The opinion of the court was delivered by: NEAHER
Petitioner is currently a State prisoner serving two concurrent terms of 25 years to life following his conviction on two counts of sale and two counts of possession of heroin. He has applied to the Court for a writ of habeas corpus claiming that his constitutional rights were denied by (1) variance between the indictment and the evidence upon which the trial court allowed him to be convicted; (2) the trial court's decision to sequester the jury during trial; (3) alleged irregularities in jury selection; (4) the absence of a confidential informant as a witness at his trial; and (5) the alleged improper consideration at sentencing of certain materials. Since the Court is of opinion that each of petitioner's contentions is without merit, the petition is denied.
Petitioner states that he does not challenge the sufficiency of the evidence adduced at trial, which revealed the following. Petitioner was arrested after a "buy operation" during which heroin was sold to Veronica Baker, an undercover police officer, on two occasions at petitioner's garage in Brooklyn, New York. During the summer of 1974, Baker made contact with petitioner through William Campbell, a confidential informant who owned the garage next to petitioner's and who had been indicted on narcotics charges earlier that year. Campbell drove Baker to petitioner's garage on several occasions, but was not present during the two purchases.
On November 28, 1974, Baker met with petitioner in his office at the garage and gave him $ 5,400 in order to obtain heroin. Petitioner put the money in his filing cabinet and Baker departed while the heroin was sent for. Less than an hour later, Baker returned and saw petitioner standing outside the garage while petitioner's co-defendant, one Hasty Hyman, led her into petitioner's office, where he gave her a package containing almost four ounces of heroin. As Baker left, she passed by petitioner, who was still standing outside, and the two exchanged nods.
Two weeks later Baker had several conversations with petitioner regarding the quality of the heroin and the possibility of future sales. Petitioner said he would try to get her some more heroin, but that there were "too many cops around."
On December 19, 1974, Baker met petitioner outside his garage and asked to buy $ 5,200 worth of heroin. Petitioner said it would be ready in 15 minutes and the two went into his office, where the police officer gave petitioner the money. When Baker told petitioner that she preferred not to receive the heroin from Hasty Hyman, he responded that he wouldn't handle the narcotic and she would have to get it from Hyman. Baker left and, upon her return to the office a half hour later, Hyman gave her another four-ounce package of heroin. Several taped conversations secretly made on this and other occasions were admitted in evidence at trial.
The instant conviction that petitioner attacks followed his third trial on an indictment based on these events. At the first trial, the jury could not agree on a verdict on any of the charges against petitioner, although it acquitted Hasty Hyman on some counts. Petitioner was thereafter tried alone and convicted of sale and possession of heroin. On appeal, however, this conviction was reversed and a new trial ordered. People v. Boyd, 59 A.D.2d 558, 397 N.Y.S.2d 150 (Second Dept. 1977).
Prior to the start of petitioner's third trial, a combined hearing was held on the State's motion to sequester the jury and petitioner's motion to suppress certain tape recorded statements. The State presented evidence to show that petitioner had attempted to influence jurors and court officers at his earlier trials. The State also presented the testimony of an undercover agent who had been posing as a guard at the Brooklyn House of Detention while investigating corruption at that prison. The agent secretly tape recorded a conversation he had with petitioner while he was awaiting sentence following the second trial. This tape was played at the sequestration hearing but suppressed for purposes of trial. In a detailed written opinion, the trial judge decided to sequester the jury, which subsequently convicted petitioner on four counts. His conviction was affirmed without opinion, People v. Boyd, 70 A.D.2d 787, 416 N.Y.S.2d 158 (Second Dept.), and leave to appeal to the Court of Appeals was denied. 48 N.Y.2d 715, 422 N.Y.S.2d 1029, 397 N.E.2d 1184 (1979), adhered to on reconsideration, 48 N.Y.2d 1028, 425 N.Y.S.2d 1046, 402 N.E.2d 147 (1980).
Petitioner's first contention is that the trial court's instructions to the jury impermissibly varied the elements of the crime as set forth in the indictment. Each of the four counts upon which petitioner was convicted alleged that he and Hasty Hyman "each aiding the other and being actually present" either sold or possessed heroin. The trial judge read the indictment and explained the above phrase as essentially "acting in concert." Petitioner claims that this charge violated his constitutional rights by permitting the jury to convict him even if he was not "actually present" throughout the sale or possession of the heroin as assertedly charged by the grand jury.
With regard to a claim of constitutionally impermissible variance, the Supreme Court has stated:
"The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to "affect the substantial rights' of the accused. The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense." Berger v. United States, 295 U.S. 78, 82, 55 S. Ct. 629, 630, 79 L. Ed. 1314 (1935).
A variance will not be considered material unless the jury convicted "upon theories and evidence that were not "fairly embraced in the charges made in the indictment'." United States v. Silverman, 430 F.2d 106, 111 (2d Cir. 1970), quoting, Russell v. United States, 369 U.S. 749, 793, 82 S. Ct. 1038, 1062, 8 L. Ed. 2d 240 (1962) (Harlan, J., dissenting). See United States v. Knuckles, 581 F.2d 305, 311 & n.8 (2d Cir.), cert. denied, 439 U.S. 986, 99 S. Ct. 581, 58 L. Ed. 2d 659 (1978); United States v. Garguilo, 554 F.2d 59 (2d Cir. 1977). Finally, it has recently been settled in this Circuit "that convictions are not now set aside except for variance resulting in substantial prejudice to the defendant." United States v. Knuckles, supra, 581 F.2d at 312.
With these principles in mind, the Court is unable to accept petitioner's argument that the judge's charge effected an impermissible amendment of the indictment. We cannot read the indictment as charging that defendant and Hasty Hyman were "actually present" with each other at every phase of the charged sales or possessions. At most, the relied upon language of the indictment would require proof that petitioner was present at some phase of each of the crimes charged. The Court is of opinion that the suggested variance is too slight to permit a conclusion that the instructions did not "fairly embrace" the charges contained in the indictment. See United States v. Garguilo, supra.
Even if some variance could be perceived, petitioner makes no specific claim of prejudice, and his conclusory claim that the indictment was more narrowly drawn than the theory of the case as presented to the jury is insufficient to show that his "substantial rights" have been affected. Berger v. United States, supra. Certainly the judge's instructions did not permit conviction upon a new set of facts of which petitioner had not been given notice in the indictment. Cf. Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960) (where Hobbs Act indictment charged interference with interstate shipments of sand into Pennsylvania but trial court's instructions permitted conviction on proof of shipments of steel out of the state). In light of the fact that the trial was the third time petitioner had heard the State's proofs on the same indictment, it could not be said that the variance, if any, surprised petitioner's trial counsel and left him unprepared to defend the case. Nor is there any question that the set of facts and theory of the case as presented to the jury allowed conviction for conduct that constituted the crimes of sale and possession under New York law. See, e.g., People v. Diaz, 41 A.D.2d 382, 343 N.Y.S.2d 474 (First Dept. 1973), aff'd mem., 34 N.Y.2d 689, 356 N.Y.S.2d 295, 312 N.E.2d 478 (1974); People v. Goetz, 77 Misc.2d 319, 352 N.Y.S.2d 829 ...