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February 27, 1990


The opinion of the court was delivered by: McCURN, Chief Judge.



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 heroin.

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 trial.

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?

A: Yeah.

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 ...

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