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May 10, 1993

THOMAS A. COUGHLIN, III, Commissioner, New York State Department of Correctional Services; LOUIS MANN, Superintendent, Shawangunk Correctional Facility; CHARLES SCULLY, Superintendent, Greenhaven Correctional Facility; and DOMINIC MANTELLO, Superintendent, Wende Correctional Facility, Respondents.

The opinion of the court was delivered by: MORRIS E. LASKER

 On May 12, 1975, Herman Bell, Anthony Bottom, and Albert Washington were found guilty of the May 21, 1971, premeditated murder of Joseph Piagentini and Waverly Jones, officers of the New York City Police Department ("NYPD"). This petition for habeas corpus relief raises two issues relating to the ballistics evidence in the case: (a) whether the prosecution failed to correct testimony which it knew, or should have known, was false, and (b) whether it withheld exculpatory FBI ballistics evidence in its possession.

 In 1982 in response to requests made under the Freedom of Information Act ("FOIA"), 5 U.S.C. ยง 552 (1982), petitioners obtained a copy of an FBI ballistics report, dated September 13, 1971, which had not been disclosed to them at trial. After exhausting their state remedies, petitioners filed the present petition for a writ of habeas corpus in 1989. On November 18, 1991, this Court dismissed the petition with respect to all of the claims except the ballistics claim described above. With respect to that issue, it was decided that petitioners were entitled to an evidentiary hearing, which has now been concluded.

 I find that material favorable to the defense was not disclosed and that a prosecution witness did commit perjury, but that these serious defects did not have a material impact on the outcome of the trial.

 Accordingly, the petition is denied.


 On the evening of May 21, 1971, Officers Waverly Jones and Joseph Piagentini were gunned down as they emerged from a housing project in Upper Manhattan where they had been responding to a routine call. On August 28, 1971, in the first big break in the case, two men -- arrested in San Francisco in connection with a separate crime -- were found in possession of the service revolver of one of the murdered police officers. (The service revolvers of both of the officers had been missing since the date of the murders.)

 Some three months later, the New York District Attorney's office presented evidence to a Grand Jury seeking an indictment against petitioners Bottom and Washington for the Jones/Piagentini murders. Two facts stood out in the District Attorney's presentation: (a) the defendants' possession of the service revolver of Officer Waverly Jones, and (b) their possession of a .45 caliber pistol which, according to the prosecution's ballistics expert, was one of the murder weapons. *fn1" Twelve pieces of .45 caliber ballistics evidence were found at the scene of the crime and in autopsies of the murdered officers -- six bullets and six cartridge shells.

 The proof relating to the identification of the .45 caliber pistol found in Bottom and Washington's possession as a murder weapon is the crux of this petition.

Two men are arrested in California, Mr. Bottom and Mr. Washington, and they have the misfortune of having in their possession a .45 caliber weapon that was used to shoot the two police officers and a .38 caliber weapon that one of the police officers had in his possession on the night of May 21st.

 (Tr. 8926, Bell's Closing Argument) (emphasis added). *fn2"

 The ballistics tests at issue involve microscopic comparisons of markings left on bullets and cartridge shells test fired from the suspect weapon against markings on bullets and cartridge shells recovered from the bodies or the scene of the crime.

 At trial, Simmons testified that on September 23, 1971, he flew to San Francisco to test fire the .45 caliber pistol and compare the test-fired ammunition with the evidence from the homicides in his possession. He stated that he took all of the .45 caliber ballistics evidence in the case -- 6 bullets and 6 cartridge shells -- with him to San Francisco. (Tr. 5755, 5760-61). He also stated that he made positive matches with respect to nine of the twelve pieces of evidence and suggested that, with respect to the other three pieces, no identification was possible because those pieces were "too deformed" to test. (Tr. 5761-62).

 The clear thrust of Simmons' testimony was that these were the only ballistics tests run on the San Francisco gun although he never stated this in so many words. Simmons testified on cross examination at trial:

Q. Prior to your doing that on the 24th of September, do you know of any other expert, either yourself or anyone else from the New York City Police Department or someone from San Francisco, performed a similar test, either in San Francisco or New York?
A. I don't know to my knowledge.
Q. Have you ever seen a report that would reflect that?
A. I don't recall.
Q. Was there any request to your knowledge, any of the material from the scene, that would be from either the hospital or Colonial Park Houses, be sent by New York out to San Francisco for any reason?
A. No.
Q. Not that you know of?
A. I would take it.
Q. So do we understand that the first day that, so far as you understand, that there was a positive comparison between, let's call it the San Francisco material and May 21st material, was the day you went out there and performed the test?
Judge, I object to that. Mr. Bloom is talking about material. Does he mean the .45 and ballistics found at the scene? If that's what he means I have no objection to the question.
Is that right?
He's talking about the first time there was a match-up between the bullets found May 21st and the gun found August 28th.
That's right.
Q. So far as you know, it was the 24th of September when you, yourself, did it?
A. Yes, best of my recollection.

 (Tr. 5775-76). However, as the People have conceded, ballistics tests were run on the .45 caliber gun found in Bottom and Washington's possession on at least two other occasions: (a) on September 7, 1971, by the FBI forensics laboratory in Washington, D.C., and (b) on September 7, 1971 (and perhaps also on September 8, 1971) by the NYPD in New York City.

 The People dispute the occurrence of the NYPD's September 7 and 8, 1971 tests, but the petitioners' evidence is sufficient to establish the fact. At the evidentiary hearing, Simmons stated that, he had no present recollection of the tests he conducted on September 7 and 8, 1971, but he assumed he must have conducted them because it was his usual practice to conduct ballistics tests "immediately" upon receiving test firings from a suspect weapon. Simmons testified on direct:

Q. Looking at that document though given your practices as they existed in 1971 does that document lead you to believe that you may have made a prior comparison? [i.e., prior to the September 24, 1971 test]
A. Yes.
Q. And what about that document leads you to that conclusion?
A. The dates, when I got the evidence I ...

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