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WALLACE v. DILLON

March 29, 1996

MICHAEL WALLACE, Plaintiff,
v.
D. DILLON, Defendant.



The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 In prior proceedings in this Section 1983 action, the Court dismissed portions of the plaintiff's pro se complaint, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a cause of action upon which relief could be granted. This action is based on the plaintiff's arrest and state court conviction by guilty plea for possession of illegal substances.

 In an Order dated July 6, 1993, the Court denied a motion by the defendants W. Roche, D. Mann, J. McCormack, M. Dunne and V. Buscemi (the "police defendants") to dismiss the first cause of action in the complaint, which alleges that the defendant was arrested without probable cause and was the victim of an illegal search and seizure. Subsequently, the Court granted the police defendants' motion for reconsideration, in which they argued that the fourth amendment issues raised by Wallace in this action had been fully litigated and resolved against him in the state court suppression hearing in the underlying criminal proceeding, after which he entered a plea of guilty. In an Order dated November 6, 1993, the Court adhered to its prior decision and declined to dismiss the plaintiff's Section 1983 fourth amendment claim based solely on the pleadings. The Court noted in that decision that the cases relied upon by the defendants were made in the context of summary judgment motions in which the courts considered evidence outside of the pleadings. In contrast, this Court was then ruling on the defendants' Rule 12(b)(6) motion, in which a court relies only on the complaint and its attachments and accepts all the allegations as true. Wallace's first cause of action was the only one asserted against the police defendants that survived the motion to dismiss.

 The police defendants then brought the motion that is presently before the Court for an order granting summary judgment in their favor dismissing the complaint, based on the argument that the issues surrounding the arrest and search and seizure were previously determined in the state court criminal proceeding against Wallace. Transcripts of the state court proceedings and copies of the state court decisions are annexed to the defendants' motion papers.

 As a preliminary matter, the Court notes that Wallace's objections to the propriety of this motion are without merit. Wallace contends that the motion is improperly brought because the defendants failed to schedule a pre-motion conference with the Court. However, no such conference is required by the Individual Rules where, as here, one of the parties is proceeding pro se. Wallace also complains that the defendants have made the same argument to the Court three times. With regard to this, the Court notes that the defendants (1) initially moved, pursuant to Rule 12(b)(6), to dismiss the complaint for failure to state a cause of action; (2) then, moved in timely fashion for reconsideration of the Court's denial of the Rule 12(b)(6) as to the first cause of action in the complaint, which motion was granted and upon reconsideration the Court adhered to its initial decision; and (3) moved for summary judgment based on supporting documentary evidence. The Court finds that the defendants' motion practice has been proper at the various stages of this litigation.

 Finally, Wallace argues that the defendants should not be permitted to move for summary judgment prior to the completion of discovery and claims that "the plaintiff has not had a sufficient opportunity to engage in discovery of relevant facts, due to the dilatory tactics of the Nassau County Department of Law." Plaintiff's Memorandum of Law dated October 6, 1995. The Court has reviewed the record of the October 6, 1995 discovery conference before United States Magistrate Judge Viktor V. Pohorelsky. At that conference Judge Pohorelsky reviewed each of the plaintiff's discovery demands and the defendants' responses. Judge Pohorelsky found that except for one request, the defendants had responded sufficiently to each demand either by producing the document or asserting that it was privileged or not under their control. The plaintiff was advised by Judge Pohorelsky that discovery demands only compel a response, but that a motion may be made to overcome the assertion of privilege, and, that upon submission of affidavits challenging the truth of a response, a hearing would be scheduled with regard to that challenge. The Court records contain no such challenges by the plaintiff to the defendants' assertions of privilege or to the veracity of the responses.

 On October 6, 1995, Judge Pohorelsky directed the defendant Dillon to respond to one outstanding discovery demand. In response to this, on October 16, 1995, the defendant Dillon produced certain documents to the plaintiff and asserted attorney work-product privilege as to others. On October 6, 1995, Judge Pohorelsky also ruled that demands made after September 30, 1995 were beyond the discovery deadline. On December 15, 1996, Judge Pohorelsky denied the plaintiff's application to reopen document discovery, without prejudice to renewal of the application following the Court's disposition of summary judgment motions by the defendants. Accordingly, the Court rejects the plaintiff's contention that the defendants' summary judgment motion is premature due to outstanding discovery issues.

