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PENA v. LEFERVE

September 13, 1976

DOMINGO PENA, Petitioner,
v.
EUGENE LeFERVE, Superintendent of the Clinton Correctional Facility, Respondent



The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

 PLATT, D.J.

 Petitioner, acting pro se, has petitioned for a writ of habeas corpus seeking release from his incarceration pursuant to an allegedly unconstitutional judgment of the New York Supreme Court, Kings County. Title 28 U.S.C. § 2241 et seq. Petitioner, currently confined in the Clinton Correctional Facility, was convicted, after a jury trial, of criminal sale of a dangerous drug in the third degree (two counts), criminal possession of a dangerous drug in the fourth degree (two counts), and criminal possession of a dangerous drug in the sixth degree (two counts). He was sentenced on December 28, 1972 to concurrent prison sentences of five to fifteen years, twenty eight months to seven years, and one year, respectively.

 I -- FACTS

 The following facts are not in dispute. At his trial, petitioner was identified by Patrolman Daniel A. Pantano as the individual who had twice sold him heroin. Pantano, an undercover police officer with three years experience with the Police Department's Narcotics Division, testified that on April 19, 1972 at about 2:30 PM, he met with a confidential informant and a police backup team (Officers Caracappa and Mathews) at the corner of Knickerbocker Avenue and Stanhope Street in Brooklyn. It was at this location that Pantano first met petitioner, known only by his nickname as "Indio." Pantano, at this time, was dressed in dungarees, an army fatigue shirt and his hair reached to his shoulders.

 Pantano and the informant pulled up in Pantano's car. The informant introduced Pantano to "Indio" Pena and told him that Pantano was a friend of his and that he was "looking" [to purchase narcotic drugs]. Petitioner indicated that he was doing ["selling" in drug trade vernacular] "dimes" [bags or packets of heroin retailing for $10.]. (Tr., pp. 60-61). The informant then left the area, and petitioner and Pantano were alone. (Tr., p. 72).

 Pantano requested and was sold two packets of heroin in exchange for $20. Pantano described the seller as a male, white, Puerto Rican wearing a black trench coat and black pants (identifying characteristics he had recorded shortly after the meeting). Pantano then drove to a prearranged site and met with his backup team. The drugs he had purchased were vouchered and sealed until they could be chemically analyzed, which later revealed that they were indeed heroin. This first undercover purchase was not consummated nor did the actual transfer take place in the presence of the informant. (Tr., p. 72).

 The following week, on April 26, 1972 at about 3:00 PM, in broad daylight on a clear day, Pantano went to the intersection of Knickerbocker Avenue and Menahan Street in Brooklyn. On this occasion, Pantano approached petitioner and asked "what he was doing." (Tr., p. 74). Pena replied that he was doing "half spoons" [an amount of heroin greater in both quantity and cost than a mere "dime bag"]. After some conversation, Pantano turned over $45 and was given three glassine packets containing heroin. (Tr., pp. 76, 83). Although the informant had accompanied Pantano to the neighborhood this day too, no proof was offered to indicate that he was present at the initiating conversation, the negotiations, or the consummation of the sale itself.

 Approximately fifteen minutes later, Pantano and his backup team drove separately past the corner where the sale had just been made. "Indio" was still on the corner. Pantano radioed his backup team and identified the man on the corner, Pena, as the seller. Officers Caracappa and Mathews pulled over and arrested petitioner. Pantano personally observed the actual arrest in order to be positive that no mistake in identity occurred.

 On cross-examination, it was indicated that the informant introduced the prospective buyer (Pantano) to a seller of drugs (Pena) and merely stated, "This [Pantano] is my friend." (Tr., p. 97). At this point, defense counsel requested that Pantano name the informant and his address, to which the Assistant District Attorney objected. The court declined to force the prosecution to disclose the identity of the informant. The court conducted an in camera examination of Officer Pantano concerning the existence of the informer, and after satisfying itself that the informer did exist and was registered with the Police Department as a confidential informant, adhered to its ruling against disclosure of the informant's identity. In giving identification testimony, Pantano did not rely on any information secured from the informer or any other outside source, but relied solely on his own observations.

 Patrolman Steven Caracappa of the Narcotics Division, an undercover member of Pantano's backup team, testified that on April 19, 1972, at the time of the first sale, he was about a block away from the site of the sale. Although acknowledging that he did not witness the sale, he did testify that he was shown the purchased heroin shortly after the transaction took place. (Tr., pp. 154-157).

 On the afternoon of April 26, 1972, Caracappa again served in a backup capacity to Pantano. The witness observed Pantano on the corner of Knickerbocker and Menahan Streets in conversation with petitioner for some five minutes. Shortly after the second sale, Pantano again met with the backup team where the fruits of the second sale were displayed, signed and sealed.

 Caracappa, after Pantano's radioed message, placed Pena under arrest on the corner of Knickerbocker and Menahan within 30 minutes after this second drug sale.

 To contradict Pantano, petitioner's aunt, Hilda Pena, testified that on April 25, 1972, her nephew had been in her religious articles store since 9:30 AM and was behind the counter when, at about 3:30 PM Patrolmen Caracappa and Mathews entered the store and asked "where is the gun." (Tr., p. 202). After talking ...


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