May v. Hoke

Decision Date30 November 1988
Docket NumberNo. CV 87-1307(RR).,CV 87-1307(RR).
Citation711 F. Supp. 703
PartiesLarry MAY, Petitioner, v. Robert HOKE, Superintendent, Eastern Correctional Facility, Respondents.
CourtU.S. District Court — Eastern District of New York

Larry May, Napanoch, N.Y., pro se.

Richard Levitt, New York City, for petitioner.

Elizabeth Holtzman, Kings County Dist. Atty. by Shalom Twersky, Asst. Dist. Atty., Brooklyn, N.Y., and Robert Abrams, New York State Atty. Gen., State of New York Dept. of Law by Gerald J. Ryan, Asst. Atty. Gen., New York City, for respondent.

MEMORANDUM AND ORDER

RAGGI, District Judge:

Larry May, who was convicted on February 19, 1980, after a jury trial in New York State Supreme Court, Kings County, of Murder in the Second Degree (N.Y.Penal L. § 125.251, 3), Robbery in the First Degree (N.Y.Penal L. § 160.152), and Criminal Possession of a Weapon in the Second Degree (N.Y.Penal L. § 265.03) petitions pro se for a writ of habeas corpus. He challenges his conviction on the grounds: (1) that he was denied his sixth amendment right to confront an accomplice whose post-arrest statement was used against him by the prosecution; and (2) that the prosecution impermissibly withheld material that could have impeached the credibility of a police officer who testified against him. On January 27, 1988, the court appointed counsel to assist petitioner in presenting his arguments. Having now considered all submissions, and having heard orally from counsel, the court concludes that the petition is without merit.

FACTUAL BACKGROUND
1. The Murder of Aaron Miller

Numerous eyewitnesses testified that on January 15, 1979, Larry May, Brison Hamilton and Peter Charles entered a social club at 1135 St. John's Place in Brooklyn, brandished guns and announced to the twenty patrons who had been gambling at the club that this was a robbery. While May watched the door, Hamilton and Charles proceeded to collect money and valuables from the patrons. One of the men present in the club, Donald Payton, was a New York City Housing Police Officer. He identified himself to the robbers and urged them not to hurt anyone. Instead, they demanded his service revolver which was turned over to May.

As the robbers continued their search of each patron, Aaron Miller, a frequent visitor to the club, entered the premises. In a split second he realized what was going on and tried to retreat. Larry May sought to pull Miller inside but, with a revolver in each hand, was not quite able to do so. As Miller broke free, May fatally shot him twice.

The three robbers fled the scene in a late-model Ford Zephyr. It was subsequently learned that Hamilton's girlfriend owned a 1979 Zephyr. Moreover, at the time of Hamilton's arrest, police found Donald Payton's service revolver in his home.

2. The Involvement of Peter Charles

Because May claims that he was denied his right to confront co-defendant Peter Charles, some background as to his involvement in events occurring after the murder, as well as his availability at trial, is necessary.

Patrons of the social club who were interviewed by the police after the murder identified one of the robbers as an individual known on the street as "Bo-Peep," or "Bo-Pete." Police intelligence disclosed that Officer Frank Beltrani of the 75th Precinct knew an individual who went by that name. Beltrani was contacted and identified "Bo-Peep" as Peter Charles. At trial, Officer Beltrani explained that Charles and his brother, Trevor Williams, sometimes served as low-level street informants for him.

Officer Beltrani testified that on January 17, 1979, he spoke with Trevor Williams and as a result of the conversation, that same day met with Peter Charles who surrendered himself to the authorities and made a statement about the Miller homicide. Thereafter, police retrieved certain weapons from a given location and proceeded to look for Larry May and Brison Hamilton.1

On June 13, 1979, Charles pleaded guilty to manslaughter in connection with the events of January 15, 1979. In his allocution, he inculpated both Hamilton and May, specifically stating that "Larry May had pulled the trigger."

Sometime prior to the Hamilton/May trial, Charles withdrew his plea of guilty. An affidavit submitted by the prosecution to the state courts reveals that, during the trial, Charles began to make demands on the prosecution in connection with the disposition of his own case. When these were not acceded to, he refused to testify on behalf of the People. The prosecutor states, under oath, that at no time during the May/Hamilton trial did Charles exculpate either defendant.2

On November 23, 1979, the seventh day of the May/Hamilton trial, May's counsel advised the court that her client had learned that Charles wished to speak to her. The court signed an order directing his production from Rikers Island.

