Appeal from a denial of a writ of habeas corpus by John T. Curtin, C.J., of the United States District Court for the Western District of New York. Affirmed.
Feinberg and Mulligan, Circuit Judges, and Bryan,*fn* District Judge. Feinberg, Circuit Judge (concurring).
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.*fn1
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;"*fn2 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 ...