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BELLAMY v. COGDELL

June 28, 1991

PERRY BELLAMY, PETITIONER,
v.
WILLIAM COGDELL, WARDEN, BROOKLYN HOUSE OF DETENTION, RESPONDENT.



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

MEMORANDUM AND ORDER

Perry Bellamy was convicted after a jury trial in Queens County of murder in the second degree, N.Y. Penal Law § 125.25 (McKinney 1987), and criminal possession of a weapon in the second degree, N Y Penal Law § 265.03 (McKinney 1987). Presently serving concurrent terms of incarceration of fifteen years to life and five to fifteen years respectively, Bellamy petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1988), claiming ineffective assistance of trial counsel and denial of due process. This court has reviewed the record of proceedings and finds the claim to be without merit. Accordingly, the petition is dismissed.

Background

1. The Murder of Brian Rooney

Sometime in 1985, Lorenzo "Fat Cat" Nichols, one of the most notorious drug dealers in Queens,*fn1 was arrested and incarcerated for violating his parole, largely as a result of the efforts of New York State Parole Officer Brian Rooney. From his jail cell Nichols vowed revenge. He ordered Rooney killed by two of his lieutenants, Howard "Pappy" Mason and Chris Williams. The "contract" was performed on the evening of October 10, 1985. Rooney was lured to the vicinity of Baisley Park in Queens by the petitioner, Perry Bellamy, who received $5,000 for his role in the crime. There, Mason and Williams, driving a green Datsun, approached Rooney's vehicle. Mason drew a gun and fired repeatedly until the officer lay dead.

2. Suppression Hearing

Bellamy inculpated himself in the Rooney murder in three statements made to the authorities on October 25, 1985. His retained counsel, Sidney Guran, moved to suppress the statements on grounds that they were coerced by police authorities. Guran contended that his client was held in police custody for over twelve hours, that during that time he was not advised of his rights, not permitted to make any telephone calls, and not given adequate food or drink. Under such circumstances, his statements could not be deemed voluntary.

The trial court found otherwise, crediting the evidence adduced by the prosecution. Detective James Waddell testified that he had learned from an informant that petitioner had information pertinent to the Rooney murder. Waddell knew that Bellamy had cooperated with authorities in other contexts, even testifying in one drug case on behalf of the prosecution. Accordingly, at approximately 11:30 a.m. on October 25, 1985, he approached Bellamy on the street in Jamaica, Queens and asked him to accompany him to the police precinct. Bellamy agreed.

At the 113th precinct, Bellamy was asked to wait in a room generally used by police officers as a dormitory when they are spending the night at the station. Shortly thereafter, Bellamy was questioned by Sergeant Robert Plansker, who testified that he considered Bellamy a potential witness rather than a suspect, and free to leave had he wished to do so. Nevertheless, Plansker stated that he advised Bellamy of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before beginning the interview since he did not know where petitioner's information would lead.

Petitioner told Plansker that on the day of the murder, he had flagged down Rooney's car and warned the officer that there was a contract out on his life. Rooney asked Bellamy to get in his car, whereupon they proceeded to the area of Sutphin Boulevard. Soon thereafter, petitioner saw a Datsun 280Z driven by Chris Williams approach. Pappy Mason, who was sitting in the passenger seat, drew a gun and fired repeatedly at Rooney. Bellamy jumped out of the car and fled into Baisley Park.

Given the significance of Bellamy's statement, Plansker told petitioner he would likely be considered a material witness. He further advised Bellamy that the authorities would be willing to put him up in a hotel to assure his safety.*fn2

Bellamy remained in the 113th precinct dormitory for the next several hours, occasionally dozing on the cots. At approximately 8:00 p.m., he was escorted to the office of the Queens District Attorney in order to make a videotaped statement. Prior to doing so, Bellamy was again interviewed, this time by Detective Bernard Steffen, who advised him of his rights before asking him to recount the events of the murder. In this second statement, Bellamy implicated himself more directly in the crime, stating that several weeks before the shooting, while in the Queens House of Detention, he had overheard Nichols cursing his parole officer and stating "he's going to get what's coming to him." On October 9, 1985, the day before the murder, Bellamy was told by one of Nichols' associates "to go meet this PO" at a specific location in Queens. The next day, Bellamy was present when that same individual placed a telephone call to Rooney telling him to meet petitioner on Sutphin Boulevard. When Bellamy met Rooney at the assigned spot, the officer asked where the individual was who had placed the call. Bellamy directed Rooney to a location near Baisley Park. There Mason shot him dead. Mason then ordered Bellamy to get into the car and threatened his life and that of his family if Bellamy ever revealed what he knew of the murder.

Thereafter, at approximately 11:30 p.m., Bellamy repeated the same statement on videotape after once again being advised of his rights, this time by an assistant district attorney.*fn3 He was then taken to the Marriott Hotel in Queens where, under guard, he spent the night along with other potential witnesses.

The next evening, after his statements were reviewed by supervisors in the district attorney's office, Bellamy was arrested and formally charged with aiding and abetting the murder of Brian Rooney.

