The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
Petitioner Gerard E. Craft is presently incarcerated in the Clinton Correctional Facility, Dannemora, New York. He is serving a sentence of six to twenty years, imposed for a conviction of robbery in the first degree, with a concurrent sentence of up to four years, imposed for a conviction of grand larceny in the third degree. These prison terms were imposed on September 6, 1974 by the Hon. Angelo Ingrassia, Orange County Court. Petitioner had been convicted by a jury on both counts. Petitioner now contends that his confinement is in violation of the Constitution of the United States, and he presents two arguments in support of his claim. First, petitioner alleges that certain statements made by the prosecutor in his summation were improper, and thus denied petitioner a fair trial, which is guaranteed to all state court defendants under the Fourteenth Amendment. Second, petitioner alleges that the trial court erred in admitting testimony about an out-of-court "show-up" identification of the petitioner by the victim of the crime. This identification occurred approximately one hour after the crime.
For the reasons stated below, the application for writ of habeas corpus is denied.
On February 21, 1973, at approximately five o'clock in the evening, a black male dressed in blue denim pants and jacket, entered a gift shop in Pine Bush, New York. The shop was owned and operated by a Mr. Samuel Anderson. The denimclad man, ostensibly a customer, engaged in a few minutes of conversation with Mr. Anderson. Shortly thereafter, the supposed customer produced a knife, pulled it on Mr. Anderson, and demanded that he "get back to the cash register, give me the money." Anderson complied with this order, and, after reaching the cash register, and after having the knife put to his throat, he extracted between fifty and sixty dollars, which he turned over to the robber.
The robber then forced Anderson to the rear of the store, at knifepoint, where he attempted to tie him up. Instead of actually doing so, the robber ordered Anderson to enter a bathroom. However, before Anderson did so, the robber took from Anderson ten to twelve dollars in cash, a card case containing credit cards, a change purse, and the key to the store, which was on a key chain. After that, the robber ordered Anderson into the bathroom, slammed the door, placed some objects against it, and told Anderson to remain in the bathroom for four or five minutes or he would kill him. Anderson remained in the bathroom between five and ten minutes, then left. When he got to the front of the store, he saw that his phone line had been cut. He went next door and asked someone to call the police. The police arrived soon afterward, and Anderson described the robbery. The police and Anderson entered a police car and drove towards Walker Valley, New York. As the police car proceeded along Route 52, Anderson noticed a group of people standing around on the right side of the road. This group included some police officers. Anderson indicated that the man who robbed him was standing behind the hood of a car; this man was the petitioner, Gerard Craft. The police car stopped, and Anderson approached the vehicle where the alleged robber stood. There he observed on the hood of the car several items which had been taken from him, as well as the knife which the robber had used.
At trial, a taxi cab driver testified that he had picked up the petitioner at a gas station in Pine Bush, at about five-twenty to five twenty-five in the afternoon. The taxi cab driver testified that petitioner was dressed in dungaree pants and jacket, and that he had dropped petitioner off at the Walker Valley Post Office.
Further trial testimony was given by Investigator Francis Jennings of the New York State Police, who stated that he had received a report relating the commission of a robbery at Anderson's store, and that he had gone to Walker Valley to look for a suspect. Jennings testified that at about five fifty p.m. he had observed petitioner walking west on Route 52, dressed in dungaree pants and jacket and a dark colored shirt. Jennings testified that he had approached the petitioner, told him to put his hands on the police car, searched him, and found the various items which Anderson later identified as fruits of the robbery. Jennings also testified that, in addition, he had found both the knife which Anderson had identified as the weapon used in the crime, and a wallet containing over seventy dollars.
The petitioner testified at trial on his own behalf, stating that he had hitchhiked from Highland Falls to Pine Bush to attend a party, and that when he had reached Pine Bush, he had noticed a rip in his pants. He testified that he had gone to buy a new pair of pants, and after completing the purchase, had taken a taxi cab and given the driver directions. He testified that the cab ran out of gas, and had dropped him off, and that after walking for a while, he had discovered the items which were later found in his possession. Petitioner stated that he had had money on his person that day, but did not explain the source. He denied entering Anderson's store or robbing Anderson.
Karen Neuman, a sales clerk at Seymour's, a variety store in Pine Bush, testified that the petitioner had entered the store, bought the pants, and left without incident. She had been called as a defense witness, and stated that she had conversed with petitioner at the time of the sale, and that he had been friendly.
Petitioner was convicted of robbery in the first degree and grand larceny in the third degree. On October 7, 1975, the Appellate Division, Second Department, unanimously affirmed. Leave to appeal to the New York State Court of Appeals was denied on December 17, 1975. Petitioner has exhausted his available state remedies, and pursuant to 28 U.S.C. § 2254(b), is properly before this Court with his application for writ of habeas corpus.
I. The Claim of Improper Summation by the ...