The opinion of the court was delivered by: McCURN, Chief Judge.
MEMORANDUM-DECISION AND ORDER
The plaintiff, Bruce Taylor, brought suit pursuant to
42 U.S.C. § 1983,*fn1 against the County of Ulster, New York; the
Ulster County District Attorney's Office; the New York State
Police; Francis Vogt, the county district attorney; two
assistant district attorneys; and Jon Hansen and Carl Van
Wagenen, who are members of the New York State Police. Among
other things, the plaintiff alleges that the defendants
violated his right to due process of law when they conspired to
have defendants Hansen and Van Wagenen present perjured
testimony and to withhold exculpatory evidence at plaintiff's
trial on charges of criminal sale of a controlled substance in
the third degree. N.Y. Penal Law § 220.39. Plaintiff alleges
that his felony conviction was obtained as a result of this
perjured testimony and the withholding of evidence.
Plaintiff's claims arise out of his arrest for the sale of
drugs at P & G's Bar in New Paltz, New York, on the evening of
March 15, 1974. Defendant Hansen testified at trial that on
that evening, acting as an undercover officer, he went to P &
G's Bar to attempt to arrange a drug sale. Hansen stated that
he offered to purchase heroin from Mary Lou Lynch, who then
walked four to six feet away from Hansen and spoke to the
plaintiff. According to Hansen, Lynch then returned and asked
for $25.00, which Hansen gave to her.
Hansen stated that "[s]he walked back over to Bruce Taylor and
handed him the money and he handed her something." Hansen
stated he had a clear view of this transaction. Hansen
testified that Lynch returned with a glassine envelope. The
contents of this envelope, upon laboratory analysis, was
Hansen initially testified that he was alone in the bar on
that evening, but later stated that he was accompanied by Peter
Lozito, whom he described as a voluntary police informant.
Defendant Van Wagenen, who was not present at the bar that
evening, also testified that Lozito was a voluntary police
informant. Lozito's identity was not disclosed to the defense
before trial, and his participation in the drug transaction
first became known during Hansen and Van Wagenen's testimony at
Hansen's testimony regarding the drug transaction was
contradicted by the testimony of plaintiff and Lynch, who was
a co-defendant at trial. Lynch testified that she obtained the
heroin for Hansen, but that the plaintiff did not participate
in the sale. Lynch stated that she obtained the drugs from
another woman in a bathroom at the bar, through an arrangement
with a drug dealer known as "Spanish Joe" Martinez. Lynch also
testified that Lozito was with Hansen in the bar. Plaintiff
testified that, although he was present in the bar on March 15,
1974, and spoke to Martinez, he barely knew Lynch and did not
sell drugs to or through her that evening.
Plaintiff was convicted and sentenced to a prison term of six
years to life. Plaintiff maintained his innocence, however, and
prevailed upon the United States Attorney's Office in the
Southern District of New York to conduct a grand jury
investigation into the circumstances surrounding his
conviction. Testimony was taken before the grand jury in 1978,
including testimony from Lozito, the police informant. Lozito
testified that while he was incarcerated in Ulster County Jail
for drug sale and weapons possession charges in 1974, he was
visited "four or five times" by a Sam Miller and defendant Van
Wagenen, both members of the New York State Police Bureau of
Criminal Investigation. According to Lozito's testimony, the
two offered to have him released from jail if he would help
them effect the arrests of certain specified individuals,
including plaintiff. Lozito testified that he was released from
jail when he agreed to cooperate, and was contacted about a
week later to meet Miller and defendant Van Wagenen "on a back
road," where he was introduced to defendant Hansen. Lozito
stated that he was instructed to assist them in procuring
heroin sales. He further testified:
Q: And they showed you a picture of Bruce Taylor?
Q: What did they say about Bruce Taylor?
A: That this is one guy that they want.
Q: And did they say anything to you at that time
about how they were going ...