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May 31, 1977.

Albert VICTORY, Petitioner,
Roy BOMBARD, as Superintendent of Greenhaven Correctional Facility, Respondent.

The opinion of the court was delivered by: WARD

ROBERT J. WARD, District Judge.

Albert Victory ("Victory"), a state prisoner, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons hereinafter stated, the writ is granted.

On May 26, 1970, a jury in Supreme Court, New York County, the Honorable Irwin D. Davidson presiding, convicted Victory of felony murder. Petitioner was sentenced to twenty-five-years-to-life with a recommendation of no parole during the first twenty-five years, which he is presently serving at Greenhaven Correctional Facility. The conviction was affirmed by the New York courts. People v. Victory, 38 A.D.2d 689, 327 N.Y.S.2d 544 (1st Dep't 1971), aff'd sub nom., People v. Bornholdt, 33 N.Y.2d 75, 350 N.Y.S.2d 369, 305 N.E.2d 461 (1st Dep't 1971), aff'd sub nom., People v. Bornholdt, 33 N.Y.2d 75, 350 N.Y.S.2d 369, 305 N.E.2d 461, cert. denied, 416 U.S. 905, 94 S. Ct. 1609, 40 L. Ed. 2d 109 (1974). Victory's motion for leave to reargue in light of the subsequent United States Supreme Court decision in Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), was denied on June 15, 1976. People v. Victory, 42 N.Y.2d , N.Y.S.2d , N.E.2d .

 Petitioner asserts three constitutional claims for habeas corpus relief:

 1. He was denied his sixth and fourteenth amendment right of confrontation by the trial judge's refusal to allow impeachment of testimony on a critical issue given by the principal prosecution witness;

 2. He was denied due process under the fifth and fourteenth amendments by the trial judge's failure to instruct clearly on the meaning of an element of felony murder;

 3. He was denied due process under the fifth and fourteenth amendments by being required to bear the burden of proof by a preponderance of the evidence on the four elements of New York's affirmative defense to felony murder.


 Felony murder charges usually arise out of a crime of violence or potential violence, the prototype being armed robbery which culminates in a shoot out. The apparent rationale for felony murder prosecutions is to deter felons from acting in such a manner as to increase the likelihood of violence (e.g., to deter carrying arms). For this reason, the law has come to accept punishing the non-killing accomplice to the underlying felony. The peculiar facts of this case, however, do not approach the prototypical felony murder scenario to which this rationale applies.

 Sometime around 1:00 A.M. on a rainy October 7, 1968, the murder victim, Patrolman Varecha ("the Patrolman"), was standing in uniform on the corner of 5th Avenue and 54th Street in New York City. He observed a car speed through a red light at that intersection. The Patrolman thereupon commandeered a cab which chased the speeding car a few blocks through another red light to its destination, Arthur's Discotheque, on 54th Street and 3rd Avenue.

 Four people, Francisco and Donna Garcia, Theresa Gentry and Maureen LaGuardia, were standing under the awning at Arthur's when the car pulled up. In varying degrees they observed the incident that was about to unfold.

 Victory and his co-defendant Robert Bornholdt ("Bornholdt") got out of the car, laughing and joking, and made their way toward Arthur's. At approximately the same time, the Patrolman alighted from the commandeered cab and demanded the license and registration of whoever had been driving the car. Victory, who had been driving without a license, "wised-off" with the Patrolman, telling him, while spinning the car keys around his fingers, that they had not come by car. When the Patrolman asked how they had come, Victory responded, "By truck." As they proceeded to ignore the Patrolman's demand and entered Arthur's, the Patrolman blocked their access with his nightstick and again demanded the license and registration. When Victory remained uncooperative, the Patrolman threatened to have the car towed away. At that point a verbal and physical altercation ensued.

 The prosecution witnesses, particularly Francisco Garcia ("Garcia"), their main witness, depict Victory as the aggressor. Garcia testified that at some point Victory, after telling Bornholdt to stay out of it, that Victory would take care of it, lifted the Patrolman off the ground by his jacket and then kicked the Patrolman in the groin. The Patrolman doubled over in pain and then rose and clubbed both Victory and Bornholdt on their heads with his nightstick with such force as to cause them to bleed. The Patrolman then drew his gun and told them they were under arrest.

 Instead of immediately submitting to the arrest, Victory slowly backed away. Bornholdt kept to the Patrolman's other side, preventing him from keeping his eyes on both of them. Throughout this entire time, Garcia remained nearby the Patrolman, and at one point earlier actually came to the Patrolman's defense and as a result was kicked and assaulted by Bornholdt. Garcia testified that Victory gradually backed down an alley, drawing the Patrolman, followed by Bornholdt, and Garcia, therein. While in the alley Victory shouted to Garcia "Get the cop, Get the cop," and/or "Get a cop. This guy is crazy." Garcia replied that he was with the cop. He was then ordered, first by Victory and then by Bornholdt, to get out of the way and mind his business. At the entreaties of his wife Garcia turned around to retreat. At that point the shooting began. When he turned back, Garcia saw Victory and Bornholdt "scuffling" with the Patrolman and observed a flashing burst come from the silhouette of a gun in Bornholdt's hand. First Bornholdt, and then Victory, fled separately.


