United States of America Ex Rel. Leo Di Giangiemo v. Leon J. Vincent, Superintendent Green Haven Correctional Facility, 489 F.2d 1370, 2d Cir. (1974)

489 F.
2d 1370
UNITED STATES of America ex rel. Leo Di GIANGIEMO,

Petitioner-Appellant,
v.
Leon J. VINCENT, Superintendent Green Haven Correctional
Facility, Respondent.
No. 204, Docket 73-2021.
United States Court of Appeals, Second Circuit.

Argued Dec. 5, 1973.
Decided Jan. 9, 1974.
Theodore Ruthizer (James J. McDonough, Atty. in Charge, Legal Aid

Society of Nassau County), Mineola, N.Y., for petitioner-appellant.
Burton Herman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N.Y.),
New York City, for respondent.
Before WATERMAN and FEINBERG, Circuit Judges, and GURFEIN,*
District Judge.
GURFEIN, District Judge:
This is an appeal from an order of the United States District Court for the
Eastern District of New York (Mishler, J.), dismissing a petition for a writ
of habeas corpus. The District Court granted a certificate of probable
cause.
On June 2, 1967, appellant Leo Di Giangiemo was sentenced by Judge Kelly in

the Nassau County Court, as a second offender, to imprisonment for 10 to 20
years to be served concurrently, upon conviction by a jury of the crimes of
burglary in the third degree and grand larceny in the first degree. The judgment
was affirmed by the Appellate Division, Second Department, 34 A.D.2d 960,
312 N.Y.S.2d 381 (2d Dept. 1970), and by the New York Court of Appeals, 27
N.Y.2d 956, 318 N.Y.S.2d 325, 267 N.E.2d 109 (1970). Certiorari was denied,
401 U.S. 981, 91 S.Ct. 1216, 28 L.Ed.2d 333 (1971). An application for a writ
of error coram nobis was denied, the order of denial being affirmed by the
Appellate Division, 34 A.D.2d 1108, 313 N.Y.S.2d 972 (2d Dept. 1970), and
the Court of Appeals affirmed, 28 N.Y.2d 929, 323 N.Y.S.2d 175, 271 N.E.2d
704 (1971).
2
Thereafter, the application for the writ of habeas corpus was filed in the
Eastern District. The Petitioner contended that his conviction was
unconstitutional because certain evidence was admitted at his Nassau County
trial in violation of his rights under the Fourth and Fifth Amendments to the
United States Constitution.
Appellant had been arrested on September 2, 1965 about a half hour after he
had been dropped off at his home from an automobile operated by John
Galante. After dropping appellant, galante was arrested and his automobile
searched. A gun and jewelry were found in an attache case in the car. A chisel
and two screwdrivers were found in the trunk of the car. Appellant and Galante
were indicted in Queens County for the crimes of receiving and withholding
stolen jewelry and an automobile, and possessing a dangerous weapon.
Appellant was also indicted in Nassau County with two others for burglary and
grand larceny.
In the Queens prosecution, counsel for appellant and Galante moved for
suppression of the gun and jewelry, relevant to the Queens prosecution, on the
ground that their Fourth Amendment rights had been violated by an alleged
unlawful search and seizure. They apparently did not move to suppress the
chisel and the two screwdrivers because they were not to be offered in evidence
in the Queens prosecution.
A suppression hearing was held in the Queens County matter, and Mr. Justice
Bosch of the Supreme Court, Queens County, on June 3, 1966, ordered the
evidence suppressed and the indictment dismissed upon the ground that the
warrantless arrest was not based on probable cause, and could not validate the
illegal search. He ordered the pistol and the jewelry to be suppressed as
evidence, and he also dismissed the indictment.
Although Mr. Justice Bosch held the search unlawful, he did not suppress the
chisel and serewdrivers found in the car at the same time, because that relief
was not asked. Appellant was not present at the suppression hearing.
Thereafter, represented by a different lawyer, appellant was tried, beginning

February 27, 1967, on the Nassau County indictment. The chisel and the
screwdrivers that had been taken from Galante's car were put in evidence. As
Judge Mishler found, they were 'important to the State's case against petitioner.
The tools were alleged to have been used in prying open a stolen safe. There
was no other physical evidence linking petitioner with the crime.'
8
When the tools were offered in evidence, counsel for appellant objected, but not
on Fourth Amendment grounds. The objection was overruled. No motion to
suppress was made. It develops that the Nassau lawyer for the appellant had
not been told that the other items involved in the same search and seizure had
been suppressed.
Judge Mishler held a hearing to determine whether appellant had