 BACKGROUND

 The following facts regarding the incidents giving rise to this lawsuit are not in dispute. On February 9, 1990, a vehicle in which the plaintiff and four others were riding was stopped by the police in the City of Long Beach. The police stated that the car was being stopped because it proceeded through a stop sign without stopping. The police removed a cigarette box from a pouch in the back seat of the vehicle and discovered that it contained cocaine wrapped in foil. All five occupants of the vehicle were arrested and searched. A plastic bag containing cocaine and a foil packet containing marijuana were found in Wallace's possession during the search following his arrest.

 On April 16, 1990 Wallace was indicted by a Grand Jury on one count of criminal possession of a controlled substance in the third degree, one count of criminal possession of a controlled substance in the fourth degree, one count of criminal possession of a controlled substance in the fifth degree and one count of unlawful possession of marijuana. Wallace moved to dismiss the indictment, and in an Order dated June 29, 1990, the Hon. Marie G. Santagata dismissed the first count of the indictment based on a determination that the Assistant District Attorney failed to properly instruct the grand jurors as to that count.

 Wallace then moved to suppress the physical evidence against him on the ground that he was stopped and arrested without probable cause and that the subsequent search was illegal and in violation of rights secured by the fourth and fourteenth amendments. Proceedings regarding this motion were held in the state court on October 30, 1990, January 4, 1991, February 20, 1991, March 27, 1991 and April 26, 1991. In an order dated May 10, 1991, which set forth findings of fact and conclusions of law, Judge Santagata denied Wallace's motion to suppress and ruled the vehicle stop was proper; that Officer Roche had probable cause to arrest Wallace; and that the search of Wallace was subsequent to the lawful arrest and incident to it.

 On July 30, 1991, Wallace withdrew his prior plea and pled guilty to one count of attempted criminal possession of a controlled substance in the fourth degree, a Class D felony, in satisfaction of the entire indictment. An indeterminate sentence of two to four years was imposed by the court on August 22, 1991. Wallace appealed from the judgment of the state court, which was affirmed by the Appellate Division, Second Department in an opinion that stated

 
Appellate review of the issues raised by the defendant in his main brief and in his supplemental pro se brief, was effectively waived by him as part of his plea bargain. Accordingly, the judgment of conviction is affirmed (see People v. Callahan, 80 N.Y.2d 273, 590 N.Y.S.2d 46, 604 N.E.2d 108; People v. Seaberg, 74 N.Y.2d 1, 543 N.Y.S.2d 968, 541 N.E.2d 1022).

 People v. Wallace, 191 A.D.2d 660, 595 N.Y.S.2d 320 (2d Dep't 1993). Leave to appeal to the Court of Appeals was denied. People v. Wallace, 81 N.Y.2d 1021, 600 N.Y.S.2d 210, 616 N.E.2d 867 (1993).

 DISCUSSION

 The summary judgment standard

 A court may grant summary judgment "only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact," Cable Science Corp. v. Rochdale Village, Inc., 920 F.2d 147, 151 (2d Cir. 1990), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Fed. R. Civ. P. 56(c) (summary judgment standard). The Court must, however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Quaratino v. Tiffany & Co., 71 F.3d 58 (2d Cir. 1995); Twin Laboratories, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987).

 According to the Second Circuit "summary judgment is a tool to winnow out from the trial calendar those cases whose facts predestine them to result in a directed verdict." United National Ins. Co. v. The Tunnel, Inc., 988 F.2d 351, 355 (2d Cir. 1993). Once a party moves for summary judgment, in order to avoid the granting of the motion, the non-movant must come forward with specific facts showing that a genuine issue for trial exists. See Western World Ins. Co. v. Stack Oil Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Fed. R. Civ. P. 56(e)); see also National Union Fire Ins. Co. v. Turtur, 892 F.2d 199, 203 (2d Cir. 1989). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248; see Vann v. New York City, 72 F.3d 1040 (2d Cir. 1995).

 However, mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment. See Western World, 922 F.2d at 121. If there is evidence in the record as to any material fact from which a inference could be drawn in favor of the non-movant, summary judgment is unavailable. See United National, 988 F.2d at 354-55; Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). Finally, the Court is charged with the function of "issue finding", not "issue resolution." Gallo v. Prudential Residential Services, Ltd, Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994).

