The opinion of the court was delivered by: WEINFELD
Petitioner, Vito Volpicelli, is now serving concurrent sentences of up to fifteen years at Bayview Correctional Facility, New York City, imposed under a judgment of conviction of conspiracy and various related substantive counts of burglary, robbery, grand larceny and felonious possession of weapons after a jury trial in the New York State Supreme Court, Suffolk County, in July 1973.
He seeks his release upon a writ of habeas corpus upon allegations of violation of his federally protected right to due process of law. Essentially, petitioner claims that he was denied a fundamentally fair trial by references to alleged mob contacts during his cross-examination by the Assistant District Attorney and by the testimony of a rebuttal witness on the same subject. Petitioner also claims that the cross-examination and the rebuttal testimony were impermissible since they were based upon evidence obtained in violation of Massiah v. United States.2 Further, petitioner asserts that the use of such prejudicial evidence by the Assistant District Attorney constituted prosecutorial misconduct requiring vacatur of the conviction. After a word-by-word review and study of the 1700 page transcript
of the trial which lasted almost three weeks, this Court is convinced beyond a reasonable doubt that petitioner was not deprived of due process of law and that he was afforded a fundamentally fair trial.
Volpicelli was convicted for the part he played in originating, planning and executing an armed robbery at the home of Bertram and Muriel Virag at Centerport, Suffolk County, New York, on September 11, 1972. He was not present at the Virag home when the robbery was committed by four other men; however, he was cast by the prosecution as the prime mover in the conspiracy to commit the crime and in aiding and abetting the substantive offenses. Because of the importance of the factual record for the disposition of petitioner's claims, the Court reviews the evidence in detail.
At the trial petitioner did not dispute that a robbery of the Virags had occurred or that the other defendants had committed it. Compelling testimony of eyewitnesses and police officers established the following. On September 11, 1972, at about 12:30 p.m., petitioner's codefendants, Myers, Mann, McGill and Wade,
drove to the Virag residence. Myers was driving a white Pontiac registered to Pamela Volpicelli, petitioner's wife.
McGill and Wade, posing as deliverymen, gained entrance to the home while Myers and Mann waited outside. After binding and gagging the maid, a paper hanger and the Virag son, Jeffrey, the burglars ransacked the upstairs office of Mr. Virag and the master bedroom. They left with approximately $18,000 worth of jewelry and several hundred dollars in cash. The robbers proceeded to a gas station on Northern Boulevard, Queens, a few blocks from Volpicelli's apartment, where Myers telephoned petitioner. Volpicelli, as he testified, asked them to come up to his apartment, which they did. Within ten minutes McGill and Mann departed.
Soon after the robbers had left the Virag premises, the victims notified the police, who issued a general alarm. The authorities obtained the license number of the Volpicelli car through an alert postal clerk employed at a post office close to the Virag home, who shortly before the holdup had noted the number because his suspicions had been aroused by four men in the car; he identified three of the four men at the trial. As a result of this lead, the police, within one-half to three-quarters of an hour of the holdup, located the Volpicelli automobile outside the apartment house where he lived. Thus when McGill and Mann left the apartment house they were taken into custody as they approached the car; the police also seized a brown attache case in the possession of McGill which contained the stolen jewelry. Myers, who left the Volpicelli apartment a few minutes after McGill and Mann, upon seeing the police cars and his confederates in custody, retreated to petitioner's apartment and informed him that Mann and McGill had been arrested. Immediately thereafter both proceeded to the street, where Myers was arrested. Volpicelli was taken to the police station for questioning, but was released; he was arrested ten days later. Some seven hours after Myers' arrest on the day of the robbery he made a detailed confession setting forth his role, as well as that of each participant, including petitioner.
It was no coincidence that the robbers had chosen the Virag residence. Volpicelli had known the Virags since 1970, when he courted their former daughter-in-law, Nicola. She had been married to their son Richard, who had died in 1968. Volpicelli had visited the Virag residence on several occasions in 1970 while Nicola was living there. He did not visit the home again until August 1972,
when he took Myers there ostensibly to discuss with Mr. Virag the prospect of beginning a landscaping business. More will be said later concerning the differing explanations of this visit.
