U.S. ex rel. Sostre v. Festa
| Decision Date | 31 March 1975 |
| Docket Number | No. 283,D,283 |
| Citation | 513 F.2d 1313 |
| Parties | UNITED STATES of America ex rel. Martin SOSTRE, Petitioner-Appellant, v. Frank M. FESTA, Superintendent of Erie County Jail, and Robert J. Henderson, Superintendent of Auburn Correctional Facility, Respondents-Appellees. ocket 74-1520. |
| Court | U.S. Court of Appeals — Second Circuit |
Paul G. Chevigny, New York City (New York Civ. Liberties Union, New York City, Herman Schwartz, Edward Koren, SUNY, Amherst, N. Y., on the brief), for petitioner-appellant.
Arlene R. Silverman, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen., State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for respondents-appellees.
Before FEINBERG and MULLIGAN, Circuit Judges, and BRYAN, * District Judge.
Petitioner appeals from the denial of a writ of habeas corpus by the Hon. John T. Curtin, whose opinion, which fully sets out the facts, is reported in 373 F.Supp. 133 (W.D.N.Y.1974). We affirm.
Petitioner Sostre was convicted in a New York State court on March 18, 1968 of possession of a dangerous drug (heroin) and the sale of a dangerous drug, as well as second-degree assault. We are here concerned only with the sale count. Petitioner's conviction was predicated largely on the testimony of the state's principal witness, one Arto Williams, a heroin addict awaiting trial on a larceny charge at the time of the alleged sale. Williams, as an informer for the Buffalo, New York police, testified that he had purchased heroin from the petitioner on July 14, 1967. Williams now recants his earlier testimony, and it is this recantation which provides the foundation for petitioner's habeas application. 1
In his March 1968 state court trial, the petitioner Sostre refused the services of counsel and refused to participate in the proceedings. Williams testified that, on the evening of July 14, 1967, he met with Detective Alvin Gristmacher of the Buffalo Police Department Narcotics Squad and State Trooper Lewis Steverson. After Williams was searched by Gristmacher, the three men drove to petitioner Sostre's "third world" bookstore in a black ghetto area of Buffalo. Thereupon Williams was given $14.00 by Gristmacher, and Williams and Steverson (a black who was in plain clothes) entered Sostre's store, where they encountered Sostre and one Geraldine Robinson.
Williams testified that he then asked Sostre whether the latter was "doing any business;" 2 Sostre responded that he did not want to transact any business in front of a stranger, i. e., Steverson, so the latter left the store but remained standing in front, slightly to the left of the open doorway where he could still observe the proceedings, and where Williams could still see him. From this vantage point Steverson saw Williams give money to Geraldine Robinson. Then, according to the trial testimony of both Williams and Steverson, Sostre went to the back of his store, returned to the front and handed Williams a white glassine envelope.
Williams thereupon left the store and, accompanied by Steverson, returned to the car, where Williams turned over the glassine envelope to Gristmacher. Upon later analysis, the envelope was found to contain heroin.
In addition, the activities of Williams, Steverson, and Sostre while in the bookstore were observed from a building across the street by two other troopers. One of the two, Trooper Wilcox, who was using a telephoto lens to make his observations, testified that he saw Williams hand what appeared to be money to Geraldine Robinson, and that thereafter Sostre disappeared into the back of the store and returned to the front where he handed "something" to Williams.
The incidents just described occurred about midnight, and ten or fifteen minutes later, police officers executed a previously-obtained search warrant for Sostre's store. They arrested Sostre and recovered a marked $10 bill in his possession. They also searched the premises and found ten glassine envelopes containing heroin in the rear of the store.
As we have noted, at his trial Sostre refused to participate in any of the proceedings, since he claimed that the entire prosecution was a "frame-up" and that he had been singled out as a political radical, who, it was thought, had helped to instigate the June 1967 riot in Buffalo. Specifically, Sostre refused to cross-examine any of the witnesses who testified against him at the trial.
