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DELUCA v. LORD

August 4, 1994

SHEILA RYAN DELUCA, Petitioner,
v.
ELAINE A. LORD, Superintendent of Bedford Hills Correctional Facility and ROBERT ABRAMS, Attorney General of the State of New York, Respondents.


Ward


The opinion of the court was delivered by: ROBERT J. WARD

WARD, District Judge.

 In this petition for a writ of habeas corpus, filed on June 13, 1990, petitioner Sheila Ryan DeLuca ("DeLuca") asserts that she was (1) denied effective assistance of counsel and (2) deprived of her Sixth and Fourteenth Amendment rights to present a defense by the trial court's exclusion of expert testimony. This Court initially referred the matter to Magistrate Judge Kathleen A. Roberts, who conducted an evidentiary hearing and filed a Report and Recommendation dated December 21, 1993 (the "Report"). Magistrate Judge Roberts' comprehensive and detailed Report recommends that petitioner's application for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636 (b)(1), petitioner filed timely objections to the Report. After conducting a de novo review, this Court grants the writ on the grounds that petitioner was denied the effective assistance of trial counsel.

 BACKGROUND

 I. The Uncontested Facts

 On the evening of September 21, 1982, Sheila Ryan DeLuca, a recently retired New York City police officer, met friends and family at Pauline's Bar and Grill in the Bronx to celebrate her forty-second birthday and her retirement from the police force, as well as the Kingsbridge Women's Softball championship which her team had won that afternoon. *fn1" Because DeLuca's husband, Peter DeLuca, was not feeling well, she drove him home early. However, Mr. DeLuca insisted that his wife return to the party since she was the "guest of honor."

 While DeLuca spent the night celebrating at Pauline's, Robert Bissett ("Bissett") began the evening watching a televised New York Yankee game and drinking a few beers with his friends Eugene Murphy ("Murphy") and Robert Barrett ("Barrett"). After the game, the three friends climbed into Bissett's black Ford van and drove to a bar called "Scotty's," where they drank more beer and played pool. After Scotty's closed, the three friends drove to an "after-hours club" located on East 231st Street, near Albany Crescent, arriving between 4:30 and 5:00 on the morning of September 22, 1982.

 Shortly thereafter, DeLuca entered the same after-hours club with her friend, Karyn Travelina, a schoolteacher, who had been celebrating with her at Pauline's. Although the three men did not know DeLuca or Travelina, Bissett approached the two and struck up a conversation.

 By 6:30 or 7:00 a.m., DeLuca and her friend, along with the three young men left the club. At some point, DeLuca got into her light blue Cadillac with the three men and spent the early morning hours driving around the Bronx. Bissett sat in the passenger seat while Murphy and Barrett rode in the back. Continuing to drink beer and wine, the four drove around for a number of hours, eventually winding up at the Bronx Park Motel where they rented a room.

 At first, only Murphy and Barrett entered the motel, where they drank more beer and watched a pornographic film. Eventually, Bissett and DeLuca entered. Bissett then asked his two friends to leave so that he could be alone in the room with DeLuca. Locked outside, his friends quickly became angry and began banging on the door. In fact, Murphy became so enraged that he kicked in a window located three feet above the ground. Hearing the disturbance, the motel manager told his clerk to call the room and order the group to leave.

 After that telephone call, Murphy and Barrett left the hotel on foot. Meanwhile, DeLuca and Bissett drove in her car back to Bissett's van, which was parked near the after-hours club. The two entered his van, drove for some time, and finally parked in a deserted area alongside the service road adjacent to the Major Deegan Expressway near Fordham and Landing Roads. At approximately 2:00 in the afternoon, DeLuca left the van and headed towards Fordham Road, where she called her husband.

