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March 15, 1974

UNITED STATES of America ex rel. Martin SOSTRE, Petitioner,
Frank M. FESTA, Superintendent of Erie County Jail, and Robert J. Henderson, Superintendent of Auburn Correctional Facility, Respondents

Curtin, District Judge.

The opinion of the court was delivered by: CURTIN

CURTIN, District Judge.

This is an application for a writ of habeas corpus by state prisoner Martin Sostre, who was convicted on March 18, 1968 of possession of a dangerous drug, sale of a dangerous drug, and second degree assault in Erie County Court before County Court Judge Frederick M. Marshall. He was sentenced for the sale of the drug to an indeterminate term of not less than twenty-five (25) years or more than thirty (30) years, for assault in the second degree to a term of not less than five (5) or more than ten (10) years, for possession of the drug to a term of one (1) year, and for contempt of court committed on March 18, 1968 to a term of thirty (30) days. The court ordered the sentences to run consecutively.

 The application to this court, which seeks only to set aside the conviction for the sale of the dangerous drug, is based on the recantation of the testimony of the principal prosecution witness at Sostre's trial. That witness was Arto Williams, a heroin addict, awaiting trial in the Erie County Jail on a larceny charge. During Sostre's trial, Williams, who became an informant for the Buffalo Police Department Narcotics Squad, testified that he purchased heroin from the petitioner on July 14, 1967. In April of 1971, Williams executed an affidavit recanting that testimony. In his affidavit Williams swears that he lied at Sostre's trial, that Sostre never sold him any drugs, and that Williams framed Sostre to avoid his own conviction as a second felony offender. The affidavit further states that Williams was recanting his testimony after realizing "the importance of telling the truth and . . . after discussion with . . . [a] coordinator of Tuum Est." Based upon the Williams affidavit, petitioner applied for a writ of error coram nobis in the Erie County Court. Because Williams resided in California and refused to voluntarily come to New York State, and because the state court was without the power to obtain his attendance by subpoena or order, Sostre was unable to secure the attendance of Williams at a hearing on his coram nobis application. Thus, based on Sostre's inability to produce Williams, the application for a writ of error coram nobis was denied on March 30, 1972. On that same day, petitioner filed this application for a writ of habeas corpus. Petitioner has not appealed the dismissal of the state coram nobis application, but counsel have stipulated that the absence of any provision under state law to secure the attendance of Williams as a witness in the state court proceeding would make any such appeal futile. Although at the time this action was commenced petitioner's direct appeal from his conviction was still pending in the New York State courts, counsel for both parties have agreed that the issues here are presented outside the trial record and are thus not reviewable on direct appeal of petitioner's conviction. *fn1"

 The court finds that petitioner is entitled to proceed under Title 28, United States Code, Section 2254(b), which provides in part that

an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears . . . that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

 The proceedings in this court were delayed for some time because petitioner's counsel had difficulty locating Arto Williams, who was in California. In May of 1973, Williams was located in custody in California and an application was made by petitioner for a writ of habeas corpus and testificandum. The writ was granted and, through the cooperation of the United States Marshal, Williams was transported from California to Buffalo, New York. After also ordering Sostre's appearance, a hearing was held in this court on May 29 and May 30, 1973. At the hearing the court heard testimony from Arto Williams, Martin Sostre and various police officers who participated in the investigation and arrest. The court received a transcript of petitioner's Erie County Court trial and various exhibits. These exhibits consisted of photographs of the Martin Sostre bookstore where the alleged sale occurred, and a copy of the affidavit of State Trooper Lewis Steverson upon which the application for a search warrant was based. By stipulation of counsel, the court considered exhibits A through J which are annexed to a notice of motion dated July 18, 1973. These exhibits set forth the details of Arto Williams' criminal record after he left the Buffalo area for California. The court sustained petitioner's objection to, and has not considered, exhibit K, a letter written by a Buffalo attorney.


 The transcript of the Erie County Court trial of March 1968 reveals that Sostre, appearing as his own attorney, rejected the offer of the County Court Judge for assigned counsel. The court requested counsel and an investigator to be available to Sostre during the course of the trial. At the direction of the court, they attempted to track down certain leads suggested by the defendant. Judge Marshall ordered the reporter to prepare daily copy for the use of petitioner. Sostre, acting as his own counsel, refused to question the jurors during the voir dire or exercise any of his preliminary challenges; he also refused to make an opening statement, cross-examine any of the witnesses against him, or sum up to the jury. At each stage of the proceedings, Judge Marshall advised him of his rights.

