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MELENDEZ v. CLINTON CORRECTIONAL FACILITY

July 10, 1975

Victor MELENDEZ, Petitioner,
v.
SUPERINTENDENT, CLINTON CORRECTIONAL FACILITY, Respondent



The opinion of the court was delivered by: DOOLING

MEMORANDUM and ORDER

 DOOLING, District Judge.

 The petitioner seeks habeas corpus on the ground of the failure of the prosecution to disclose the name of an informer allegedly present at the two sales of heroin for which petitioner was indicted and convicted, and on the ground of the failure of the trial judge to compel disclosure of the informer's name. The petition is very nearly a copy of the statement of the facts and evidence and the argument of Point One made on petitioner's appeal of his conviction to the Appellate Division, Second Department.

 The two sales of heroin involved were allegedly made by Petitioner to undercover Detective Richard Marcus on March 1 and March 18, 1971. Petitioner was arrested on March 18, 1971, went to trial on October 2-4, 1972, and was convicted, and he was sentenced on December 12, 1972, to a maximum term of 7 years. On his appeal to the Appellate Division the judgment of conviction was unanimously affirmed without opinion on September 19, 1974 (45 App.Div.2d 990, 359 N.Y.S.2d 997). Leave to appeal to the Court of Appeals was denied on November 18, 1974, (34 N.Y.2d 950, 359 N.Y.S.2d 565, 316 N.E.2d 878).

 The undercover detective testified that on March 1 he bought 4 foil packets of white powder from Petitioner for twelve dollars and that he was accompanied by another person (Tr. 29) who introduced Detective Marcus to the Petitioner as "Victor" (Tr. 49). On March 18, 1971, Detective Marcus, again in company of the same "other person," met the Petitioner and bought four more foil packets containing a white powder for twelve dollars (Tr. 38-39). At this point the testimony was:

 
"Q And this other person was he present during the purchases on March 1st and March 18, 1971?
 
"A He was present, I would say, up to a point. He was not present --
 
"Q At the point of the transaction --
 
"A At the point of the transaction, he was not present."
 
* * *
 
"THE COURT: He didn't stay there?
 
"THE WITNESS: He didn't stay there for the transaction." (Tr. 39).

 Defense counsel asked Detective Marcus whether he had informants who worked with him and Detective Marcus said that he did from time to time. When defense counsel asked whether they were narcotics addicts, the Court sustained an objection and sustained further objections when the question was made specific as to the person who introduced Detective Marcus to Petitioner (Tr. 61). Defense counsel brought out that Petitioner had no one with him at the time of the alleged transactions, and at that point the examination continued in this way (Tr. 70):

 
"Q You say that the person who brought you up to introduce you to this man came with you, is that correct?
 
"A Was present up to a point, yes.
 
"Q What point?
 
"A Prior to the transaction?
 
"Q That happened in both instances, did it not?
 
"A Yes.
 
"Q Did you tell him to leave?
 
"A Well, I have prearranged informants which I utilize with various persons that I may be with.
 
"Q Wouldn't this person with respect to at least March 1st, have to introduce you to this man and talk about narcotics?
 
"THE COURT: Not did he introduce you to him?
 
"THE WITNESS: Yes.
 
"THE COURT: Did he talk about narcotics?
 
"THE WITNESS: Yes. We had a conversation.
 
"Q Was that conversation related to the sale of narcotics?
 
"A Yes.
 
"Q And who was that person?
 
Mr. Sussman: Objection.
 
"THE COURT: The name of the person? The objection is sustained.
 
Mr. Brackly: He may be a witness.
 
"THE COURT: The objection is sustained.
 
"Q Do you know the person?
 
Mr. Sussman: I will object to the entire line of questioning.
 
"THE COURT: I will let him ask the question.
 
Do you know that person?
 
"THE WITNESS: Do I know who that person is?
 
"Q Yes.
 
"A Yes.
 
"Q Is that person a registered informant?
 
"A Yes.
 
Mr. Brackly: Now, may I have his name?
 
Mr. Sussman: Objection.
 
"THE COURT: Objection sustained.
 
"Q With respect to the second transaction on March 18th, what was the purpose of the so-called registered informant being present at that time?
 
Mr. Sussman: Objection.
 
"THE COURT: What was the purpose of his being present? Objection overruled.
 
"THE WITNESS: He may have been present at that time. I would have to recollect my memory but he may have been present for other transactions that I was attempting to make. His purpose was to introduce me to people in the area.
 
"Q Did you not testify in direct examination a few moments ago that he came with ...

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