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LIBERTA v. KELLY

No. CIV-85-830C.

657 F.Supp. 1260 (1987)

Mario R. LIBERTA, Petitioner, v. Walter R. KELLY, Superintendent, Attica Correctional Facility, Respondent.

United States District Court, W.D. New York.

April 21, 1987.

Attorney(s) appearing for the Case

State University of New York at Buffalo, Faculty of Law and Jurisprudence (R. Nils Olsen, of counsel), Buffalo, N.Y., for petitioner.

Richard J. Arcara, Dist. Atty. of Erie County (John J. DeFranks, Jo W. Faber, Asst. Dist. Attys., of counsel), Buffalo, N.Y., for respondent.

Elizabeth Holtzman, Dist. Atty. of Kings County (Peter A. Weinstein, First Deputy Bureau Chief, Appeals Bureau, of counsel), Brooklyn, N.Y., amicus curiae.

CURTIN, Chief Judge.

The petitioner was convicted of forcible sodomy and rape of his estranged wife, Denise Liberta, in the presence of their two-year-old son while they were living apart under a "Temporary Order of Protection."1 On appeal, this conviction was affirmed by both the Appellate Division, Fourth Department, People v. Liberta, 100 A.D.2d 741, 473 N.Y.S.2d 636 (4th Dept. 1984), and the...

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