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June 9, 1986

RICHARD PAYNE, Petitioner,
EVERETT JONES, Superintendent of the Great Meadow Correctional Facility; and ROBERT ABRAMS, Attorney General of the State of New York, Respondents

The opinion of the court was delivered by: PLATT


 Petitioner, Richard Payne, was convicted on February 11, 1981, in New York Supreme Court, Queens County, of Arson in the Second Degree and Conspiracy in the Fourth Degree. His conviction was affirmed by the Appellate Division of the Supreme Court, Second Department, in an opinion reported at 89 A.D.2d 872, 453 N.Y.S.2d 235. Leave to appeal to the Court of Appeals was denied. In a previous decision by this Court, 84 CV 1803, dated August 6, 1984, petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was denied on the ground that it contained both exhausted and unexhausted claims. Petitioner chose not to appeal that decision but instead submitted a new application for a writ of habeas corpus which deleted the unexhausted claims. The respondents have relied on their papers filed in 84 CV 1803, which already addressed all of the points raised in petitioner's new petition.

 In this application four grounds are raised by the petitioner in seeking the writ: (i) that there was insufficient evidence to sustain petitioner's conviction; (ii) that it was prosecutorial misconduct to have described the expected testimony of a witness, Louisa Gomez, in an opening statement when the prosecutor knew that said witness would later refuse to testify; (iii) that the prosecutor suppressed exculpatory material in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963); and (iv) that the sentence imposed on the petitioner was unduly harsh and excessive.

 I. Sufficiency of the Evidence

 A. Factual Background

 Petitioner's trial at the State level was a fairly complex one and the record filed with this Court is substantial. In reviewing the record for sufficiency, a federal court in an application for habeas corpus is guided by Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). Jackson requires that the evidence be viewed in the light most favorable to the prosecution and also that:

a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.

 Jackson at 326 (emphasis added).

 With the above standard in mind, the facts of the case are as follows:

 This case is actually the story of a neighborhood, i.e., Far Rockaway, Queens. Like many other parts of Metropolitan New York, Far Rockaway has been and still is apparently an area in flux. During the 1970's the racial and ethnic composition of Far Rockaway was in transition. There was testimony in the petitioner's trial which highlighted the racial animosity and tensions which existed in the area. It is against this background that the case focuses on a Jewish congregation in Far Rockaway, Temple Kneseth Israel.

 The worshippers at the Temple were experiencing problems. The President of the Temple, Mordy Sohn, testified to acts of desecration being committed against the synagogue and the harassment of members of the congregation. It was perceived by some in the congregation that these problems emanated from 750 Empire Avenue, a medium-sized apartment building located directly across the street from the synagogue building. Members of the Temple felt that the tenants of 750 Empire Avenue were the perpetrators of many of the allegedly anti-semitic incidents.

 In November of 1978, Temple Kneseth Israel purchased 750 Empire Avenue and set up a corporation, Golem Realty, to shield it from liability in the purchase and management of the building. At the time of purchase many of the apartments in the building were vacant. There is some dispute as to the physical condition of the building at the time of purchase but it is clear that the building was at least habitable when purchased and that it deteriorated subsequent to the purchase by Kneseth Israel.

 Although the defense claims that the original purpose in the purchase of the building was to rehabilitate it, the Court, as did the jury below, accepts the prosecution's theory that the intention was to force the remaining tenants out of the building and then have it demolished, thereby removing the source of the congregation's problems. To this end, Joseph Bald, a co-defendant of the petitioner and a member of the congregation, recruited various individuals to drive the tenants out through intimidation, declining building services and arson.

 Alvin Donnelly and James Blackwell were hired by Bald to "manage" 750 Empire Avenue. Several tenants testified as to the non-existent services provided by these two co-defendants and to the outright threats, on at least one occasion, of Donnelly. Petitioner Payne's role in this scheme was to set fires to drive the tenants out of the building. It is undisputed that a series of suspicious fires occurred at 750 Empire Avenue subsequent to the purchase of the building by the congregation. Payne was convicted of the arson that occurred on March 7, 1979, as well as the conspiracy to commit arson. The criminal scheme of the defendants was successful in that all of the tenants left 750 Empire Avenue and the structure was demolished in September of 1979.

 B. Application of the Law

 As mentioned previously, claims in habeas corpus applications of a constitutional deficiency in the evidence are judged by the Supreme Court's decision in Jackson v. Virginia, supra. The test promulgated by ...

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