Morgan v. Salamack, 965
| Decision Date | 18 May 1984 |
| Docket Number | D,No. 965,965 |
| Citation | 735 F.2d 354 |
| Parties | Robert MORGAN, Plaintiff-Appellant, v. Dominick SALAMACK, Edgecomb Correctional Facility, and Robert Abrams, Attorney General for the State of New York, Defendants-Appellees. ocket 83-2245. |
| Court | U.S. Court of Appeals — Second Circuit |
Andrew M. Lawler, New York City (Maurice M. McDermott, New York City, of counsel), for plaintiff-appellant.
Douglas D. Aronin, New York City, Asst. Atty. Gen. of the State of N.Y. (Robert Abrams, Atty. Gen. of the State of N.Y., Melvyn R. Leventhal, Deputy First Asst. Atty. Gen., Arlene R. Silverman, Asst. Atty. Gen., New York City, of counsel), for defendants-appellees.
Before FEINBERG, Chief Judge, OAKES, Circuit Judge, and POLLACK, District Judge. *
This is an appeal from an order denying an application to set aside a state court conviction for robbery on the basis of evidence discovered after the trial which showed that the prosecution's principal witness had testified falsely when he was asked by the prosecutor whether he had ever been arrested and whether he had a permit to carry a weapon in New York City. The claim is that the prosecutor should be faulted for having failed to inform himself on those matters before placing the witness on the stand.
Appellant was convicted by a jury in Supreme Court, Queens County (New York Penal Law Sec. 160.15), and sentenced to an indeterminate term of imprisonment not exceeding four years for the robbery of a Rolex watch. The facts follow.
The charges stemmed from an incident which occurred on February 7, 1978 involving complainant, Alfred Teo, the appellant, and his two companions. The People's case was that Teo was attacked and robbed by appellant and his two accomplices while returning home from his job. He was driving down a public thoroughfare in his van, accompanied by a friend, when a heavy object was thrown through the left side window of the van, and he stopped to investigate. He got out, and was attacked and beaten by the appellant, and his companions, who stole his watch and attempted to steal his wallet. During the course of a struggle with the defendants, Teo suffered extensive injuries which sent him to the hospital.
Teo immediately drove to the nearby police station and registered a complaint, and within the hour the assailants were found and taken into custody, and they were thereafter indicted for robbery.
The defense contended that the appellant and his accomplices had not robbed Teo and that Teo had provoked their attack by brandishing a gun during a dispute about his near-accident involving Teo's van.
At the trial, the appellant's attorney, in his opening statement to the jury, forecast the appellant's proof with, and, referring to the appellant, he added, "you will hear him [appellant] testify how he knows it was a .22."
The opening statements were concluded during the morning. At the start of the afternoon session, and just before Teo took the witness stand, the attorney for another of the three defendants told the Judge,
There is one further thing, Judge. There has been reference to whether in fact the complainant, Mr. Teo in this matter, is in possession of the pistol license--license or permit.... I would suggest that the possession of the pistol license permit by this complainant be Brady material to the defendants, in casting some credibility on the statements that they had made to that time, and if the District Attorney's office is in possession of it, that we be afforded a copy of it.
Prior to trial, the prosecutor had not made any inquiry for, or known of, the pistol permit held by Teo. But, having been alerted by the opening statements of the defense counsel, he sent out for information concerning permits held by Teo to possess a weapon. He responded to counsel's inquiry with, Teo was then sworn as a witness, and, after identifying himself, was asked whether he had ever been held up, and he responded, "Twice," and whether he had a permit for a pistol and owned pistols. He testified that he had a .38 and a .357 magnum, but did not own, and never owned, any .22 caliber guns. He also testified that he had a permit for the weapons, and two licenses were produced and marked in evidence, he having handed them to the prosecutor during the noon recess, and both of these had a picture of himself on the license. One of the permits was to carry a gun for target practice, and he also had a permit for carrying a weapon around. In two brief questions from the prosecutor, Teo testified that he had never been convicted of a crime and had never been arrested. In fact, as appellant learned after the trial, from records of the Police Department, Teo had not been convicted of any crime, but in 1976 had been arrested, but the charge was dismissed.
On cross-examination, Teo explained that he had been employed in a restaurant, and in 1974 a carrying permit for New York State was issued to him in Westchester County in connection with that occupation. That permit, which was received in evidence, states that it is good until it is revoked, and appeared to be still valid and not expired, but reads, "Carrying for present employment only," but not for target shooting. Teo testified further on cross-examination that in 1978 he sought to have the permit amended to carry the gun in New York City, but that he never went to the License Division to pick up the amended permit. Appellant's counsel then inquired whether since January 1, 1978 when he applied to have the permit amended, Teo ever carried a weapon on his person, and Teo responded, "No."
Q. And the reason that you don't is because your permit doesn't permit you to do that, isn't that correct?
A. You are right. And there is no reason for me to carry it.
Q. Doesn't your license also restrict you that when you do carry it, that the weapon must be unloaded?
A. Yes, that's what I always do.
Appellant's conviction for robbery was unanimously affirmed, without opinion, and leave for further appeal to the Court of Appeals was denied.
Subsequent to his conviction, appellant sought and obtained the records of the New York City Police Department regarding Teo's applications for gun permits and his arrest record. They showed that Teo had applied for a New York City carrying permit in 1978, but that the application was disapproved on grounds of "Insufficient need." The records also showed that the 1976 arrest on charges of reckless endangerment resulted in the suspension of his target permit, but that was subsequently restored when the complaint was dismissed. Finally, the records showed, that on January 25, 1979, some weeks before the commencement of the trial of the appellant, Teo received a summons for unlawful discharge of a firearm when he sought to frustrate an attempt to steal his automobile. This act resulted, after the trial of appellant was concluded, in suspension of Teo's target license.
Armed with information from the police files, appellant sought a new trial of his robbery conviction on the ground of post-trial discovery thereof. The State Court denied the motion in all respects. The Trial Judge noted that the information from the License Division was available to defendants in advance of the trial; and that the misstatement about being arrested was a collateral matter which related only to the credibility of the witness and not to the innocence of the appellant on the robbery charge. The Appellate Division denied leave to appeal.
Appellant then, under new aegis, brought the petition for a writ of habeas corpus in the District Court, alleging the falsity of Teo's statements on the witness stand and claiming that the prosecutor was chargeable with knowledge thereof, thereby depriving appellant of his constitutional right to a fair trial. Judge Platt conducted an evidentiary hearing at which the prosecutor was examined. The Judge denied the writ, and this appeal followed. The District Judge found, as a fact, that there was no...
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