The opinion of the court was delivered by: WEINSTEIN
The problem posed by this habeas corpus petition is whether inefficiency of the state's police-procecutorial forces in bringing to defense counsel's attention a codefendant's admission that he alone was responsible for the crime is excusable under the Constitution. Given the circumstances of this case it is not.
Petitioner seeks to vacate his New York State conviction on the grounds of ineffective assistance of counsel and failure of the State to turn over exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The claims of inadequate assistance of counsel are without merit, but because the court finds that the State had a duty to provide the defense with the evidence and because the evidence creates a reasonable doubt as to petitioner's guilt, the writ is granted.
Petitioner's pro se application for a writ of habeas corpus was filed in March of 1981. A prior application challenging the same conviction on different grounds had been denied some years before. See Memorandum and Order, 78 C 2701, February 7, 1979. His new contentions raised a Brady claim based upon the alleged failure of the state to reveal exculpatory evidence. Counsel was appointed and this court held an evidentiary hearing in December 1981.
During the course of the hearing, an issue of ineffective assistance of state trial counsel arose which was factually inextricably linked to the Brady contention. Instead of dismissing the writ pursuant to Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982), it was stipulated that petitioner would return to the state courts to exhaust his ineffective assistance of counsel claim. Toward that end petitioner, through counsel, moved to vacate the judgment of conviction pursuant to N.Y. C.P.L. § 440.10 before the Supreme Court of the State of New York, Queens County. His petition contained, inter alia, the minutes of the December 1981 hearing held before this court. Respondent opposed the application.
In a decision dated October 20, 1982 (Agresta, J.), petitioner's motion was denied. The New York court found that trial counsel "appear[ed] to have provided meaningful and conscientious representation" and that there were "no lawful grounds" to support the claim of ineffective assistance of counsel. This decision was appealed to the Appellate Division, Second Judicial Department, and in October 1983 was unanimously affirmed without opinion. In January 1984, leave to appeal to the New York Court of Appeals was denied (Wachtler, J.).
In February 1984, all the parties appeared again before this court. They agreed that petitioner had exhausted his available state remedies. The petition was deemed amended to reflect the Sixth Amendment issue and both parties waived any further hearings.
Petitioner was arrested after police stopped a car driven by his codefendant in which he was the passenger. The car had been stolen and contained burglar's tools in the trunk. Petitioner denied knowing that the car had been stolen. His probation officer's report indicated that the codefendant confirmed petitioner's claim of lack of knowledge. That report written shortly after the arrest reads in part as follows:
The co-defendant, Edward Abru[sic] age 23 according to the arresting officer has no prior record. A check of the Division of Parole File doesn't reveal that he is known to use either. On 9/5/73, the writer also briefly interviewed Mr. Abru who acknowledged that he and he alone stole the car and also absolved the subject of any knowledge of the vehicle theft.
It should be noted that Officer Vietl had advised the writer prior to the disucssion with the co-defendant that Abru appeared to be quite fearful of the subject and that he most probably would take all the "Weight" of the arrest.
Some of the police records are not now available. Based on judicial notice of New York City practice, the court finds that a similar memorandum was made by the police officer. See Federal Rules of Evidence, Rule 201. The State could have called ...