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July 30, 1973

UNITED STATES of America ex rel. Nicholas CONOMOS, Petitioner,
Hon. J. Edwin LaVALLEE, Superintendent of Clinton Correctional Facility, Respondent

Edward Weinfeld, District Judge.

The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

Petitioner, now serving a sentence of eight and one-third years to twenty-five years imposed under a judgment of conviction entered in June 1969 following a jury trial in the Supreme Court of the State of New York (Murtagh, J.) for attempted murder (two counts), *fn1" seeks his release upon a federal writ of habeas corpus charging various violations of his rights under the fifth, sixth and fourteenth amendments to the Federal Constitution. He alleges that (1) the lineup identification procedures at a stationhouse were impermissibly suggestive and conducive to irreparable misidentification and he was denied the effective assistance of counsel at the lineups, thereby requiring the exclusion of the witnesses' identification testimony at the trial; (2) the introduction in evidence of weapons which allegedly had no connection with the crime was unduly prejudicial and inflammatory; (3) the prosecutor's summation was unduly inflammatory and prejudicial and impinged upon his right to remain silent; (4) the prosecutor's remarks at the time of sentence were unfair and violated his right to due process of law; (5) the denial of his motion for a new trial without affording him an evidentiary hearing violated his right to due process of law; and (6) the denial of his petition for a writ of error coram nobis, based upon a claim that perjury was committed at his trial, without affording him a hearing also violated his right to due process.

 Petitioner's judgment of conviction was affirmed by the Appellate Division, First Department, on March 2, 1971, *fn2" and leave to appeal was denied by the Court of Appeals on March 30, 1971. Also, the denial of his motion for a new trial was affirmed without opinion by the Appellate Division on June 8, 1971, *fn3" and leave to appeal to the Court of Appeals was denied on July 21, 1971. Finally, the denial of his coram nobis petition was denied review by the Appellate Division on January 6, 1972, and leave to appeal was denied by the Court of Appeals on January 26, 1972. Thus it appears that petitioner has exhausted available state remedies and the State makes no contention to the contrary.

 The events which grounded the prosecution may be briefly stated. At about 8:30 a.m. on March 19, 1968, four men were seated in a red Cadillac on the south side of 24th Street, between First and Second Avenues, about 100 yards east of Second Avenue, when shots were fired into the car by two men who were outside near the passenger side of the car. Two men in the car, Luis Montalvo and Charles Rodriguez, were wounded. The event was observed by four individuals, passersby, from separate positions, each of whom identified the petitioner and Joseph Benanti, his codefendant upon the trial, as the assailants. The suspects were apprehended within minutes of the shooting, when they were taken from a bus at 23rd Street and Third Avenue into which they had fled after being pursued by one of the eye witnesses.


 Three of these witnesses, Peter Mietencorte, Elmer M. Borsuk and Joanne Pritchett, within about seven hours after the shooting, identified petitioner in a stationhouse lineup, and a fourth, Robert Harris, about ten hours after the event, identified a photograph of petitioner out of six or seven that had been shown to him. *fn4"

 Petitioner's first challenge to the validity of his judgment of conviction is based upon events at the lineup which were the subject of a pretrial Wade-Gilbert-Stovall hearing as to possible taint. *fn5" The hearing, conducted immediately before the trial, extended over a four-day period and was presided over by the trial judge.

 The lineup, consisting of seven persons -- petitioner, Benanti, a third suspect and four detectives -- was held in the interrogation room of the police station. The seven men were of generally similar stature, height and weight and dressed in varying attire. There were four separate lineups in which the participants took different positions. The driver of the bus in which petitioner and Benanti were apprehended identified them as having entered the bus together. Pritchett, Borsuk and Mietencorte, each viewing a separate lineup, identified petitioner.

 At the Wade hearing each eyewitness gave detailed testimony as to events at the time of the shooting and at the lineup. The hour of the shooting was described as clear and sunny.