 It is within this framework that the Court addresses the grounds for the present motion for summary judgment.

 Collateral estoppel

 The police defendants contend that they are entitled to summary judgment based on the doctrine of collateral estoppel. Specifically, they assert that the issues raised by Wallace with regard to the alleged improper arrest and illegal search and seizure were fully litigated in the suppression hearing in the state court criminal proceeding and decided against him. This theory has been discussed by the Second Circuit as follows:

 
In Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980), the Supreme Court "made clear that issues actually litigated in a state-court proceeding are entitled to the same preclusive effect in a subsequent federal § 1983 suit as they enjoy in the courts of the State where the judgment was rendered." Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 83, 104 S. Ct. 892, 897, 79 L. Ed. 2d 56 (1984); see Kremer v. Chemical Constr. Corp., 456 U.S. 461, 102 S. Ct. 1883, 72 L. Ed. 2d 262 (1982); Anderson v. City of New York, 611 F. Supp. 481, 486 (S.D.N.Y. 1985) ("There is no question that state court judgments can have collateral estoppel effect in subsequent section 1983 proceedings. . . .To determine the preclusive effect of a state court judgment, we look to the law of the state where the judgment was rendered.").

 Valley Disposal, Inc. v. Central Vermont Solid Waste Management Dist., 31 F.3d 89, 99 (2d Cir. 1994). To invoke the doctrine of collateral estoppel, New York law requires (1) an identity of issues, which were necessarily decided in the prior action and are decisive to the present action and (2) a full and fair opportunity to contest the decision that is being asserted as controlling in the second action. Brown v. The City of New York, 80 A.D.2d 596, 436 N.Y.S.2d 37, 38 (2d Dep't 1981); Schwartz v. Public Administrator, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 959, 246 N.E.2d 725 (1969); see also Temple of the Lost Sheep, Inc. v. Abrams, 930 F.2d 178 (2d Cir. 1991).

 However, an adverse judgment in a prior criminal proceeding does not necessarily bar a subsequent Section 1983 claim. As the Second Circuit has observed,

 
a guilty plea in no way bars a section 1983 claim under principles of collateral estoppel, waiver, or mootness, where the alleged constitutional violations were not necessarily answered by the admission of guilt. Haring v. Prosise, 462 U.S. 306, 103 S. Ct. 2368, 76 L. Ed. 2d 595 (1983).

 Powers v. Coe, 728 F.2d 97, 102 (2d Cir. 1984). In Powers the court held that a guilty plea did not moot a Section 1983 claim alleging deprivation of the right to a fair trial. Id. The court reasoned that the state proceedings had merely resulted in the acceptance of a guilty plea without adjudicating the merits of the constitutional claim. In Haring v. Prosise, upon which the Powers decision relies, a defendant who pleaded guilty in state court criminal proceedings to manufacturing a controlled substance challenged the legality of the search that produced the inculpatory evidence in a subsequent Section 1983 action. Haring, supra, 462 U.S. 306. The Supreme Court ruled that the guilty plea did not bar Prosise's Section 1983 action to recover damages for an alleged fourth amendment violation because the issue of the legality of the search was never considered in the state proceedings, stating

 
The only question raised by the criminal indictment and determined by Prosise's guilty plea in Arlington Circuit Court was whether Prosise unlawfully engaged in the manufacture of a controlled substance. This question is simply irrelevant to the legality of the search under the Fourth Amendment or to Prosise's right to compensation from state officials under § 1983.

 462 U.S. at 316.

 Similarly, in Owens v. Treder, 873 F.2d 604 (2d Cir. 1989), the Second Circuit found that the plaintiff's prior conviction by a jury in a state court proceeding did not preclude his Section 1983 action based on an alleged coerced confession. The Owens court held that collateral estoppel would not bar the plaintiff's claim because CPL § 710.70 permitted the jury in the prior criminal proceeding to redetermine the voluntariness issue following the state court's denial of the motion to supress the confession. Id. at 608. In Owens, the court reasoned that the issue of a coerced confession was not essential to the jury's guilty verdict, which could have been made without addressing the issue or could have even decided it in the defendant's favor, but still convicted him on the basis of other substantial evidence. Owens, 873 F.2d at 609-12.

