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July 22, 1996

DONALD FRANKOS, Petitioner, against DANIEL SENDOWSKI, Superintendent, Clinton Correctional Facility, Respondent.

The opinion of the court was delivered by: PARKER

 Petitioner Donald Frankos, who is currently incarcerated at the Clinton Correctional Facility in Dannemora, New York, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 1983, Frankos was convicted of murder in the second degree in the Westchester County Court. On March 14, 1983, he was sentenced to a term of imprisonment of twenty-five years to life. The Appellate Division affirmed the judgment on April 8, 1985, and the New York Court of Appeals denied his application for leave to appeal. In July 1989, Frankos moved for an order vacating the judgment of conviction under New York Criminal Procedure Law § 440.10. Following an evidentiary hearing, the state coram nobis court denied the motion, and the Appellate Division denied Frankos' application for leave to appeal.

 Frankos raises two grounds for issuance of the habeas writ. First, he asserts that his attorney's failure to object to the admission of a statement incriminating Frankos by his non-testifying co-defendant constituted ineffective assistance of counsel in violation of the Sixth Amendment. Second, Frankos contends that his physical abuse by the Westchester County Jail correctional officers before trial was of such an outrageous and shocking nature as to deny him a fair trial in violation of the Due Process Clause of the Fifth Amendment. Because his attorney allegedly did nothing to protect Frankos from this abuse, and did not object to proceeding to trial, Frankos also asserts that he was denied his Sixth Amendment right to effective assistance of counsel.


 At approximately 9:00 p.m. on September 12, 1981, two men shot and killed Clarence Jones outside the door to his apartment on the twentieth floor of a building at One Glenwood Avenue in Yonkers. Frankos was arrested on October 16, 1981, two weeks after the arrest of his co-defendant Joseph Kersch on October 1, 1981. On October 21, 1981, Frankos was charged with the murder of Jones and related crimes. Kersch was also charged with the murder of Jones and related crimes, but in a separate indictment. Upon a motion by the prosecution, the indictments were consolidated for trial.

 The case was tried to a jury in Westchester County Court in January of 1983. Michael DiStefano testified for the prosecution. DiStefano testified that he had been arrested for burglary in September 1981, and while detained in the Suffolk County jail in November, told the police that he had information regarding a murder committed by Kersch. DiStefano testified that in September of 1981, he had accompanied Kersch to New York City. According to DiStefano, Kersch asked DiStefano to go and see a particular girl at a motel, and told DiStefano that after giving her Kersch's gold necklace, she would give him an envelope. After seeing the girl and giving Kersch the envelope, DiStefano walked with him towards Penn Station. As they walked, DiStefano testified that Kersch told him that he could not go to the hotel because he believed that it, and his apartment, were being watched.

 DiStefano then testified that Kersch told him "that he was hired with another man to kill another man. . . . He mentioned that he was hired by a man named 'the Greek,' I believe, and that they were hired for five thousand dollars, to split, to kill a man what he believed was over a drug deal. That this man, the victim, owed some money to the people who hired him . . ." Trial counsel made no objection.

 Later in the trial, the prosecution elicited testimony directly identifying Frankos as "the Greek." The prosecutor asked Detective Sergeant John Roach: "without telling us who you spoke to, did you have occasion on or about the 18th or 19th of September to determine whether or not Donald Frankos in known by any other nickname?" Roach answered: "Yes, known by another name of Tony the Greek." At that point, trial counsel objected, the trial court sustained the objection and instructed the jury to disregard the statement.

 In summation, the prosecutor without objection argued that,

this killing at One Glenwood Avenue, this was a cold-blooded murder for hire. It was a purely intentional killing. It wasn't a fight in a bar, it didn't start out as a robbery that went sour. It wasn't a domestic squabble. It wasn't some crime of passion. It was a cold-blooded murder. They didn't even know who they killed except that they got paid some money to do it. . . . Counsel tells you well, what kind of professional hit man, what kind of a professional killer was Donald Frankos? Well, again, we don't have to prove motive, ladies and gentlemen. But no one says this man is a professional. All we're saying, he was hired to kill someone. No one says he's smart. No one says he's good at what he does. He was hired to kill someone . . . Well, all we know is that he was there. He was present at the killing. We know through the testimony that the killers were hired.


 1. Ineffective Assistance of Counsel

 "To establish a constitutional claim of ineffective assistance of counsel, a convicted defendant must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for the deficiency, the likely outcome of the proceeding would have been different." See Mason v. Scully, 16 F.3d 38, 42 (2d Cir. 1994) (citing Strickland v. Washington, 466 U.S. 668, 687-96, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). "Actions or omissions by counsel that might be considered sound trial strategy do not constitute ineffective assistance." Mason, 16 F.3d at 42 (internal quotations and citations omitted).

 Frankos claims that the hearsay statements of Kersch, a non-testifying co-defendant, introduced through the testimony of DiStefano, were used against him in violation of the Confrontation Clause and the rule set forth in Bruton v. U.S., 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). He contends that his attorney's failure to object to their admission and use by the prosecutor during summation violated his Sixth Amendment constitutional right to effective assistance of counsel.

 Frankos raised the instant ineffective assistance of counsel claim in his CPL § 440.10 motion. After a hearing, the state court issued a written decision, dated October 10, 1990, concluding that the admission of Kersch's statement through DiStefano did not constitute a Bruton violation, that trial counsel's failure to object did not constitute ineffective assistance of counsel, and that even if the admission of Kersch's statement did constitute a Bruton violation, there was not a reasonable probability that but for its admission the result of the trial would have been different.

 The state court specifically found that the Yonkers Police interviewed DiStefano in the Suffolk County Jail on November 19, 1981, and DiStefano told them that Kersch admitted that he was "on the run for a murder" and that he had been hired by a man named "the Greek" to kill another man, and that they in fact shot this other man. The state court further found that at trial neither of the defendants testified, but that the pretrial statements made by Kersch were testified to by the witness DiStefano. In addition the state court found that during DiStefano's direct testimony, the following exchange occurred:

Q. Now, what was that conversation? To the best of your recollection, what did you ask him and what did he say to you, if you recall?
A. It started out with the reason he couldn't go to the hotel was he stated, was that he believed the police were watching the motel and his apartment were [sic] he lived. He also began to state why, ...

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