 After being out all night, DeLuca arrived home in her own car sometime around 2:30 on the afternoon of September 22nd. Her husband, who had gone out looking for his wife, drove up almost immediately afterwards. Shortly before 7:00 that evening, Mr. DeLuca, himself a retired New York City Police Captain, telephoned the 46th Precinct Detective Unit and told the police that they would find a body in a van located behind the Dale Oldsmobile Auto Dealership. The police investigated the scene and found Bissett's dead body. He had been shot in the head four times.

 DeLuca's husband again called the police sometime around 8:00 p.m. and stated that the man in the van had raped his wife at approximately 1:00 that afternoon. Mr. DeLuca told the desk sergeant that he wanted to speak to the "Rape Squad". Shortly thereafter, Sergeant Rudolph Eberhardt ("Eberhardt") of the Bronx Sex Crimes Squad called the DeLucas. After answering the telephone, Mr. DeLuca immediately handed the receiver to his wife who described her abduction and rape to the sergeant.

 According to Eberhardt, DeLuca told him that, as she left the after-hours club, she was forced into a van by three men and taken to a motel near the Bronx Zoo. She stated that one of the men had subsequently forced her back into the van and taken her to the vicinity of Fordham Road and the Major Deegan Expressway where he had raped her. DeLuca also told Eberhardt that she finally managed to escape by hitting the man on the head with a bottle, which caused him to roll off of her. DeLuca stated that when she left the van, Bissett was lying in the back, bleeding. She then walked to a gas station, where she called her husband to come get her. When he failed to appear, DeLuca walked back to her car, and drove home. DeLuca then told Eberhardt that she did not wish to say anything more without her lawyer present.

 The first police officers arrived at petitioner's home sometime around 8:45 p.m. While Peter DeLuca introduced himself and his wife as former officers and stated that "the bum in the truck down there raped my wife this afternoon," petitioner remained quiet. A few minutes later John Patten ("Patten"), the DeLucas' newly retained attorney, telephoned and told the officers that he did not want his clients speaking to the police prior to his arrival. *fn2" No further efforts were made to interview the DeLucas after Patten's call.

 Arriving at the DeLucas' home, Patten announced that he would not allow any questioning of petitioner or her husband, but asked that the rape investigation proceed. John GaNun ("GaNun"), Patten's law partner, arrived soon after and the DeLucas spent some time consulting privately with their attorneys. Following Patten's advice, DeLuca then gave the police the jeans, sneakers, sweater, and torn underpants she had been wearing the previous evening. Eberhardt noticed that the pant legs of the jeans were still damp up to a point approximately nine inches above their bottoms and that the sneakers were also damp.

 The DeLucas and their counsel accompanied the police back to the 52nd Precinct where petitioner filled out a formal rape complaint, in which she claimed that three men had abducted her using a knife. After filling out her complaint, DeLuca was taken to North Central Bronx Hospital for a medical examination and returned home with a Detective Fusilli sometime after midnight.

 Pursuant to an earlier agreement entered into with Patten's consent, DeLuca went to her bedroom to retrieve her guns and turn them over to the police. Peter DeLuca, who was waiting in the living room with Fusilli, reached over a nearby hutch and picked up a holstered, off-duty revolver which he gave to Fusilli. Mr. DeLuca told the detective, "This is the gun you're looking for." Detective Fusilli unloaded the .38 calibre revolver and found that it contained five spent shells. Petitioner then came out of the bedroom and produced two additional regular service revolvers which were loaded with eleven live bullets.

 Ballistics tests positively established that petitioner's off-duty revolver, which contained the five spent shells, had been recently fired and was the same gun that was used to kill Bissett. Investigators searching petitioner's blue Cadillac discovered two beer bottles and a beer can. A latent fingerprint lifted from a Heineken bottle was identified as belonging to Robert Barrett. On Friday, September 24, 1982, DeLuca was arrested for the murder of Robert Bissett.

