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January 11, 1984


The opinion of the court was delivered by: LOWE




 Before us is a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. §§ 2254. Petitioner is currently incarcerated in the Green Haven Correctional Facility in Stormville, New York, pursuant to a judgment of conviction rendered November 1, 1978, on a charge of attempted sodomy in the first degree (N.Y.P.L. § 110, 130150). Petitioner was sentenced as a second felony offender to an indeterminate term of imprisonment of seven and a half to fifteen years. His conviction was unanimously affirmed without opinion by the Appellate Division, First Department on April 6, 1982. On May 26, 1982, petitioner's application for leave to appeal to the New York State Court of Appeals was denied.

 In the instant petition, petitioner challenges his conviction on two grounds. First, he claims that the admission at trial of the complaining witness' preliminary hearing testimony violated his rights under the Confrontation clause of the Sixth Amendment. Second, he claims that not every element of the crime of which he was convicted was proven beyond a reasonable doubt. In a Memorandum Opinion and Order dated February 8, 1983, this Court found that petitioner had exhausted his available state remedies and directed the State to respond to the merits of petitioner's claims. The Court also appointed the Legal Aid Society, Federal Defender Services Unit, as counsel to petitioner in these proceedings.



 Petitioner Marcelino Gonzalez, was charged in a Bronx County indictment (2394/76) with attempted sodomy in the first degree (N.Y.P.L. §§ 110/130.50) for allegedly attempting to engage in deviate sexual intercourse with one Lydia Mendez. He was also charged with attempted sexual abuse in the first degree (N.Y.P.L. §§ 110/130.65) and endangering the welfare of a child (N.Y.P.L. § 260.10). On October 18, 1976, a preliminary hearing was held, at which the complaining witness testified that petitioner had attempted to forcibly sodomize her. On January 5, 1978, petitioner entered a plea of guilty before the Honorable William Drohan, to attempted sexual abuse in the first degree.Petitioner subsequently sought to vacate his guilty plea on the ground that his attorney had coerced him into accepting the plea agreement. On February 21, 1978, the court granted petitioner's motion although it specifically rejected the claim that his former counsel had improperly pressured him into accepting the plea (Transcript of February 21, 1978, hearing at 3).

 On June 9, 1978, the date scheduled for jury selection, the prosecutor made an oral motion to introduce the preliminary hearing testimony of the complaining witness pursuant to N.Y.C.P.L. §§ 670.10 and 670.20. At a hearing to determine whether the preliminary hearing testimony should be admitted, the following evidence was elicited.

 Detective Jack Jasko of the Bronx County District Attorney's office testified that on June 6, 1978, he was asked by Assistant District Attorney William Flack to locate the complainant Lydia Mendez (T. 12-14). Detective Jasko, who had over twenty years experience in attempting to locate missing witnesses, immediately went to the complainant's last known address at 1487 Vyse Avenue in the Bronx, but was unable to gain entry to the building or speak to any of the tenants. During the next few days, the detective returned to the Vyse Avenue address several times, but without success (T. 13, 14). He also visited the elementary school which Lydia had supposedly attended in 1976, at the time the alleged crime was committed, but he was informed by the attendance clerk that there was "absolutely no record of Lydia Mendez having attended that school" (T. 14). Moreover, none of the school teachers who were interviewed could remember Lydia (T. 14). Detective Jasko then checked the City Scanner, which locates missing persons, the City Welfare Bureau and the Post Office, but was unable to obtain any additional information about Lydia's or her mother's whereabouts (T. 14, 15, 207).

 On June 9, the detective returned to the Vyse Avenue address after learning that Pedro Cepeda was the owner of the building (T. 15).There he met with Ruth Cepeda, the thirteen year old daughter of the owner. Though Ruth would have been in the same grade and school as the complainant, she claimed never even to have heard of her (T. 15-16). Ruth did give Detective Jasco telephone numbers at which her parents could be reached, but she explained that her parents only spoke Spanish (T. 16).