'understandingly and knowingly' waived his Fourth and Fifth Amendment
rights by not objecting on those grounds to the admission of the tools at the
Nassau trial. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963);
Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
After hearing testimony from appellant and the Queens lawyer for appellant,
and by deposition from his Nassau lawyer, Judge Mishler made a specific
finding 'that petitioner did not knowingly waive his fourth and fifth amendment
rights.' He found that appellant was not informed about the suppression hearing
in Queens until after the Nassau trial, and the Queens lawyer confirmed that he
had not told the Nassau lawyer of his success at the suppression hearing in
Queens. Nor did the District Attorney of Queens tell the District Attorney of
Nassau.
10
Although police officers of Queens (New York City) and Nassau County
jointly made the arrest of appellant, Detective Reilly of the N.Y. Police
Department testified only regarding the jewelry and the gun at the Queens
proceeding; and Detective Miraval, of the Nassau police force, testified in the
Nassau trial only about the chisel and screwdrivers. No one mentioned the
Queens suppression hearing or that items seized at the same time and place had
been suppressed.
11
In his pro se petition on the coram nobis and in his brief in the Appellate
Division, appellant argued primarily that the police officers had given
inconsistent and perjurious testimony with the knowledge of the District
Attorney. He relied on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963), and cases involving the use of 'false evidence.' When
counsel were appointed to act for him in the Court of Appeals, they rather
stressed the argument that Justice Bosch's suppression order was a collateral
estoppel to the introduction by the People in the Nassau case of the fruits of the
same illegal search. They cited the scholarly opinion of Judge Sobel in People
v. De Sisto, 27 Misc.2d 217, 214 N.Y.S.2d 858 (Co.Ct. Kings Co., 1961) in
support of collateral estoppel. They also argued that even a negligent failure of
the Nassau District Attorney to reveal to Queens suppression hearing, citing
People v. Robertson, 12 N.Y.2d 355, 239 N.Y.S.2d 673, 190 N.E.2d 19 (1963),
would require granting the writ of coram nobis.
12
The Nassau District Attorney argued: (1) that appellant had made no objection
at the trial; (2) that Fourth Amendment issues may not be raised for the first
time on the reargument of a State appeal by way of coram nobis; (3) that the
Nassau District Attorney was neither a party to nor bound by the Queens
County ruling, and that the Nassau judge would not be bound by the Queens
County ruling; (4) that appellant had left the car before the search. Lastly, the
District Attorney argued that the case against appellant rested primarily on
eyewitness testimony.
13
Judge Breitel granted leave to appeal. The New York Court of Appeals
affirmed without opinion (28 N.Y.2d 929, 323 N.Y.S.2d 175, 271 N.E.2d 704).
We are now asked to decide as a matter of constitutional law that the granting
of a motion to suppress evidence is a collateral estoppel to the introduction of
the evidence in a subsequent trial. We are reluctant to undertake the
determination of this question, because we feel that the matter has not been
adequately presented to the State court.
14
Judge Mishler perceptively called attention to Section 813-c of the former N.Y.
Code of Criminal Procedure in effect at the time of the Nassau trial. That
section reads:
15
'813-c. The motion in general
16
A person claiming to be aggrieved by an unlawful search and seizure and

having reasonable grounds to believe that the property, papers or things,
hereinafter referred to as property, claimed to have been unlawfully obtained
may be used as evidence against him in a criminal proceeding, may move for
the return of such property or for the suppression of its use as evidence. The
court shall hear evidence upon any issue of fact necessary to determination of
the motion.
17
If the motion is granted, the property shall be restored unless otherwise subject
to lawful detention, and in any event it shall not be admissible in evidence in
any criminal proceeding against the moving party.
18
If the motion is denied, the order denying such may be reviewed on appeal
from a judgment of conviction notwithstanding the fact that such judgment of

conviction is predicated upon a plea of guilty.'
19
We have examined the briefs submitted to the Court of Appeals and we find no
mention of this statute. To be sure, the statute requires interpretation in two
respects: (1) Does it bar the evidence in a subsequent trial on other charges in a
different county; and (2) is it applicable to barring as evidence the chisel and
tools when the order to suppress named only the jewelry and the gun, although
all the items were seized under the same circumstances. We deem Section 813c to be a State rule of evidence, which could be dispositive, in the absence of
waiver, if it be given a certain interpretation.
20
We would not willingly venture into so delicate a question involving the

administration of New York's criminal law unless compelled to do so. Cf.
United States ex rel. Rogers v. LaVallee, 463 F.2d 185, 187 (2 Cir. 1972). We
think here that before we attempt to find whether constitutional questions exist
in this area, we should allow our fellow judges in the State court to determine
the meaning of the State statute first. Unless we treat exhaustion of State
remedy in the most technical sense, we must consider that the question of
appellant's rights under the statute has not been exhausted in the State courts.
Cf. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971);
United States ex rel. Nelson v. Zelker, 465 F.2d 1121 (2 Cir. 1972).1
21
Tempting though it may be to decide so interesting a question of collateral

estoppel, we shall, therefore, not do so, even in the light of Judge Mishler's
well-reasoned opinion.
22
We accordingly neither affirm nor reverse on the issue of collateral estoppel,

but remand to the District Court with instructions to dismiss the petition and to
remand to the State court for exhaustion of the State remedy. We think that
another coram nobis proceeding is still available. Matter of Bojinoff v. People,
299 N.Y. 145, 151, 85 N.E.2d 909 (1949).
23
Remanded with directions.
Of the United States District Court for the Southern District of New York,
sitting by designation
In those cases it was the constitutional issue that had not been presented
adequately. This court has also held, however, that a federal habeas corpus
petition should be dismissed to permit state court constrution of a criminal

procedural statute, refraining in the meantime from deciding unresolved issues
concerning the construction of the statute. United States ex rel. Herrington v.
Mancusi, 415 F.2d 205, 209 (2 Cir. 1969)

United States of America Ex Rel. Leo Di Giangiemo v. Leon J. Vincent, Superintendent Green Haven Correctional Facility, 489 F.2d 1370, 2d Cir. (1974)

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489 F.

UNITED STATES of America ex rel. Leo Di GIANGIEMO,

United States Court of Appeals, Second Circuit.

Theodore Ruthizer (James J. McDonough, Atty. in Charge, Legal Aid

On June 2, 1967, appellant Leo Di Giangiemo was sentenced by Judge Kelly in

Thereafter, represented by a different lawyer, appellant was tried, beginning

Judge Mishler held a hearing to determine whether appellant had

'813-c. The motion in general

A person claiming to be aggrieved by an unlawful search and seizure and

from a judgment of conviction notwithstanding the fact that such judgment of

We would not willingly venture into so delicate a question involving the

Tempting though it may be to decide so interesting a question of collateral

We accordingly neither affirm nor reverse on the issue of collateral estoppel,

Remanded with directions.

petition should be dismissed to permit state court constrution of a criminal

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