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Morgan v. Salamack

decided: May 18, 1984.

ROBERT MORGAN, PLAINTIFF-APPELLANT,
v.
DOMINICK SALAMACK, EDGECOMB CORRECTIONAL FACILITY, AND ROBERT ABRAMS, ATTORNEY GENERAL FOR THE STATE OF NEW YORK, DEFENDANTS-APPELLEES



Appeal from an Order of the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, denying appellant's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2245, sought on the ground that the district attorney breached appellant's constitutional right to a fair trial by presenting testimony of the complainant, collateral elements of which appellant has since learned were challengeable and because the prosecutor failed to comply with obligations under Brady v. Maryland, 373 U.S. 83, 87 (1963). Affirmed.

Feinberg, Chief Judge, Oakes, Circuit Judge, and Pollack, District Judge.*fn*

Author: Pollack

POLLACK, District Judge:

This is an appeal from an order denying an application to set aside a state court conviction for robbery on the basis of evidence discovered after the trial which showed that the prosecution's principal witness had testified falsely when he was asked by the prosecutor whether he had ever been arrested and whether he had a permit to carry a weapon in New York City. The claim is that the prosecutor should be faulted for having failed to inform himself on those matters before placing the witness on the stand.

Appellant was convicted by a jury in Supreme Court, Queens County (New York Penal Law § 160.15), and sentenced to an indeterminate term of imprisonment not exceeding four years for the robbery of a Rolex watch. The facts follow.

The charges stemmed from an incident which occurred on February 7, 1978 involving complainant, Alfred Teo, the appellant, and his two companions. The People's case was that Teo was attacked and robbed by appellant and his two accomplices while returning home from his job. He was driving down a public thoroughfare in his van, accompanied by a friend, when a heavy object was thrown through the left side window of the van, and he stopped to investigate. He got out, and was attacked and beaten by the appellant, and his companions, who stole his watch and attempted to steal his wallet. During the course of a struggle with the defendants, Teo suffered extensive injuries which sent him to the hospital.

Teo immediately drove to the nearby police station and registered a complaint, and within the hour the assailants were found and taken into custody, and they were thereafter indicted for robbery.

The defense contended that the appellant and his accomplices had not robbed Teo and that Teo had provoked their attack by brandishing a gun during a dispute about his near-accident involving Teo's van.

At the trial, the appellant's attorney, in his opening statement to the jury, forecast the appellant's proof with, "You are going to hear testimony that this innocent victim had a pistol permit -- a pistol was there. It just so happens the man has a pistol permit for a.22 caliber . . . he had a.22 caliber pistol," and, referring to the appellant, he added, "you will hear him [appellant] testify how he knows it was a.22."

The opening statements were concluded during the morning. At the start of the afternoon session, and just before Teo took the witness stand, the attorney for another of the three defendants told the Judge,

There is one further thing, Judge. There has been reference to whether in fact the complainant, Mr. Teo in this matter, is in possession of the pistol license -- license or permit. . . . I would suggest that the possession of the pistol license permit by this complainant be Brady material to the defendants, in casting some credibility on the statements that they had made to that time, and if the District Attorney's office is in possession of it, that we be afforded a copy of it.

Prior to trial, the prosecutor had not made any inquiry for, or known of, the pistol permit held by Teo. But, having been alerted by the opening statements of the defense counsel, he sent out for information concerning permits held by Teo to possess a weapon. He responded to counsel's inquiry with, "I have a copy of it. I just got it at 1:30 this afternoon." Teo was then sworn as a witness, and, after identifying himself, was asked whether he had ever been held up, and he responded, "Twice," and whether he had a permit for a pistol and owned pistols. He testified that he had a.38 and a.357 magnum, but did not own, and never owned, any.22 caliber guns. He also testified that he had a permit for the weapons, and two licenses were produced and marked in evidence, he having handed them to the prosecutor during the noon recess, and both of these had a picture of himself on the license. One of the permits was to carry a gun for target practice, and he also had a permit for carrying a weapon around. In two brief questions from the prosecutor, Teo testified that he had never been convicted of a crime and had never been arrested. In fact, as appellant learned after the trial, from records of the Police Department, Teo had not been convicted of any crime, but in 1976 had been arrested, but the charge was dismissed.

On cross-examination, Teo explained that he had been employed in a restaurant, and in 1974 a carrying permit for New York State was issued to him in Westchester County in connection with that occupation. That permit, which was received in evidence, states that it is good until it is revoked, and appeared to be still valid and not expired, but reads, "Carrying for present employment only," but not for target shooting. Teo testified further on cross-examination that in 1978 he sought to have the permit amended to carry the gun in New York City, but that he never went to the License Division to pick up the amended permit. Appellant's ...


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