1, N. Y. rs

Sir: | Ton, ae

James P.. Cararas, relator-petitioner in a petition for a

' writ of: habeas corpus filed on or about June 21, 1963,

the same being denied without prejudice on July 22, 1963,

~ and a certificate of probable cause: being issued on August

12, 1963, and a notice of appeal being filed on or about -

August 15, 1963, hereby makes -an application to this —

Honorable Court for bail to be set pending appeal to the

_ United States Court of Appeals for the Second Circuit

on merits and facts set forth in the annexed Affidavit. |

_ Respectfully submitted, -

S/ JAMES P. CARAFAS

Relator-Petitioner, pro se.‘

_ (as Appellant).

~ James:P. Cararas,

_ No. 56228.

185 State Street

, 7 Auburn, New York

Date: August’ 23, 1963. wo,

Copy to:

Hon. Louis J. Lefkowitz,

Attorney General of New York,

Albany 1, New York.. oe

+ SO pe AA IID Su ot

State of New York,

A388 -

_ Application for Bail to Be Set, Stay, etc.

Affidavit.

County of Cayuga, ss: °

City of Auburn,

~ James P. Carafas, relator-petitioner, as appellant, in

the within Application For Bail To Be Set, Etc., having

been duly sworn, deposes and says:

It will appear from the circumstances ‘in the instant

- that a Stay of State Proceedings (i. e., service of present

‘sentence being an exténsion of the alleged unconstitu-

tional judgment in the State court) pursuant to 28 U. S. C.

2951 (Jugiro,v. Brush, 140 U. S. 291, 11 SCR 770; Lambert

». Barrett, 159 U. S. 660, 16: SCR 135), may be required

as incident to submission to bail pending appeal. On this,

relator here submits to the learnéd discretion of the Court.

On the question of enlargement on bail pending appeal

in the instant, relator cites no specific statutory provision, -

‘ finding ‘that this also goes to the discretion of the Court

(Johnson v. Marsh, C. A. 3, 227 F. 2d 528) and the Court

has the inherent power to do so (United States ex. rel.

Ackerman v. Pennsylvania, D. C. Pa., 133 F. Supp. 627).

Where, as here, relator .has filed originally as an in-

-digent person,-and must beg leave .to appeal on the same

* basis, the Court is entitled to explanation of how-bail would

be provided. To this end, relator’s brother is a reputable

business man able to arrange a reasonable bail through

a federally approved bondsman should this Court allow

appeal bail. .

On the immediate question of relator being a good bail

risk, he would: remind the Court that he was at large on

bend from shortly after arrest until of récent date. He

was under a $2500.00 bond pre-trial, making all court

appearances promptly and remaining constantly within

and available to the trial court’s jurisdiction. Following

remand upon conviction he was in jail a short period of

time until a certifieate of reasonable doubt was granted.

A 39

Application for Bail to Be Set, Stay, etc.

Appeal bail was -set and he, together with his wife, - co-

defendant, were jointly released under a total of $3500.00

bond. | oe |

Relator was at large on appeal bail during all appellate

Steps to and including certiorari to the Supreme Court. -,

He obeyed the mandates of the respective courts and

surrendered himself immediately following denial of certi- -

orari. :

It is respectfully submitted that the constitutional issue -

~ raised in the original moving papers. (4th Amend., U. S.

C. A.; Mapp v. Qhio, 367 U. S. 643, et seq.) is clear and ©

of substance; it is further submitted that only a state pro-

eedural ground has stood in the way .of absolute relief

(Fay v. Noia, 372°U. S. 391). 3

_ Relator suggests that in the interest of : fundamental

fairness and justice, instant application should be granted.

Wherefore, relator prays the Court to grant the ap-

plication, issue the necessary order or writ in furtherance

of the Court’s. power and jurisdiction as orderly process

may require, set a reasonable bail pending appeal, and ©

to otherwise effectiiate relator’s enlargement on bail upon |

posting with the Court approved security therefor; and

for such other and further relief as. to the Court may

appear proper. ;

Respectfully submitted,

S/ JAMES P. CARAFAS

Relator-petitioner, pro se.

(as Appellant)

James P. Cararas

No. 56228 . .

135 State Street

Auburn, New York

Date: August 23, 1963

Sworn to before me this

23 day of August, 1963,.

S/ Millard B. Land

Notary Public F

— tee as 5 trsabé Pen Ste ie ee ne Ee Fe Riel meee ene wal NaS ind Rab bs oe wnt Sn.

. ‘ 2 ae gente th diate od nts etl et bi RES Reh ioe eli s ieee.

- . . . .

A40-

Certificate of Service.

“Application for Bail to. Be Sét; Star y, etc.

State of New York,

County of Cayuga, ss:

City of Auburn,

I, James P. Cararas, petitioner in- the attached Ap-.

plication For Bail, Etc., having been duly: sworn, attest.

that I have this date given to the proper official at Auburn

State Prison a true and complete copy of the said action,

for service by U. S. Mail, postage paid, to the below

“named as counsel for respondent:

’. Hon, Louis J. Lefkowitz,

Attorney General of New York

Law Department

State Capitol

_ Albany 1, New York.

S/ JAMES P. CARAFAS

Affiant

James P. Cararas

No. 56228

_ 135 State Street

| . Auburn, New York

Date: August 23, 1963. - a

Sworn to before me this . Rg” 3

23 day of August, 1963. : :

S/ Millard B. Land

Notary Public, State of New York

Qualified in Cayuga County +960

Commission expires March, 1965,

Memorandum-Decision and Order.

UNITED STATES DISTRICT COURT,

Norrnern Distaicr or New York.

‘(Same Trrre.]

James. T. Fotey, D. J.:

The petitioner submits-a well-drawn application for bail

_to be set, stay of state proceedings, and admission to bail

pending appeal to the Court of Appeals, Second: Cireuit.

The application relates to my denial of habeas. corpus by

memorandum-decision and order dated J uly 22, 1963 in

~ relation to which I issued a certificate of probable.cause

by decision dated August 12, 1963.

To support the present application, and as indicative

of the power of the District Court: to grant bail in these

situations, the petitioner cites ‘Johnson v. Marsh, 3 Cir.,

227 F. 2d 528 and U. 8S. ex rel. Ackerman vy. Pennsylvania, —

D.C. Pa., 113 F. Supp. 627. Both these authorities relate

to the power of the District Court tq grant bail pending

_ disposition of the habeas corpus petition, and are not in

point at this stage after denial and the filing of a notice

of appeal. In any event, the exercise of my discretion,

if permissible—and it is doubtful to me—would not.

favor this unusual request unless extreme circumstances

were. present, which is not the situation here.

The application is denied in its entirety, and it is

So Ordered. ae

Dated: Albany, New York

September 4, 1963.

| JAMES..T. FOLEY

- United States District Judge

Rao

Ag cee Ee;

| -Clerk’s eens

UNITED STATES DISTRICT COURT,

N onrHern District or New York.

I, W. A. Dwyer, Clerk of the District Court of the.

United States for the Northern District of New York,

_ do hereby certify that the foregoing copy of the docket

entries and the original paper. numbered from 1 to 42,

inclusive, constitute the Record on Appeal.

Time to file Record expires October 21, 1963.

In Testimony Wuereor, I have caused the seal of said

| ‘Cotltt to be hereunto fixed at the City. of Utica, this 13th

- . day of September, 1963.

S/ W.. A. DWYER

Clerk, United States District —. Northern

District of — York

(seal)

Note: Reverse side shows acknowledgment of receipt of

‘record on September 9, 1963 by

A. Dante. Fusaro,

Clerk, U.S.C:A. 2nd Cir.

W. Arthur Dwyer |

to the Notice of Appeal as filed.

| A43

‘Covering Letter re: Index Original Record. |

UNITED STATES ‘DISTRICT COURT

Orrice. OF THE- CLERK

Northern District of New York

Utica 1, N. z, ; Sue

Clerk.

September 13, 1963

Honorable Louis J. Lefkowitz

Attorney General, State of New York .

Albany 1, New York 12224 -

Att: Joseph- Castellani

‘Re: Civil No. 9657—James P. Carafas vs Robert E._

Murphy

‘James P. Carafas

135 State Street _

Auburn, New. York

Gentlemen ;

I am enclosing, herewith, to each of you a- copy of

the Index which sets forth all original papers filed in this

Court in the above entitled action. - iz

Please be advised that all of said. papers were sent to

the Cireuit Court of Appeals under even date, pursuant

Very truly yours, (hie

S/ W. A. DWYER —

W. A. Dwyer, Clerk

WAD:me is

Ene.

A44-

Opinion of the Second Circuit Ordering a Hearing.

UNITED STATES COURT OF APPEALS,’

For tHe Seconp Circult.

Docket No. 28655

. te

Unitep States oF AMERICA ex rel. JAMES P. CaraFas,

Appellant,

“.°

J. Epwin LaVALt tes,’ Warden, Auburn Prison, Auburn,

New York,

| Appellee.

. . Before: |

| Moore, KaurMan and MarsHatt,

isles Tudges.

Appeal from an order of the United States District

Court for the Northern District of New York, Foley, J.,

denying without prejudice relator’s —" for ‘a’

writ. of habeas - corpus.

‘Reversed and remanded.

KavrMan, Cireuit Judge:

Contending that the fruits of an unlawful search and

seizure were improperly admitted into evidence’at his /

trial, a New York prisoner convicted before the:Supreme —

Court’s- decision in Mapp v. Ohio, 367 U. S. 643 (1961),

but whose appeal was pending when that decision was

rendered, here seeks to invalidate his conviction under ‘the

Fourteenth Amendment’s due process clause. While the

RE ws a ah et Mi DN I it pe a AR EME TOS SE NAM NE Ti Ne AERA La aa Reali di ihn ie et actncnns Kp

> B45

_ Opinion of thé Second Circuit Ordering a Hearing

constitutional issue was raised and considered in the state }

courts on direct appeal, we are asked to determine whether

the petitioner’s failure to object to the evidence at trial

or to seek a New York collateral remedy preclude fed-

eral habeas corpus relief. .*

_ Petitioner was convicted of burglary in the third de-

gree and grand larceny in the second degree, after a

jury .trial in Nassau County Court in 1960, for the al--

’ leged theft of furniture from a model home; he was sen-

tenced to concurrent terms of from three to five years.

Carafas’ petition alleged that the police, acting on a tip,

. that a Cadillac and trailer registered in his name were .

seen near the model liome on the morning of- the theft,

came to his residence without a warrant. _ Informed that

Carafas lived on the second floor of the two-family dwell-

ing, the police proceeded up the stairway without ‘ring-

‘ ing the doorbell. Carafas further alleged that upon

reaching the half-way landing one of the detectives was

able to observe some of the stolen ferniture in his liv-

ing room, and that the police then called his name, ‘and

‘arrested him when he appeared. Carafas attacks: his .

conviction, claiming that approximately twenty-five photo-

graphs of the purported proceeds of the burglary, ob-

tdined as the fruits of this allegedly unconstitutional

entry and search, were introduced at his: trial and served

as the primary basis of: his conviction. ” |

Because Mapp was decided after Carafas’ conviction,

no constitutional objection was taken at: trial ‘and the .

Mapp issue was first urged on appeal to the Appellate

Division. The conviction was, however, affirmed ‘without

opinion. People -v. Carafas, 14 App. Div. 2d 886, 218

- N. XS. 2d 536 (1961). The Court of Appeals affirmed,

11 N. Y> 2d 891, 182 N. E. 2d 413, 227 N. Y. S. 24 926

(1962), later amending its remittitur to show that the

‘Search and seizure question had been “presented and

necessarily passed” upon and that Carafas’ constitutional

rights were not violated. 11 N. Y. 2d 969, 183 N. E. 2a

697, 229 N. Y. S. 2d 417 (1962), cert. denied, 372 U. S..