 The Second Circuit also rejected an argument by the defendants in a Section 1983 action that "the issue of probable cause for [the plaintiff's] arrest was decided at his criminal trial because the trial court ruled that various pieces of evidence were admissible because they were seized as incident to a lawful arrest." Cameron v. Fogarty, 806 F.2d 380, 385 (2d Cir. 1986). The Cameron court noted that "the trial court was never called upon to determine either the moment at which the arrest occurred or whether an arrest of Cameron . . . was made with or without probable cause." Id. Under such circumstances, litigation on the issue of probable cause in a subsequent Section 1983 action is not barred by principles of collateral estoppel, but in the absence of Congressional intent to the contrary, the Section "1983 doctrine [is] deemed . . . to incorporate the common-law principle that, where law enforcement officers have made an arrest, the resulting conviction is a defense to a § 1983 action asserting that the arrest was made without probable cause." Id. at 388-89.

 The above cases instruct the Court, in determining the applicability of a collateral bar, to look beyond the mere presence of a conviction by verdict or guilty plea and assess whether there is the identity of the issue which has necessarily been decided in the prior action. One court has commented that "under this rubric, the Second Circuit has narrowly limited the operation of issue preclusion in § 1983 actions." East Coast Novelty Co., Inc. v. City of New York, 781 F. Supp. 999, 1005 (S.D.N.Y. 1992). Recognizing this, the Court nevertheless views the present case as falling within those narrow limits. Indeed, a thorough review of the state court record that gave rise to the plaintiff's complaint leads the Court to the independent conclusion that the police defendants are entitled to judgment as a matter of law on the issue of the plaintiff's fourth amendment claims, even in the absence of collateral estoppel.

 A number of decisions conclude that where the state court found probable cause to arrest and proper search and seizure following a full evidentiary hearing, subsequent Section 1983 claims challenging the legality of the arrest, search and seizure are barred as to those issues actually litigated in the suppression hearing. See e.g., Roundtree v. City of New York, 778 F. Supp. 614, 619 (E.D.N.Y. 1991); Brown v. De Fillipis, 717 F. Supp. 172, 178-79 (S.D.N.Y. 1989); Giannini v. City of New York, 700 F. Supp. 202, 205 (S.D.N.Y. 1988); see also, Guenther v. Holmgreen, 738 F.2d 879 (7th Cir. 1984), cert. denied, 469 U.S. 1212, 84 L. Ed. 2d 329, 105 S. Ct. 1182 (1985); Ayers v. City of Richmond, 895 F.2d 1267 (9th Cir. 1990).

 Here, Wallace bases his Section 1983 claim on allegations that the police defendants stopped the vehicle in which he was riding without probable cause and conducted an illegal search and seizure. The Court notes that Wallace sought to suppress the seized drugs and that his motion was denied after an evidentiary hearing on October 30, 1990, January 4, 1991 and February 20, 1991, at which Wallace was represented by counsel. At the outset of the suppression hearing, the defense attorney Ira London, Esq. framed the basis for the defendant's application to suppress evidence as follows:

 
THE COURT: Would you be so kind as to state the basis for this hearing?
 
MR LONDON: It's a car stop. It is our claim that the car was improperly stopped for specious reasons; that it was a stop basically for a search without any probable cause, in addition to which the justification for the personal search of my client is based principally on the officer's statement that based on his meager training as a police officer, and given this meager training to perceive what is suspected as controlled substances, he believes that a tinfoil partially revealed in a cigarette pack in the back of a car in the pouch would leave him to conclude that it is contraband.
 
I don't think that there will be any case support for that, but that remains to be seen
 
THE COURT: For both the stop and the search?
 
MR. LONDON: Yes. But the seizure of the cigarette pack is the justification for the arrest of my client and the subsequent personal search, so there would be two areas I would ask the Court to look at carefully.

 October 30, 1990 Tr. at 4-5. The issues presented to the state court in the suppression motion are identical to those raised as to the police defendants in the first cause of action in Wallace's Section 1983 complaint.

