The opinion of the court was delivered by: ZAVATT
This is an application for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241, 2242. Petitioner was convicted by a jury in the County Court, Suffolk County, on two counts of selling and two counts of possessing narcotic drugs. He was sentenced to concurrent terms of five to seven and one-half years on the convictions for selling narcotics and given a suspended sentence on the convictions for possession. When this application was originally filed in the United States District Court for the Northern District of New York, the petitioner was incarcerated in Auburn State Prison. Since that time the court has been advised that he has been paroled. It is settled that one who has been released on parole may seek habeas corpus relief, because he is "in custody" within the meaning of 28 U.S.C. § 2241. Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963). Under New York law, however, although petitioner has been released on parole, he remains "in the legal custody of the warden of the prison from which he is paroled, until the expiration of the maximum term specified in his sentence," New York Correction Law, McKinney's Consol. Laws, c. 43, § 213, because he was sentenced prior to the effective date of the recodified New York Penal Law, McKinney's Consol.Laws, c. 40, enacted by L. 1965, c. 1030, effective September 1, 1967. Those sentenced subsequent to the recodified Penal Law, and thereafter paroled, are in the custody of the New York Board of Parole. New York Correction Law § 805, subd. 6, effective September 1, 1967. Therefore, there is no necessity to add or substitute members of the Parole Board as parties to this proceeding, as was necessary in Jones v. Cunningham, supra. See United States ex rel. Sadness v. Wilkins, 312 F.2d 559 (2d Cir.), cert. denied, 374 U.S. 849, 83 S. Ct. 1910, 10 L. Ed. 2d 1069 (1963). Since the filing of the petition herein, Daniel McMann has become the Warden of Auburn State Prison. This fact has been noted by the court in the caption hereof.
Petitioner seeks to invalidate his State conviction upon the ground that he was denied the effective assistance of counsel guaranteed to him by the Sixth Amendment to the Constitution of the United States in that his attorney simultaneously represented an important witness for the prosecution.
Judge Port found that petitioner had exhausted his State remedies as required by 28 U.S.C. § 2254 and also that an evidentiary hearing was necessary. Pursuant to 28 U.S.C. § 2241(d), the application was transferred to this court for hearing and determination. A hearing has been held, and as a result thereof, the application is granted.
The principal witness against the petitioner at the trial was R. S. Cantu, an agent for the Federal Bureau of Narcotics. Mr. Cantu testified that he was introduced to petitioner by one Rudy Cordova, a narcotics addict and "special employee" of the Bureau, at a bar in Wyandanch, Long Island; that Cordova inquired of petitioner whether he could obtain "junk" (narcotics) for Cantu; that petitioner left the bar and shortly thereafter returned with four packages of heroin which he sold to Cantu. Cantu also testified that on a date subsequent to this transaction, petitioner sold Cantu several marihuana cigarettes which had been concealed in the horn rim of his automobile. Other police officers corroborated some of the details of these transactions; i.e., that Cantu, Cordova and petitioner were together in the bar, that petitioner left the bar and returned a short while later, and that Cantu showed them "powder" subsequent to the purported transaction. The officers also testified that, on another occasion, they saw petitioner hand currency to Cantu after taking something from the horn of his automobile. The only witness that corroborated Cantu's testimony that petitioner sold narcotics to Cantu, on the basis of personal observation of the passing of narcotics, was Cordova. Petitioner testified in his own defense, admitting that on the days in question he met Cantu and Cordova, but denying that he sold narcotics to Cantu.
Petitioner was represented at his trial by one Edward LaFreniere. According to his testimony at the hearing on the instant petition, petitioner first met LaFreniere at the Suffolk County Jail shortly after his arrest. LaFreniere was "walking along taking everybody's name." Petitioner testified that LaFreniere announced, "If you need a lawyer * * * I am a lawyer," and, thereafter, he was retained by petitioner who paid him $300. Petitioner claims that he did not see his attorney from the day following his arrest until his appearance in court to stand trial. The only advice that he got from LaFreniere during that time was to waive a preliminary hearing. The testimony of LaFreniere seems to corroborate that of the petitioner. During cross-examination by the petitioner's attorney, at the hearing on this petition, the following colloquy occurred:
"Q: Now, Mr. LaFreniere, do you recall how much time you devoted to discussing Mr. Williamson's case with Mr. Williamson before the case went to trial?
Q: Could you tell us from your judgment practically how much time it might have been at the most?
A: Do you want me to shock you?
A: Well, when we started to pick the Jury. That's right. The Judge would call me up in the afternoon and say, 'We are going to start at 3:00,' or 'We will have a Jury come in at 1:00 o'clock.' He would tell me that that night. And that you've got to be ready the next morning."
LaFreniere also testified that if his clients wanted to talk with him prior to their trials "They would have to go up to the ...