445 F.2d 613 (2nd Cir. 1971), 637, United States ex rel. Rosenberg v. Mancusi

Docket Nº:637, 692, 32522-32551.
Citation:445 F.2d 613
Party Name:UNITED STATES of America ex rel. Jerome ROSENBERG, Petitioner-Appellant, v. Vincent R. MANCUSI, as Warden of Attica State Prison, Attica, N.Y.,Respondent-Appellee.
Case Date:June 24, 1971
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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445 F.2d 613 (2nd Cir. 1971)

UNITED STATES of America ex rel. Jerome ROSENBERG, Petitioner-Appellant,

v.

Vincent R. MANCUSI, as Warden of Attica State Prison, Attica, N.Y.,Respondent-Appellee.

Nos. 637, 692, 32522-32551.

United States Court of Appeals, Second Circuit.

June 24, 1971

Argued March 24, 1971.

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Robert Kasanoff, New York City, Robert D. Kamenshine, Nashville, Tenn., the New York Legal Aid Society, for petitioner-appellant.

Brenda Soloff, Asst. Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen., for respondent-appellee.

Before WATERMAN, KAUFMAN and HAYS, Circuit Judges.

WATERMAN, Circuit Judge:

Petitioner-appellant Rosenberg and two codefendants, Anthony Portelli and Anthony Dellernia, were tried before a jury in the New York Supreme Court, Kings County, on two counts of murder in the first degree for the killing, on May 18, 1962, of two policemen who interrupted the robbery of a tobacco store in Brooklyn. Rosenberg and Portelli were convicted and sentenced to death. The sentences were subsequently commuted to life imprisonment, the convictions were affirmed on appeal, 1 and certiorari was denied by the U.S. Supreme Court. 2 Dellernia was granted a mistrial and was subsequently acquitted after a second trial.

Rosenberg, confined in the New York State prison in Attica, New York, filed two applications for habeas corpus in the Western District of New York. One of these raised the issue of adverse pre-trial publicity, and this application was transferred to the Eastern District of New York, the district that includes Kings County, where it was denied after

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an examination of the record. The other application raised Sixth Amendment issues concerning the right of the accused to confront adverse witnesses and due process issues concerning the coercion of a witness's testimony. This application was also denied. The appeals from the denials were consolidated and the Legal Aid Society was appointed as counsel. Because of the complexity of the issues, we set forth a detailed narration of the background of the case, beginning with the details of the robbery as elicited from the prosecution witnesses at trial.

Louis Ferrara, who was employed in Dellernia's brother's candy store, testified that on May 18, 1962, he overheard a conversation between Rosenberg and Anthony Dellernia in which Rosenberg said something about a 'score,' meaning a robbery, and Dellernia objected to the choice of the neighborhood. Later in the morning, while on an errand, Ferrara witnessed the receipt of a gun by Dellernia from one Zarcone. On returning from this errand, Ferrara saw Rosenberg and Portelli engaged in conversation outside the candy store. Still later Ferrara loaned Rosenberg a pair of sunglasses with his nickname 'Gee' scratched on the ear pieces. Finally, at about 3:30 P.M., Ferrara heard Dellernia ask his brother for the keys to his car 'because he had to go to pick up Jerry Rosenberg.' Dellernia took the keys and departed with one Linda Manzione.

Miss Manzione, a former girl friend of Rosenberg, knew all three defendants. She testified that at 2 P.M. on the day of the shooting she had seen Rosenberg taking a gun from a shelf in Dellernia's brother's store. This gun was similar to one she had previously seen in Rosenberg's possession and to the one later found near the scene of the robbery. Later, around 3:30 P.M., she left the candy store with Dellernia, and they picked up Rosenberg and Portelli. After a brief conversation evidencing some suspect plan, Rosenberg and Portelli were dropped off.

Shortly after 3:30 P.M. the Borough Park Tobacco Company, owned by David and Robert Goldberg and their father, was robbed by two men, one of whom apparently remained near the front of the store while the other herded the customers and the Goldbergs into a storeroom. This latter robber (whom we will refer to as the 'inside' robber) wore sunglasses and held a handkerchief over his face with one hand; there was a gun in the other hand. His apparel matched the description of the clothing worn by Rosenberg when Miss Manzione had last seen him a few minutes earlier. As this robber attempted to close the door the the backroom, he momentarily lowered the handkerchief from his face, revealing himself to Robert Goldberg, who later identified the face, so disclosed, to be that of Rosenberg.

Apparently disturbed about the dearth of money in the cash register, this 'inside' robber went back to the storeroom and demanded that someone show him where the money was. David Goldberg took the robber to the front of the store and gave him what additional money there was in the office. The robber, still unsatisfied, flew into a rage and went back to the storeroom where he demanded more money from Robert Goldberg. Between the front office and the storeroom, the robber had substituted a towel stained with ink for the handkerchief he had been using as a face mask. Just after the robber demanded more money from Robert Goldberg, there was a volley of shots. David Goldberg, who was still in the front office, turned toward the entrance and saw Luke Fallon, whom he knew to be a police detective, fall to the floor with his gun in his hand. In the same volley, Detective John Finnegan, who was outside the store entrance, was also shot.

Robert Goldberg rushed out of the storeroom at this point and saw the...

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