 II. Defense Counsel's Pre-Trial Investigation

 DeLuca first told Patten her version of the events of September 21 and 22, 1982 on the night that he was retained as her counsel. *fn3" After asking the police to cease their questioning of DeLuca and her husband, Patten and GaNun had a private conversation with the couple. During that meeting, DeLuca explained the facts and circumstances surrounding the shooting of Bissett, an account she repeatedly discussed with her counsel prior to trial. *fn4"

 A. The Petitioner's Version of Events

 DeLuca testified before Magistrate Judge Roberts that at approximately 4 a.m., she and Travelina arrived at the after-hours club in her car. After entering the bar, they were approached by Bissett and his friends, who offered to buy them drinks. DeLuca and Travelina were polite but answered that they already had drinks. Bissett, Murphy, and Barrett responded by calling the two women "dykes" and "lesbians." DeLuca overheard their remarks and answered "You don't know who we are. You don't know what we're about. And I just wish you'd leave us alone and stop calling [us] names."

 DeLuca then moved to the black-jack table while Travelina remained at the bar. According to petitioner's testimony, she played cards for approximately two hours. Eventually, Travelina told DeLuca that she needed to call a colleague, whom she was supposed to drive to school in the morning. Since Travelina did not want her friend to know why she was missing school that day, she decided not to make the telephone call from the noisy bar. DeLuca and Travelina walked out of the club and petitioner offered to drive Travelina to the nearest telephone but Travelina told her that she could use the walk. The two parted company and DeLuca reentered the club and resumed playing cards.

 When DeLuca left the bar about a half hour later, she was accosted by Barrett, Murphy, and Bissett. Bissett allegedly told her, "We're going to have some fun. Get in the car and don't say anything. My friends and I are going to have a party. Just do as we say and you won't get hurt." They forced her into the driver's seat of her Cadillac. Then, pushing her seat-back forward, Barrett and Murphy climbed into the back of her car. Bissett ran around the front of the car and got in the passenger seat beside DeLuca. Once they were all in the car, either Bissett or Murphy threatened DeLuca with a knife. There was an argument among the men as to who should drive. Since she was the most sober, DeLuca offered to drive and they all agreed with her suggestion.

 The three men then ordered her to drive through the Bronx, telling her "to turn at various places." During the ride, Barrett, Bissett, and Murphy began talking about various sexual exploits that they had engaged in with other women, which they referred to as "gangbangs." The men discussed going up to the country to do what they had done to another woman, including tying her to a bed "and that type of thing." DeLuca recalled Bissett asking her, "Wouldn't you like that?" From that moment on, DeLuca stated that she did not speak to them at all. Angered that she would not reply to his question, Bissett told his friends, "this one is not cooperative like the others," and told her, "I'll have you know, killing is nothing to me, I've done it before." The other men just laughed. DeLuca recalled that the men smoked marijuana and snorted a white powder and it appeared to DeLuca that Bissett was in charge.

 DeLuca testified that she thought she was going to be raped and killed. Escape did not seem possible. She thought about crashing her car, but could not bring herself to do it and she saw no police cars -- to whom she could wave for help -- while she was driving. Although she recalled stopping to buy more beer, she did not remember stopping at a paint store, nor stopping at the Bissett home. DeLuca was not aware of how long she drove; she knew only that it "seemed like forever" and that she was "completely terrorized."

 DeLuca continued driving until they reached the Bronx Park Motel. While the other two men went into the room he had rented, Bissett told DeLuca, "this is what it is going to be. [The] four of us are going to go and we're going to have sex." DeLuca begged him to let her go. He said, "behave yourself, and it will be over soon . . . I don't want to hear you talking above a whisper, just walk into the room and do as I say when you get in there. If you don't do as we ask, we're just going to kill you."

 Hoping to isolate Bissett from the others so that she could plead her case, DeLuca told him that she was "not used to this. I'm not a hooker." She urged Bissett to get rid of Barrett and Murphy because she would be more willing to have sex with him alone. In apparent agreement, Bissett sent the other two men out of the room, telling them that he would let them in when it was their turn. Barrett and Murphy left reluctantly, telling Bissett that they did not want to stand outside for long, and that he better not keep DeLuca all to himself.