 Detective Jasco then asked Assistant District Attorney David Maldonado, who is fluent in Spanish, to contact Grace Cepeda, the girl's mother. Maldonado testified that he spoke with Mrs. Cepeda on the telephone, and learned that the Mendez family had moved to Texas in 1976 (T. 16-17, 47). Mrs. Cepeda recalled that one of the Mendez children had written to her daughter and stated that she would look for the envelope when she returned home from work. Two days later, Mrs. Cepeda provided Detective Jasco and Assistant District Attorney Maldonado with a used envelope which was addressed to Ruth Cepeda and bore a return address of Doris Prieto, 403 West 4th, Del Rio, Texas 78840 (T. 18, 19). *fn1"

 After obtaining this information, Detective Jasco attempted to contact Doris Prieto by telephone. He spoke to the supervisor in charge of the information section of the telephone company in San Antonio, Texas, and was informed that there was no telephone listing for either a Doris Prieto or a Domitilias Mendez (T. 19). However, Detective Jasco was given the numbers of three "Prietos." He spoke with people at each of these numbers but was unable to obtain any leads (T. 20). He then checked with a postal superintendent in New York, but learned that the Mendez family had left no forwarding mailing address (T. 20). Afterwards, he again unsuccessfully used the City Scanner in an attempt to locate Lydia Mendez and her mother (T. 20).

 At the hearing before the state court, Detective Jasco agreed that there were additional steps he could take to attempt to locate Lydia Mendez. Therefore, on June 13, the day after the hearing, Detective Jasco again contacted Ruth Cepeda. In response to Detective Jasco's questions, Mrs. Cepeda indicated that she did not know of any other friends or relatives of the Mendez family, or anyone else who might have information as to the family's whereabouts (T. 63-65). Detective Jasco also contacted the Del Rio Police Department and had a police car sent to Mendez" last known address (T. 76). However, the Mendez family was not present at that location and was not known in the community. Detective Jasko then contacted the three Roman Catholic churches in the city and asked them to check their records. This too proved unsuccessful (T. 70). Lastly, the detective went to the Bureau of Vital Statistics at 125 Worth Street, but was unable to find a certificate of birth for the complainant.

 In addition to the testimony of Detective Jasko and Assistant District Attorney Maldonado, Barbara Harper, the court reporter who took notes of the priliminary hearing testified as to the accuracy of the transcript (T. 55-57).

 The defense called as a witness Assistant District Attorney William Flack, who had been assigned on February 15, 1977, to prosecute petitioner (T. 89-90). Flack testified that he first learned that Lydia Mendez might be unavailable to testify in January or February 1978 (T. 92). At that time, he believed her to be in Texas (T. 93). The only effort he made to locate the witness between January and June 1978 was to mail a subpoena, which was never returned (T. 91-92, 93, 95).

 During that period, Flack advised his superiors that the witness could not be found, but nobody instructed Flack to send out an investigator (T. 94). It was not until June 6, 1978, about a week before petitioner's trial was scheduled to commence, that Fack asked Detective Jasko, to attempt to locate Lydia Mendez (T. 94, 97). In oral argument, the prosecutor contended that his investigators usually found missing witnesses in one or two days (T. 98).

 In an oral opinion, Justice Drohan upheld the introduction of the preliminary hearing testimony (T. 114-122). He found that "the [Mendez] family has obviously removed itself outside the state. There is nothing to suggest to any of us here that these people will return here at any future time, no less any time in the immediate future (T. 119-20)." After examining the efforts made by the prosecution to locate Miss Mendez, the court concluded that it "[was] satisfied that the due diligence requirement of Section 670.10 and 670.20 ha[d] been satisfied" (T. 120). In reaching this conclusion the court noted that "[t]he District Attorney is not expected under our system of criminal justice to continue his complainant in a lockup or to limit a 13 year old's liberty so that he may bring her to court" (T. 119).

 The Court then addressed the question of whether the defendant had had an adequate opportunity to confront the complaining witness at the ...

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