During the trial, defendant Myers was permitted to plead guilty to robbery in the third degree upon an agreement to testify as a prosecution witness. His plea was accepted by the Court upon Myers' representation that he would testify truthfully and consistently with his confession which he made on the day of his arrest and which he continued to aver was the truth.
Up to this point the Court has referred to testimony uncontradicted at trial by the petitioner. The major portion of the State's case against Volpicelli was provided by the testimony of Clifford Myers, which petitioner, who took the stand on his own behalf, contradicted in material respects.
Myers presented strong direct evidence of petitioner's role in the initiation and consummation of the armed robbery. Myers testified that he met Volpicelli for the first time in July 1972 at Cape Coral, Florida. One George Ruffo was also present. He next met Volpicelli in Miami, when petitioner loaned Myers money to fly to New York. After arriving in New York, Myers visited Volpicelli's home in Douglaston, Queens, in August 1972; also present were McGill and Mann. At that time Volpicelli stated that he had been engaged to a woman who lived with her ex-parents-in-law in Huntington, Long Island, and that the home contained large amounts of money and jewels. Volpicelli proposed a robbery of the home, and it was decided that Myers would drive Volpicelli's automobile and that any fruits of the crime would be evenly divided. A few days later Volpicelli, Myers, Mann and McGill, joined by Ruffo, travelled to the Virag home in two cars, arriving there at about 9:30 that night. They remained there for about one hour, familiarizing themselves with the area and the house.
Myers was not convinced that Volpicelli knew the owners of the home; in order to persuade Myers that he did, petitioner devised a pretext for a face-to-face visit with Virag. Late in August, Myers and Volpicelli, again joined by Ruffo, drove to the Virag residence. Volpicelli introduced Myers to Mr. Virag, and Volpicelli and Virag had a brief discussion. Myers, after the visit, was satisfied that Volpicelli knew the Virags as he had stated.
The plans for the robbery were finalized, according to Myers, around 1 a.m. in the morning of September 11, at a meeting attended by him, Volpicelli, McGill and another unidentified person. It was decided that Volpicelli would stay in his apartment because he was known to the Virags and that the robbers would use the Volpicelli car with Myers as the wheelman. The robbers met again at the Volpicelli home later that morning just prior to the holdup and left for the Virag home from there. After the robbery, they drove back to the vicinity of petitioner's apartment, calling Volpicelli from a nearby gas station, and reported that the robbery had taken place. Volpicelli told them to come up to the apartment, which they did, and there they divided the stolen cash and made arrangements for McGill to fence the stolen jewelry. After this meeting, which lasted but a short time, McGill and Mann left the apartment; Myers followed shortly thereafter. When Myers got outside, he saw McGill and Mann in handcuffs. Myers then returned to petitioner's apartment and reported the arrest to Volpicelli, who thereupon said he would get them out and then proceeded to an underground garage. Volpicelli, to whom Myers had previously returned the keys to the car, gave him the keys again and told him to move the car. Myers and Volpicelli went out to the street, and Volpicelli, in response to a question from a police officer, identified Myers as the person to whom he had loaned his car. Myers stated that Volpicelli exclaimed: "What, I loan you my car and you pulled an armed robbery?"
