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GREEN v. VACCO

April 30, 1997

DONALD GREEN, Petitioner,
v.
DENNIS VACCO, Attorney General of the State of New York, Respondent.



The opinion of the court was delivered by: LARIMER

 Pursuant to 28 U.S.C. § 2254, pro se petitioner Donald Green ("Green") filed the instant petition for habeas corpus relief in this Court on March 27, 1996. Green challenges his November 14, 1989 conviction in Erie County Court of Murder in the Second Degree.

 Green asserts two constitutional grounds for relief: first, that he was deprived of his Fourteenth Amendment right of due process because the prosecution failed to disclose promises of monetary benefits to its main witness in connection with an agreement to attempt to enroll him in either the state or federal witness protection programs; and second, that he was deprived of his Sixth Amendment right to an impartial jury because one juror misrepresented her criminal record during voir dire.

 PROCEDURAL HISTORY

 On February 20, 1990, pursuant to N.Y. Crim. Proc. Law § 330.30, Green sought post-conviction relief in two separate motions to set aside the verdict. Both of petitioner's motions were denied after post-trial hearings. On February 8, 1991, Green was sentenced to a state prison term of twenty-five years to life.

 On February 5, 1993, the Appellate Division, Fourth Department, unanimously affirmed Green's conviction. People v. Green, 190 A.D.2d 1078, 594 N.Y.S.2d 1018. In a certificate issued on April 27, 1993, Chief Justice Judith H. Kaye denied Green leave to appeal to the New York State Court of Appeals. People v. Green, 81 N.Y.2d 971, 598 N.Y.S.2d 772, 615 N.E.2d 229.

 Subsequent to and separate from his state conviction, Green was prosecuted in federal court. On March 30, 1994, after a lengthy trial in the United States District Court for the Western District of New York (Curtin, J.), Green was convicted on 27 drug-related counts. Green was sentenced on July 29, 1994, on four of the counts to four concurrent life terms and received several lesser sentences on the remaining counts. The sentences ran consecutive to his New York State murder sentence. The judgment was affirmed by the Second Circuit on March 27, 1996. Aff'd sub. nom. United States v. Workman, 80 F.3d 688 (2d Cir. 1996). Green is currently serving his sentences at the federal maximum security institution at Leavenworth, Kansas.

 Because the state does not contend that Green failed to exhaust his state remedies, I will consider the petition on its merits. For the reasons that follow, the petition is dismissed.

 On the afternoon of October 25, 1988, Larnell Cottrell was helping two women unload groceries from a car parked in front of 143 Krettner Avenue in the City of Buffalo. As the three stood near the curb, one woman heard what she described as "two pops," and saw Cottrell fall into the street. Cottrell died shortly thereafter, and a coroner testified that Cottrell died of gunshot wounds to his body.

 Because the two women did not see the actual shooting, the prosecution's case hinged on the eyewitness testimony of two other witnesses who identified Green as the perpetrator. One of those witnesses, James Wright ("Wright"), followed Green from the scene and identified him later that day from a photographic array as the perpetrator.

 On the day of Cottrell's murder, Wright was on Krettner Avenue making deliveries for his church when he noticed people to his right unloading groceries. Wright heard a scream and then saw a man, later identified as Green, run out into the street in front of Wright's van. Wright testified that he also saw a second man running on the sidewalk, parallel to Green. Thinking that the disturbance was related to a purse-snatching, Wright, who was still in the van, followed Green down Krettner Avenue and around a corner.

 Green and his companion, positioned as before, continued to run until they reached the next corner, where they turned right onto another street and approached a car parked on the right corner of that intersection. As Green approached the car, he turned and pointed what Wright called "this great big black gun" at the oncoming Wright. Wright identified Green in court as the man who confronted him with the gun.

 On August 29, 1989, shortly before Green's trial was to begin, two unidentified men drove up to a car that was being driven by Wright and fired several shots into the driver's side door. Following this attempt on his life, Wright told the police, for the first time, about prior acts of violence directed at him and his family in the preceding weeks. He also told the police that he had been approached by an individual who said he was acting as petitioner's intermediary. Because of these threats, Wright and his family were placed in protective police custody and then relocated to an area outside Western New York, all at state ...


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