 Following the suppression hearing, the state court ruled that the initial vehicle stop by the police was proper and that Officer Roche had reasonable cause to believe that the cigarette pack, which was in his plain view from outside the vehicle, contained drugs. The Supreme Court in Allen v. McCurry held that when conviction follows a denial of a defendant's pretrial suppression motion, the defendant is estopped from raising the same arguments regarding the search and seizure in a Section 1983 action. Allen v. McCurry, 449 U.S. 90, 102, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980). The doctrine has also been held to operate as a bar to Section 1983 claims, where, as here, the defendant pleads guilty. The following analysis by Judge Glasser is appropriate to the present case:

 
Although the plaintiff in Cameron [ Cameron v. Fogarty, 806 F.2d 380 (2d Cir. 1986), cert. denied, 481 U.S. 1016, 95 L. Ed. 2d 501, 107 S. Ct. 1894 (1987)] had been convicted at trial of the offense for which he was arrested, entry of a guilty plea also operates as a defense to a Section 1983 action for arrest without probable cause. Keyes v. City of Albany, 594 F. Supp. 1147 (N.D.N.Y. 1984) ("[A] § 1983 claim for false arrest or false imprisonment is barred by a plea of guilty...."). That is, conviction at trial or by plea "'conclusively establishes the existence of probable cause, unless the conviction was obtained by fraud, perjury, or other corrupt means.'" Cameron, 806 F.2d at 387 (quoting Restatement (Second) of Torts § 667(1)); Unger v. Cohen, 718 F. Supp. 185, 187 (S.D.N.Y. 1989) ("Conviction is viewed as establishing the existence of probable cause. . . .[But] an invalid judgment of conviction would not support the defense."). Finally, a plea of guilty to a charge lesser than that for which plaintiff was arrested also bars a Section 1983 action for arrest without probable cause. Keyes, 594 F. Supp. at 1152, 1155 (Section 1983 action for arrest without probable cause barred for plaintiff who had been arrested for assault but had pleaded guilty to disorderly conduct.)
 
. . . .
 
Under Robinson [ United States v. Robinson 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467 (1973)], the arrest must be "lawful" in order to justify any search incident to that arrest; but such lawfulness is readily apparent in this case: It would be incongruous to maintain that the ultimate conviction of the plaintiff establishes probable cause for the arrest itself but that the validity of the arrest nonetheless remains open as to any searches incident to that arrest. Under Cameron, the guilty plea of a plaintiff demonstrates not merely the probable cause for the arrest but the lawfulness of it; hence, insofar as the constitutionality of a search incident to an arrest derives from the validity of the arrest itself, Cameron compels the conclusion that a guilty plea provides a defense to any Section 1983 claim brought for the search of an arrested person that is conducted as an incident to that arrest.

 Roundtree, supra, 778 F. Supp. at 619-20. Under this reasoning, the conclusions of the suppression hearing and Wallace's guilty plea provide the police defendants with a defense to Wallace's Section 1983 claims.

 The Court finds that the claims that Wallace presents in this action are identical to those he raised in the suppression hearing in the state court and were necessarily addressed in the state court's determinations that the vehicle stop was proper, that there was reasonable cause to arrest Wallace for the possession of cocaine and that the ensuing search was incident to the lawful arrest. Accordingly, the Court finds that the first element of collateral estoppel is established, namely, an identity of issues necessarily determined in the decision that the defendants assert is controlling. See, e.g. Schwartz, supra 24 N.Y.2d at 71, 298 N.Y.S.2d at 960.

 Based on the foregoing, Wallace may not challenge the validity of the arrest, search and seizure in this proceeding without presenting new evidence that would lead the Court to question whether he had a full and fair opportunity to litigate those issues in the state court. See, e.g., Dukes v. State of New York, 743 F. Supp. 1037, 1041-42 (S.D.N.Y. 1990) (citing Brown v. De Fillipis, 717 F. Supp. 172, 176-77 (S.D.N.Y. 1989). Wallace's argument in opposition to the applicability of collateral estoppel is, apparently, that he did not have a full and fair opportunity to litigate the fourth amendment issues he now raises in the state court criminal proceeding. However, having reviewed the state court record, the Court finds that Wallace has presented no new evidence with regard to his allegations. Moreover, it does not appear that Wallace has attempted to set aside the state court judgment under CPL § 440.10 on grounds that he raises here, for example, that adverse testimony was perjured or that his guilty plea was coerced. See id., 743 F. Supp. at 1041-42. "The Second Circuit has held that a federal court will review a Fourth Amendment claim only where the petitioner was precluded from utilizing the available state process by reason of an unconscionable breakdown in that process." Brown v. De Fillipis, supra 717 F. Supp. at 179 (citing Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977), cert. denied, 434 U.S. 1038, 54 L. Ed. 2d 787, 98 S. Ct. 775 (1978); Cruz v. Alexander, 477 F. Supp. 516 (S.D.N.Y. 1979); Woods v. Kuhlmann, 677 F. Supp. 1302, 1305 (S.D.N.Y. 1988)).