 Joanne Pritchett, a registered nurse employed at the Veteran Administration Hospital, located on First Avenue and 24th Street, testified that in the afternoon of the day of the shooting she received a telephone call from a detective requesting that she appear at the police precinct to look at a lineup. Upon arrival there, at about 3 o'clock, the detective escorted her to a lineup of seven men and asked if she recognized anybody she had seen earlier that day, and she identified petitioner and his codefendant as the two men who had fired into the red Cadillac. She testified that she was walking easterly on the north side of East 24th Street immediately before the shooting when she saw a red Cadillac parked across the street at the south curb about twenty yards east of where she was then walking; she also saw a blue Pontiac sedan come along and park with its motor running near the red car; two men emerged from the Pontiac and walked to the passenger side of the Cadillac and commenced firing into it, one with a pistol and the other with a long rifle. Approximately three to five shots were fired. She saw the faces of the men as they approached the red car for about forty-five to sixty seconds and their profiles when they were in the vicinity of the car. The entire occurrence took between sixty and 120 seconds and her view was unobstructed. When she heard shots she remained in the same position, but stooped down, had an unobstructed view and saw the faces of the two men, who started to run at a jogging pace toward Second Avenue and down Second Avenue to 23rd Street, where she lost sight of them when they turned the corner on the west side. From the time the Pontiac first came upon the scene until the two men disappeared around the corner at 23rd Street, covered a period of "give and take three to five minutes."

 Elmer Borsuk, another witness at the hearing, testified he was walking on the north side of 24th Street in the direction of Second Avenue when he was attracted by the sound of gunfire; that upon turning around he saw two men across the street about 120 feet away firing weapons at two other men; the two men who were firing started to run toward Second Avenue, that is, westerly, and threw their weapons, which he was under the impression were revolvers, over a fence; they ran around the corner toward 23rd Street; he followed in pursuit; the men ran into 23rd Street and continued toward Third Avenue; about the middle of the block, as he was running after them, a police car came along, which he entered, and he told the police officers he was chasing two men; he lost sight of the men momentarily; the car proceeded in the direction the men were running; he and the police officers came to a bus stop at Third Avenue and 23rd Street; he and one of the officers entered the bus, which was crowded to capacity, and he saw a man with a green sweater near the coin box whom he recognized as one of the two men who had fired the revolvers; this man's face was bloody, his lip swollen and his hand bleeding; after he identified the first man (Benanti) within seconds he identified the second man (petitioner), who had been standing within inches of the first man, as the other assailant; *fn6" both men were removed from the bus and frisked on the sidewalk.

 Borsuk further testified that at about 4 o'clock in the afternoon of the same day at the police station he was asked to view a lineup of seven men to see if he could recognize the two men he had observed that morning fire the shots and who had been taken off the bus, and that he then identified petitioner and the codefendant, as he did again at the hearing.

 The third identification witness at the pretrial hearing was Peter Mietencorte. He testified that at about 8:30 a.m. on the day in question he was walking on the east side of Second Avenue when he observed a blue Pontiac car parked at the curb on the east side of Second Avenue. The man behind the wheel had on a trench coat with blood stains on the collar; his face was bruised, lips swollen, as was his hand, which was bloodied. Soon another man entered the car. The witness testified he "got a good look" at the occupants -- ten or fifteen seconds, or perhaps thirty seconds. He saw the car drive around the corner easterly into East 24th Street. In the meantime the witness had crossed to the west side of Second Avenue; he heard shots and hoisted himself on a parking meter in order to see what was happening; he observed two men fire into a red car but lost sight of them momentarily; then he saw a man running toward him across Second Avenue, who came within "twenty feet of him" running as fast as he could. About one and one-half hours later he saw the latter individual at the stationhouse when he came in with someone; about two and a half hours later, while still at the stationhouse, he saw another individual whom he also recognized. Nobody directed his attention to either one, nor were they handcuffed. He recognized the individual last referred to (Benanti), particularly because he had a swollen mouth, blood on his face, lacerations and his hand was bandaged. Later the witness was told to look at a lineup consisting of seven men to see if he recognized anyone. He identified Benanti as the man he had seen behind the wheel of the Pontiac at 8:30 that morning. He also identified petitioner as the man who had entered on the passenger's side and later ran across Second Avenue toward him. He further testified they were the two men he saw enter the stationhouse, as previously described.

 The final witness as to identification was the bus driver, who testified he was at his seat when the bus, which was already crowded, was taking on passengers who were waiting on line; that suddenly there was some commotion and two men, who were not on line, rushed the door and boarded the bus in a hurried way; they were crowded close to him and were facing one another "belly to belly"; that in seconds an officer pushed his way in with a civilian who identified the first man (Benanti) who was facing the civilian; the second man (petitioner) had his back to the civilian, who then looked around and also identified the second man and both ...

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