948 (1963). aes |

ere’ eae, Wee Pe ee tien a ——

Opinion of the Second Circuit Ordering a Hearing

In proceedings below the District Court did not reach

the merits, and denied without prejudice Carafas’ peti-

tion for a writ. of habeas corpus, suggesting that he first

apply to the state courts for reargument. The district

SP ane 0 iin os Xi Hila Sa etalag

judge, who decided on the petition alone without calling -.

for the state court records, thought it significant that ~

Carafas’ pleading did not refer to any page of the trial —

record “to show that a lawyer stood on his feet and said

‘I object.’” Apparently -assuming that the constitutional -

claim was rejected on. appeal because of this failure to

object, the court: held that the petitioner should reapply ra

to the state courts for reconsideration in light of an in-

tervening decision, People v. Kelly, 12 N. Y. 24-248, 189 N.

_E: 2d 477, 238 N. Y. S. 2d 934. (1963), which held that

intermediate appellate courts may, regardless of objec-

tions or exceptions, reverse in the interests of justice.

Carafas followed this suggestion, but. the Appellate

‘Division denied his motion for reargument, stating that.

it had duly considered the Mapp question and had con-

eluded that the decision was “inapplicable to’the facts in —

this case.” N.Y.L.J., October. 30, 1963. pee

~ We begin by noting that although Carafas was con-

victed before the Mapp decision, our recent holding in

. United States ex rel. Angelet v. Fay, — F. 2d (2d -

. Cir. June 11, 1964), in noway precludes relief. The Su-

_preme Court and the New York Court of Appeals have

clearly held that Mapp applies to cases’in the appellate -

process at the time of that decision, at least where suf-

ficient objection was made at the pre-Mapp trial to pre-

serve the constitutional question for state ‘appellate re-

' view. Fahy v. Connecticut, 375 U. S. 85 (1963); Ker v

Galafornia, 374 U. §. 23 (1963); People v. Loria, 10 N. Y.

2d 368, 179 N: E. 2d 478, 223 N. Y. S. 2d 462 (1961). In

the present case, however, the State maintains that .

Carafas did. not make any such objection at trial, and.

that this failure to comply with New York’s procedural

requirements ‘renders federal habeas corpus unavailable,

AAT

Opinion of .the Second Circuit Ordering -a Hearing

despite petitioner’s contention that illegally seized evidence

was used against him at his. pre-Mapp trial. ‘

Although Carafas argues that he made numerous non-

constitutional ‘objections at trial to the introduction of the

tainted photographs, we accept, arguendo, the State’s

position that no objections were made. Under New York

law the failure to object would generally preclude raising -

the Mapp question on appeal. People v. Friola, 11 N. Y.

2d 157, 182 N: EB, 2d 100, 227 N. Y. S. 2a 423 (1962);

' People v. Coffey, 1 N. Y. 24 142,182 N. E. 2d 92, 297 N.

Y. S. 2d 412-(1962). But. in United States ex rel. Angelet

wv. Fay, F. 2d (2d Cir. June 11, 1964), we held

that where the law, both state and federal, at the #ime

of trial made admissible evidence procured by an unrea-

sonable search and seizure, the defendant’s failure to

object. té the evidence cannot be construed as a waiver.

In Fay v. Noia, 372 U. §. 391, 439 (1963), the Supreme

Court made it clear that waiver affecting federal rights

is a federal quektion. Under the controlling om re

it is equally clear that Carafas did not intention y_ re-

linquish a known right or privilege. Johnson v. Berbst,

304°-U. S. 458 464 (1938). It would be the height ‘of

unreason, in this regard, to insist that: Carafas should

have objected to evidence which was properly admitted?

under the applicable law at the time of trial. See United

_ States ex rel. Durocher v. LaVallee, 330 F. 24 303, 309

(2d Cir. 1964).. Moreover, we note that the Appellate

Division and state. Court of Appeals emphasized that

they had considered petitioner’s constitutional] claim, thus

suggesting that both courts treated the possibility of

failiire to object at trial as irrelevant. |

‘Alternatively, the State argues that the denial of the

writ - without pfejudice should be affirmed because there

was no showing that the claim of illegally: obtained evi-

dence was ever presented to a state fact-finding tribunal.

We hold, however, that the exhaustion requirements of

28 U. S. C. §2254 have been satisfied. On more than

One occasion in this case. a state court was given the

aS :

BD iccricstissocncinis: a ions

the constitutionality of his conviction. | |

Accordingly, we reverse* the denial of the petition for —

.a. writ of habeas corpus. and remand to the District.

Court ‘for findings of fact ard. conclusions of law on

ae ;

Opinion of the Second Circuit Ordering a Hearing

opportunity, and did in fact, pass. on the merits of Carafas’

constitutional claim. ‘The Court of Appeals in amending ©

its remittitur and the Appellate Division in denying a mo-

tion for reaggument made it clear that they had considered

the Mapp claim and found adversely to the petitioner. More-

over, the Appéllate Division’s statement that. Mapp was

“inapplicable to the facts in this case” can only be read

as an-adjudication on the merits. It is ‘reasonable to

infer that if that court had relied merely on a finding

that failure to object at trial foreclosed the Mapp ques-

_tion, it would have said so. And, we have held that the | 7

exhaustion requirement is satisfied where a constitutional

claim is presented and decided on direct review of a con- -

viction in the state courts. .See United States ex rel. Ever- -

ett.v. Murphy, F.2d (2d Cir. March 19, 1964). In view.

of the clear language of: the New York appellate courts.

that Mapp does not apply to this case, we think it would

be wasteful of time and Jadicjal resources. to require

Carafas to test by coram nobi a trial-level state court

whether ‘the photographs introduced at Carafas’ trial

were the fruits of an unreasonable search and seizure.

We, of course, express no opinién on the resolution of

this question. The determination by the District Judge

may be made either on the state. record, which the court

will undoubtedly request, or, if a full and fair hearing

on the issue was not afforded in the state courts, upon:

a hearing de novo. See Townsend v. Sain, 372 U. 8. 293

(1963). Be yee

Maou sc acy

Second Opinion of Judge Foley.

oo _ UNITED STATES DISTRICT COURT,

NortTHERN District or New York. - a

. . . o e e

. Appearances:

James P. Carafas,. Petitioner in Person. Do

_ Lawrence W. McKeown, Attorney for Petitioner, 114

- Old Country Road, Mineola, N. Y. |

- . Hon. Louis J. Lefkowitz, Attorney General, State. of

New York, Attorney for Respondent, The Capitol, Al-

bany, N. Y.; Barry Mahoney, Asst. Attorney General,

-New York City,-N. Y., Joseph R. Castellani, Asst. At-

_ torney General, Albany, N. Y. (of Counsel). : ,

James T. Fotey, D. J.:

Memorandum-Decision and Order.

_ This petitioner and his wife, ‘the latter not a party in

this habeas corpus proceeding, were convicted after trial

by jury verdict in ‘Nassau County, New York, in No- -

vember of 1960, of. the crimes of Burglary third degree «

-and Grand Laréeny second degree. In November 1960, the

wife was sentenced to concurrent terms of 114-5 years,

_ and on December 13,:1960 petitioner was sentenced ‘to

concurrent terms of 3-5 years. These judgments of ‘con-

victions were affirmed, no opinion. (14 A. D. 2d.886, 1961).

The Court of Appeals, New York, affirmed, no opinion.

. (11 N. Y. 24-891, 1962). Remittitur of that Court was

amended to show the unreasonable search and seizure

‘ question. was presented and passed upon. (N. Y. 2d 969,

1963). Certiorari was denied in 372 U: S. 948, 1963.

Then, the federal procedure of habeas corpus was in-

voked. No matter the’ diplomatic camouflage in judicial _

language to describe it as a proceeding other than one

“the Northern District of New York, when he: filed his

Second Opinion of Judge Foley

of review in reality federal habeas corpus is automatically

the next appellate step of review of state criminal con-

‘victions on federal constitutional grounds. It is so con-

sidered. and freely used by the state prisoners. (Fay v.°

* Noia, 372 U. S. 391; Townsend v. Sain, 372 U. S. 293).

The petitioner was confined to Auburn State’Prison in

habeas corpus petition in this Court. I denied it in a

reported decision without prejudice; ruling that in view

of the unsettled state of. the law in: New York on the

question of failure to object at the trial when photo-

graphs of the furniture involved in the theft were of-

fered and received, he should reapply to the Appellate -

Division, Second Department, and Court of Appeals, New

~ York, for reconsideration. (231.F. Supp. 533, 1963; see

also Henry v. Mississippi, 379 U.S. 443). It is not- clear .___

in the record how. it was managed, and probably is un-

important, ‘but the petitioner did follow my suggestion

and went back to the New York Courts, but apparently

- at. the same time appealed to the Court of Appeals,

Second Cireuit. There was no further presentation to

me by the petitioner after the State Appellate Court .

denials for reargument.. The next ruling was by the

Court of. Appeals, Second Circuit, reversing my denial,

qualified as one without: prejudice to renewal and re-

manding the issues of unreasonable search and seizure

to me for determination. (334 F. 2d 331, 1964). New |

York obtained a stay of the mandate and a combined

petition for certiorari was filed in. this proceeding and

in two others with. similar questions and was denied.

(381, U. S.. 951, 1965). The Court of Appeals, Second

_Circuit, in this case and in \Angelet v. Fay, 337 F. 2d 12,

aff’d. 381 U. S. 654, commented that the failure to ob-

ject in New York before the Mapp v. Ohio ruling, (367

-U. S. 643, June 19, 1961), would be futile and not a

waiver. (See Henry v. Mississippi, 379 U..S. 443; Nel-

son v. California, 9 Cir., 346 F. 2d 73; ‘ines v. Noia, supra,

pg. 439).

Second Opinion of Judge F oley aa

This marathon of state and federal review is not yet

ended. The complication that caused confusion in’ this _

case, as in many. others, was that the trial ‘was held be- .

fore Mapp, and Linkletter v. Walker, 381 U. S. 618, set-

_ thing the retroactivity of Mapp, did not come until June - ie

1965. Fortunately, the long delay is not as serious as in

some instances because the petitioner was paroled Octo-—

ber 4, 1964 from confinement. Attorney McKeown, who.

had represented Carafas in the trial where the convic- -

tion here challenged was rendered, also ata suppression

of evidence hearing before Nassau County Judge Kelly

in 1962 on another Nassau County indictment charging

_ similarly the burglary and larceny of-model home: fur- .

niture, and on the State appeals, volunteered to appear

for him in the next steps in this proceeding to be ‘taken

upon the remand. The Court of Appeals left it to my

discretion as to the need for hearing. However, Assist-

ant Attorney General Mahoney, who handled the federal

appeals for New York, and Attorney McKeown, thought

a hearing should be held, and accordingly, one was held

in Albany on November 5, 1965. The hearing was ex-.

. pedited by the attorneys who had the important witnesses

Carafas, his wife and the atwo detectives, first reaffirm

their testimony given at the State trial in 1960 and _be-

fore Judge Kelly at the 1962 hearing relevant to the

— incidents that happened at the Carafas home in June.. .

1959, and are important to be weighed in the determina-

tion of the search and seizure issue. Several of the

witnesses at the hearing before me did testify to some

further extent and. exhibits’ were introduced to throw

further light. upon the physical factors present where

_ the arrest; search and seizure. were made.

As a result of this splendid cooperation bythe ‘law.

-yers, and I am sincere about the effort, a substantia]

record was speedily submitted and must be convassed for

"decision. The State trial record submitted is one of

1181 pages; the record of hearing before J udge Kelly

in August, 1962, is 164 pages; the transcript of hear- .

f :

J ‘.

aaa fe a etal ON aT Re RT NE ee eT ere ee . aaa

ian CREAT TEED al wi melee

;

BB sscttetnictsrseississ Nene Pe REY Meee ae Tey YONWa- St ete e

this decision.