 At the trial, Williams testified that before the events of July 14, 1967 he had known Sostre for about a year. He related that on the evening of July 14 he met with Detective Alvin Gristmacher of the Buffalo Police Department Narcotics Squad and State Trooper Lewis T. Steverson. After being searched by Detective Gristmacher, Williams accompanied the two police officers in a police vehicle to the neighborhood of a bookstore operated by the defendant Martin Sostre, at 1412 Jefferson Avenue in the City of Buffalo. Upon arrival, he received $15.00 from Detective Gristmacher and he and Trooper Steverson, who was in plain clothes, proceeded to the bookstore on foot. When Williams and Steverson entered the store, Sostre and Geraldine Robinson were behind the counter, not too far from the entrance.

 At trial, no witness described the bookstore premises or set forth the exact positions of the parties during the transaction. Williams testified that after he and Steverson entered the store, he asked Sostre whether Sostre was "doing any business." Sostre responded that he did not want to do any business with strangers in the store. Trooper Steverson's testimony at the trial on this point was somewhat different. He recalled that Williams asked Sostre if he could "cop a bag." Sostre looked at Steverson and said he did not know him and that he would not do business in front of a stranger. Williams stated that he and Steverson then walked out of the store, Williams reentered and Steverson remained standing in front, a little to the left of the doorway with the door open. Williams could see Steverson and, from his vantage point, Steverson could observe Williams, Sostre and Geraldine Robinson. Steverson saw Williams give some money to Geraldine Robinson, who counted it and then said something to Sostre who was standing next to her. At trial both Steverson and Williams testified that Sostre then proceeded to the rear of the store, returned to the front and handed Williams a white glassine envelope. Upon receiving the envelope, Williams left the store and returned to Gristmacher's automobile with Steverson, where Williams handed the glassine envelope to Gristmacher. A later analysis revealed the contents of this envelope to be heroin.

 While Williams and Steverson were at the bookstore with Sostre, Troopers John Wilcox and John Steinmetz testified that they were able to observe the activities in the bookstore from a surveillance position across the street. The troopers testified that they saw Williams and Steverson enter the bookstore, Steverson leave with Williams, Williams reenter, Steverson stand in front of the store and Williams again come out of the store and leave with Steverson. Further, Trooper Wilcox testified that he saw Williams hand money to the woman in the store who was standing next to Sostre. Thereafter, Wilcox observed Sostre disappear into the rear of the store and then return to the front where he handed Williams "something." Trooper Wilcox made these observations with the assistance of a telephoto lens.

 After Williams delivered the envelope to Gristmacher, the officers executed a search warrant which they had previously obtained for the premises. They arrested Sostre, found a marked $10 bill in his possession, searched the bookstore and found ten glassine envelopes containing heroin in a filing cabinet in the rear of the store.


 At the hearing, Arto Williams testified that after he was arrested in June 1967 on a felony charge, he contacted the Buffalo Police Department by letter, offering assistance. A short time thereafter, Detective Alvin Gristmacher of the Buffalo Police Narcotics Squad visited Williams in jail. Gristmacher asked Williams whether he knew anyone selling drugs in the Buffalo area. After Williams named a few individuals, Gristmacher asked him if he knew whether Sostre was selling drugs. Williams responded "yes." At that, Gristmacher said: "Well, we are very interested in Sostre because we believe that he was the cause of the riot at the time in '67." About a week later, Officer Gristmacher returned to the jail with Michael Amico, then Chief of the Narcotics Division in the Buffalo Police Department. Williams again stated that he knew that Sostre was selling drugs. On the next day, July 14, Williams claims he was released on his own recognizance and brought to Police Headquarters where he met Officer Gristmacher. Gristmacher gave Williams some money and arranged to meet him at about 9:00 p.m. that evening. According to Williams, he left, bought some heroin, used one-half of it and kept the rest. He also claimed that he obtained additional drugs from other individuals on the street and was still high when he met with Officer Gristmacher that evening. After meeting Gristmacher, they drove to Police Headquarters and Gristmacher went inside, leaving Williams alone in the car for about fifteen minutes. He then returned with Trooper Steverson. According to Williams, while Gristmacher was away from the car Williams secreted the partial bag of drugs he had purchased in the afternoon under the front seat. After driving around for a while, Gristmacher stopped at a judge's home where he obtained a search warrant. Then Gristmacher drove Steverson and Williams to the vicinity of the Sostre bookstore. Williams testified that while they were driving around, and before he got out of the car, he retrieved the half bag of drugs which he had previously placed under the right front seat. Gristmacher then gave $15.00 to Williams and he and ...

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