 Victory was charged with felony murder under N.Y.Penal Law § 125.25 (McKinney 1967) ("Penal Law"). *fn1" One of the elements of that crime is that there must be an underlying felony or attempted felony on which to predicate "felony murder," and the predicate felony must be one of the particular felonies enumerated in Penal Law § 125.25. In this case the predicate felony was escape in the second degree.

 Section 205.10(2) of the Penal Law defines escape in the second degree as flight from an arrest for a felony. Here the felony arrest that formed the basis for second degree escape was arrest for second degree assault.

 Second degree assault is defined in Penal Law § 120.05(3) as causing physical injury to a peace officer with intent to prevent him from performing his lawful duty. Physical injury is defined in Penal Law § 10.00(9) as "impairment of physical condition or substantial pain." In this case, the physical injury forming the basis of the arrest for felonious assault was Victory's kicking the Patrolman in the groin.

 In addition to having to prove beyond a reasonable doubt the kick in the groin, the arrest therefor, and subsequent flight and shooting, the prosecution also had to prove beyond a reasonable doubt that Victory's and Bornholdt's escape was pursuant to a common plan or intent to escape which was formulated prior to the shooting, and that the shooting was "in the course of and in furtherance" of the preconceived plan of escape.


 I. Was Victory Denied His Right of Confrontation by the Restriction on Impeachment of the Principal Prosecution Witness

 Petitioner claims that his constitutional right of confrontation was violated by rulings at trial which prevented him from demonstrating that in statements given the night of the murder Garcia did not state that Victory had kneed the Patrolman in the groin.

 As noted above, Victory's kneeing the Patrolman in the groin was the basis for the felony assault arrest, which was the predicate for the underlying felony of second degree escape on which the felony murder charge ultimately rested. Therefore, proof beyond a reasonable doubt of the kneeing incident was essential to a conviction for felony murder.

 At trial, Garcia testified in great detail concerning the events which he witnessed on the morning of October 7, 1968. On direct examination, Garcia stated that he saw Victory knee the Patrolman in the groin and he saw the officer crouch over in pain. In addition, Garcia stood in front of the jury and dramatically re-enacted his testimony of the kneeing incident twice more.

 Before cross-examination began, the prosecution turned over to defense counsel, pursuant to People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied, 368 U.S. 866, 82 S. Ct. 117, 7 L. Ed. 2d 64 (1961), the following five pre-trial statements made by Garcia:

 1. Handwritten notes taken by Detective Byrne ("Byrne") on October 7, 1968;

 2. A typed revision of the notes taken by Detective Byrne;

 3. Handwritten notes taken by Assistant District Attorney Dannett ("Dannett") dated October 7, 1968;

 4. A transcript of an interview of Garcia by Dannett recorded by a stenographer at 4:45 A.M. on October 7; and

 5. Garcia's statement to the Grand Jury in October 1968.

 Two of these statements, the Grand Jury testimony and the handwritten notes of Dannett, contain references to the kneeing incident. In the Grand Jury, Garcia testified that it was Victory who kicked the Patrolman, while in Dannett's handwritten notes, the person doing the kicking was not identified.

 The stenographically transcribed interview of Garcia by Dannett clearly contains no reference to the kneeing incident, but there was no specific question propounded on that subject either. The two statements taken by Detective Byrne are somewhat ambiguous. Detective Byrne's handwritten notes state as follows:

 I jumped on tan guys [Bornholdt] back & the tan one struck him & kicked him in the groin & the tan one said mind your own business - & get the hell out of here. (emphasis added)

 Petitioner contends that in this passage, Garcia was referring to the kick which Bornholdt gave to Garcia. The prosecution claims, on the other hand, that the word "him" refers to the officer and that it was the officer who was kicked by Bornholdt. *fn2" It should be noted that in the rest of the handwritten notes by Byrne, the Detective recorded Garcia's references to himself in the first person as "I" or "me" and not as "he" or "him." However, in the Detective's typed revision of the notes, the pronoun was changed as follows:

 I jumped on the tan guys back and the tan one struck me and kicked me in the groin and about my body several times and said mind your own business and get the hell out of here. (emphasis added)

 This version clearly states that Garcia, not the Patrolman, was kicked by Bornholdt, not Victory, and the correction indicates that when Detective Byrne wrote down "him" he understood it to mean Garcia, not the Patrolman. In sum, then, the handwritten and typed Byrne notes do not mention Victory's kicking the Patrolman.

 On cross-examination at trial, Garcia repeated his testimony regarding Victory's kneeing of the Patrolman and the Patrolman's subsequent crouching over. Defense counsel wanted to impeach this testimony by demonstrating that Garcia had failed to mention the kneeing assault in the statements given to Byrne and Dannett. However, counsel's repeated efforts were all unsuccessful.

 Petitioner claims that the trial court's limitation of the cross-examination of Garcia regarding his failure to mention the kneeing incident in prior statements violated his right of ...

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