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March 18, 1991


The opinion of the court was delivered by: Tenney, District Judge.


Dominick Pilotti petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1988). Pilotti was convicted of murder in the second degree, N.Y. Penal Law § 125.25 (McKinney 1987), after a jury trial in the Supreme Court of New York, Bronx County (Schackman, J.). He was sentenced to a term of imprisonment of twenty years to life. The Appellate Division affirmed the conviction without opinion, People v. Pilotti, 93 A.D.2d 1005, 461 N.Y.S.2d 663 (1st Dep't 1983), and the New York State Court of Appeals denied Pilotti's application for leave to appeal. People v. Pilotti, 60 N.Y.2d 593, 467 N.Y.S.2d 1039, 454 N.E.2d 134 (1983). Pilotti later moved, unsuccessfully, in the trial court to vacate the judgment of conviction pursuant to N.Y. C.P.L. § 440.10 (McKinney 1983). The denial of his motion was upheld on appeal. People v. Pilotti, 148 A.D.2d 323, 538 N.Y.S.2d 889 (1st Dep't 1989), leave to appeal denied, 74 N.Y.2d 850, 546 N.Y. So.2d 1015, 546 N.E.2d 198 (1989).

Pilotti argues that 1) his right to testify on his own behalf was "chilled" by the prosecutor's threat to impeach him with a fraudulently obtained guilty plea in a prior case; 2) his right to due process was violated in that there was insufficient evidence to support his conviction; 3) his right to due process was violated by the prosecutor's use of pre-indictment delay as an "intentional device to gain [a] tactical advantage;" and 4) his right to be free from double jeopardy was violated by his being tried for murder. For the reasons set forth below, the petition is granted.


On April 9, 1977, at approximately 9:00 or 9:30 A.M., Jose Melendez was murdered while he was sitting in his car at a traffic light. He was shot in the head by the occupants of a Pontiac station wagon which had stopped alongside his car. T. 66, 99, 128.*fn1 James Correa — a witness who was stopped directly behind the Pontiac at the light — observed three or four people in the Pontiac and saw two hands with guns protruding from the vehicle's window.*fn2 T. 67. When the light turned green, Melendez's car crashed into a truck and the Pontiac sped away. T. 67-68, 80, 83. Correa was able to observe and write down the Pontiac's license plate number. T. 69-70, 73-74, 76, 81, 83-84.

Upon arriving at the scene, the police obtained the license plate number and traced its owner to an address on Radcliffe Avenue in the Bronx. T. 87, 100-01, 128-29. Shortly thereafter, police officers Douglas Pace and Frank Longo proceeded to the Radcliffe Avenue address — a three story, five family apartment building — directly in front of which the assailants' Pontiac was parked. T. 101-02, 129, 259. The officers then parked their patrol car down the street so that — from inside the car — they could observe both the Pontiac and the entrance to the building. T. 101-02, 129.

No one was seen either entering or leaving the building for approximately forty-five minutes. T. 103. Then, at 10:30 AM, the officers observed three men — Pilotti, Louis Giongetti, and Alfred Peruso — exit the building. T. 104-30. Pilotti, who was clean shaven and formally dressed in a black suit or tuxedo and carrying a white fur coat, walked directly to a taxicab which was waiting outside the building. T. 105, 118-19, 140. The other two, dressed casually, walked down the street in the other direction. T. 131-32, 146. The officers pulled their car in front of the taxicab, blocking its departure. T. 105-06, 131.

Longo went to the cab and Pace approached Giongetti and Peruso on the street. Longo opened the door to the cab and asked Pilotti to get out. Pilotti asked if he could get his coat which was on the back seat. Longo directed him to leave the coat and again ordered him out of the cab. Pilotti complied, without resisting, at which time Longo patted him down, finding no weapons. T. 107. After leaving Pilotti with a backup officer who had arrived at the scene, Longo went back to the cab to get Pilotti's coat, beneath which he discovered a loaded .357 Magnum Colt revolver wrapped in a towel. T. 107-08, 110. Pilotti, Giongetti, and Peruso were arrested and taken to the police station. T. 107.