Second Opinion of Judge Foley

ing before me in 1965 is 81 ‘pages. Even to those with |

little habeas corpus experience onthe front line a bur-

- densome task of review should be evident. “I shall refer,

when necessary, as the attorneys have done in their ex-

fellent briefs, to the State trial record by “Tr.”, to the

minutes of the hearing before County Judge Kelly by’

“M.”, and to the hearing before me by the symbol “T”.

The State records shall’ be filed with the Clerk of this

Court, Federal Post Office Building, Utica, N. Y., with,

With full realization of the seriousness of any crim-

inal charges upon which conviction causes imprisonment,

. there -is noted in the background of our situation here in

_ the necessary search for probable cause one Keystone

Comedy: aspect. Nassau . County Detectives Grim and

Kapler investigated on the same- morning the ‘burglary

of a model home in -Oceanside, Long Island, . that took

place during the early morning hours of June 3, 1959.

In their investigation they were taken through the model

home and had: described to them the pieces of furniture”

stolen. (T. 28, 44). They spoke to one particular neigh-

bor in the case who gave the amazing information that

she. saw an AAA Truck-eome—in the early-morning hours

“when the burglary was taking place and pull out of ‘the

sand by the model*home a black and gray Cadillac, with

a U-Haul trailer attached, carrying New Hampshire li- ©

cense plate. (M. 84, ‘T. 45). She-described the appear-

ance of the man.and woman in the car. The detectives 5

located the tow truck operator who pulled the car and .

trailer out, and ‘they learned through him that the. per-

son. who was assisted gave his name as James Carafas?

- 3553-30th Street, Astoria, apparently a duly accredited

member of AAA: (M. 85-86,. T. 45-46). This informa-

tion led the detectives to the Astoria address on June

3, 1959, where they testified they saw the Cadillac and

trailer with the New Hampshire plate parked in front

of the two-story house. (M. 142, T. 26, 46; Resp. Ex. A).

Second Opinion of Jitdge Foley

. This is the critical juncture where the entry into the

house and the search and seizure of the furniture must

be examined. The legal guide lines for décision give .

no fixed formula to ascertain probable cause when, as

here, arrest is made without an arrest warrant, and -

' search without a search warrant. (U. S. v. Rabinowitz, —

339 U. S. 56). It is emphasized that we must be mind.

ful we deal with probabilities and must search for the

practical considerations of everyday life en which reason-

able and practical,men, not legal technicians, act. (Brin-..

Jegar v..U. 8. 3388 U. S. 160, 175). What constitutes

“reasonableness” or “probable cause” must: depend upon

the specific facts of each case. (U. 8. v. Elgisser & Glad-

- stein, 2 Cir., 334 F. 2d 103, 109). It should be. noted

that New York concedes the photographs of the furni-

ture. introduced at the trial would be subject to the same

illegality taint as if the furniture had been offered as -’

exhibits. | set i ge eee

My canvass of the record inclines me to the .version of

events, and there are always intensistencies and differ-

“ences,<given by Detectives Kapler and Grim as to their |

entry into the, building and ‘the subsequent happenings

that led to the arrest of Carafas, as they testified, on the

' second floor landing adjacent to the second floor apart-

ment occupied by him arid his wife. I find that-the out-

side and inside doors leading to Dr. Shapiro’s office on”.

the first floor were ‘unlocked. (T. 47). This finding is:

_ Supported by the testimony of Doctor “Shapiro before

‘ County Judge Kelly that the doctor had unlocked the

doors himself on this particular day. The doctor further

testified hé was present in his office between the hours

of 1-2 P.M., and heard the commotion upstairs of arrest ~

and search by the detectives. (M. 52-64). I accept as

true the testimony: of the detectives that the doctor’s

sign outside had the visiting hours for patients thereon J

and also that they inquired of a woman in the doctor’s

office as to the Carafas residente and were told “upstairs”.

I also accept as credible from the records and the testi-

—

’

OB. ea , a - ‘a tath Macebiecdtipehaaabkes . ———

’ ° ¥ i

Kirk > ‘aes

A54 , . 7

j ! | Second Opinion of Judge Foley

mony before me that one detective shouted “Carafas”

from the bottom of the stairs, and Carafas came volun-

- tarily io the landing to identify. himself ; }that on: the

( second floor landing at the top of the stairs as they looked

‘up. the ‘steps and ascended ‘the detectives could see a

dresser corresponding to the description ‘of the. stolen —

‘furniture. (T. 41-42, 48). I also find that the detectives . .

placed Mrs. Carafas under arrest-in the open archway -.

of the Carafas apartment. (M. 146-147; T. 49, 69-70).

These findings, of course, reject the version of entry into

and arrest inside the apartment given by petitioner and

his wife. -I find the ‘search was made. shortly after an- —

nouncement of ‘arrest, and that the furniture seized and

removed was. that taken from the model home at Ocean-

side, and the” photographs introduced at the trial were

only of \that particular furniture. | (M. 147-148, T. 49).

There thay be wonderment concerning Ahe ruling of -

County Judge Kelly contrary to the one I reach. “How-

ever, it is clear in my judgment from the opinion of the

Judge that the basis for his ruling was that the furniture,

involved in another’ indictment concerning a Bethpage, -

_ Léng Island, burglary, was’ removed from a locked base-. |

ment room the day. after the petitioner’s arrest. ,-. 2

Of-course, as in all these situations, there are doubts -

when general principles of the governing case law are

sought to be applied to particular facts. It is true the

; arrest and search might better have been made with ar-

§ - yest and search warrants. Also, no one disputes that -

-the fairest way to enter a domicile is to ring the bell’ in

: the vestibule under that person’s card. But under the

_. | eireumstances here of landlord.and tenant, Carafas be-

. ing the landlord and the Doctor the tenant, in separate

floors with common open doors for. entry, as I find, and

no breaking or force, such entry should not-be charac- .

terized, in my opinion, unlawful under the cases as I

-| | read them: (Polk v. U. S., % Cir., 314 F. 2d 88%, cert.

i. den. 375 U. S. 844; Schnitzer v. U. S8., 8 Cir, 77 F. 2d

“a 233; Rouda v. U. 8., 2 Cir., 10 F. 2d 916; Hobson v. UWS.,

4 e

«+

Second Opinion of Judge Foley |

8 Cir, 226 F. 2d 890; U. 9. v. Monticallos, 2 Cir., 349 F.

2d 80). cyte elie

If the search did precede the arrest, and I do not so

find, still I would think it must. be considered nearly

simultaneous and involving one transaction. (Holt .v.

Simpson, 7 Cir. 340 F. 2d 853, 856: Johnson «. U. S., .

‘333 U. S. 10; U. 89. v:. Boston, 2 Cir., 330 F. 2d 937, 939 ;

U.S. v. Dedenere, 2 Cir., 332 F. 2d 160). There is no

doubt in my ‘wind after the unusual revelations of pre-

liminary investixations probable cause much more than,

mere suspicion: led. the detectives to the Carafas’ heme.

‘ In no sense could-I conclude the persons who had charge.

of the model home and described the furniture to the

‘ detéctives, and the neighbor who gave the information “of

. the car and trailer should be treated as informers. At*

the house the sighting of the dressér was enough.to war-’ -

‘rant belief that the petitioner was connected with the

burglary. (Henry v. U. S., 361 U. S. 98, 102). The -at-

torney for the petitioner earnestly argues, and it is . oe

worthy of serious’ consideration, that under the circum- .

stances there was no emergency presented by reasonable

fear of escape or removal of the furniture, and the de-.

“ tectives shéyid have obtained the magistrate’s search war-

rant. This procedure is and should be much preferred.

(Johnson v. U. §., 3383 U. S. 10, 15; Miller v. U. S., 357 :

U. S. 301, 307). The relevant test, however, is not

whether it is reasonable to secure a: search warrant but

whether the search was reasonable. (U. 8. v. Rabinowitz,

339 U. S. 56, 64-65). It is my conclusion the arrest was

lawful although without a warrant, as one made with

probable ony ag reat with New York statytes, and

the search and seizure was incident to such lawful arrest

and therefore not unreasonable. (Ker v, California, 374 .-

U. S. 23, 34; N. Y. Code Crim. Proc., See. 177[3]; Peo-

ple v. Adorno, 37 Misc. 2d 36). .

My findings: of fact and conclusions of law are stated

above. As done in my decisions of the West and Wilson |

. Companion ‘cases. remanded, to anticipate, I hereby issue

- efor the second timer”. rane

ASG | 2 tiie ie ae eye

Second Opinion of Judge Foley Aas

notice of appeal, if forwarded to the Clerk of this Court,

‘to appeal generally im forma pauperis should be directed

to the Court of Appeals, Second Circuit.

The petition, being entertained on the merits for the

« <gertifinate of probable papee (28 USCA. 2953). SA -

- Federal Building, Utica, N. Y., shall be filed by the Clerk eo

‘ without payment of prescribed fee. — Application for leave. -

first time in this District ‘Court, is denied and dismissed _-

~ Tt is So Ordered. ~. |

‘Dated: May 2, 1966

‘Albany, N. ¥.-... |

* s .+\ JAMES T. FOLEY

United States District? Judge,

’.

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\ Po se A

| Fd

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2 1 7

v .

“oo

‘

~ @&8

ie 4 ie eas Notiée of Appeal.

~*7

Notice of Appeal to Court of Appeals.

UNITED STATES DISTRICT COURT,

“No&ruern Disraict or New York.

The appellant herein is James P. Carafas, and he re-'

sides at.35-33 30th Street, Borough and County of Queens,

_ City and State. of New York; Pro Se. | f

~ . The offenses’ were Burglary. third degree and Grand

Pe Larceny second degree, in the County, of Nassau, State of -

'. New York. . ; area. bei

* The petitioner was. convicted after trial by jury verdict

in the. County Court, Nassau County and sentenced ‘on

October 22, 1960 to a term of three to five years in prison,

the terms to be served concurrently. The judgment of .

- conviction was. unanimously affirmed by the Appellate.

. Division, Second Department, without opinion (People

v. Carafas,14 A. D.: 2d 886). The New York Court of -

Appeals unanimously affirmed the judgment on April 26,

1962, without opinion (People vi Carafas, 11°N: Y. 2d

891). Remittitur arnended to reflect: constitutional ques-

’ tion passed upon (11 N. Y. 2d 891). Certiorari _was

denjed by the Supreme Court (372 U.S. 948, 1963). After —

~ denial of Certiorari in Auburn State Prison in the North-

. ern District of New York; Appellant, Pro se, petitioned

_the United States District Court for the Northern Dis-

trict of New York for a writ of habeas corpus. ad sub-

jiciendwm, pursuant to 28 -U. S. CG. 2241. ' District Judge

James T. Foley, denied the writ without prejudice per

opinion dated, July 22, 1963, holding -that: Appellant

- should first apply to the State Courts for re-arguments

- for possible reconsideration in ‘view of the decision in |

People v. Kelly, 12 N. Y. 2d 248 (1963), 231 F. Supp. .

533. Appellant applied for re-argument tothe Appellate

_ Division, Sécond Department, and the motion was “denied

5 ? 5 4a

in aR FS -

Deccatagthstintenisscinsiinin sibs, elute ill es stati echabtt eat Vitiinitt

ASB

ae Notice of Appeal to Court of Appeals

on October 30, 1963. Appellant appealed to the. United :

States Court of Appeals for: the Second Circuit from the

order entered in the United States District Court for the

Northern District of New York, on July 22, 1963; by Judge:

. Foley, denying and dismissing without prejudice the peti-

tion for-a writ of Habeas Corpus (U. S. ex rel. Carafas v.