 After Barrett and Murphy left, Bissett tried to take DeLuca's top off. When she pulled away, he "smashed her" in the shoulder or neck and reminded DeLuca that he had already warned her. Barrett and Murphy started pounding on the door yelling for Bissett to let them in. Murphy then kicked in the window. Shortly thereafter, the telephone rang and Bissett picked it up. After he hung up, he was "furious at everybody." Cursing uncontrollably, Bissett yelled, "bitch, all you had to do was cooperate. You said you would if I let those other two guys out, and you went back on your promise." To Barrett and Murphy he screamed, "you fucks, you screwed it up." Visibly and verbally angry, he told DeLuca to get in the car, threatening, "if you dare cause me any more trouble you're dead." Barrett and Murphy left the motel on foot, while DeLuca and Bissett drove off in her car with DeLuca at the wheel.

 Although DeLuca is not sure how long she drove with Bissett, she testified that they ended up back at Bissett's van, where he repeated his warning that she better not try anything and ordered her to get into the back of the van. She does not remember seeing a weapon, but she did testify that as she climbed in, he gave her "a good shove." Immediately, DeLuca glanced around the inside of the van and saw that there were no doors other than the two in front and the two in the very back. She also noticed that there was no door handle on the front passenger door and that the dashboard, floor, and walls were all carpeted.

 Bissett climbed into the driver's seat and drove to the location near Fordham and Landing Roads. There, Bissett punched DeLuca several times, took off her clothes, and then forced her to perform oral sex on him. He then threw her down and attempted to anally rape her, but was unsuccessful. Finally, he forced her to have vaginal intercourse. "He was on top of me for a long time," she testified, "and then he just became still and didn't move." At this point, DeLuca grabbed a bottle that was in the back of the van and struck Bissett on the head, causing him to roll off of her. DeLuca quickly put on as many clothes as she could and climbed out of the front driver's side door. Petitioner testified that she did not have her gun with her and did not believe she hit Bissett hard enough to kill him.

 DeLuca ran away from the van to a gas station on Broadway. There, she called her husband and asked him to pick her up. Realizing after she hung up that she had inadvertently given him the wrong address, and afraid that Bissett might chase her, petitioner decided to walk back to her car.

 DeLuca immediately headed for home but stopped when she passed Travelina driving by in her car. By this time, Travelina had learned that DeLuca had not returned home the night before and was out looking for her. They waved to each other, pulled over, and Travelina climbed into DeLuca's car. DeLuca then told Travelina that she had been raped, but pleaded with Travelina not to discuss what happened with anyone. She just felt lucky to be alive and wanted to go find her husband. When Travelina asked her why she did not kill her rapist, DeLuca told her she did not have her gun. Leaving Travelina, petitioner continued her drive home.

 As she turned into her driveway, Mr. DeLuca pulled in right behind her and asked her where she had been. DeLuca apologized to her husband for giving him the wrong address. Noticing that the console of her car was twisted, he asked if everything was alright. She told him there had been a problem earlier, but that everything was alright now, an answer she claims he accepted because their "relationship was based on trust."

 DeLuca testified that she initially tried to forget what happened to her. She did not want to talk about the rape and just kept thinking how lucky she was that the ordeal was over and she was still alive and walking. After getting out of her clothes and showering, DeLuca tried to take a nap. However, even though she had been awake for over twenty-four hours, she was too disturbed to fall asleep.

 She decided to go into the living room where she spoke with her husband. DeLuca said she tried to appear "as normal as I possibly could be" during the conversation. When Mr. DeLuca asked her where she had been, she told him about the after-hours bar, which petitioner claims he "understood readily," since he knew she liked to play cards.

