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RICHARD v. ABRAMS

March 6, 1990

MALCOLM RICHARD, PETITIONER,
v.
ROBERT ABRAMS, ATTORNEY GENERAL OF THE STATE OF NEW YORK, AND ROBERT M. MORGENTHAU, DISTRICT ATTORNEY OF NEW YORK COUNTY, RESPONDENTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

OPINION AND ORDER

This is an application for bail pending determination of a petition for habeas corpus.

Petitioner Malcolm Richard was convicted after a jury trial in the Supreme Court of the State of New York of grand larceny in the second degree and falsifying business records in the second degree. The sentence is concurrent prison terms of one to three years and restitution in the amount of $810,202.29.

After the jury verdict, petitioner filed motions pursuant to New York Criminal Procedure Law §§ 330.30, 330.40 to set aside the verdict and pursuant to § 440.10 to vacate the conviction. In those motions, petitioner presented the argument that the prosecution had knowingly withheld potentially exculpatory evidence in violation of the constitutional principles in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. Petitioner also bases this application for bail and his petition for habeas corpus on the merits of this Brady claim.*fn1

The § 330 motion was denied without an opinion. Justice John A.K. Bradley issued an opinion on the § 440 motion on June 28, 1988, stating:

  An examination of the motion papers and the record
  reveals that the evidence was provided to the defense
  in sufficient time

  for the defense to present it effectively to the jury
  for its consideration during trial.

Pet. Ex. C. Justice Bradley then denied the § 440 motion in its entirety "except with respect to the exploration of issues surrounding the 15 cent Lincoln stamp exhibit as to which a hearing must be held." Pet. Ex. C. Justice Bradley then issued a second § 440 opinion on August 16, 1988 following the hearing. The opinion upholds the jury's verdict and finds that no "misconduct" occurred in relation to the 15 cent Lincoln stamp. Pet. Ex. D. According to petitioner, the second opinion and the hearing did not focus on the Brady implications of the 15 cent stamp, but dealt with issues of "misconduct on the People's part." Pet. Ex. D. On a consolidated appeal, the Appellate Division affirmed the two § 440 opinions and the denial of § 330 relief. On January 31, 1990 the Court of Appeals denied leave to appeal.

On February 20, 1990, this petition was filed along with an Order to Show Cause why petitioner should not be released on bail pending the disposition of the petition. Petitioner also requested that the Court order the suspension of his sentence which was scheduled to begin on February 21, 1990. The Court signed the Order to Show Cause, but refused to order the suspension of the execution of the sentence in an ex parte proceeding. In the morning of February 21, 1990, petitioner was incarcerated and that afternoon attorneys for all parties appeared before the Court. Oral argument was held on February 21, 1990 and the motion was then adjourned to provide respondents time to file opposing papers. Memoranda accompanied by exhibits were submitted and argument was held on March 2, 1990.

Defendant concedes that the Court has the power to grant a state prisoner's bail application pending the determination of a habeas corpus petition. Caselaw in this circuit provides a standard with which to determine such a bail application. In Iuteri v. Nardoza, 662 F.2d 159 (2d Cir. 1981), the Second Circuit implicitly adopted the test set forth in Ostrer v. United States, 584 F.2d 594, 596 n. 1 (2nd Cir. 1978):

  [A] habeas petitioner should be granted bail only in
  `unusual cases.' Argro v. United States,
  505 F.2d 1374, 1377-78 (2d Cir. 1974), or when `extraordinary
  or exceptional circumstances exist which make the
  grant of bail necessary to make the habeas remedy
  effective,' Calley v. Callaway, 496 F.2d 701, 702
  (5th Cir. 1974), cited in Galante v. Warden,
  Metropolitan Correctional Center, 573 F.2d 707 (2d
  Cir. 1977).

More recently, Judge Dorsey applied that test through a three factor assessment:

1. Are substantial claims set forth in the petition?

  2. Is there a demonstrated likelihood the petition
    will prevail?
  3. Are there extraordinary circumstances attending
    the petitioner's situation which would require the
    grant in order to make the writ of habeas ...

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