Following his conviction, Sostre was sentenced to a term of not less than 25 nor more than 30 years on the sale count, and lesser sentences on the other counts. 3
After the trial, witness Williams left for California. There he became involved with an addict rehabilitation group called "Tuum Est." Allegedly because of the influence of that group, Williams decided to recant his trial testimony and, in April 1971, executed an affidavit in which he swore that Sostre had never sold him any drugs, and that Williams had lied at the trial in order to escape his own conviction as a second felony offender. 4 Subsequent to his Tuum Est experiences, however, Williams was again arrested, both in September and December of 1972, in California, for possession of heroin; as a result in January 1973, he pleaded guilty to a drug misdemeanor count. At the time of the hearing below he was in the custody of the California authorities.
Williams's recantation fathered the instant action, which in turn led to the hearing before Judge Curtin below on May 29-30, 1973.
The principal witness at this hearing was Arto Williams. He testified that, after his June 1967 arrest and pre-trial incarceration on a larceny charge, he took the initiative in contacting the Buffalo Police Narcotics Division by letter, offering his services. Subsequently Detective Gristmacher visited Williams in jail and asked the latter if he knew anyone who was selling drugs in the Buffalo area. Williams replied in the affirmative and recited a few names, none of which seemed, to Williams, to interest Gristmacher. Then Gristmacher asked Williams if Sostre was a drug dealer, and Williams replied in the affirmative. According to Williams, Gristmacher said that the police were "very interested" in Sostre because they believed him to be "the cause" of the 1967 riot. About a week later, when Gristmacher, this time accompanied by Chief Amico of the Narcotics Division, again visited Williams in his cell, the latter repeated that he knew Sostre was dealing in drugs.
Williams agreed to cooperate with the police. On July 14, 1967, Williams was released from prison on his own recognizance. He thereupon was brought to police headquarters where he met Gristmacher, who gave him some money and arranged to meet with him later that day. Williams then testified that he used the money to buy a quantity of heroin, part of which he used immediately, and part of which he retained in his possession. In addition, Williams "shot up" some other drugs given to him by friends.
By the time he met Gristmacher at about 9 p. m. the same day, Williams was, by his own testimony, still very high. Gristmacher drove Williams to police headquarters; the former left the car and went inside the building for approximately 15 minutes, leaving Williams by himself in the car. At this time, Williams testified he secreted the small packet of unused drugs (measuring approximately 17/8 x 7/8 inches) from his afternoon purchase under the front seat of the car, having already formulated the intent to use this portion of drugs to frame Sostre.
When Gristmacher returned to the car, he was accompanied by Trooper Steverson. Before driving off, Gristmacher frisked Williams but found nothing since (according to Williams) the drugs he had bought earlier were already hidden under the car seat.
The trio then drove around for awhile, ultimately arriving at a judge's home where a search warrant was obtained. During this trip, Williams testified that he was in the back seat of the car, with the two officers in front. On the way to Sostre's bookstore, Williams testified he was able to retrieve the packet of drugs hidden under the front seat without being detected by either of the two officers, and put it back in his pocket. 5
Upon reaching the vicinity of Sostre's bookstore, Gristmacher gave $15 in marked bills to Williams, who left the car and entered the store with Steverson. After exchanging greetings with Sostre, Williams testified that he gave Sostre a "high sign" which indicated that he, Williams, wanted to see Sostre outside Steverson's presence. Accordingly, Sostre asked Steverson to leave, and he did so, remaining outside the store's front door.
Williams then testified that he gave $15 to Sostre for safekeeping. 6 After the money had changed hands, Williams passed his hand over his shirt pocket, as if he were placing something therein. Sostre disappeared momentarily into the rear of the store; when he emerged, he and Williams engaged in some small talk, and then Williams left the store. 7 Williams and Steverson returned on foot to the car, where Williams handed over the drugs to Gristmacher, telling the police officer that he had bought them from Sostre, whereas in fact (according to Williams's recantation) he had obtained them earlier that day from someone other than Sostre.
A number of other witnesses testified at the hearing below, including petitioner Sostre himself, who admitted to six or seven prior convictions including a 12-year sentence ending in 1964 for the possession of heroin. Most significant was the testimony of State Trooper Steverson, who reiterated his trial testimony in full, in particular repeating that he saw Sostre hand a glassine envelope to Williams in Sostre's store. 8
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