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UNITED STATES EX REL. SANTIAGO v. VINCENT

November 30, 1976

UNITED STATES of America ex rel. Efrain SANTIAGO, Petitioner,
v.
Leon VINCENT, Superintendent of Green Haven Correctional Facility, Respondent.



The opinion of the court was delivered by: GAGLIARDI

GAGLIARDI, District Judge.

This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted after a jury trial in New York Supreme Court, Bronx County of common law murder and possession of a weapon. On April 5, 1973, petitioner was sentenced to an indeterminate term of imprisonment of 18 years to life on the murder charge to run concurrently with a one year sentence for the weapon possession charge. The Appellate Division, First Department, affirmed the murder conviction and the sentence therefor, but reversed the conviction for possession of a weapon and vacated the sentence on that charge. Appellate Division Order, April 3, 1975. Leave to appeal was denied by a judge of the Court of Appeals (May 19, 1975). The petitioner is now serving his sentence at the Green Haven Correctional Facility.

The sole issue in this petition is whether the trial court's refusal to allow cross-examination of a prosecution witness on the subject of her interest in the case deprived petitioner of his right of confrontation guaranteed by the Sixth and Fourteenth Amendments and thus requires the reversal of his conviction. This issue was fully briefed and argued before the Appellate Division and in the petition for leave to appeal to the Court of Appeals. Petitioner has exhausted his available state remedies. See Picard v. Connor, 404 U.S. 270, 275, 278, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); Chesney v. Robinson, 403 F. Supp. 306, 308 (D.Conn.1975), aff'd on opinion below, 538 F.2d 308 (2d Cir. 1976).

 After thoroughly reviewing the record in this case, for the reasons stated herein, this court finds petitioner's confrontation rights guaranteed by the Sixth and Fourteenth Amendments were violated when cross-examination was limited and, accordingly, grants the writ.

 On December 17, 1971 at 12:15 A.M. a New York City Police patrolman, in response to waves from a crowd and to a police radio communication, entered a building at 827 Melrose Avenue, Bronx County, New York. This building is the residence of the three key witnesses in this case. Between the first and second floor landing of the building the patrolman saw the victim of the crime in this case, Manuel Perez, Jr., sitting in a slumped position. From the stairway the victim was removed to Morrisania Hospital. According to the testimony of the Medical Examiner of the City of New York, the victim had died shortly after he had sustained multiple stab wounds.

 At the trial the prosecution relied heavily upon the testimony of three witnesses. The first of these witnesses, Isabel Alvarez, the only eyewitness to the murder, looked out of the peephole in the door of her apartment and saw the knife penetrate the victim. Myrna Crespo, who testified after Isabel Alvarez, stated that she responded to the cries of Isabel Alvarez, came out into the hallway of her fourth floor apartment and saw the perpetrator and the victim on the landing below. She stated that the perpetrator had a knife and was going through the pockets of the victim, and that she saw the perpetrator's face for a short period of time. The next witness, Myrna's sister Mildred Crespo, an occupant of the same fourth floor apartment, testified that she went out of the apartment as her sister was returning and also saw the perpetrator and the victim on the landing below. She too stated that the perpetrator had a knife and was going through the victim's pockets. She also testified that she saw the perpetrator's face for a few seconds. The only other witnesses at the trial were the policeman who found the body and the father of the victim who both testified before Isabel Alvarez and the medical examiner and the police detective in charge of the investigation of the murder who testified after Mildred Crespo.

 It was at the end of the cross-examination of Mildred Crespo that the petitioner alleges the Sixth and Fourteenth Amendment confrontation violation took place. Petitioner claims that the cutting-off of cross-examination denied him the opportunity to establish that Midred Crespo's knowledge of her brother's arrest for the very crime for which the petitioner was on trial gave her a motive to falsify her testimony. The sustaining of the prosecutor's objections in the following exchange, [T. 730-32] *fn1" petitioner alleges, was a constitutional violation requiring reversal of petitioner's conviction:

 THE COURT: Anything further?

 Q. You have a brother by the name of Peewee?

 A. [Mildred Crespo] Yes.

 Q. And did you learn between the time of the night of the incident and the time you spoke with Detective Hughes for the first time that Peewee had been arrested for this homicide?

 MR. GILLEECE: Oh, I object to this question.

 MR. GETZ: I asked her if she learned it. If she didn't learn it, she could say no.

 THE COURT: Did you ever hear that?

 THE WITNESS: That he was arrested? No.

 Q. Did you learn he was taken to the station house about this incident?

 MR. GILLEECE: Hold on. I object to this now.

 THE COURT: Sustained.

 MR. GETZ: That's a term of legal art, Judge.

 THE COURT: Not [sic] it's sustained.

 MR. GETZ: If the court pleases, it's a term ...


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