Petitioner took the stand on his own behalf. His version of places and events does not differ substantially from Myers' testimony, except that he casts them in an innocent light. Volpicelli testified that he had never been convicted of a crime and that he had been employed in the construction industry. He first met the Virags in the spring of 1970 at their home when he was courting their ex-daughter-in-law. His plans to marry did not eventuate. He was introduced to Myers by Ruffo at Fort Myers, Florida, in July 1972 and met him again in Miami later that month. Ruffo told Volpicelli that Myers needed money to get to New York where he would look for work. In August 1972, Myers visited petitioner at his home in Douglaston, and several times that month petitioner lent Myers his car. During August, Myers told Volpicelli that he needed a job and some money, and Volpicelli, who was also temporarily out of work due to a construction strike, suggested visiting Mr. Virag to discuss the possibility of starting a landscaping business. They called on Virag on August 20 or 21, but he asked them to return because he had to leave on urgent business. Ruffo accompanied Myers and petitioner; he remained in the car and was not introduced. Volpicelli did not return to discuss the landscaping business because the strike ended and he went back to work. Petitioner loaned Myers his car on September 6 or 7 and did not see him again until September 10, the night before the robbery when Myers called at his home with a girlfriend at around 9:30. Volpicelli was playing pinochle with his building superintendent, Mr. Leonard,
and did not speak to Myers, who stayed for an hour and a half. Petitioner gave Myers "permission to take the car home but return it before 3:30" the next day (September 11). He next saw Myers about 1:15 p.m. on September 11 (about forty-five minutes after the robbery). Myers had telephoned from a nearby gas station and Volpicelli suggested that he come up to the apartment to discuss the return of the car. Myers did so, accompanied by McGill and Mann; they had a cold drink each and McGill and Mann left in five or six minutes. Myers left shortly thereafter and returned within a few minutes, saying that he had seen the others in handcuffs. Volpicelli suggested they go downstairs to see what had happened. A police officer was attempting to ascertain the owner of the Pontiac used in the robbery and Volpicelli asked Myers what had happened. Myers said "nothing" and asked Volpicelli to say that the two of them had spent the morning together. Volpicelli declined and when Myers turned to leave, petitioner grabbed his arm. Volpicelli then identified Myers as the person who had driven his car that day.
In sum, Volpicelli denied any arrangement with Myers or any other codefendant to rob the Virag home. He denied any knowledge of the robbery. He put an innocent cast on his lending his car to Myers on several occasions as acts of friendship; so, too, he stated that his visit to the Virag home in August 1972 was for the sole purpose of soliciting landscaping business. He denied Myers' testimony that when Myers and the other confederates were at his apartment within an hour of the holdup there was any distribution of cash proceeds of the robbery or any discussion to fence the jewelry.
THE CHALLENGED CROSS-EXAMINATION AND REBUTTAL TESTIMONY
The basis of petitioner's claims in this proceeding is twofold: (1) his cross-examination by Assistant District Attorney Sullivan as to statements he allegedly made to Detective Jack Taylor of the Suffolk County Homicide Squad after his arrest and before his arraignment which related to information Volpicelli would provide in return for "a deal" on the pending charges; and (2) the rebuttal testimony of Detective Taylor, who testified affirmatively as to the foregoing matters which Volpicelli denied on cross-examination. We consider these separately.
Under cross-examination, Volpicelli testified that he and Taylor had a conversation:
Q [Sullivan, Assistant District Attorney] Remember what it concerned?
A [Volpicelli] Yes, he asked me if I knew of a murder of a Mr. LoBosco. I told him I did not. In fact, I wasn't even in the country at the time.
Q Isn't it a fact that you told him that you would contact people you knew in New York City and get an answer for him, but that it might cost $1,000?
Q Isn't it a fact that you told him that you had contacts in the mob in New York City and particularly in Nassau County and knew of a potential heroin deal to take place in Huntington?
A I don't know anybody in Nassau or Suffolk. The only people I know is in Queens and Manhattan.
Q You knew the Virags, didn't you?
A That is a party [ sic ?].
Q Isn't it a fact that you said that you would tell him these things if you could get a deal with respect to your present indictment?
A I did not, because I didn't expect to be convicted for the indictment. Why would I need a deal?
Q Did you tell him . . . that you would get the name of the person responsible for a murder of Jerry LoBosco?
A I don't know anybody in Nassau County.
Q You never told him you were in with a few guys?
MR. VUTURO [Volpicelli's attorney]: I object to the form of the question.
MR. SULLIVAN: Let me put it a different way.
Q Did you ever tell him that you were in with a few guys and through them you could advise the Suffolk County Police of various gambling activities that took place in Suffolk County?
Q Isn't it a fact you told him all these things in an exchange for a commitment by him that he would see what he could do for you in getting you a deal if you came through with the information you promised him?
A He asked me if I knew of any information, he would help me. And I said, "I don't have any ...