 It was not until Mr. DeLuca drove their housekeeper home, however, that DeLuca began to break down. She started crying and shaking violently. While she was still alone in the house, she took another shower to calm down and relax. However, this attempt at therapy did not work and she continued to weep uncontrollably. When her husband returned, he was shocked to see his normally stoic wife "going to pieces." Mr. DeLuca immediately tried to comfort his wife and questioned her about what happened. Petitioner testified that she tried to hold back, but eventually broke down and told him about the abduction and rape. She felt nauseated and was in pain. Fearing venereal disease, she told her husband that she needed to go to the hospital. Before leaving, she went to her bedroom and got her gun because she "felt so vulnerable" and wanted protection.

 Mr. DeLuca wanted to report the rape, but she told him she did not want to talk to anybody. DeLuca testified that she felt embarrassed about reporting the rape to the police, because, as a former police officer from the Bronx, she was afraid someone she knew might find out. Mr. DeLuca persisted, however, and even offered to report the incident himself if his wife could tell him where it took place. DeLuca told her husband that she did not know the names of the streets where it happened, but agreed to show him where she was raped so that he could report it.

 On the way to the hospital, DeLuca directed her husband to the site of the rape. As they neared the scene, DeLuca was shocked when her husband pointed out that Bissett's van was still there. DeLuca testified that she wanted to leave, but her husband parked the car, got out, and walked towards the van, heading around a puddle toward the driver's side door. Afraid to be left alone, DeLuca followed, instinctively reverting to police procedures -- drawing her pistol and going to the other side of the van. As her husband opened the front driver's side door, DeLuca opened the front passenger door and they peered into the van together, although, at first, they saw no one. Mr. DeLuca told his wife that the van was probably stolen, but there might be fingerprints that they could use to track down her assailant.

 Suddenly, her husband, who was standing on the driver's side running board, yelled, "There he is. Get out of there, you son of a bitch!" DeLuca testified that she then saw Bissett lunge from the back of the van, up and between the two front seats. He shoved Mr. DeLuca away with his left arm, knocking him off the running board and out of DeLuca's field of vision. DeLuca, who was standing in a position to protect her gun, called out "Don't move." Bissett ignored DeLuca's warning and pounced at her, yelling, "Bitch, this time you're dead. I'm going to kill you." He grabbed her left arm and started pulling her into the van. Because she was caught off balance, DeLuca testified that she feared Bissett would get her gun and kill both her husband and herself. Although she cannot recall how many shots she fired, she remembered that she shot more than once and fired as rapidly as she could at his upper body and head.

 Hearing the gunfire, Mr. DeLuca ran around the van, calling out to his wife, "My God, I thought you were shot." DeLuca testified that she does not know how her husband navigated the puddle because she could not see him when he was behind the van. Seeing his wife "visibly upset" and shaking uncontrollably, Mr. DeLuca took the gun from her hand, climbed up to peer into the van, shut the passenger door, and walked her back to their car. The DeLucas immediately drove home where her husband called the police.

 B. Other Evidence Available To the Defense

 In preparation for trial, Patten gathered additional evidence in order to strengthen DeLuca's credibility and provide corroboration for her version of the events of September 21-22, 1982.

 1. Peter DeLuca and Karyn Travelina's Testimony

 Patten was aware that both Peter DeLuca and Karyn Travelina were eyewitnesses to the events petitioner described to him and both were available to verify her testimony. Mr. DeLuca, like his wife, met with Patten and GaNun immediately after the shooting and told them of his involvement in the sequence of events leading up to Bissett's death. Karyn Travelina would have been able to testify about the encounter with the three men in the after-hours club and her discussion with DeLuca when she ran into her on her way home.

 Shortly after her arrest, he was diagnosed as having cancer, and the trial date was adjourned several times because his medical condition made his ability to testify questionable. Ultimately, Mr. DeLuca had the nerve endings in his back severed, so that he would be able to testify without suffering too much pain.