 
This Court has inspected the Grand Jury minutes in camera and finds that it is not necessary to release the minutes or any portion thereof to the defendant's attorney to assist the Court in making its determination. (CPL § 210.30[3]). In lieu thereof, this Court has inspected the Grand Jury minutes and upon such inspection renders the following decision, opinion and order.
 
As to Count One, this Court finds that the Assistant District Attorney failed to give proper legal advice and adequate instruction to the members of the Grand Jury. Accordingly, the Grand Jury proceeding was defective and Count One is hereby ordered dismissed.
 
Count One of the indictment accuses the defendant of the crime of Criminal Possession of a Controlled Substance in the Third Degree, in violation of Section 220.16 of the Penal Law. The gravamen of the offense is that the defendant possessed cocaine with the intent to sell it. In his instructions to the Grant Jury, the Assistant District Attorney failed to provide definitions of intentional conduct (PL § 15.05[1]) and sale (PL § 220.00[1]). The Assistant District Attorney also failed to instruct the Grant Jury on the law of corroboration of accomplice testimony. (CPL §§ 60.22[1]; 190.65[1]).
 
In this case, failure to charge corroboration was a fatal defect, since the necessary element of intent to sell was established only through the testimony of the other occupants of the automobile, each of whom could reasonably be regarded as an accomplice of the defendant. The amount of cocaine involved was not so substantial as to constitute per se evidence of intent to sell; nor was there any evidence that the cocaine was packaged in a manner indicative of sale. Accordingly the testimony of the other occupants of the car constituted the only evidence of the defendant's intent. Under such circumstances, instructions as to the necessity of corroboration of accomplice testimony was required. (CPL § 190.65[1]).
 
This Court finds that the evidence before the Grant Jury was legally sufficient to support the crimes charged in Counts Two, Three and Four. The grand Jury proceeding was not defective; proper legal advice and adequate instructions as to these three counts were given by the Assistant District Attorney. (CPL §§ 210.35[5] and 190.25[6]).

 Memorandum Decision of Judge Santagata, dated June 29, 1990. By quoting this decision out of context in his motion papers, Wallace insinuates that Judge Santagata declared the entire Grand Jury proceeding defective, yet permitted the charges against him to be prosecuted. Clearly, Judge Santagata's finding of defect in the Grand Jury proceeding was limited to Count One, which she appropriately dismissed. Her decision expressly found that "the proceeding was not defective" as to Counts Two, Three and Four. This portion of Wallace's argument has no merit and presents no evidence of deprivation of a full and fair opportunity to litigate his fourth amendment claims.

 Wallace also claims that the state court judge denied his attempt to call two of his co-defendants as witnesses in the suppression hearing, and further would not permit him to obtain their Grand Jury testimony. The following exchange transpired between Wallace's attorney and Judge Santagata regarding testimony by the co-defendants:

 
MR. LONDON: . . . .
 
My first application is to direct them to testify in view of the fact that they waived their Fifth Amendment privilege at the Grand Jury, and it would be my position that there is nothing further to protect, since they've already given testimony about this case freely and voluntarily under a waiver of immunity in the Grand Jury. That would apply to Clemmons as well.
 
MR LONDON: Then I would move to use their Grand Jury testimony, if it's appropriate.
 
Your Honor has read it pursuant to our informal agreement, and I would move to use that grand Jury testimony as hearsay evidence on the issues, the factual issues, in this case.
 
THE COURT: All right. And that is also denied. When I have read the testimony, there is nothing in it material to the issue that you have promulgated.
 
Also, I'm reading the cases. It would appear that the use of Grand Jury testimony is not testimony as has been conceived by the statute.

 March 27, 1991 Tr. at 5-6. At the close of the suppression hearing Wallace's counsel stated:

 
. . . there are no further witnesses the defense is in a position to call; given the fact that the three important witnesses in this case, who were occupants of the car, in addition to my client, are ...

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