be impaired should the Appellate Division order a retrial. The Court recognizes the inherent impairment of a defense upon retrial caused by the passage of time, namely the dimming of witness's memories and the staling of evidence. See Coe, 922 F.2d at 532; Rheuark, 628 F.2d at 303 n.8; Geames, 725 F. Supp. at 686; Wheeler, 639 F. Supp. at 1381; Harris, 601 F. Supp. at 994; cf. Sinatra, 741 F. Supp. at 42 (suggesting petitioner required specifically to allege facts demonstrating how defenses would be impaired on retrial) with Barker, 407 U.S. at 532 ("Loss of memory . . . is not always reflected in the record because what has been forgotten can rarely be shown.").
Furthermore, petitioner has specifically alleged that he is unable to locate the only defense witness that testified at trial. In the context of the initial right to a speedy trial, the Supreme Court has indicated that the prejudice resulting from the loss of a witness "is obvious." Barker, 407 U.S. at 532. Petitioner has not, however, asserted what efforts he has made to locate this witness. It is, therefore, uncertain that this witness would in fact be unavailable at any retrial. Moreover, "it is purely speculative whether the loss of [this] witness was in fact caused by the delay in the perfection of the appeal; it is quite possible that the witness [would have become] unavailable prior to the point in time at which a retrial would have been held" had no delay occurred. Cousart, 580 F. Supp. at 269. It is also unclear whether the Appellate Division will reverse the trial court's ruling that limited the testimony of this witness.
Thus, while the Court recognizes that the passage of time may have caused petitioner some degree of anxiety and resulted in some impairment of his ability to present a defense at any retrial, on balance, the Court finds the prejudice to be appreciable but too speculative to be considered substantial.
E. Federal-State Judicial Comity
The last factor to be considered is the effect federal intervention will have on federal-state judicial comity. This necessarily requires an inquiry into "how soon the state appellate court will decide the appeal." Wheeler, 639 F. Supp. at 1381; see Sinatra, 741 F. Supp. at 42.
The parties have advised the Court that the Appellate Division will hear petitioner's appeal sometime in June of this year. This is dependent upon the submittal of both of the parties' briefs by the beginning of May, at the latest. Petitioner has advised the Court that he will have his brief filed by the end of March, and respondent has stated that its brief will be filed within thirty days thereafter. Since petitioner's appeal will soon be sub judice, comity dictates that it would be inappropriate for this Court to foreclose the Appellate Division from deciding petitioner's appeal. See Brooks, 875 F.2d at 32; Ralls v. Manson, 503 F.2d 491, 494 (2d Cir. 1974); Geames, 725 F. Supp. at 686; Gimenez, 702 F. Supp. at 47; Wheeler, 639 F. Supp. at 1381; Harris, 601 F. Supp. at 994.
Having assessed the five foregoing factors, the Court holds that the almost four-year delay in hearing petitioner's appeal has deprived him of his due process right to a speedy appeal.
Although petitioner is not entitled to unconditional release, as the merits of his appeal have not been prejudiced, see Cody, 936 F.2d at 719, it does not follow that he is precluded from obtaining any relief whatsoever. The habeas statute directs that the court is to "dispose of the matter as law and justice require." 28 U.S.C. § 2243. Therefore, federal courts "may fashion appropriate relief other than immediate release." Simmons, 898 F.2d at 869; see Preiser v. Rodriguez, 411 U.S. 475, 487, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973).
The appropriate remedy in this case is to grant a conditional writ of habeas corpus directing the Appellate Division to hear petitioner's appeal within a reasonable period of time or release him. There is ample precedent in this circuit for utilization of the conditional writ. See Diaz, 905 F.2d at 654; Simmons, 898 F.2d at 869-70; Brooks, 875 F.2d at 32; Einaugler, 862 F. Supp. at 801; Geames, 725 F. Supp. at 686; Wheeler, 639 F. Supp. at 1382; Harris, 601 F. Supp. at 994. According to the Simmons court, the conditional writ is the "most appropriate remedy: it limits the time state courts may delay; it grants a prisoner the required relief, his appeal; and it provides federal courts with an effective means to protect prisoners' rights to appeal." Simmons, 898 F.2d at 869-70.
Accordingly, the petition for a writ of habeas corpus is conditionally granted. The petitioner is ordered released unless the Appellate Division hears his appeal within 75 days from the date of this Order. Any adjournments requested on consent or by petitioner are to be excluded from this period.
Dated: May, 22, 1995
Uniondale, New York
Joanna Seybert, U.S.D.J.