Murphy, 231 F. Supp. 533).. The court of, appeals, sec-

ond cireuit, reversed the decision of the District Court

and remanded the issues of unreasonable search and

~ seizure to Judge James T. Foley, of the District Court.

for determination (334 F. 2d 331, 1964). The Attorney

General of the State of New York, on behalf of J. Edin

LaVallee, and Daniel McMann, wardens of two New York

State prisons, petitioners, obtained a stay of the mandaté

and petitioned the United States Court of Appeals for

° the Second Circuit for a writ of Certiorari to review the .

judgments of the United States Court of Appeals for the

Second Cireuit in the cases of United States ex rel.

“Carafas v.-Murphy (judgment ‘entered June 22, 1964) ;

and two other cases not related with similar questions.

was denied. Judge Foley, D.C. denied and dismissed the

petition of Appellant for a writ of Habeas Corpus en-

tertained on the merits for the second time, and issued

‘a certificate of probable cause (28 U.S.C.A. 2253). Ap-

- pellant was paroled: from Auburn State Prison on the

4th day of October, 1964, and is- presently on parole.

_.° [, the. above ‘named appellant hereby. appeal to the

- United States Court of iueuts tet the ‘Second Circuit

_. from the above stated judgment. en Re a

Dated: May 20, 1966 nes

New York, ‘N. Y.

3 _ JAMES P. CARAFAS

Appellant Pro Se

.35-53° 30th Street

Long Island City 6, New York

A59 -

Motion for Leave to Appeal in Forma Pauperis.

"UNITED STATES CIRCUIT COURT,

. SECOND Crrcurr.

Sirs: «© . |

‘The Appellant-Petitioner moves this Court for an order

“. permitting him to ‘prosecute an appeal from a final erder

entered herein on the 2nd day of May, 1966, in -forma

. pauperis, pursuant to the provisions of Title 28, United

. States Code, Section~ 1915, and.in support thereof at-

_ taches: the affidavit of said appellant.

-. JAMES P. CARAFAS

_- Appellant-Petitioner Pro Se

Post Offiee Address -

? 35-33 30th - Street a

_ Long Island City 6, New York .

‘

of life.

Dew seein seemed onl ite Bia be oan

Affidavit of Appeal in F orma Pauperis.

UNITED STATES CIRCUIT COURT,

Seconp Crgcult.

United States of America,

State of New York, __ 8s:

County of New York,

James P. Cararas, being duly sworh,. says:

1. I am a citizen of the United States of America, and

the appellant-petitioner in the above captioned matter.

2. I desire to prosecute an appeal from the fina] order

dismissing the petition for a writ of Habeas Corpus, in -

the above entitled action, but because of my poverty and

impecuneous position, I am unable to pay the costs of

such appeal or to. give security therefor and still be able

to provide myself and my dependents with the necessities

“

Your deponent is presently on parole and has been on

parole since October 4th, . 1909. * He has been employed

as a trucker’s helper and earns $60.00 per-week. Because

of my incarceration I have incurred debts, which at pres-

ent are heavily pressing upon me. My meager earnings —

leave much to be desired,. however, I must ,carry on as

best as I can with the hope that God and his earthly

emmissuries will aid me in my circumstances.

3. 1 believe that I am entitled to.the redress I seek es

by such an appeal, and that’ such appeal presents sub-

_ stantial questions.

The nature of the questions to be presented upon such

an appeal are as follows: |

sia a waitin

A61

Affidavit of Appeal in Forma Pauperis

' I contend that my ‘constitutional rights have been ab-

rogated, by the violations committed by Nassau County

Detectives of the State of N ew York. Botk my righis

under the fourth and fourteenth. amendment have been

transgressed. I submit herewith a photostatic copy of

the order entered dismissing my petition for a writ of

habeas corpus and is marked exhibit “A”. A copy of |

the notice of appeal iS likewise appended and marked

exhibit “B” for the Court’s edification.

4. By the way of background, I submit the following

factual circumstances encumbering the curtailment of my

Constitutional rights. | :

‘Apparently as the Trial Records indicate in the Nassau ..

County Court. for the State of New York, the following

account was: related. — wee

Ae. - Se

. Affidavit ‘of Appeal in Forma Pauperis

_ The Nassau County Detectives, to wit: Grim and Kap-

ler, were investigating an alleged larceny of several pieces.

of furniture found missing by a real estate developer in

Oceanside, Long Island. The complaint was ‘taken under

consideration by the detectives, on or about June 3rd, .

1959. The said detectives, in their quest for informa-.

tion, in the vicinity of the alleged theft, questioned a

neighbor, ‘who said that she had seen a gray cadillac

with a U-haul trailer being. towed near the area. The

. detectives ascertained the whereabouts of the tow truck,

who had rendered assistance to the cadillac and were

given the name of the owner of the said car. :

Thereafter, the. detectives visited the premises of the

petitioner, by. first-entering the vestibule of the property

in Long Island City, to wit: 33-53 30th Street, New York

City. Upon talking to some person.in the Doctor’s por-

tion of this building, they. stated that the Appellant- :

Petitioner resided on the top floor with his wife.

—e

Affidavit of Appeal im Forma Pauperis

__.The detectives, on learning this information; mounted

the stairway and went into the’ premises, where the Ap- |.

pellant was found stretched. out on a divan and his wifé |

- was cleaning. The detectives ,over protestions of the

appellant, although’ they were questioned whether they

had a search warrant or an arrest warrant, commenced:

searching the apartment. ‘One of the detectives slapped

the appellant’s wife, when she dem&nded: that they ex-.

~ hibit a search or arrest warrant, saying that, that ‘was —

his warrant. - Thereafter, began -a most bizarre set of ...

events as éver witnessed, because the "were ordered out .

of the premises, and Mrs. Carafas was. handcuffed to- |

~~ thebathroom door. All this without a legal right.to do so,

and moreover, were out of their jurisdiction and, there- a

fore, acted more like thugs, than human beings. ame

At the time of trial, Some twenty-five photographs were _

admitted. of furniture, which were taken on trucks and

other places, all over the objections of the defense coun-

sel. | ;

| PBN tilict nA nagtd GS roaddges 2 —

A 64

Rashes Ss ee a ae Ss ced Sud i a —— . és a P, 3 ra

: . a ws ‘ ee i ee ee

Affidavit of Appeal in Forma Pauperis

It is submitted that the travesties committed by. said

‘ detectives. were not justified under the law; as the Con-

stitution of the United States so provides. .«

_. So that I may be able to assert my rights, I ~asking

this Court’s assistance, and, were it not for the need, I

would not make this application. This matter is brought

to the attention of this Court, because it raises collateral

issues of Constitutional violations, which is jurisdiction-

- ally: appropriate for this Court, and is: made in good

faith. /

“WHEREFORE; ‘your -affiant prays that the relief sought

herein may be granted, as I believe I am entitled to the

.Telief sought. ‘.

JAMES P. CARAFAS

__ Appellant. Pro Se

Sworn ‘to before me this

, 81st day of May, 1966

(Illegible)

a° y ¢

- . .

AG65

: Affidavit - in Opposition to Application for Leave to

' Appeal in F orma Pauperis and Cross-Motion to Dis-

miss Appeal. . a : “-

——s UNITED STATES COURT OF APPEALS, _

| SEconp : Cigcurr, |

[Same Tite. }

"State of New York,

/ County of New York, ss: .

Barry Manonry, being duly sworn, deposes and says:

_ 1 am an Assistant Attorney General in .the* office of

Louis J. Lefkowitz, Attorney General of the State of New.

York, attorney for the respondent-appellee rein. I

-make this affidavit in opposition to petitioner-appellant’s -

application for leave -to appeal in forma -pauperis from

a decision and order of the United States District Court .

for the N orthern District of N ew York (Fotey, J.), dated

May 2, 1966, which denied his application for a writ of

habeas corpus, and in ‘support of respondent’s cross-

motion to dismiss the appeal. herein,* |

At the time of ‘his initial application for a writ of

habeas corpus, petitioner was incarcerated in Auburn

State Prison, .pursuant to a judgment of the Nassau

County Court, rendered December 13, 1960, sentencing

him to concurrent tarms of 3 to 5. years imprisonment

- for the crimes of burglary in the third degree and grand

larceny in: the’ second degree. He is presently on parole

from these sentences. meet

Petitioner’s claim in the habeas corpus proceeding. is

that -the fruits of an illegal search and seizure—specifi-

cally, some 25. photographs of itenis of furniture stolen

from.a model home in Oceanside, Long Island,,and found

_ *™ The District Court granted a certificate of probable’ cause in

the same order in which it denied the application for the writ.

m . i .

ill ea: te en st alee Bt? wig) Bogs.

Bad * ee ‘6s a, . . ° \ -

A 66. ee Bae

Affidavit m Spsisbiiics to Application for Leave to Appeal: *

Pad

in petitioner’s apartment’ on June 3, hoikeove intro-

. duced into evidence at his trial. The ‘complicated history

of the litigation of this claim is set forth in Judge, Fo- |

ley’ S opinion.

‘The relevant facts for present purposes were developed

at the petitioner’s:-1960 trial, a 1962 hearing in the Nas-

sau County Court, and a 1965 hearing in the District

- Court: The transcripts of each of these proceedings are

a‘ part of the record herein. At the District Court hear-

ing, the arresting police officers (Nassau County Detee-

tives John Kapler and: Edward Grim),. petitioner, and.

petitioner’s wife’ each testified. .The facts found by the

District Court are ‘summarized by Judge Foley in his de-

_ cision (R. 1327, 1330-1334). Briefly, they are as follows:

Detective Grim and Kapler, investigating the report

of a burglary of a model home in Oceanside, went to the

location on the morning of June’3, 1959. They were

taken thréugh the premises by a Mr. Wedgewood, who.

described the pieces of, furniture which had been taken’

from the model home and ‘showed them the remaining

pieces of the. bedroom set which matched the pieces taken

by the burglars. While at the location, they spoke to a

neighbor, who told them that earlier tifat morning she

_had- seen a car—“a — and gray Cadillac with a U-

lampshire plates attached to the.

rear”—stuck in.the sand by the model house.- The neigh-"

Haul trailer with New

bor told them that she saw an AAA truck come and as-

sist the car and trailer out of the sand, and described

the appearance . of the man.and woman in ‘the car.

After receiving this information, the detectives located

the tow truck operator and, through him, ascertained the

name and address given by the person who had been as- -

sisted—James Carafas, 3553 30th Street, Astoria: They

proceeded’ té that address, where they found a black and

gray Cadillac, with a U-Haul trailer bearing New Hamp-

‘shire plates wxenn to the rear, parked in front of the’

house.

ae: te tt

Affidavit in Opposition to Application for Leave to Appvedt

| | 4

The facts with respect to the investigation of the po.

lice officers, up to the point at which they arrived in front .

of pétitioner’s residenc jn, Astoria, have never been in

dispute in this proceeding. The subsequent events, how-

| slr, 40 been the subject of sharply divergent testi-

mony—~ It has been. petitioner’s contentign that the police .

officers went through locked front doérs at the front of

the house, and up the stairs to his second floor apartment,

__ burst into the apartment where he was resting on a

couch, arrested him and his wife, and then commenced. °

_to search the apartment. As is apparent from his pres- ’

ent application to this Court (pp. 2-3), he still claims

that ‘this is*the true story of the. events. Petitioner’s |

version of -the facts has, however, been completely re-

jected by the District Court which, after having had an’

opportunity to assess the credibility of petitioner, his

wife, and the arresting officers, accepted as true the tes.

timony of the police officers (Op., R. 1332)..

The detectives testified that they arrived at the ad-

_ dress at approximately 1:30 P. M.; that they noticed a

"sign on the front.door of the house indicating that*they

were arriving at a time when a Dr. Shapiro was having

office hours in the premises; that they passed. through un-

locked ‘outer and inner doors of the house and stopped in

the doctor’s waiting room to inquire where the petitioner

lived; that upon being informed that the petitioner lived

upstairs, Detective Grim went’ over: to the foot of the -

stairs and shouted “Carafas”; ‘that’ Carafas came over

to the top of the stairs and identified himself; that, as

they looked up ‘the stairs and began to ascend them, the

detectives could see a dresser on the second floor Iand-

ing which corresponded to the descriptions of the furni-. .

ture stolen from the model home; that they arrested -

petitioner and his wife on the landing, the latter as she

stood in the open archway leading to the apartment; and ~

that they immediately thereafter made the search com-

plained of. agers .

