The opinion of the court was delivered by: Weinstein, Senior District Judge.
Petitioner seeks a writ of habeas corpus. He was convicted of
three counts of murder in the second degree and related crimes
by a New York State Court Jury. His sentence was imprisonment
for twenty-five years to life and various concurrent terms. On
appeal his conviction was affirmed. People v. Allen,
163 A.D.2d 396, 558 N.Y.S.2d 121 (2d Dep't. 1990) 77 N.Y.2d 875,
568 N.Y.S.2d 918, 571 N.E.2d 88 (1991). A variety of collateral
attacks followed in the state courts, See, e.g., People v.
Allen, 222 A.D.2d 598, 636 N.Y.S.2d 643 (2d Dep't 1995),
240 A.D.2d 418, 658 N.Y.S.2d 1006 (2d Dep't 1997).
MS. RECANT: I agree. I am just opposing his views.
The attorney himself got relieved.
MS. RECANT: No, I will not stipulate.
MR. KIMMEL: I take exception.
THE COURT: Let me see the Grand Jury testimony.
DEFENDANT ALLEN: I at no time relieved my attorneys.
THE COURT: I never said you did.
What was the stipulation you wanted, Mr. Kimmel?
MR. KIMMEL: The district attorney had opportunity in
the Grand Jury to cross-examine her and —
MS. RECANT: That is not the point. The district
attorney did not have all the knowledge that I have
now with which to cross-examine this witness.
The fact that she was — this is not conditional
testimony. There was no request made to take
conditional testimony based on failing health.
THE COURT: We could have taken conditional testimony.
MS. RECANT: There was never a request.
THE COURT: If there was a request as late as last
week, we could have done that.
I read the Grand Jury testimony. There is nothing
further. While it does have some weight, there is no
reason we could not have been made aware that she was
that ill and we could have had conditional testimony
taken at that time, last week.
The trial judges had technically sound reasons for denying
petitioner's motion to introduce the grand jury testimony of the
missing alibi witness. It was cumulative, came too late, and
would have been in a more appropriate form had the testimony
been preserved by a deposition taken contemporaneously with the
Yet, the reasoning seems thin, being largely based on the
trial assistant district attorney's contention that she could do
a better job of cross-examining the witness than the grand jury
assistant district attorney had done. It is but one of myriad
cases where the prosecutor (in both state and federal courts),
seeking to eke the last mite of prosecutorial advantage, denies
the defense evidence that, had it been given to the jury, might
have laid the issue at rest without prejudicing the people's
On balance, while the issue is troublesome, there appears to
have been no constitutional violation. The case is almost at the
other end of the spectrum from one like Phan v. Greiner,
165 F. Supp.2d 385 (E.D.N.Y. 2001), where the only identifying
witness had not known defendant, visual conditions were less
than ideal, the identifier was Caucasian picking the petitioner
out of a group of Chinese, and defense counsel had made
extensive efforts to obtain the presence of the one (apparently
unbiased) grand jury alibi witness who had critical information.
Cf. Mark Carriden and Leroy Phillips, Jr., Contempt of Court,
The Turn-of-the-Century Lynching that Launched a Hundred Years
of Federalism (1999) (questionable identification with solid
alibi and unfair trial).
Because the issue was close this court has read the entire
trial record. Petitioner was ably represented at his trial; the
evidence against him was strong; and the state appeals and
collateral attacks seem to have provided an exhaustive and
adequate analysis of petitioner's contentions. The trial court
did not abuse its discretion in a way that denied petitioner his
None of the many other contentions of petitioner warrant
analysis. They lack merit. Appointed counsel, as well as
petitioner himself have fully ventilated all possible issues.
The trial met constitutional minimum standards of due process.
The "omitted evidence" did not create "a reasonable doubt that
did not otherwise exist." United States v. Agurs, 427 U.S. 97,
112-13, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). See also, e.g.,
Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988); Fuller
v. Gorczyk, Docket 00-2430 (2d Cir., Nov. 27, 2001).
The petition is dismissed. A certificate of appealability is
granted on the issue of
whether petitioner should have been permitted to introduce the
grand jury testimony of an absent alibi witness.
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