At the station, two .38 caliber shell casings — later found to have been fired from the gun found under Pilotti's coat — were recovered from Giongetti's pants pocket. T. 135-36. Pilotti was booked for both possession of a weapon and attempted murder.*fn3 At that time, however, the district attorney's office sought and obtained an indictment only for possession of a weapon ("the gun case"). T. 694-95.

During pre-trial discovery on the gun case, the prosecutor provided defense counsel with two ballistics reports, both of which indicated that the gun was not linked to the Melendez murder. Further, the prosecutor assured Pilotti that no such link had been established. People v. Pilotti, 127 A.D.2d 23, 30, 511 N.Y.S.2d 248, 253 (1st Dep't 1987).

On February 28, 1978, following the denial of his suppression motion, Pilotti pled guilty to possession of a weapon in the third degree. N.Y. Penal Law § 265.02 (McKinney 1989). During his plea allocution, Pilotti admitted that he had possessed the loaded gun in the taxi. Id. at 24-25, 511 N.Y.S.2d at 249. As promised, he was sentenced to a term of imprisonment of two and one-half to five years, which was to run concurrently with a previously imposed sentence for an unrelated offense. Thus, by accepting the plea, Pilotti assured himself of no additional jail time. Pilotti, 127 A.D.2d at 24-25, 511 N.Y.S.2d at 249. Pilotti then unsuccessfully appealed his gun conviction, challenging the denial of his motion to suppress the gun. People v. Pilotti, 73 A.D.2d 846, 423 N.Y.S.2d 358 (1st Dep't 1979), leave to appeal denied, 49 N.Y.2d 895, 427 N.Y.S.2d 1033, 405 N.E.2d 243, cert. denied, 449 U.S. 870, 101 S.Ct. 209, 66 L.Ed.2d 90 (1980).

On December 21, 1979 — just one day after the Appellate Division affirmed Pilotti's gun conviction — Pilotti and Giongetti were indicted for the Melendez murder. At the murder trial, the prosecution produced a third ballistics report, dated June 2, 1977, which concluded that the bullet from the deceased "matched" the gun recovered from Pilotti. The contents of this critical report were never disclosed to defense counsel prior to Pilotti pleading guilty to the gun possession charge. Pilotti, 127 A.D.2d at 31, 511 N.Y.S.2d at 253.

Prior to trial of the murder charge, Pilotti moved to preclude the use of his gun plea against him on the ground that, inter alia, the prosecution had withheld the June 2 ballistics report. Omnibus Motion Ind. No. 2775/79, Exh. 11 to Respondent's Affidavit and Memorandum of Law in Opposition ("Memo in Opposition"). The motion was denied. Order, April 4, 1980, Exh. 12 to Memo in Opposition. During the trial, Pilotti's attorney further argued that permitting impeachment with the gun plea — which was later vacated — effectively precluded Pilotti from taking the stand on his own behalf and denying that he possessed the gun. T. 687-93. In response, the prosecutor stipulated that he would not impeach Pilotti with the gun conviction if Pilotti took the stand at trial. However, he did threaten to impeach Pilotti with the factual admissions he had made during the gun plea allocution if he were to testify that he never possessed the gun. T. 695-97. Pilotti chose not to testify on his own behalf and was convicted of murder in the second degree. It is this conviction for which Pilotti brings the present habeas corpus petition.

Pilotti then moved in the Supreme Court of New York to vacate his gun conviction pursuant to N.Y. C.P.L. ยง 440.10 (McKinney 1983), on the ground that the prosecutor had fraudulently induced him to accept the gun plea by failing to disclose the June 2 ballistics report linking the gun to the Melendez homicide. The court ordered a hearing on the motion, during which an internal memorandum from Sean Walsh, the Assistant District Attorney in charge of the gun case, to William Quinn, the chief of the homicide bureau, surfaced. In the memorandum, Walsh acknowledged the significance of the plea to the gun charge by noting that an acquittal would "collaterally have stopped us from introducing [the gun at a homicide trial]". Memorandum from Sean Walsh to William Quinn, dated March 2, 1978, at 2, Exh. 2 to Memo in Opposition. Further, Walsh noted that "the argument that we attempted to prove the homicide by bootstrapping the gun charge may very well be a case of first impression in this State." Id. After ...

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