Py A 67.

Affidavit in Opposition to Application for Leave to Appeal

In accepting the- detectives’ account. of the relevant

events a8 true; Judge Foley noted that it was well cor-

roborated. Thus, for example, the signs on the front of .

the house (see Resp. Ex. A, R. 1325) made it clear that

part of the premises were occupied by a doctor who. was

having office hours. at the time the Detectives arrived at

the house, and the doctor himself testified that he had un-

locked the doors on the day ;in question; that he was prés-

- ent in his office between 1\ and 2 °P. M. pn that day;

and that he heard a commotion ypstairs (see Op., R.

1332). - i FPPC ANE:

It is clear from the foregoing that the District Court —

was quite correct in concluding that under the circum-

stances the entry of the Detectives into the premises which

petitioner shared with Dr. Shapiro was lawful (Cf. Polk

v. United States, .314 F. 2d 837 [9th Cir., 1963], cert. de-

nied 375 U.S. 244 [1964]; Schnitzer v. United States, 77 ~

F. 2d 233 [8th Cir., 1935]; Rouda v. United States, 10. F..

24-916, 998 [2d Cir., 1926]; United States. v. Monticallos,

349 F. 2d 80 [2d Cir., 1965]) ; that’ the Detectives’ observa-

‘tion of the piece of stolen furniture resting on the second -

floor landing, together with petitioner’s identification of

himself as “Carafas”—when viewed in light, of the in-

‘ formation known.to the detectives prior to their entry into

Se ee ee >

the house—gave them ample probable cause for arrest-

ing petitioner and his wife (Cf. Ker v. California, 374 U.

S, 23, 34-35 [1964]; Henry v. United States, 361 U. S. 98, -

102 [1960]; United States ex rel. Coffey v. Fay, 344 F.

2d 625 [2d Cir., 1965]; Ellison v. United States, 206 F.

24 476 [D. C. Cir., 1953]); and that the search of the

- apartment was incident to this lawful arrest (Cf. United:

States v. Rabinowitz, 339 U.S. 56, 63 [1950]; Ker. v.

California, supra, at 41 [1963]).. See generally Respond- —

ent’s Memorandum After Hearing, R. 1302-1324, in which

the facts and the law are discussed in greater detail.

_. Reply Affidavit of James P. Carafas

Wuenrerore, your deponent respectfully requests that

' petitioner’s application for leave to appeal in forma

pauperis be denied and that the — herein be dis-

missed. ‘

BARRY MAHONEY

' Sworn to before me. this

27th day of June, 1966.

/s/ Michael H. Rauch

Assistant Attorney General -

of the State of New York

: Reply’ Affidavit of James P. Carafas.

UNITED STATES COURT OF APPEALS,

Seconp. Circuit. es

[Same Trttz.]

ae State of ‘New York, .

:.County of New York, SS:

James P. Canaras, being duly. sworn, deposes and says:

That he is submitting. this affidavit in reply to the

papers tendered by the Attorney General of the State of

New York. The affidavit will treat first as to the motion

to file an appeal in forma pauperis, » MORAY, to the

cross motion’to dismiss the ‘appeal.’

A purview of the decision of Mr. Justice Foley, ila

has. and is already filed with this court, will indicate the.

inconsistencies which are glaring in view of the record.

The. Judge, in the lower Court, accepted ‘a version, as

related by ‘the Detectives, who are charged with the con-

_ stitutional violation in so far as, your affiant.- The Judge

completely overlooked testimony of the same two detec-

nile ae yp oho

a fi ali

~A70

Reply Affidavit of James P. Carafas

’. tives, who testified at the trial in Nassau County, dia-

metrically adverse to the testimony at the hearing. How,

conceivably, a judge: could completely disregard testi-

mony, which allegedly was fresher in the minds of the

two investigators, certainly leaves much to be desired.

Apparently, there was. an attempt by the said detectives

< to color or cover up.the testimony as adduced under oath

at the trial,

Unquestionably, your affiant .was incarcerated in Au-

burn Prison for a crime, which, upon trial, he was ad-

judged guilty. However, the unconstitutional admission

_Gnto evidence of the photographs purportedly of furni-

-ture. allegedly owned by the developer. No evidence ad-

duced. at the trial, that such proof was in the detectives’

hands at the time the questionable search was made.

Moreover, the physical construction of the premises,

where the illegal entry and séarch was made by the de-

tectives, was never taken into account and pitted against

the testimony, and tested in the crucible of truth and

veracity. Mere glaring aspects. of the testimony were

never taken into account, in that the “detectives had no

authority to. make a search, either. undeF¥ the pretense

of legality or otherwise, because they had never pro--

cured the required permission from the Police of the -

City of New York. Since a study of the testimony will

show that they entered illegally and made an unwarranted

search of the premises, after they had subdued both the

appellant herein and his wifé. Moreover, they had bru-

— talized the appellant and his wife, only then did they

bother to call the 114th. Police Precinct to endeavor to

legitimatize their. actions. Oddly. enough, the learned

prosecutor from the State of New York, missed the entire

"purpose of the application, if as he asserts, that the de- —

ponent’s only purpose for this appeal is that certain pho-

tographs of furniture were admitted illegally into evi-

dence. Certainly, the admission was. illegal, however,

this is only an infinitesimal part of the constitutional

transgressions practiced. upon your affant. There is

A771:

_ Reply, Affidavit of James P. Carafas —

nothing complicated about this litigation, except perhaps,

the concoéted stories of the detectives to justify the fruits

of their illegal acts. | Gaeet

The learned prosecutor endeavors to give a resume

of the testimony adduced ‘at the hearing before Mr. Jus-

tice Holey. However, he remains mute as to the facts

adduced at the trial. Seemingly, an attempt to confuse

the issues. Happily, however, justice may yet be achieved,

once all: of the disparity in the testimony is indicated

_ with clarity, and distinctly brought to this Honorable

Court’s attention. The impressions of the prosecutor,. as —

to the facts appertaining herein, are void of the real as-

pects of the evidence. The error of commission is -fir- iad

ther perpetrated by the lack ofthe prosecutor, to justify

the facts, in light of the evidence at the trial. Not one

word or scintilla of verification has been undertaken by

the opposition to justify the disparity of the testimony

of the detectives. When were the detectives telling the

nh trem they testified at the hearing or when they .

testified at the trial? It is ‘earnestly submitted, that a -

perusal of the documentary proof will defy belief of any

testimony, that the detectives gave, either at the hearing,

or, at the trial. -

The lower ~eourt Judge, certainly, did not take into |

account the trial minutes. No indication is given in his

. decision. Moreover, no reference is Tiade to it. He, gen-

erally, states from all the evidence, he concludes he be-

lieves the testirhony of: the detectives given at the hearing.

The prosecutor deduces that the District Judge’s de-

cision was proper, although, the judge dees not take into |

account the. physical makeup of the premises. He dis- -

counts the testimony of the doctor, who was a tenant

on the first floor premises of the edifice. He, the Judge,

_ does not take into account the brutal beatings that the

appellant and his wife were subjected to, and admitted by

the detectives. More important, the said officers had rio

“business in New York City; until they had procured per-

mission. from the City Police. The fact, that they at-

EE screens pel

’

a .

oD sistas os ee en ee ee eS eet eee Darnasiadtoas

| Reply Affidavit of James P. Carafas

tempted to justify their act, after the occurrence, : cer-

tainly gave credence to the -appellant’s. version of ‘the

. occurrence .. *

Perhaps, the lower court Judge: must have. had certain:

reservations as to his decision, when, he says, “I hereby .

issue a certificate of probable ‘cause (28 USCA 2253).

A Notice of Appeal, if forwarded to the Clerk of this

Court, Federal Building, Utica, N. ‘Y., ‘shall be. filed by

the Clerk, without payment of prescribed fee.” A pur-

view of the decision of the learned Court below, will in-

dicate beyond any doubt, that, it had arrived at a con-

élusion. adversed to-the appellant, but, had to endeavor to

fit the facts and the law, to either non-existent matters, or,

: perhaps, stretched its imagination to achieve the. desired

results, it had contemplged. The results, a decision pitted

with legal incongruities, and a sieve of ‘untenable facts.

Of course, all of those matters are for appellate review |

and he is not, at the moment, encumbering the record any-

more, then, already subjected thereto.

.There is not a shred of probable cause spelled out in

the opposing papers why the appellant should not be

allowed to appeal in forma pauperis. Apparently, then

the statements asserted as to the financial condition of

the appellant must be ‘taken as factual circumstance.

Therefore, it is only fitting that he should be allowed to

appeal in forma pauperis. ES,

Turning a moment to the other part of the opposing

papers, wherein the prosecutor seeks ‘to dismiss the’ ap-

peal, he. finds no reason for the assertion. Nothing in the

opposing papers is indicated as to why the dismissal of

the appeal is;warranted. If, it is proposed, because the

‘prosecutor seeks to paraphrase, parrot-like, the decision

of the lower court, then, lie should fail in such objective,

since nothing enures therefrom, or, from restatements of

~ the prosecutor to assert such a position. On-the other

hand, such request merely buttresses the position of. the

appellant. It shows clearly the untenable stand of the

prosecutor. No reason or suggestion is made as. to. the

Reply Affidavit of James P. Carafas_

dismissal’ of the appeal. Something more than a mere

. Statement or demand is required for granting the de-

mand requested by the proseeutor. A canvassing of the

entire opposing papers and cross-motion reveals none.

- Thus this motion should be denied. in its entirety.

WHEREFORE, your deponent respectfully prays that the

‘motion to appeal im forma pauperis. should be granted,

and, the cross-motion for dismissal of the appeal should

be denied.

JAMES P. CARAFAS

Sworn to before me _this | ee

day of July, 1966.

—

wy a oe o

ATS

‘APPENDIX A. |

Opinion of Circuit Court of Appeals.

UNITED STATES COURT OF APPEALS,

: For THE SEcoND — :

Before: ae ae |

Moore and Friendly, USCJJ; Bryan, USDJ —

Petition for Rehearing

Petition denied.

HJF

USCJI

FvPB

: USDJ

' February 21, 1967 |

ATS

—

Motion for Reargument of Leave to ee in Forma

: Pauperis. — Met se

UNITED STATES COURT OF APPEALS, _

SEconD Circuit.

Sirs:

The Appellant Petitioner ‘moves this Court for re-

argument of the motion for leavé to appeal in forma |

pauperis or in the alternativé to pursue the appeal at .

the“cost and expense of the Appellant-Petitioner, the said

appeal being taken from an order entered hérein.on the

‘papers submitted by’ the Appellant-Petitioner, as well as

- the order denying the application heretofore made and

’ the affidavit of the undersigned.

. JAMES J. CALLY, Eso:

Attorney for Petitioner-Appellant

To: ae

Louis Lefkowitz, Attorney General

Attorney for Respondent-Appeéllee:

in 4, < — Se ‘

aad moe. Sisk

: RS ees ents :

7 aad .

i“ datpcieh Ces ire t sbimeas curiae em a =

i ef ee eee p8 «x -

: '\~wewee-@ Gea, rt

- ‘ pete ee

> ° y* es os

F . - : °

FAG soe

en ° *

for Re-argument.

UNITED STATES COURT OF APPEALS,

eile. aa

[SaME Tire.)