 2. Medical and Physical Evidence

 Patten was also aware that Dr. Guidetti, the physician at North Central Bronx Hospital who examined DeLuca the night she reported the rape to the police, as well as her attending nurse, were available to testify that DeLuca was in severe pain and suffered vaginal redness and bleeding.

 In addition, photographs, taken on September 24, 1982, which showed bruising on DeLuca's body were available to defense counsel. On the day the photographs were taken, DeLuca was examined by Dr. William Clyne, her family physician. Dr. Clyne signed an affidavit stating that he specifically remembered several large bruises and several smaller bruises on various areas of DeLuca's body, particularly her breasts and thighs and that he did not believe these injuries to be self-inflicted.

 3. Character Evidence

 Many acquaintances of petitioner made it known to Patten that they were willing to testify to DeLuca's good character and reputation in the community for truth and honesty. Among these prospective witnesses were police officials, former teachers, and members of the Franciscan religious order where DeLuca had trained.

 4. Prior Similar Conduct by Bissett

 To support DeLuca's claims that Bissett, Barrett, and Murphy had threatened her with tales of past "sexual exploits they had had with other women -- gang bangs," both Patten and DeLuca investigated Bissett's past. *fn5" That investigation led them to a woman named Elizabeth Kochovos ("Kochovos") who told them she would be willing to testify at petitioner's trial.

 After reading of Bissett's death, Kochovos called her local precinct to report that, two years earlier, Bissett had abducted and attempted to assault her. Kochovos explained that she did not pursue her claim against Bissett, because his mother, Helen Bissett, called Kochovos's mother and pleaded with her not to press charges. *fn6" The defense learned of this report, and later obtained a statement from Kochovos. In her statement, Ms. Kochovos described how Bissett became enraged and would not let her leave his car. According to Kochovos, Bissett beat her, tore her shirt and underwear, and threatened to take her "to visit some friends."

 5. Rape Trauma Syndrome Evidence

 Concerned with his client's apparent lack of an immediate outcry, Patten also sought out evidence on Rape Trauma Syndrome, the symptoms exhibited by victims following a rape. During this search, he was put in contact with Flora Colao, an expert in the field and founder of the St. Vincent's Hospital Rape Crisis Center. In preparation for trial, DeLuca met with Colao on several occasions. Colao was expected to testify at trial that rape victims often do not "cry out" to the first person they see following a rape, and initially try to resume their normal activities with no mention of the assault.

 6. Evidence Concerning DeLuca's Sexual Orientation

 Finally, petitioner stated at the hearing before Magistrate Judge Roberts that she was a homosexual and did not have a traditional sexual relationship with her husband. Although Patten does not recall being told this by DeLuca, he does remember having explicit discussions with her about her sexuality. Patten testified that he was aware that DeLuca was not interested in "traditional" heterosexual relations with men and that her only intimate heterosexual contact had occurred when she was abused by an older man when she was eight or nine years old. He also believed that his client's marriage to Peter DeLuca was more akin to a father/daughter relationship, and characterized it in those terms when speaking to Dr. Daniel Schwartz concerning petitioner. *fn7"

 III. The Evidence Presented At Trial

 A. The Prosecution's Case

 The State's case at trial was built entirely on circumstantial evidence. Largely through the testimony of Murphy and Barrett, as well as the testimony of the after-hours club's blackjack dealer, Bissett's mother, the Bronx Park Motel's clerk and manager, a paint store owner, and the police officers and city officials investigating this case, the prosecution attempted to portray DeLuca as a loose woman, who had gone on a "partying spree," had "hit on" Bissett, and after satisfying her sexual desires, had murdered him in cold blood. As the prosecutor put it in his closing argument:

 
Strange combination, isn't it? Bissett and Sheila Ryan DeLuca -- 42 year old married woman, 28 year old single man. A probationary fireman who had three months to go until he became full fledged as a fireman in the New York City Fire Department as opposed to the fifteen year veteran cop who had left her husband when he went home after the bar and she went out for more fun and more partying. She got what she wanted. What did Bissett want with a 42 year old heavyset blonde woman when he's got his girlfriend? What does she want with a 28 year old good-looking fireman? I leave that to you to consider.

