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April 9, 1975


The opinion of the court was delivered by: NEAHER


 Petitioner, Richard Albertini, is presently incarcerated in the Wallkill Correctional Facility, Wallkill, New York, serving an indeterminate sentence not to exceed ten years imposed on October 30, 1970, following his conviction by jury of the crime of robbery, second degree, in Supreme Court, Queens County. His conviction was unanimously affirmed without opinion by the Appellate Division, People v. Albertini, 38 A.D.2d 891, 330 N.Y.S.2d 766 (2d Dep't 1972), and leave to appeal to the Court of Appeals was denied on March 9, 1972 (Breitel, J.). Petitioner seeks a writ of habeas corpus from this court, alleging as the sole basis therefor a denial of constitutional rights respecting allegedly tainted in-court identifications of petitioner at his trial. This issue was among those presented on appeal, so there is no doubt petitioner has exhausted available State court remedies. See United States ex rel. Johnson v. Vincent, 507 F.2d 1309, 1313 (2 Cir. 1974).

 The court, following the issuance of an order to show cause to the Attorney General of the State of New York, has received and reviewed the 400-page transcript of petitioner's four-day trial which commenced on February 2, 1970. The court is satisfied that this case presents no issue of material fact requiring an evidentiary hearing, 28 U.S.C. ┬ž 2243, and that, on the record presented, petitioner's application must be denied.


 On the evening of March 16, 1969 and the early morning hours of March 17, when the crime of which he was convicted occurred, petitioner claimed to be with his wife at a neighborhood bar and grill called the Shamrock in Woodhaven Queens. Trial Transcript 220-21 (hereafter "Tr. "). Briefly, his story, corroborated in every significant detail by his wife's testimony, was that petitioner and his wife had left their Woodhaven apartment early in the evening of March 16th, taking their child to his wife's mother's house overnight. They went out to eat at a Queens restaurant, in celebration of his wife's birthday, and thereafter went directly to the Shamrock where they stayed and drank from about midnight until 4:00 a.m. Then breakfast at a local diner was followed by a return home an hour or so later. No other witnesses were called to corroborate this story.

 The State's case presented quite a different picture of petitioner's activities during the evening. No fewer than four eyewitnesses placed him at the scene of a restaurant and bar called the Long Island Hofbrau ("Hofbrau") in Elmhurst, Queens, at some point in the early morning hours of March 17, 1969. Taken as a whole, the State's case was simply that petitioner was one of three men who entered the bar as customers at around 12:30 or 1:00 a.m., stayed until closing time -- about 3:00 a.m. -- and committed an armed robbery of the bar, the proceeds of which were in excess of $6,000.

 As of petitioner's trial, no other suspects had been apprehended for the crime. A review of the trial record makes it abundantly clear that the only issue in contention was the credibility of petitioner's alibi as matched against the eyewitness identifications at the scene of the crime. The State presented no other evidence which would tend to connect him with the crime.

 A. The Eyewitness Identifications at Trial

 Five persons present at the bar on the evening in question testified on the identification issue. Daniel Moran, owner and operator of the Hofbrau, was in the bar until 2:15 a.m. and saw three men enter the premises at about 12:30 a.m. Tr. 102, 105, 107. He could not recognize petitioner as one of the robbers, although "he looks like one of the men." Tr. 107.

 Matthew Moran, one of the bartenders, worked the entire evening shift. He was introduced to three men by the other bartender and conversed with them for around 15-20 minutes at about 1:30 a.m. Tr. 110. When the holdup occurred, one of the three men, with a gun in his hand, ordered the people still in the bar into the men's room. Tr. 118. The witness identified this person in court as petitioner, later saying he had no doubt petitioner was a participant in the crime. Tr. 111, 118. The witness also testified concerning his opportunity to observe petitioner during the robbery itself. Tr. 113. He also spoke to him while at the bar, from two or three feet away. Tr. 124, 128. The witness later supplied a description to the police that the robber was around 32, 5feet9inch-5feet10inch, 210-215 pounds, stocky, and that there was nothing unusual about his appearance. Tr. 125-28.

 Eric Jones, the other bartender on the night shift, recalled three men entering the bar at around 12:30 or 1:00 a.m., and identified petitioner as one of them. Tr. 130. He had also seen petitioner there at about the same time a week earlier, Tr. 130, 137-38. He introduced the men to the other bartender, Matthew Moran, served them drinks over a two-hour period, and conversed with them, at times being within two feet of petitioner. Tr. 131-32, 142. At the time of the holdup, petitioner approached the witness with a gun, put it up to the right side of his head, and ordered him into the men's room. Tr. 135. After the holdup, the witness described the robber to the police as being of medium height, dark hair, light complexion, and dressed in a suit, with nothing unusual about his appearance. Tr. 143, 144. Jones also indicated he had had two or three drinks himself during the evening and had discussed the events with the other witnesses, but was sure petitioner was one of the three men who executed the holdup. Tr. 150-54.

 Hugh McQuillan, the day bartender, was on the premises from about 1:00 a.m. to 2:00 a.m., and recalled three men entering after his arrival. Tr. 155. He identified petitioner as one of them, testifying that as petitioner came in he "touched me to excuse himself to pass." Tr. 156. He added that every time he looked petitioner's way, he found petitioner continuously watching him. Tr. 157. He had not seen the man before, and in response to a leading question as to whether there was "any doubt" in his mind that petitioner was one of the men he saw, replied: "He is one of the men I saw." Tr. 157. The witness had described the robber to police as a heavyset man, approximately 5 feet 10 inches, wearing a blue suit. Tr. 158-59.

 John Hust, a porter at the bar, went to work at about 1:00 a.m., but first saw petitioner at the time of the holdup. He was among those ordered into the men's room by petitioner. Tr. 163. In the men's room petitioner watched the occupants for about five minutes during the robbery, making various threats to them should anyone decide to talk. Tr. 165-66. The witness also testified to having seen petitioner in the bar at 2:00 a.m. the previous Sunday, when he had to get by him to reach an office key. Tr. 169. At closing time the previous week, the witness overheard a conversation among petitioner and two others which he interpreted as plotting to rob the bar. He warned the bartender and no holdup occurred. Tr. 170-71. In response to the same leading question asked of McQuillan, he testified: "This is the man." Tr. 171. He also testified that he was very close to petitioner just before the robbery and was very excited during it. He later described him to the police as stout, with dark hair. Tr. 176.

 Detective Joseph E. Price of the New York City Police Department investigated the robbery and took down descriptions given him by witnesses. Within an hour of the crime, both Jones and Matthew Moran described the heaviest of the three men as weighing 190 pounds, a 35-year old white male, dark hair, and wearing a tan sport jacket. Tr. 185-87. Neither witness reported anything unusual in their descriptions. Tr. 188-89. No discernible fingerprints were found during the processing of the bar. Tr. 205. Three days after the robbery Detective Price went back to the bar and again got descriptions from the witnesses. The heaviest of the men was described by Jones ...

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