State of New York,

County of New ‘York, SS:

James J. Catty, being duly sworn, deposes and says:

That he is an attorney-at-law duly admitted to practice

law within the State of New York, as well as, the South-

- ern District for the United States District Court of

New York, the Second Circuit Court of. Appeals and the

United States Supreme Court, and as such, has been re-

tained by the Appellant-Petitioner for the purpose of

ascertaining his right of appeal, since his notice of appeal

. was filed within the time prescribed by statutes. ° +

It is submitted that this Court may very well deny the

. Appellant-Petitioner his right - to appeal m forma pau-

_ peris, however, if that is the case, as in the instant mat- .

ter, as is indicated by the attached Exhibit “A” hereto,

Gt certainly should allow time within which the said ‘ap-

pellant may prepare and file a record on appeal and his

brief. To preclude the appellant from proceeding with

his appeal is tantamont to vitiating a constitutional right.

‘Certainly, the Court can prescribe. conditions under which.

the appeal may be taken, however, to dismiss the right

of. appeal of the appellant is a usurpation of a right,

especially, if he made his appeal timely, as in this: case.

; - . A copy of the notice of appeal is hereto attached and .

denoted Exhibit “B”. ~

eS _. It is respectfully submitted that the affidavits and Notice’

4 of Motion of James P. Carafas heretofore filed is ‘again |

/ set forth and marked Exhibit “C”.* The order appealed ~

from is likewise attached and marked Exhibit “D”.

Biden ins Satan Pete & «.

Affidavit of James J. Cally, Read in Support of Motion -

| cae February. 8, 1967

this indigent appellant be upheld, although, the appeal

forma pauperis may. be denied as the court has already

decided. However, the right~to appeal should be upheld.

under the conditions to be set forth by the Court.

. Wherefore, it is: respectfully submitted that the Ap- :

pellant-Petitioner’s right to appeal should be. upheld re-

- gardless of conditions this court may impose.

¢?

Sworn to before me this

~-Tth day of February, 1967.

_ JAMES J. CALLY

Decision, February 3, 1967.

" UNITED STATES COURT OF APPEALS, .

' For tHE. Szconp Crrcurr.

Before:

Moore and Friendly, USCJJ; ‘Bryan, USDJ—

Application, for Leave to. Proceed in Forma ‘Pauperis

Application denied. Motion ibe iiiniies appeal granted.

plied LPM

\ 2 SSeS

| | USCII

FvPB

de 3 * -USDI

February 3, 1967 ~~

Py Psa ee arn

AT8

—

Transcript of Testimony.

UNITED STATES DISTRICT COURT,

; : +

NortHern District or New. York. |

aes \

_ Unirep Srares or America ex rel. James P Caparas, |

| Petitioner,

Hon. J. Epwin LaVALLzE, Warden of: Auburn Prison,

Auburn, New York (Successor to Hon. Robert: E. . .

Murphy),

_— . | | ~ - Respondent.

. Civil No. 9657 .

: $< —

The following hearing took place at the United States

District Court,, Northern District of New York, Federal

Building, Albany, New York, on the 5th day of November _

1965, before Honorable James .T. Foley, United States

District Judgy - ee ea “i

. (2) Appearances:

James P. Carafas, Petitioner

In Person os

By Lawrence W. McKeown

114 Old Country Road

‘Mineola, New York

. Hon. Louis J. Lefkowitz

Attorney General, State of New York

‘Barry Mahoney

Joseph Castellani

~ . Of Counsel 3 | ee

Assistant Attorneys General _ ‘ je A -

"The Capitol

Albany, New York

, A79 -

—

Transcript of Testumony

The Court: All right, call- the case. |

The Clerk: United States of America ex - j ames P.

Carafas against Hon. J Edwin LaVallee, Warden of

Auburn Prison, Auburn, New York.

Mr. McKeown: Petitioner ready. _

_ Mr. Mahoney: Ready for respondent. | ;

The Court: Mr. Mahoney, _ are gone | to conduct: ™

for the respondent?

Mr. Mahoney: Yes, Your Honor.

The Court: Mr. mai I know you appear for Mr. .

- Carafas? |

Mr. McKeown: Yes, sir. a “

The Court: Are we agreed who has the (3). burden,

because this is'‘a prolonged proceeding and I am not sure

- myself who has the burden.’

Mr. McKeown: May I then attempt to help Your a

with a brief statement, It is this, Mr. Malioney and -

I have been working on this .case for a long time and we

have reached certain agreements, and may-I make plain

‘that if I misstate, overstate or -understate any of these

things that I talk about that I would like Mr. Mahoney

to clarify: it.

‘We recognize our as and obligation to the Court to

ease the burden if we may in this: long drawn: out case.

It has been through the courts twice,.it has been .to the

Supreme Court twice, it. has a long tortured history.

The Court: And I think I tried to send it back to. the

. state court again and Judge Kaufman disagreed.

_ Mr. “McKeown: Now basically we are concerned here

with the question of whether or not there was.an unlaw-

- ful search and seizure way back in June of 1959, and re-

gardless of what views any court may have taken‘on this

- (4) question at- any time as I see it the case here dnd

- the question here must be decided by Your Honor.- \,

Now the events of June % 1959 led to three indiet-

ments, the one on which James Carafas ‘and his wife

Catherine Mary Carafas were convicted, to another in- ‘>

dictment in Nassau County in: which they were both ‘de-

ele

ie ree te ees}

A 80.

Transcript of Testimony

fendants, and to a third indictment in Suffolk County in

‘which only James P. Carafas was a defendant.

On the second. indictment in Nassau County it-came on

for trial many months—nearly a year after the first con-

viction. A hearing was held in the Nassau County Court

on the question of whether or not there had been an un-

lawful search. So far as time is concerned, Your Honor

will want to keep in mind that the first conviction came

in November 1960. Mapp-against’ Ohio. came down from

the Supreme Court in June 1961. As a matter of fact

the second indictment came on for trial and the trial had

actually begun on the Monday or the Tuesday—the same

Monday that-Mapp against Ohio was decided, (5) and

‘on Tuesday morning when we.went into court for the -

secqnd day of the trial, we were all—attorneys on both

- sides, and I-think I may also say with deference to’ his

‘Honor, we. were all bewildered about what Mapp against

Ohio said. So we agreed we wouldn’t go any further

with that trial. I think we stayed that way until Fay

vs. Noia and Linkletter vs. Wallace was handed down.

The Court: It becaie a matter of confusion for three

or four years... :

_ Mr. McKeown: Yes, but instead of going ahead with

that second trial, we went ahead eventually with a hear-

ing on that indictment on the question’ of whether or not .

there had been an unlawful search.’ |

And I have here the transcript of that hearing.. And

now to go back to the point I started to make, Mr. Ma-

honey and I have agreed that we, will put this transcript

in evidence before Your Honor to the extent that it may

apply, to the limited extent. that the testimony here of

the many witnesses may apply to the Oceanside burglary.

(6) Now. that may be a ‘little difficult for Your Honor

"to. comprehend at the moment, but I will try to explain

it a little further as I go on. |

In this hearing, which was on the second indictment,

we: were concerned mainly with search and seizure of

articles that had to do with the Beth Page, Long Island,

burglary, but nevertheless— —

Transcript of Testimony

The Court: What date was this hearing?

; Mr. McKeown: This hearing began on August 7, 1962.

The Court: And this is after the conviction that is

Mr. McKeown: Yes, the conviction that is under chal-.

lenge, the jury verdict was November 23, 1960. So this ;

-hearing came on nearly two years afterward.

The Court: All right. Thank you. ~

Mr. McKeown: Now the two Nassau County defend

ants who are here today, the petitioner and his wife

testified and a doctor testified. We will try’ to make

- more (7) clear things that Mr. Mahoney and I agree upon

_ which this is placed before Your Honor as we go on, but |

in reaching the agreement that we have reached, I have

assured Mr. Mahoney I would put on the stand here the

" petitioner and his wife and I will ask them certain ques-

_ tions so that their direct testimony here would be no

different, but Mr. Mahoney is not bound ‘on his cross

examination conducted by the district attorney of Nassau

County in this. hearing, and again, he will put the de-

tectives on the stand and they will testify, I assume, - in

accordance with their understanding that their testimony |

would be the same, but I am not bound on the cross |

examination. |

Mr. Mahoney: With one exception, that either of us

may ask a few other questions to clarify certain things |

that we may not believe were fully clarified at the time

of the previous hearing

Mr. McKeown: Yes, in other words, even oa we

will stipulate and the testimony will be that this’ direct

testimony would be the same, it may be enlarged upon

(8) by either side if we see fit. «

The Court: I am sure you both realize we hold many

~ habeas corpus hearings and we are not as formal and as

legalistic in these type hearings as we are in trials and ~

so forth, because our desire is to clarify it as best we

ean not only for ourselves but for the Appellate Courts

and make a good record here. :

‘ y,

A 82

Transcript of Testimony

This rae help out, because I ‘knew wie was such a

hearing and we Weren’t clear on when it took place, and

there must be some relationship to the articles that were

introduced.

- Mr. McKeown: Very definitely.

The Court: In the 1960 trial.

Mr. McKeown: Let me say that so far as I am con-

cerned, and I am sure Mr. Mahoney feels the same way,

we are not at all concerned about the niceties of the

Tules-of evidence, we want merely to get before Your _

Honor all the facts, we can get before you to help you in.

deciding the case.

The Court: Judge. Kaufman left it to my discretion

whether I wanted to decide (9) it on the trial record of -

~. the state as it exists, and I am leaving it to your judg-

“ment whether you want to call witnesses, and the next .

step "ts. who wants to proceed first.

Mr. McKeown: I will assume the burden of. going for- |

ward. with the testimony. |

_ The Court: All right. . Did you want to say anything,

Mr. Mahoney? ::

Honor.

The Court: All right, call your witnesses. First maybe

_ you want to introduce the exhibits? |

Mr McKeown: First may I ask that this transcript: of

-+ hearing held in Nassau County Court beginning on Au- '

gust -7, 1962 before the Honorable Paul Kelly, County

to the extent that the testimony may apply to the burglary

in Ocean side, which is the subject of the indictment that

brings this petitioner before this Court.

‘Mr. Mahoney: Agreed on my part.

(10) The Court: All right, I will receive it in evidence.

(Transcript marked Plaintiff’s Exhibit i ‘in evidence, )

Mr. McKeown: Petitioner calls James ‘P. *Carafas.::

Mr. Mahoney:. Not at this time, I don’t think 80, Your :

James P- Carafas, Petitioner, Direct.

JAMES P. CARAFAS called as a witress in his own

behalf being first duly SWOrn,. Was exainined, and testified

- as follows:

’ Direct Examination by Mr. McKeown:

‘Q. Mr. Carafas, “are you the petitioner in this proceed-

ing? A. I am, sir.

Q. Did you testify at a prior proceeding held in the

Nassau County Court, which was-a hearing on the ques-

tron of search and seizure in another indictment No.

15771 at a prior time, do you recall that? A. Yes, I do.

Q Have you read your testimony that you gave at that ~

time?. A. I read it briefly, yes, sir.

Q. If you were asked the same questions that I aiked

you on direct examination at that time, if I. asked you

the (11) same questions today, what will your answers he

would they be any different? A. No, sir.

Q. Would they be substantially the same in every im-

pres respect ? A. Yes, sir. ;

(A document -marked Plaintiff’s Exhibit 2 for

identification.) ;

Q. Would you look at Plaintiff’s Exhibit 2° for iden-

tification, please? A. Yes; this is a plan of the premises.

Q. Tell His Honor what that is. <A. This is a plan

drawn by the architects West & Bailey of the a

at 3553-30th: Street, Long Island City, -—

Q. Is that the premises where we contend a search and

seizure were made? A. Yes, sir.. 7

Q And that .is the same place? A. That’s right.

Q. Now when was this search made? A. It was made

on June 3, 1959.

Q. And is there a date on that exhibit, Plaintiff's 2?

& This date is June. 18, 1962.