In the interim, both May and Hamilton took the stand in their own defense. Hamilton denied any involvement with the events at the St. John's Place social club on January 15, 1979 and, in fact, denied ever being inside that club. He denied possessing Payton's revolver and he, his mother and fiance denied that the revolver was in his home at the time of his arrest. His mother and other family and friends testified that he was home at the time of the Miller shooting. Hamilton testified that he had never met May before their arraignment. His familiarity with Charles was purportedly limited to an argument the two had had over Charles's attempt to sell Hamilton's nephew some drugs.

By contrast, May admitted being at the social club on the night of January 15, 1979. Indeed, he said he had been there four times that month and a few times in 1977 as well. He denied, however, any involvement in the robbery or Miller murder. He claimed he had gone to the club only to collect money he had won on the numbers that day from Aaron Miller. When May first went to the club, Miller was not there. May then went to a nearby store. When he exited, he saw Miller right outside the club. Miller agreed to pay May the money owed inside the club. As the two men began to enter, Miller ahead of May, Miller was shot dead. May fled the scene. May denied knowing either Charles or Hamilton until they appeared together in court.

On cross-examination of both Hamilton and May, the prosecution asked each whether certain particulars about the crime were true. Apparently, these particulars, which were read verbatim from a document held by the prosecutor as he examined, had been provided by Peter Charles after his arrest, although neither this fact nor the document was ever directly revealed to the jury. Both men categorically denied each statement.3

By the end of the day on November 26, 1979—the same day May testified and was subjected to the challenged cross examination premised on Charles's post-arrest statements—Charles had still not been produced for consultation with May's counsel pursuant to the court's order. The court agreed to be "in recess until we get a hold of Mr. Charles." Sometime later that afternoon, a corrections officer reported that Riker's Island could not "find" Charles in his dormitory, that he was apparently "hiding" to avoid coming to court. May and his counsel both then stated on the record that they were satisfied to rest without meeting Charles.

3. The Indictment of Officer Beltrani

Frank Beltrani was not the police officer with primary investigative responsibility for this case. As already indicated, however, he did identify "Bo-Peep" as Peter Charles and was instrumental in effecting his arrest. On the stand, Beltrani testified to recognizing all three defendants and to having seen them together in the area of New Lots Avenue a few weeks before January 15, 1979. On cross-examination, he admitted that he never actually saw the three men talking or meeting. Rather, they were among a number of people he had seen all together at that location.

On cross-examination, Beltrani also responded negatively to defense counsel inquiries as to whether he had ever been disciplined in connection with his work or been the subject of any citizen complaints. He did admit recently testifying in the grand jury to his involvement in an incident where a youth had been shot dead. On redirect, the prosecution had the officer explain in general terms, over objection, the merit awards and citations reflected by various insignia on his uniform. The court immediately instructed the jury that they were not trying the officer's bravery or the circumstances that had led to his receipt of medals.

Defense counsel subpoenaed Officer Beltrani's personnel file. They did not seek to pursue further cross-examination after examining the file.

On November 28, 1979, the day after the jury returned its verdict of guilty in the May/Hamilton case, the Office of the Special Prosecutor investigating New York's criminal justice system sought and obtained an indictment against Officer Beltrani for extortion, bribery and official misconduct. Beltrani and other members of the 75th Precinct Anti-Crime Unit had been the focus of a confidential investigation into allegations of bribery and extortion. Howard W. Newman, the former Special Assistant Attorney General who conducted the investigation, advises this court in a sworn affidavit that the investigation was conducted primarily through the use of a confidential police informant working within the Anti-Crime Unit. Officer Beltrani was never called to testify before the grand jury in connection with the investigation, nor was he given any official notification that he was a target of the grand jury's inquiry, although he may have been aware of a general investigation into the affairs of his unit.

Mr. Newman further states that it was the policy of the Special Prosecutor's office not to disclose confidential investigations to the various District Attorneys' Offices. He emphatically states that he had no communication with anyone involved in the May prosecution...

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