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WILLIAMS v. HENDERSON

May 24, 1978

Frank WILLIAMS, Petitioner,
v.
Robert HENDERSON, Superintendent, Auburn Correctional Facility, Respondent



The opinion of the court was delivered by: COSTANTINO

COSTANTINO, District Judge.

 This is a petition, pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus brought on the ground that the petitioner was denied due process of law at his state trial by virtue of prosecutorial misconduct. The petition alleges that the prosecutor's improper cross-examination of petitioner, compounded by his improper summation, deprived petitioner of a fair trial in violation of the due process clause of the Fourteenth Amendment.

 Following a jury trial in Supreme Court, Kings County, petitioner was convicted of four counts of robbery in the first degree, two counts of robbery in the second degree, and four counts of grand larceny in the third degree stemming from the armed robbery of a bar in Brooklyn. He appealed to the Appellate Division, Second Department, raising the identical claim presented here. The convictions on all counts of robbery in the second degree and grand larceny in the third degree were set aside by the Appellate Division because they were lesser included offenses of robbery in the first degree. People v. Williams, 50 A.D.2d 911, 377 N.Y.S.2d 183 (2d Dep't 1975). Petitioner's conviction for robbery in the first degree was affirmed notwithstanding the fact that the State conceded that prosecutorial misconduct at the trial had deprived petitioner of his right to a fair trial and that a new trial was required. (See Respondent's Brief to the Appellate Division at 16-19). The Appellate Division found that any error that may have occurred was harmless. 377 N.Y.S.2d at 185. The New York Court of Appeals denied leave to appeal on February 25, 1976.

 This court finds that the prosecutor's misconduct at the trial was so egregious as to deprive petitioner of a fair trial, and that the conviction must be set aside.

 When the petitioner took the stand in his own behalf, he admitted that he had been convicted of numerous crimes in the past and he catalogued those crimes (90-91). *fn1" On cross-examination, the following exchange took place (98-102):

 Q: In 1971, in Brooklyn, did you commit robbery and did you plead guilty to robbery in the third degree and receive a term of imprisonment for that crime?

 A: Yes, I did that.

 Q: Did you commit that robbery?

 A: Yes.

 Q: Who did you rob?

 A: I don't know. I forget the name. I'm not sure.

 Q: Did you have a weapon with you at the time you committed that robbery?

 A: No.

 Q: You were indicted for robbery in the first degree, armed robbery, were you not?

 A: Yes, they alleges an Indictment, you know that, no what it may be. [sic]

 Q: Even today, you were indicted for robbery in the first degree?

 A: Yes.

 Q: In Staten Island, you got indicted for robbery in the first degree?

 A: Yes.

 Q: All the time it's robbery in the first degree?

 A: Yes.

 Q: I'm going to ask you to remember back to December 20, 1972, did you plead guilty to attempted robbery in the first degree, a felony, before Judge Brownstein in this courthouse?

 A: Yes, sir.

 Q: Isn't it a fact that Judge Brownstein, last Friday, May 24th, imposed a ...


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