petitioner was subsequently indicted. The petitioner's new attorney then moved to dismiss the indictment and the trial court ordered an investigatory hearing on the issue. On December 7, 1989, a hearing was to be held on this motion; however, with the district attorney and petitioner's new counsel present, petitioner stated that he refused to participate in the proceedings and walked out of the courtroom. As such, the trial court ruled the petitioner had waived his right to the hearing on his motion to dismiss the indictment. See Affidavit of John Barry, Exh. D.
Petitioner contends that his original attorney did not inform him that he was withdrawing the notice to testify and made this decision without his consent. He also contends that his subsequent attorney told him the motion to dismiss the indictment had already been denied and did not tell him a hearing was to be held on this motion on December 7th. Green claims he was told the December 7th proceeding concerned pre-trial motions, which he did not wish to be present for and therefore left the courtroom.
With respect to Davis's conduct in withdrawing the grand jury notice, it is undisputed that Davis consulted with petitioner regarding his Grand Jury testimony, and that the two disagreed on whether petitioner should testify. See Pet's Mem. in Opp. at 2. Petitioner contends that Davis withdrew the grand jury notice without his consent. Assuming this is true, this alone would not establish that Davis's conduct fell below an objective standard of reasonableness. See People v. Hamlin, 153 A.D.2d 644, 544 N.Y.S.2d 859 (2d Dep't 1989)(counsel's failure to comply with defendant's desire to testify before Grand Jury would not alone amount to a denial of effective assistance of counsel). The right to testify before a grand jury is a state statutory right, and is not of constitutional dimension. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989). Had petitioner testified at the Grand Jury, the prosecution would have been entitled to cross examine him with respect to his seven prior criminal convictions, as well as his open assault case, potentially damaging his case at trial. Thus, counsel made a strategic decision as to petitioner's testifying before the Grand Jury after consulting with petitioner, which decision I find was reasonable.
As to petitioner's claim that his subsequent attorney failed to notify him of the hearing on his motion to dismiss the indictment, petitioner admits that he walked out of the courtroom on December 7th, but contends he did this because he did not know that there was to be a hearing on the motion to dismiss the indictment. Even assuming Green's assertion is true, he has failed to show prejudice from counsel's actions. It is highly improbable that the outcome of the motion would have been different had petitioner remained in the courtroom. Although Justice Bell found that petitioner had waived his right to a hearing on the motion, he also found that there was ample evidence of actual communication of the grand jury waiver by petitioner's first attorney to petitioner. Exh. D, Aff. of John Barry.
2. Trial Errors
Petitioner also asserts that he was denied effective assistance in his trial counsel's failure to seek sanctions for missing Rosario material, specifically notes regarding drug transactions in March, 1989, which Officer Bert testified at trial that he had lost. At the trial, petitioner's counsel elicited a full explanation as to the whereabouts of purportedly missing notes from Officer Bert. Officer Bert testified that he placed his notes regarding the March, 1989 drug transactions in his locker after he wrote them and used them in his buy report. The notes were subsequently lost after Officer Bert was shot in the line of duty in this case, while Bert was in the hospital.
Given the reasonable explanation for the loss of notes and the fact that they had been used in the writing of the buy report, petitioner in my view has failed to show prejudice from counsel's actions. It is highly unlikely that the verdict would have been impacted had an adverse inference charge been given by the court.
3. Appellate Counsel
Finally, petitioner argues that his appellate counsel was ineffective for his failure to raise the issue that petitioner's trial counsel was deficient in allowing petitioner to be convicted of Criminal Sale of a Controlled Substance in the Second Degree, without any proof that petitioner knew the weight of the drugs. However, at the time of petitioner's trial, proof of knowledge of weight was not a necessary element to be proven for Criminal Sale of a Controlled Substance in the Second Degree.
Thus, trial counsel and appellate counsel acted appropriately on this score.
D. Grand Jury Instructions
Petitioner argues that the State failed to adequately instruct the Grand Jury. However, in compliance with CPL § 190.25, petitioner has never been provided with the minutes of the legal charge relating to the indictment and this allegation is therefore without any factual basis. Moreover, the Grand Jury minutes were reviewed at the trial stage by the Honorable Justice Bell who found that there was sufficient evidence to sustain the indictment. Aff. of John P. Barry, Exh. C. Thus, this argument is without merit.
E. Rosario Material
1. Testimony of Sergeant Hanken
Petitioner claims that he was prejudiced at the Wade hearing due to the People's failure to turn over Rosario material. He claims that Grand Jury testimony by a Sergeant Hanken should have been turned over at the Wade hearing. However, since Sergeant Hanken was not a witness at the Wade hearing, any prior testimony by him need not have been turned over at the hearing. See CPL § 240.44(1)(state is required prior to cross-examination of their witness to provide a copy of any written or recorded statement including any testimony given before the Grand Jury, made by that witness relating to the subject matter of the witness's testimony). (Sergeant Hanken also did not testify at Green's trial, although Green received the minutes of Hanken's Grand Jury testimony prior to trial and thus became aware of their existence.) In any event, the failure to turn over Rosario material is not a basis for habeas relief as the Rosario rule is purely one of a state law. U.S. ex rel. Butler v. Schubin, 376 F. Supp. 1241, 1247 (S.D.N.Y. 1974), aff'd, 508 F.2d 837 (2d Cir. 1975); Morrison v. McClellan, 903 F. Supp. 428, 429 (E.D.N.Y. 1995).
2. Officer Bert's Notes
Second, petitioner argues that he was denied due process and equal protection of the law because the People failed to provide him with Rosario material, specifically copies of Officer Bert's missing notes. Under New York law, prior to the cross-examination of a prosecution witness, a defendant must be provided with a copy of any written or recorded statement relating to the subject matter of the witness's testimony. N.Y. C.P.L. § 240.44(1). However, as discussed above, this is purely a New York statutory requirement, and the failure to turn over Rosario material is not a basis for habeas relief.
Petitioner also claims that some of Officer Bert's notes, which Officer Bert testified were lost, were located since the trial. However, the notes Officer Bert testified were lost related to transactions on March 30-31, 1989. The notes petitioner claims he "located" were related to a transaction on April 27, 1989 and were provided to petitioner prior to trial. Resp.'s Suppl. Mem. of Law, Exh. 2.
For the foregoing reasons, petitioner's motion for discovery is denied, and his habeas petition is dismissed. The Clerk of the Court is directed to close this case. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is not warranted.
New York, New York
January 6, 1998
Harold Baer, Jr