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CANTONE v. SUPERINTENDENT

June 18, 1984

ANGELO CANTONE, Petitioner, against SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, et ano., Respondents.


The opinion of the court was delivered by: KNAPP

MEMORANDUM & ORDER

WHITMAN KNAPP, D.J.

 Petitioner, acting pro se, *fn1" has brought this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His central claim is that the State in violation of Brady v. Maryland (1963) 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 and Mooney v. Holohan (1935) 294 U.S. 103, 79 L. Ed. 791, 55 S. Ct. 340, failed to furnish him prior to or during his trial in the Supreme Court, Nassau County, with certain potentially exculpatory material which had been requested by his counsel. For the reasons detailed below, we grant the petition. *fn2"

 INTRODUCTION

 Petitioner and two others, Alfred Gourdet and Michael Quaranta, were indicted for possession and sale of cocaine. The State's principal witness against all three was Carliese Gordon, a Federal Agent who, acting in an undercover capacity, had purchased heroin from them at Gourdet's reisdence. On direct examination, Agent Gordon gave a detailed account of his dealings with the defendants, clearly indicating the role each played in the transaction and identifying petitioner as the source of the narcotics. On cross-examination by petitioner's counsel, it was developed that while the transaction at issue had constituted Agent Gordon's only contact with petitioner and Quaranta, the agent had developed some sort of ongoing relationship with Gourdet which had involved at least one prior sale of cocaine. Faced with this evidence of prior crime not mentioned in the indictment, Gourdet moved for and was granted a mistrial and severance. After similar motions by petitioner and Quaranta had been denied, the case proceeded as to those defendants.

 Petitioner had stated in his opening argument that he had been merely a bystander at a deal pre-arranged by, and transacted solely between, Gourdet and Agent Gordon. Although, as above noted, Agent Gordon's testimony was legally sufficient to overcome such a suggested defense, the prosecution must have concluded that something was lacking from the jury's point of view: it entered into a plea bargain with Gourdet, who proceeded to testify and corroborate Agent Gordon's version of the events. It thus became vital that petitioner cast doubt -- if he could -- upon the credibility of this corroborating witness.

 A circumstance of which the Assistant District Attorney trying the case was acutely aware, but which was not disclosed to the defense, was that the prosecution had information from a reliable informant that Gourdet, the State's newly-produced witness, had in fact plotted to murder the Federal Agent who had testified against him and his co-defendants, and whose testimony he had just corroborated.

 On October 14, 1977, approximately one year prior to petitioner's trial, *fn3" petitioner's counsel had filed an "Omnibus Motion" for various forms of pretrial relief and discovery, which motion contained the following requests:

 5. [For an Order] [d]irecting the District Attorney to disclose to defendant at least sixty (60) days before trial,

 * * *

 (c) Every fact, circumstance, lead or evidence which the District Attorney may know or can determine from an examination of the various investigative agencies of the government which may, might or could assist him in the prepartion of his defense.

 * * *

 9. [For an Order] [p]ursuant to CPL § 240.20(3), requiring the People to state whether or not defendant Gourdet or defendant Quaranta made any statement at all, whether oral or written, to any public servant engaged in law enforcement acitvity or to a person acting under his direction or in cooperation with him; and if any such statment was made, to reveal the exact contents of any such statement, and to supply any paper or document made by any public servant or his agent, in which any such statement is set forth or referred to in any way. (Emphasis supplied.) *fn3"

 At the commencement of the joint trial of petitioner and his two co-defendants one year later, the prosecution moved to close the courtoom during the testimony of Agent Gordon, its first and main witness. At a hearing at which counsel for all three defendants were present, Agent Gordon testified that he had been told, by confidential informants and certain police officers, that a number of "contracts" had been taken out on his life -- i.e., that rewards had been offered to anyone who would kill him. Transcript of open hearing of October 6, 1978 ("Tr.") at 9, 16. Defense counsel and the Assistant District Attorney agreed that the origin of these "contracts" would not be disclosed at the open hearing. Tr. at 16-17. After the motion had proceeded for what appears to us to have been several minutes, counsel for petitioner stated his understanding that these "contracts" were not alleged to be in any way connected to the trial at hand. Tr. at 26. At this statement, the Assistant District Attorney for the first time indicated that such was not the case, and that she did indeed allege a connection between petitioner's trial and the threats on Agent Gordon's life, Tr. at 27. Agent Gordon testified that he had learned "from a confidential informant . . . whose reliability has been tested before . . . that has been ...


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