In a memorandum dated June 26, 1986, the trial court denied the suppression motion, finding from the totality of circumstances that Bellamy was not in custody at the time he made any of the three statements at issue. To the contrary, the court found that he remained free to leave throughout the evening and night of October 25, 1985. The court further denied suppression based on its finding that Bellamy was properly advised of his rights before any police questioning, voluntarily waived those rights, and voluntarily made statements to the authorities. People v. Bellamy, Ind. No. 5382-85 (Queens Co., Sup.Ct. June 26, 1986).

3. Trial

Over the course of the three-week trial, the prosecution offered, in addition to evidence establishing the death of Officer Rooney and Bellamy's statements to the authorities, another statement made by petitioner to Larry Robinson, with whom he was housed on Rikers Island while awaiting trial. Robinson testified that Bellamy had admitted his participation in the Rooney murder, stating that he had assisted in the crime because he needed money and acknowledging receipt of $5,000 for his efforts.

Defense counsel moved for a mistrial or the striking of Robinson's testimony on the ground that it had been procured in violation of Bellamy's sixth amendment right to counsel as set forth in Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). The prosecution opposed the motion, arguing that Robinson's testimony made clear that he had not been acting under police direction in procuring the statement. To the contrary, the evidence showed that Robinson "reached out" for the authorities only after conversing with petitioner. The trial court denied the defense motion.

An affirmative defense case was presented to the jury through the testimony of five witnesses. These included Assistant District Attorney Daniel McCarthy, who confirmed Bellamy's significant cooperation in the prosecution of Daniel Staley; Captain Louis Fisher of the New York City Corrections Department, who testified to the limited access Larry Robinson had to Bellamy while the two were housed near each other on Rikers Island; Robert McCray, a witness to the Rooney shooting who could not identify Bellamy as one of the persons on the scene; and Annie Bellamy, petitioner's mother.

The critical defense witness, however, was Perry Bellamy himself. He admitted being with Brian Rooney the night the officer met his death, but explained that it was Rooney who approached him, soliciting his testimony at Nichols' parole violation hearing. He was driving with Rooney to Nichols' sister's home when Pappy Mason shot the officer dead. At the sound of the gunfire, Bellamy fled the scene.

Bellamy further admitted having overheard Nichols put out a contract on Rooney some time before the shooting. He claimed to have conveyed this information to a Detective Cunihan. Indeed, Bellamy claimed to have called Cunihan again three days after the shooting. That officer promised to get back in touch with him. In fact, he did not do so.

Bellamy denied voluntarily accompanying any police officers on October 25, 1985. He stated that the police threatened to "take him" if he did not accompany them peacefully. He claimed to have been strip-searched at the police precinct and to have been questioned by, on occasion, as many as ten officials. He denied ever being advised of his rights. Moreover, he stated that his requests to speak to ADA McCarthy, his lawyer and his mother were ignored.

Bellamy further denied ever telling Larry Robinson that he had assisted in the Rooney homicide. He did admit talking with Robinson, but testified that their conversation related to his decision to accept a $5,000 bribe being offered to insure that he did not testify against any of the Nichols crew.

The evidence adduced by the defense, both from its own witnesses and through cross-examination of prosecution witnesses, permitted counsel to argue cogently on Bellamy's behalf that it was simply incredible to think that Nichols and his crew, in plotting the death of a law enforcement officer, would rely on an individual well-known for having already cooperated with the prosecution to help them with their plan. Counsel urged the jury to discount Bellamy's own statements to the authorities as the unreliable product of both subtle and direct pressure exerted by members of a police department that, having ignored Bellamy's warning that Rooney was in danger, needed to make him a scapegoat to cover up its own ineptitude. Larry Robinson's testimony was dismissed as that of an incarcerated felon eager to say anything to curry favor with the authorities.

The jury's resolution of the case was by no means easy. Only after five days of deliberation did it return its verdict of guilty.

4. Guran Disciplinary Proceedings

In the months immediately preceding and throughout the Bellamy trial, petitioner's counsel, Sidney Guran, was the subject of disciplinary proceedings before the First Department. He was formally charged with professional misconduct by the Departmental Disciplinary Committee on October 20, 1986, in connection with his alleged 1976 conversion of client funds to his own use and his alleged 1977 negligent handling of a real estate transaction, including the unauthorized signing of his client's name to a legal document. Guran was called upon to address these charges at a scheduled hearing.

On November 10, 1986, Guran's counsel, Richard L. Baltimore, requested an adjournment stating that more time was needed to compile documents and that Mr. Guran "is not mentally capable of preparing for the hearing." This latter claim was supported by (1) counsel's representation that in telephone conversations with his 72-year old client — who was then living in Orlando, Florida — "I find a certain amount of disorientation," and (2) a "To whom it may concern" letter from Guran's New York physician, Dr. Richard P. Cohen, detailing his patient's various ailments. All of these were physiological in origin, including progressive polyneuropathy, a condition characterized by peripheral motor weakness and unsteadiness, for which Guran had been undergoing evaluation for the preceding six weeks. The doctor did note, in connection with this ailment, that Guran suffered "at times" from "an inability to concentrate." Indeed, given the prescribed medications and the "severe physical and emotional stress" resulting from the condition, the doctor stated that Guran "has been affected ...


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