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April 29, 1999


The opinion of the court was delivered by: Feldman, United States Magistrate Judge.


Preliminary Statement

Factual Background

On August 10, 1993, following a jury trial in Ontario County Court, Stephens was found guilty of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Fifth Degree. The charges against Stephens arose from his September 2, 1992 sale of a quantity of crack cocaine to Wayne County Deputy Sheriff Russell Stein who, at the time of the sale, was acting in an undercover capacity. The drug transaction was conducted in the presence of a police informer (Linda Manino) and surveilled by another deputy sheriff (John Storer). The drug sale was also recorded on audio tape.

On September 1, 1993, Stephens was sentenced to a term of imprisonment of six to eighteen years by Ontario County Court Judge James M. Harvey. On that same day Stephens also entered a guilty plea to two other narcotic related indictments. As to each of these indictments, Stephens was sentenced to two independent terms of imprisonment of one to three years. Judge Harvey ordered each term of imprisonment to be served consecutively. Thus, Stephens total sentence for all three convictions was a term of imprisonment of eight to twenty-four years of incarceration. Stephens is currently serving his sentences.

The Fourth Department of the Appellate Division affirmed Stephens' conviction on direct appeal, People v. Stephens, 219 A.D.2d 854, 632 N.Y.S.2d 906 (4th Dep't 1995), and thereafter the New York Court of Appeals denied him leave to appeal, People v. Stephens, 87 N.Y.2d 851, 638 N.Y.S.2d 610, 661 N.E.2d 1392 (1995). Stephens also filed a motion pursuant Article 440 of New York's Criminal Procedure Law seeking to vacate his convictions on the basis of prosecutorial and police misconduct. Judge Harvey denied the Article 440 motion on August 11, 1995. On October 30, 1995, the Hon. Reuben K. Davis, Associate Justice of the Appellate Division, Fourth Department, denied Stephens' application for leave to appeal the denial of his Article 440 motion.

In his habeas petition, Stephens alleges five grounds for relief. First, Stephens alleges prosecutorial misconduct involving the failure to disclose exculpatory evidence regarding police informant Linda Manino. Second, Stephens alleges that the prosecutor used false and perjured evidence at trial. Third, Stephens claims that the prosecutor improperly withheld discovery regarding scientific test results. Fourth, Stephens claims his sentence was excessive. Finally, Stephens claims his Sixth Amendment right to counsel was violated when the trial judge refused his lawyer's request to be relieved as his attorney. Stephens appears to have exhausted his state court remedies as to all of the issues presented in his petition and therefore, this Court will consider the merits of his claims.


1. Exculpatory Evidence Regarding Linda Manino: Stephens alleges that the prosecutor violated his due process rights by failing to disclose that prosecution witness Linda Manino had been given a "deal" to have three pending drug charges "dismissed in exchange for false testimony" at his trial. See Habeas Petition at page 10, Docket # 1. Stephens first made this allegation regarding Manino in his Article 440 motion to the trial judge seeking to vacate his conviction. In support of his 440 motion, Stephens submitted an undated transcript of an alleged conversation between Manino and Charles Jones in which Manino claims that police intimidation and threats regarding pending drug sale charges caused her to lie at Stephens' trial. In response to the Article 440 motion, the prosecutor submitted an affidavit averring that Manino had no drug charges pending against her at the time she was cooperating with the police and he attached a copy of her criminal record to confirm his representations. The prosecutor also pointed out in his affidavit that Manino testified at trial that one of the reasons she cooperated with the police was to gain favorable treatment with respect to a pending petit larceny charge. See Affidavit of R. Michael Tantillo dated March 15, 1995, annexed as exhibit "O" to Respondent's Appendix.*fn1

The prosecution's constitutional duty to disclose material evidence favorable to the defense applies not only to exculpatory evidence, but also to evidence that could be used to impeach prosecution witnesses. Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Only material evidence is constitutionally required to be disclosed. Evidence is material "if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). A "reasonable probability" of a different result is shown when the evidence suppressed "undermines confidence in the outcome of the trial." Id. Impeachment evidence may be considered material where the witness in question supplied the only evidence linking the defendant to the crime. United States v. Avellino, 136 F.3d 249, 257 (2d Cir. 1998).

Based on the foregoing, even assuming arguendo that Stephens' allegations are true,*fn2 the Manino impeachment evidence is not sufficiently material so as to require habeas corpus relief. Although Manino was a prosecution witness who helped police set up the drug transaction for which Stephens was found guilty at trial, there was other powerful evidence linking Stephens to the September 2, 1992 drug trafficking offense. Indeed, Stephens was found guilty of selling crack cocaine directly to Russell Stein, a Wayne County Sheriff Deputy who was acting in an undercover capacity at the time of the sale. Moreover, this "hand to hand" buy was recorded by Stein through use of a "body wire" and the resulting tape recording was identified by Stein and introduced as direct evidence against Stephens at his trial. The strength of this independent evidence of Stephens' guilt "increases the degree of significance that would need to be ascribed to the withheld impeachment evidence in order for it reasonably to undermine confidence in the verdict." United States v. Orena, 145 F.3d 551, 559 (2d Cir. 1998). In light of the overwhelming independent evidence of Stephens' guilt, I find that there does not exist a "reasonable probability" of a different outcome in the trial had the Manino impeachment evidence been revealed. Accordingly, Stephens is not entitled to habeas corpus relief on this ground.

2. Use of False Evidence: Stephens' second claim is that the prosecutor "introduced a fabricate (sic) tape recorded conversation and transcript to the jury." Habeas Corpus Petition at page 12. Stephens offers no substantive factual support for this claim and the Court is unable to find any support in the record. There being no apparent legal or factual basis for this allegation, Stephens is not entitled to habeas corpus relief on this ground.

3. Disclosure Regarding Scientific Test Results: Stephens' third claim is that the prosecutor failed to provide him with discovery regarding the testing and calibration of the equipment used by the chemist who tested the cocaine and testified for the prosecution. Prior to trial, defense counsel moved to compel production of such data in a pre-hearing motion pursuant to New York Criminal Procedure Law ยง 240.20(c). The trial court denied the motion, ruling that under People v. Rosario 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961), the prosecution was ...

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