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MORGAN v. SALAMACK

July 18, 1983

ROBERT MORGAN, Petitioner, against DOMINICK SALAMACK, Edgecomb Correctional Facility, and ROBERT ABRAMS, Attorney General for the State of New York, Respondents.


The opinion of the court was delivered by: PLATT

MEMORANDUM & ORDER

PLATT, D.J.

 Petitioner, Robert Morgan, has submitted this application pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus, alleging that his State conviction must be set aside on the ground that he was denied due process of law.

 Petitioner and two co-defendants were tried in February, 1979 in the New York Supreme Court, Queens County, on charges of robbery in the first degree and attempted robbery in the second degree. Following a jury trial, all defendants were convicted of robbery in the first degree and acquitted of attempted robbery in the second degree. *fn1"

 Petitioner then moved for an order pursuant to New York Criminal Procedure Law § 440.10(1)(g) vacating the judgment of conviction and directing a new trial based upon new evidence discovered after the entry of judgment. He also moved for an order pursuant to § 440.10(1)(b) of that law vacating the judgment of conviction on the ground that the conviction was based in part upon the complainant's perjurious testimony elicited by the prosecution on direct examination and thus was obtained in violation of his right to due process of law. Both motions were denied by the State trial court in all respects, and leave to appeal that denial was denied by the Appellate Division, Second Department. Petitioner, asserting the same grounds raised in his State motions, now seeks a writ of habeas corpus from this Court. *fn2"

 FACTS

 Petitioner's application is based on the following set of facts. The complainant, Mr. Alfred Teo, testified at the State trial that he and his business partner were driving home from their place of business during the early evening of February 7, 1978, when someone threw a heavy object through the side window of his van. Mr. Teo further testified that when he stopped the van and got out to investigate, the defendants attacked and beat him, stealing his watch and attempting to steal his wallet. (Trial transcript at 58-65). Petitioner and his co-defendants, however, testified that on the evening in question they were walking along a street in their neighborhood when one of them was nearly struck by a van, and when they shouted at the driver and banged on the van, the driver got out of the van, pointed a gun at them and threatened to shoot them (Tr. at 624-35; 768-73; 797-99). Mr. Teo, though, denied that he was in possession of a gun at the time of the incident. *fn3" He also testified (on direct examination) that he had never been arrested (Tr. at 51, 57), that he had a valid pistol carrying permit (Tr. at 55, 115, 116, 145, 146, 148, 150), and that he had never experienced any problems with the gun licensing agency (Tr. at 56, 57, 146). *fn3"

 Subsequent to the conviction, petitioner obtained, through the New York Freedom of Information Act, records of the New York City Police Department regarding Mr. Teo's arrest record and applications for gun permits. The arrest record revealed that Mr. Teo had in fact been arrested on July 23, 1976 in Queens, New York for reckless endangerment and illegal possession of a weapon. In addition, in January, 1979, Mr. Teo had been issued a summons by the New York City Police Department for the unlawful discharge of a firearm in connection with an alleged attempt by several youths to steal his car. Finally, Police Department records also revealed that though Mr. Teo was, at one time, in possession of a target pistol permit, *fn4" his license was suspended and his weapons were removed from him by the License Division following the above noted arrest. Subsequently, in 1977, his target license permit was re-issued; however, in 1978, his application for a license to carry a weapon was denied. *fn5"

 With respect to Mr. Teo's arrest in July, 1976, this Court heard the testimony of Mr. Donald Schulze, the complainant in that case. Mr. Schulze testified that in May, 1976 he and some friends were driving on a highway in Queens when they were nearly forced off the road by a passing station wagon. Mr. Schulze further testified that when he and his friends subsequently caught up with the station wagon and shouted obscenities at the driver, the driver fired at them with a gun. *fn6" (Hearing of January 31, 1983, at 7-9). The station wagon was eventually traced to Mr. Teo, who was then arrested. All charges against Mr. Teo, however, were later dropped.

 Thus, bases upon this newly discovered evidence, petitioner asserts that Mr. Teo's perjury as to his arrest record, his lack of a valid carrying permit, and his problems with the licensing agency affected the verdict at trial and therefore, under the United States Supreme Court's decision in United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976), violated his constitutional right to due process of law.

 DISCUSSION

 In United States v. Agurs, supra, the Supreme Court held that the standards that courts apply when reviewing potential due process violations arising from prosecutorial nondisclosure of exculpatory evidence must vary with the factual circumstances. The Agurs Court employed three distinct categories to delineate the due process issues in this area:

 (1) Where the prosecution knew or should have known that perjured testimony was used to obtain the conviction, the conviction must be set aside if any reasonable likelihood exists that the false testimony could have affected the judgment of the jury. 427 U.S. at 104;

 (2) Where a pretrial request for specific evidence was made and the prosecution failed to disclose that evidence, the conviction must be set aside if there is a possibility that the suppressed evidence might ...


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