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November 9, 1973

UNITED STATES of America ex rel. Cornelius LUCAS
Paul J. REGAN, Chairman, New York State Division of Parole

Costantino, District Judge.

The opinion of the court was delivered by: COSTANTINO


COSTANTINO, District Judge.

 On May 1, 1973 Lucas submitted a petition for a writ of habeas corpus to this court asserting that the state conviction for which he is presently on parole was unlawful and unconstitutional. He was convicted on May 25, 1965 in Supreme Court, Kings County, of robbery in the first degree, grand larceny in the first degree, and assault in the second degree after a jury trial. He had been tried with Edward Polhill who was also convicted. The principal witnesses against them were the third robber, Norman Adderly and Mrs. Almeta Gardner, the complainant. Lucas was sentenced on September 7, 1965 to concurrent sentences of ten to twenty years, five to ten years and two to two and one-half years. Coram nobis relief was denied by an order of the Supreme Court, Kings County entered October 15, 1968. The Appellate Division, Second Department, affirmed the consolidated direct appeal and coram nobis appeal on January 19, 1970 (no opinion), 33 A.D.2d 994, 308 N.Y.S.2d 299 (1970). The Court of Appeals affirmed, 28 N.Y.2d 761, 321 N.Y.S.2d 371, 269 N.E.2d 914 (1971) (Breitel, J., dissenting) and denied a motion for reargument, 29 N.Y.2d 549, 324 N.Y.S.2d 95, 272 N.E.2d 583 (1971). Certiorari was denied in the United States Supreme Court, 404 U.S. 994, 92 S. Ct. 542, 30 L. Ed. 2d 547 (1971) (Douglas, Judge., dissenting). After a hearing held on June 5, 1973 the court reserved decision.

 The specific grounds for seeking the writ are as follows:

 1. The trial judge denied a continuance sought by the defense (A) to enable it to secure attendance of a witness the defense considered crucial and (B) to secure compliance with a subpoena for psychiatric records of an important witness against Lucas, thereby depriving petitioner of due process.

 2. A station house "show up" of petitioner, conducted after the complainant had previously identified another person as a perpetrator from a full line-up, deprived petitioner of due process.

 3. The trial court and the prosecutor both failed to correct false testimony given by the accomplice as to the terms of his agreement to turn state's evidence, thereby depriving petitioner of due process.

 I. The Request for a Continuance.

 A. To secure attendance of a material witness.

 On the last day of the trial, May 25, 1965, defendant requested a continuance so that a man first identified by the complainant as the third of the three robbers, Ulysses Bryant, could be located and questioned as a witness. Bryant was identified as one of the robbers by Mrs. Almeta Gardner three days after she was robbed. Mrs. Gardner had been brought to a police station for a line-up in which she identified three men, Adderly, Polhill, and Bryant, as the perpetrators. One hour later for reasons not disclosed in the record petitioner was arrested and was one of several men brought before her alone in a room. She identified Lucas at that time as the third and said she had been mistaken about Bryant. Bryant, who was Adderly's cousin, was arrested with Adderly and Polhill. He was clearly a material and relevant witness for petitioner to question for the jury to see and hear so that it could evaluate Mrs. Gardner's identifications.

 Defense counsel first learned about Bryant on May 21, 1965, the second day of the trial, during the cross-examination of Mrs. Gardner. They immediately sent out an investigator to locate Bryant, but by May 25 they had not been able to find him and so moved for a continuance. Judge Harry Gittleson, the trial judge, in discussing the reasons for his denial of the motion for a continuance, pointed out that the defense had had four days to locate Bryant. In addition it was shown that Lucas had known Bryant for at least a year prior to the trial and so might have apprised his counsel of Bryant's importance to his defense.

 The granting of a continuance during a trial is discretionary with the trial judge. Ungar v. Sarafite, 376 U.S. 575, 84 S. Ct. 841, 11 L. Ed. 2d 921 (1964), reh. denied, 377 U.S. 925, 84 S. Ct. 1218, 12 L. Ed. 2d 217 (1964). Only if the refusal is arbitrary is there a violation of due process. Nilva v. United States, 352 U.S. 385, 77 S. Ct. 431, 1 L. Ed. 2d 415 (1957), reh. denied, 353 U.S. 931, 77 S. Ct. 716, 1 L. Ed. 2d 724 (1957); United States ex rel. Hyde v. McMann, 263 F.2d 940 (2d Cir. 1959), cert. denied, 360 U.S. 937, 79 S. Ct. 1462, 3 L. Ed. 2d 1549 (1959); United States ex rel. Hussey v. LaVallee, 302 F. Supp. 305, 309 (E.D.N.Y.1969). Arbitrariness must be determined by viewing all the circumstances surrounding the trial judge's decision. Here Judge Gittleson was presiding over a jury trial which had been under way for five days. When considering the length of the trial, the fact that counsel had had four days to locate the witness, and the fact that petitioner himself knew of Bryant and his importance, it cannot be said that Judge Gittleson's denial of the continuance was arbitrary. Petitioner's first ground is therefore without foundation.

 B. To Secure Psychiatric Records of an Important Witness.

 On the first day of the trial defense counsel learned of Norman Adderly's psychiatric history and subpoenaed his psychiatric records. The records had not been produced by the last day of the trial, May 25, 1965, and defense counsel requested a continuance until they could be produced. Judge Gittleson noted that defense counsel were merely speculating that the psychiatric records would be of value to the ...

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