Q. Now did you cause that to be made? . A: Yes, sir,

we wee 3

~ (12) Q. Now look it over - carefully and answer this

question. Are the facts shown on.that any different, the

James P. mania i Petitioner, Cross

conditions any different from those that existed on Jurie

3, 19597. A. No, sir, they are not.

Q. Are they in all respects the’same? A. Yes.

. Q. Any physical changes at all in the property from

June 3, 1959 to the date that that. was maget A'No,

Q. And is that a fair and accurate representation of

the conditions that existed in those premises on June

Mr. McKeown: -I offer it in evidence. °

The Court: .Mr. Mahoney, any objection?

Mr. Mahoney: No objection.

The Court: Received...

(Plaintiff's Exhibit 2 received in evidence.)

Mr. McKeown: I have no more questions.

The Court: ‘Well, Mr. ee you are out. on —

The ‘Witness: That’s right.

(13). The Court: When were. you er

The Witness: Last October, sir.

~The Court: October?

The Witness: It was a,year on October 4

The Court: ‘All right. .

Cross Renviination by Mr. ibis

Q. Mr. Carafas, I show you this: photograph. Is this

an accurate representation of the outside of your house

as it appeared on June 3, 1959? A. Yes. |

Mr. Mahoney: I offer it in evidence, Your Honor.

Mr..McKeown: We consent.

The Court: Received. .

_ (Respondent’s Exhibit A marked in evidence.) _

Q. Mr. .Carafas, I point out a bell: button immediately

to the left of the door there. A: Yes, sir.

A 84

they are the same.

38, 1959? A. It is:

now, ‘aren’t you? .

“By Mr. Mahoney:

‘

° .

“a * = = es

ear nn RE Ae i = Eiceeedahidios

James P. Carafas, Petitioner, Cross

_ Is there one bell above another as. appears there?

A. That is correct.

Q. Do you see on there any indication of a name above

or (14) below? A. Well, there was that nameplate, there

are two identical spaces for nameplates and there was

a: ‘nameplate.

Q. I move to strike the last part ‘of the answer as not.

responsive.

The Court: I will let it ean. What is the ‘sig-

nificance of this? This picture was taken when?

Mr. Mahoney: The day after the search.

The Court: That was June of °59?

Mr. Mahoney: Yes. j

The. Court: And. that is the. house that you lived in?

‘The Witness: Yes, Your Honor. | |

The Court: Was that your own home? -

The Witness: Yes, Your Honor.

The Court: Where did you live? _

The Witness: I lived on the second floor, tour Honor.

The Court: Second floor? |

The* Witness: Yes..

The Court: Was there a Rune weer on the bell?

“The Witness: Yes, sir, there was a (15) nameplate on

the outside and there were nameplates in the vestibule

as you enter the front door; there is a little vestibule ~

with two mailboxes and push button bells with name-

plates on ‘them, one signifying a rae ated the other,

Carafas.

The Court: is that what you are asking, if there

is a nameplate on the outside? —

Mr. Mahoney: Yes, sir.

The Court: Does it show in that nistgre’

'The Witness: The picture is not in detail, so it wouldn’t |

show. There were nameplates on there,. Your Honor.

The Court: It-is your ‘testimony there are pa

on the outside?. - .

‘The Witness: Yes.

’

Deititatiaicuesn. etme

a 6

James P. Carafas, Petitioner, Cross

- The Court: Where the bells are?

The Witness: Yes, Your Honor.

- The Court: Is that what you testified to?

The Witness: At that time,’ yes, ‘sir.

The Court: I don’t want to take it away from —

you, is that what, you are asking?

. (16) Mr. Mahoney: That is what I was asking.

The Witness: If I may say, there were nameplates on

the inside as well. There are two doors leading into the

house. This door (indicating), Your Honor, led ‘into a

~ small vestibule, 3 by 4, I would judge approximately,

_ and on the left-hand side there are two United States.

~ mailboxes with nameplates on them and two buttons, one

for each apartment, a bell. They were there. So the

mailman rings the bell and if the doctor is in—

The Court: Speak up. Would there be bells outside?

By Mr. Mahoney:

Q. I take it, Mr. ‘Sanat, I show you the blueprint of

the inside of the apartment. You point out the vestibule

here. Will you clarify this for the benefit of the Court,

if we may? This isthe outside door, is it? (indicating)

_A. The outside door, yes.

Q. For the sake of the record, one goes up.four steps,

(17) comes to a platform, up another four steps. and

arrives at the outside door of the building? A. That’s

right.

Mr. Mahoney: Let me point this out to His Honor

so he may follow it.

The Court: You oan" speak too low, the reporter

has to-get this.

_ By Mr Mahoney:

. @Q On the inside of the vestibule here we see another -

’ door directly opposite the front door, is that correct?

_ A. That is correct. :

The Witness: Bells on the outside and bells on the in- —

side.

ee At ctl le =

7 — ae

dames P. Carafas, Petitioner, Re-direct

Q. The “mailboxes that you speak of, those would be on

the left-hand wall? A. That is right:

Q. All right. I point to the picture again, Mr. Carafas._

There appears to be a white placque approximtely ten

by ten, perhaps? A. Yes.

Q. Could you tell us what that is? A. ‘That indicates

Dr. Shapiro’ s office hours.

Q. Mr. Carafas, at the time that Detectives Grim and

Kapler arrived. at your apartment on June 3, 1959, can

-you tell us to the best of your recollection what hour

the afternoon, (18) to the best of my recollection.

Q. Mr. Carafas, to the best of your recollection, what

were Dr. Shapiro’s office hours on Tuesday afternoons? —

A. Well, to the best of my recollection ‘they would be

about 1:30, they would start approximately 1:30, but he

- generally comes in earlier.

Q. Would it refresh your recollection to recall Dr.

’ Shapiro’s direct testimony under Mr. McKeown’s ques-

tioning at the time of the prior motion to suppress with

respect to the Beth Page indictment, a question to Dr.

Shapiro: “I think that June 3, 1959 was a Tuesday;

assume please that it was, what were your office hours

on this day?. A. 1:00 to 2:00 and 6:00 to 8:00. Q. 1:00

to 2:00 p.m? A..1:00 to 2:00 p. m.” Does that refresh |

your recollection? A. Well, that. is substantially —_

yes.

Mr. ‘Mahoney: I have no further questions.

| The Court: Any re-direct?

Mr. McKeown: Just a few questions.

Re-direct Examination by Mr. McK eown:

Q- Mr. Carafas, if you know, if you remember, was.

Dr. Shapiro in the house at the time that Detectives Grim

(19) and Kapler arrived? A. ‘Yes, he was. |

Q. You know he was there?. A. Yes, sir.

James P. Carafas, Petitioner, Re-direct

Q. Regardless of what his office hours were, he was in

the house at that time? A Yes, ‘sir, he was. _

who?

é shetty ak lilies Rd wha dnt 4 :

The Court: What are their names again, Detectives

The Witness: Kapler and Grim.

The Court: Did you own this residence?

The Witness: Yes, Your Honor.

The Court: Your own house? |

The Baten Yes, Your Honor.

‘Mr. McKeown: -I have not taken Mr. Carafas .

over all.the testimony because it. is all jn the tran-

script.

The Court::That is very helpful. «So the testi- |

mony on the record that applies to this—I think

I am catching on—the Oceanside burglary would be.

what I would consider as testimony here? |

Mr. McKeown: That’s correct, ‘sir.

The Court: That is very helpful.

Mr. McKeown: And. while it is not (20) all dis- .

oy tinguished, and we haven’t attempted to set forth

what you.may consider and what you may not

consider, we: have imposed some burden by having

Your Honor pick this out, but I think it om be

easier that way. ;

The Court: When you brief it, maybe you can

> help me out by referring to that particular part.

Mr. McKeown: Yes, sir.

The Court: Is that all?

Mr. McKeown: That’s all.

(Witness excused.)

. Mr. McKeown:. Petitioner calls Catherine Mary’

Carafas.

* 489)

Catherine Mary: Carafas, for Petitioner, Direct

CATHERINE MARY CARAFAS called as a witness,

in behalf of the petitioner, being first _ sworn was

examined and testified as follows: :

Direct Examination by Mr. McKeown:

Q. Catherine Mary Carafas, have you been convicted

of a crime? (21) A. Yes.

- Q. And when.was that conviction? A. I believe it was

October 26, 1960.

Q. Now would you please speak loud enough so that

I can hear you back here. Did you serve some time on

that conviction?. A. Yes, I did. 3

Q. And where did’ you serve it? A. Bedford Prison

for Women.

Q: Now, Catherine Mary Carafas, did: you testify at.

a hearing held in the Nassau County Court before County

‘Judge Kelly on August 7, 1962? A. Yes— |

Q. (Continuing) —and subsequent dates with relation

to search and seizure hearing with relation to the prem-

ses 3553-30th Street, Long Island City? A. Yes.

Q. Do you recall testifying there? A. Yes.

Q. If I were to ask you all the questions that I asked

you at that hearing, would your answers today be any

different from the answers you gave on August 7, 1962

.and subsequent days? A. No, they wouldn’t.

Q. They would be identical in all respects? A. Yes.

Mr. McKeown: Your witness.

Mr. Mahoney: I have no pernerens Your Honor.

(Witness excused.)

Mr. McKeown: In the court trial. there were

introduced in - evidence ‘some twenty-odd photo-

graphs. They have become very important in this

becausé they are photographs of the furniture that ~

was seized in the search. We do not have them

here today, but I am certain that the district at-

torney of Nassau County has them’ or they are

a matter of record somewhere in the County Clerk’s

office, and we can get them, I am ctrtain of that,

_— ot . _ ties — — peace: . on . ae aeerach

te hte in Bl cs iss TR, sea Se caer) eee ee ee ee ie ins Sica ines

A 90

» Catherine Mary Carafas, for Petitioner, Direct

- that they would be admitted in evidence here, and

, petitioner rests.

I will get them somehow or other and let Mr.

agrees.

- and ~Mr. Mahoney and I have agreed to ‘stipulate

‘Mahoney see them to make certain that he fully

There may be some photographs, although I. |

doubt it, of furniture from the Beth Page burglary,

but, I am. talking now, if Your Honor -please, of

photographs that put in at the trial of this indict- .

ment (23) and probably they show only furniture

seized at that time. But in any event we want

to have this additional visual aid for Your Honor’

- in deciding the case. Do J state that coreeyer

Mr. Mahoney: He ec “ae does. ~

Mr. McKeown: All

The Court: Mr. Mahoney, { am. going to ask

. ° you, because when I first ,had this proceeding be-

_.fore'me I based my decisiori, as I recall, and I

have looked it over. briefly, on the fact’ that: there

° Was nt objection taken to the introduction of . the

photographs. But. it wag never: in my mind° that

you could take photographs: of illegally seized evi- °°

dence and say this ‘is different than offering the

. evidence itself, don’t you agree with that? I made

‘no distinction. I said there was nO. objection, and

Ss with that the

if the furniture was’ there or they used photo-

graphs of, the furni to me it is the same.

Mr. Mahoney: I “we take the position it is

the same thing, yes, Your Honor.

The Court: You don’t say that (24) photo-

: graphs,

Mr. Mahoney : ‘Should be treated any differently

with respect to the Mapp rulet :

The-Court: Than the srticlé itself?”

; ‘Mr. f paaboney' That's. re

sme han oe AD asc he II aia

. John J. Kapler, for Respondent, Direct :

‘

The Court: You can’t take a picture of some-

thing illegally ee and say this is not’. the

article?

Mr. Mahoney: No, we » would: not suggest that

The Court: All right.

_ Mr. es Call Detective John Kapler.

ae oe

. JOHN J. KAPLER called as a witness Pa behalf of

the respondent, being first duly sworn, was. examined and

testified as follows: ~*~ - éviget

- Direct Examination. by Mr. Mahoney:

‘2. Detective Kapler, you are a. member of the Nassau

County Police Department?.(25) A. That’s right.

