The opinion of the court was delivered by: PLATT
By Order to Show Cause dated February 13, 1977, returnable February 15, 1977, petitioner sought a stay of execution of the sentence imposed upon him on October 19, 1977, by the Supreme Court, Kings County, (Kooper, J.) and the setting of a reasonable bail pending a final determination of his petition for a writ of habeas corpus but, after a hearing, in a brief oral opinion from the bench this Court denied petitioner's application for a stay and bail and thereafter on March 2, 1979, a certified copy of the judgment of the Court of Appeals for this Circuit, affirming this Court's decision, was filed in the Office of the Clerk of this Court.
Respondent now moves for an order dismissing petitioner's petition for a writ of habeas corpus upon the ground that the petitioner failed to establish therein that execution of the judgment of conviction rendered against him in the Supreme Court will be in violation of the Constitution or laws or treaties of the United States.
The facts in this case are succinctly summarized in the opinion of the New York Court of Appeals dated December 20, 1978,
reversing the Appellate Division, Second Department,
as follows (46 N.Y.2d 240-244, 413 N.Y.S.2d at 290-292, 385 N.E.2d at 1220-1222):
"In connection with the investigation of nursing home operators and their suppliers, the Special Prosecutor discovered widespread scandalous abuse of the Medicaid reimbursement program. One common scheme was for suppliers to provide customers with inflated or fictitious bills to cover "kickbacks'. Although full Medicaid reimbursement would be claimed and received by the home, the overpayment made by the home to the supplier would eventually be shared by the perpetrators.
"To further the investigation the prosecutor enlisted one Ira Feinberg, then recently convicted in Federal court on charges of securities fraud and conspiracy. It was agreed that Feinberg, an owner of nursing homes, would invite several supply companies to the newer of his two New Jersey facilities. The true purpose of the meetings was to discover involvement by suppliers in illegal kickback schemes in New York State.
"The Pomerantz Paper Corp. of Brooklyn, of which defendant is president, has been supplying nursing homes with paper goods and household chemicals since 1971. Defendant's company does business with more than 30 homes, the majority located in the New York City metropolitan area. It also has about eight customers in New Jersey. At the invitation of Feinberg, defendant visited Feinberg's Manor Nursing Home in Emerson, New Jersey, on July 15, 1975.
"Following a discussion of the products needed, defendant was asked about "special deals'. Although he first skirted the subject, defendant ultimately described an "arrangement' whereby a "certain percentage (is) put onto the bill'. He also explained the more risky use of fictitious invoices. Offering to "work something out' with Feinberg, defendant conceded that he would favor Feinberg with benefits he was conferring on others. The conversation was surreptitiously recorded.
"On March 1, 1976, a Special Grand Jury was empaneled in Kings County to investigate nursing home corruption. Of particular interest was the extent to which suppliers were giving kickbacks. Defendant was called to testify on May 21, 1976, ten months after his meeting with Feinberg. On his own request, he was granted immunity.
"After some inquiry into defendant's personal background and the operation of his company, the prosecutor had defendant list the nursing homes he serviced and the particular persons with whom he dealt. Questions about other homes and persons connected with them followed. With respect to Feinberg defendant was asked:
Q. Have you ever done any business or solicited any business from the Manor Nursing Home in Emerson New Jersey?
Q. That is run by a Mr. Ira Feinberg?
Q. Have you ever met Mr. Feinberg?
Q. Mr. Feinberg also runs the Manor Nursing Home in Tenafly New Jersey?
A. I don't know where Tenafly is.
Q. Well, have you ever met Mr. Feinberg?
A few other names were mentioned, but the questioning ...