 Both Barrett, a 22 year-old part-time housepainter, and Murphy, a New York City Emergency Medical Services Paramedic, testified that they spent the night of September 22 with their friend Robert Bissett. They both stated that DeLuca and Travelina entered the after-hours club shortly after they had arrived there in the early morning hours of September 22. Although neither Barrett nor Murphy knew DeLuca or Travelina, Bissett struck up a conversation with them and spoke with DeLuca at the club's blackjack table, while Barrett and Murphy continued to talk at the bar.

 According to the testimony of Barrett, Murphy, and Michael Belloise ("Belloise"), the club's blackjack dealer, the group left the after-hours club together at approximately 6:30 a.m. As petitioner was walking out, Belloise noticed that Travelina seemed upset and heard DeLuca tell one of the three men, "that he shouldn't have called her girlfriend a dyke." The young men laughed it off and then exited.

 When they emerged from the after-hours club, Barrett and Murphy testified, they walked directly across the street to Bissett's van, while he remained behind to speak to the women. After a few minutes, Bissett crossed to the van and let his friends in, telling them to wait there until he returned. Bissett then climbed into the back of DeLuca's blue Cadillac and drove away with the two women.

 Although neither Barrett nor Murphy made any mention of DeLuca re-entering the club once the group had left, according to Belloise and Robert Safian, the club owner, DeLuca returned within five or ten minutes of leaving the bar to use the ladies room. When she came out of the bathroom, she stopped at Belloise's blackjack table where Arthur Fuhst and a customer named Diane were still playing. After either Fuhst or Diane said something to petitioner, Belloise testified that he heard her say, "I'm an ex-cop and these guys better not fuck with me because I'll kill them." *fn8" Petitioner then went back outside.

 According to Barrett and Murphy's testimony, DeLuca and Bissett returned approximately twenty minutes to a half-hour later without Travelina. DeLuca pulled her Cadillac alongside the van and Bissett, who was now in the front passenger seat, told Barrett and Murphy to get into the car. For about fifteen minutes, the four just sat there parked by the van, passing around some "sparkling wine" which DeLuca and Bissett had been drinking.

 Leaving the van parked by the after-hours club, DeLuca and the three men began driving around. Barrett and Murphy claimed that petitioner and Bissett "seemed to sort of hit it off," and they were "sort of left out of the conversation." As they were being driven around, both Barrett and Murphy dozed off. At one point, Barrett awoke and Bissett gave him money to buy beer in a superette on Fordham Road.

 At 8:30 a.m., Helen Bissett testified, she was awakened when she heard her son and a woman enter the house. Mrs. Bissett testified that she could not see them, but heard them speaking softly in the entrance foyer. When Bissett came into his mother's bedroom, she asked him who the unseen visitor was. Her son told her that the woman had to go to the bathroom and that he was then going to take her home. Before leaving, Bissett asked his mother for some money to buy paint, and she gave her son a blank check. Bissett then kissed his mother goodbye and left the house. *fn9"

 According to the testimony of William Lipton, the owner of the Blue Store, Bissett stopped by the store sometime between 7:00 and 9:00 on the morning of September 22. Bissett cashed the blank check his mother had given him and used some of the money to pay for an outstanding bill. During the transaction, Bissett had a brief "friendly" chat with Lipton, and, according to Lipton, did not appear to be drunk or "high." *fn10"

 Barrett and Murphy testified that the group continued to drive around the Bronx while drinking more beer and smoking marijuana until they reached the Bronx Park Motel, located on Fordham Road and Crotona Avenue. Bissett told the motel clerk that he needed a room with a waterbed for a "short stay" and asked for an x-rated movie. When asked to pay, the hotel clerk testified, Bissett flashed his fireman's badge. At first, only Barrett and ...


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