Q. Have you previously testified at the 1960 trial of .

~ Mr. and Mrs. Carafas with respect to property. stolen

_ from a model house in Oceanside, ‘Long: ee A. 4

Mave.: :<.3

County Court before Judge Kelly with respect to prop-

,erty stolen from Beth Page, Long: Island? A. I have.

Q. “Have you,:today,. read -over your testimony given at 2

the hearing before J udge Kelly’ with respect te the Beth

Page. burglary? A. Briefly I Hive, yes, sir... ~

Q. Detective Kapler, if I were to ask you the same

questions: that you were asked at the time of the hear-

ing, today, would in answers be the same? A. Phey

would. ,

Mr.. ‘Mikes; "Now: Your Biouod;, is would like

to go on and clarify something—some areas that

I don’t think come through’ totally on the nate

of the record that we hs cx aicecira ds

By Mr. Mahoney: are ils Sera ee ae

Q. Detective’ Kapler, I would like is direct your at-

tention particularly to what went on from the time (26)

LEAR OSS BA teeteted ied

j..

A “tad rpeod eee

A 92 |

John. J: Kapler, for Respondent, Direct

that you arrived at the Carafas residence at 3553-30th

in Astoria, could you tell us what happened there from.

the time that you arrived at the foot of these stairs?

A. Is this on June 3, 59? oe

Q. This would be on June 3, ’59. A. I arrived at the

foot of these stairs shown in this photograph with De-

tective Edward Grim of the First Squad. We were there:

on an investigation regarding a burglary in Oceanside.

We had noted an automobile with a U-Haul-It trailer

- that had been parked at the curb. It was the same one

that had been seen at the scene of the burglary in Ocean-

_ side. We mounted these four or five stairs, and a few

more up to the door. It was noticed .there was a sign

on the door, “Doctor’s office. . Walk in.”

Q. Excuse me. Approximately what time did you ar-

rive at the Carafas residence, sir? A. This was some

‘time after one, I couldn’t say exactly when, between one

and two, I would say. : . '

Q. Go: on. A.*And Detective Grim was in the lead.

We went inside of the door and there was another door

; inside this main outside door. We went through a little

lobby and there was another door. .

(27) Q. This is the outside door shown on the photo-

graph, it would be right there then? (indicating) A.

That’s correct. ? 3 F me

Q. And then you went through the vestibule? A.

Right. — a res ste ees

- Q. And’ through another door? A. Through another

_ door, that’s correct. a eae = }

Q. Detective Kapler, were either of these doors locked? _

A: No, they were not. We were in this little hallway— —

_ Q. (Interrupting) After passing the second doorway?

A. Yes, that’s correct. There, was an open door to the

left. Detectie Grim looked in there and hollered, “Cara-

fas!” -A voice said, “Upstairs.” We went to the bottom -

of the stairs here, which was on the right-hand side. De-

tective. Grim hollered, “Carafas” again. ‘With that, a

man came to the top of the stairs and said, “Up here.

a sassiniinetaniiaen oii oa E

as ae tg ie te ee

John J. Kapler, for Respondent, Direct

Up here.”. We started up the stairs. . Detective Grim.

was first, I was behind him. He said, “Are you Mr.

Carafas?” He said, “Yes.” He. showed him the iden-

tification. He said, “You are under arrest.”. .

Q. Before showing him the identification up hice. and

when you were at the lower part of the stairs, had you

seen anything in the hallway upstairs? A. Yes, we did.

Q. Could you tell us what you saw there? (28) A.

Well, there was, backed: up to the stairway—it is an open

_ stairway, I would say three or four foot railing, but

you can see through it like a picket fence—and there

was a dresser that was the one: that was stolen in the —

burglary in Oceanside.

_ Q. You say you recognized this dresser that was backed.

up there, can you tell us precisely how you were able to .

recognize it? A. Through the general description with.

the handles,;-and I believe there was a code number writ-

ten on the back of this particular dresser.

_ Q. Before seeing it, had you talked with anybody or

| seen any kind of furniture, had youseen anything else

wa that would make it easy for you to recognize -it-as a

particular item? A. Yes, we spoke to the man at this

. model house that was burglarized, and this was a dresser,

a Mr. and Mrs. dresser and another smaller dresser

that had been stolen, and the other part of the bedroom

set_was still there. He showed us this was the particular

type of wood it was, and the handles and so forth and

SO On.

> * Q. You cinenainil this’ from the bottom of the stairs? _

<A. That is correct.

Q. You say the man you subsequently identified as’ Mrz ‘

. (29) Carafas came to the head of the stairs here after —

Detective Grim had hollered up, “Varafas't A. That’s

right.

Q. You say, then, - that any testimony by ‘Mr. Carafas

to the effect, he was awakened while sleeping in the living -

room would be false? A. I would. —

sali: sicnabate nada tana at pbeasd peer eee —— 4 venlies

”

John J. Kapler, for Respondent, Cross

Honor.

Mr. McKeown: That was quite a question, that

last one. I -would ordinarily object to that one,

“but I won’t here. | _—

_ Cross Examination by Mr. MeKeown:

ms Detectivé will you take: plaintiff's exhibit 2, please?

On plaintiff’s exhibit 2 will you mark the door repre-

sented by the front door ‘shown in respondent's exhibit

A, mark it with a big “X-1”.

(Witness marks document. )

~Q. Now with respect to the door. that you have marked, .

“xX. 1”, -when you approached that oor, was it locked

Q. Did you try it with your own hand? (30) A. Grim

tried the- door. .

Q. And you. were with Grim when he tried it? A.

Right behind him.

-Q. And it opened when he ainda the knob? A. That's

- correct.

The Court: ‘Is° this the front. door?

_ The Witness: The, main entrance.

The Court: The outside. front door?

: ‘The Witness: Yes.

The Court: All right:

. By Mr. McKeown:

Q. Now before Grim tried that done, did. you look to —

- gée whether there were any doorbells outside? A. I don’t

recall.

Q. Do you remember whether you looked to see whether

there were any doorbells theret A. I eouldn’t say that,

-either. .

Q. Now. when Grim tried the door, you say it ‘opened

to his touch? . A. That is correct.

wabre) —_— al vgn

Mr. Mahoney: .No further eeetions, Your :

_ John J. Kapler, aad Respondent, Cross

—Q. Didn’t he have to force it? A. No, sir ———

~Q. And the two of: you . then went inside? A. We

stepped into this vestibule.

Q. All right,-into the vesibule. ; Will you mark that

@" vy".

(Witness marks document.)

- Q. Now with respect to “V”, did you stay in there he

any length of time, the two of you? A. No, we did not.

Q. Did you stop to pause to look at the surroundings?

A. I can’t recall.

Q. Detective Kapler, did you notice whether or not

there were any mailboxes and doorbells in the vestibule?

-. A. I would have to say I don’t recall that: either, sir. .

‘sir.

‘Q. You didn’t look to see whether there were or not,

is that correct? A. I don’t remember.

Q. You didn’t stop to look, you went right on to the

next door, is that it? A. I couldn’t say, honestly.

Q.: But in any event, you did approach the second door?

‘A: That’s correct.

Q. Now will you mark that, please, with a big “Fr”.

(Witness marks document.)

Q. And what you have indicated with a “Y” is the door

leading to. the inside from the vestibule, is that correct?

A.. That’s correct.

Q. Was that door. locked or unlocked? (32) A. That

door was unlocked also. |

Q: And who tested it to see whether it was locked or

unlocked? A. Detective Grim. :

-Q. He was ahead of you, I take it? A. That’s right.

'Q. And he terned the knob? A. I believe he did, yes,

Q. And you both walked in? A. We did. |

- Q. Now did you press any doorbells in that vestibule

: na you went in the house? A. I don’t recall that.

.Q. Did_ Grim press any doorbells before you: entered

| the door’ “marked te on this: exitfbit? A. I don’t recall .

that, either. .

aL MEA

A96

John J. Kapler, for Respondent, Cross

Q. So far.as you recall, then, -you do recall that Grim

approached. the front door, opened it, and entered ‘the

vestibule and you were with him, and then when you got

both went inside? A. That is. correct.

Q. So far as you remember now, you don’t remember .

whether either you or Grim pressed any doorbells? A.’

I don’t recall.

(33). Q. You don’t even remember whether you saw any

. doorbells, is that it? A..I don’t recall that, either.

Q. Now when you got inside, did you see anyone? A.

Did I see anyone? ee

' Q. Yes, apart from Grim. A. After this second door

‘you are talking about?

Q: Yes. A. No, we was ‘inside I would say, another

little foyer or hallway ‘there, after we passed this door

“y” we-were in a hall. One way you g0 to the doctor’s

office, I think you go back this way to go down -to the

cellar (indicating). . |

Q. Indicating the rear of the hall, what shows on the

plan as a stairway. You and Grim went in the second :

door marked “Y”? A. That is correct.

Q. Did you close the door marked “X” when you went

in the vestibule? A. I don’t remember. :

Q. Did you close ‘the one marked “Y” behind you?

You were the second one’ in line, weren't you? A. Yes, .

I was second in line. aA,

Q. Do you remember whether you closed the door be-

hind you or left it open? (34) A. I don’t recall that,

either.

Q. All right. Now when you and Grim weré inside

this hallway that you showed us, did you see anyone in

there? A. Not when we first went in. . There was no

one in the hallway. | ie

Q. Did you. say anything at that time? A. Grim hol-

lered, “Carafas.” :

. Q. Grim hollered the word “Carafas’? A. That’s right.

Q. Did anyone reply to that? A.. He was partially—

John J. Kapler, for hiniicaeld, Cross

Q. (Taterrapting) Seat yes or no. A. Yes, somebody

replied. eae 7

Q. You heard the reply? A. I did. :

.Q. What was the reply that yon heard! A. Some-

body hollered “Upstairs.”

Q. Were you able to note at that time where that reply

came from? A. I would have to say it came out of this

_ doctor’s office that was to the left as we went in through

this door, that is indicated by “Y” here.

_ Q. In any | event it didn’t come from upstairs? A. No,

sir.

- Q. You are certain of that? (35) A. That’s correct.

~~ Q. Did you at the time go in the doorway where you

heard the voice and check as to who had said, “Up- —

stairs”? A..I don’t recall that, either. —— - .

Q. What did you do next? A. Returned to the foot of

the stairs here and Grim hollered, “Carafas”. again, and

that’s when this man came to the top of the stairs and

said, “Up here.” - . ;

Q.. Where ‘were. you when the man came to the top

of the stairs? A. I would say within tis feet of De-

' tective Grim.

Q. And where was Detective Grim? A. Near the foot

of these stairs.

Q. Had he started up these stairs? <A. I don't recall

that, either.

Q. You don’t recall that? . A. No. oe

Q. Was. Grim still in the lead? A. He was still in

_Q. And you were following him? A. Thats correct.

Q. But you don’t remember whether he had started up

_ AI couldn’t truthfully say. No. He might have gone

'. up a couple of.stairs, but I don’t remember -right now.

. (36) Q. When the man appeared at the top, did you get

a look at him? A. Yes, I seen him. |

Q. Is that the man who turned out to be James. Carafas

es who is the petitioner here, that is the same man? A.

Yes, sir. .

A 98

John J. Kapler, for Respondent,. Cross”

-°Q, And you and Grim went on up the stairs? A. That’s

right. Bn oe fags . ¥ |

Q. And you said that you saw a piece of furniture at

the top of the stairs? A. Off to the—at the top, but off

to the left. ay 6 Pe oe a :

Q. On the landing?. A. That’s correct.

Q. Where were you when you first saw that piece of

furniture? A. I guess at the foot of the stairs.

Q. Had you started up the stairs when you saw it,

or do you remember? A..I don’t remember.

Q. You. don’t remember whether you were up

This text is long and has been trimmed here. Open the source document for the complete record.

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