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October 12, 1979

CARLOS GONZALEZ, Plaintiff, against EDWARD HAMMOCK, Defendant.

The opinion of the court was delivered by: WERKER

Pro se petitioner Carlos Gonzalez, seeking release from the supervision of the Parole Board, *fn1" commenced this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. He claims that his conviction was obtained in violation of the fourteenth amendment to the Constitution of the United States. The substance of his claims *fn2" is that the admission at trial of a pretrial eyewitness identification made during a precinct house showup was so impermissibly suggestive and unreliable that it created a "substantial likelihood of irreparable misidentification," Manson v. Brathwaite, 432 U.S. 98, 107, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), therefore violating his right to due process of law.

Petitioner was convicted of two counts of robbery in the first degree, N.Y. Penal Law § 160.15, by a jury in New York Supreme Court, Bronx County on May 27, 1976. He was sentenced to an indeterminate prison term of five to ten years. On direct appeal, he presented his due process arguments to both the Appellate Division, First Department and the New York Court of Appeals. Both courts rejected his arguments. People v. Gonzalez, 61 A.D.2d 666, 403 N.Y.S.2d 514 (1st Dep't 1978), Aff'd mem., 46 N.Y.2d 1011, 416 N.Y.S.2d 239, 389 N.E.2d 834 (1979). Because the claims raised in this petition have been presented and rejected on direct appeal, the § 2254(b) *fn3" and (c) *fn4" exhaustion dictates have been satisfied. See Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); Wilson v. Fogg, 571 F.2d 91, 92-93 (2d Cir. 1978); Fielding v. LeFevre, 548 F.2d 1102, 1106-07 (2d Cir. 1977).

 Because petitioner was apprehended in the "getaway car" shortly after the robbery, the issue *fn5" at trial was whether he was an active participant, the shotgun-toting third man, or merely an uninvolved fourth occupant of the car. The only direct evidence of his active participation is the allegedly suggestive and unreliable identification by one attendant and a sketchy description by the other attendant that could fit another participant as well. For this reason, a careful examination of the facts surrounding the identification and the application of federal constitutional law to such situations is necessary. *fn6"


 At approximately 10:20 p.m. on July 18, 1975, three armed men robbed two attendants, Francisco Acevedo and Erald Grant, of a gas station in the Bronx. According to their testimony a tall thin man with glasses (Jesus Velez) forced Acevedo to hand over his money and to walk toward the station office door (W. 22-28). *fn7" Meanwhile, a short dark-skinned man (James Devia) (W. 157-60) and then Velez (W. 162-65) similarly coerced Grant. As each attendant separately made his way to the office, he passed a third man with a shotgun. Acevedo passed him at a distance of about nine feet (W. 48) and managed a two-second glimpse (W. 29-30). Although the station was reasonably well-lit (W. 53, 55), a dungaree hat pulled low over the third man's face denied Acevedo a good facial view (W. 62, 102). Grant was also afforded a glimpse of the third man for only two seconds (W. 210) from a distance of approximately four feet (W. 180). When Grant met Acevedo at the office door, they turned and saw the three men enter a gold car and speed off (W. 38, 212).

 Meanwhile, Officer Moroney saw the gold car pass through a red light and then noticed the attendants yelling (W. 279-80). He chased the car at high speed for some ten blocks until traffic forced it to stop (W. 281). *fn8" As the gold car stopped, both doors swung open, Devia exited from the passenger side firing a .45 calibre pistol (W. 283) and Oscar Rodriguez exited from the driver's side firing the shotgun allegedly used by the third man (W. 284). Devia was quickly killed (W. 283). Rodriguez was wounded, dropped the shotgun and fled firing a small handgun (W. 284). He was not apprehended until later that evening (W. 345, Tr. 451). Meanwhile, Detective Martone had arrived in another police car. He jumped onto the rear of the gold car and ordered the two remaining occupants to freeze (W. 286, Tr. 230). He testified that petitioner threw a shiny object to the front of the car (Tr. 230). The .22 calibre pistol allegedly used by Devia was later found in the front seat (Tr. 283). Velez and petitioner were arrested and brought to the precinct. The shotgun, the .22 and the .45 were recovered but, regrettably, no attempt was made to check for fingerprints (Tr. 284). *fn9"

 Sometime between 10:30 and 11:00 p.m. two unidentified police officers took Grant to the precinct. Although they did not talk to Grant during the trip (W. 215-16), he was aware that his apprehension concerned the robbery (Tr. 292-93). At the precinct he was left unattended in an upstairs office. Shortly after 11:00 p.m. he was joined by Acevedo. Unlike Grant, Acevedo had been told that the police "got one, one (got) killed, one got shot and two inside." (W. 41, 65). Although he waited awhile with Grant, they testified that they did not discuss the robbery (W. 219) nor were they questioned (W. 65-66, 215-16, 219) by the police present on that floor (W. 270, 274).

 Meanwhile, Officer Moroney had brought Velez and petitioner up to the same floor in handcuffs. As he questioned them in an adjoining room, Grant (W. 228) and later, Acevedo (W. 218) watched. Moroney eventually locked Velez in a cell between the two rooms and took petitioner into a third room (W. 290-91), still in view of Grant and Acevedo (W. 229, 333). Both Grant (W. 241, Tr. 397) and Moroney (W. 347) testified that no one in the offices resembled the prisoners. At approximately midnight, Moroney left petitioner in the third room, walked into the middle room and noticed Grant and Acevedo for the first time (W. 292). *fn10" Upon questioning them, he elicited a description of Devia (W. 335). When asked to describe the other two men, however, Grant instead indicated Velez (W. 294, 335) and then petitioner (W. 294, 336, Tr. 398, 437). Acevedo concurred in Grant's identification of Velez (W. 336) but did not make a positive identification of petitioner (W. 45). Eight months later, at the Wade hearing, neither attendant could identify petitioner (W. 48, 196). *fn11" Acevedo described him as average height (W. 40) with an Afro-style haircut and wearing a dungaree hat, a white T-shirt and dungarees (W. 45). Grant could describe him only as light skinned and short (W. 180), about five feet tall (W. 199).

 Contrary to the summary conclusion of the Appellate Division, People v. Gonzalez, 61 A.D.2d at 670, 403 N.Y.S.2d at 516, confusing petitioner with Rodriguez as the third man is quite possible. Rodriguez was described as a male hispanic, about 5'7, light skinned, short haired and wearing a white dashiki. *fn12" Petitioner is a male hispanic, 5'7 tall. *fn13" At the time of arrest he had a short Afro-style haircut and wore a white T-shirt. In light of the possibility of misidentification and the less than detailed state court examination of the constitutional issues, a more thorough examination is in order.


 Unlike other constitutional exclusionary rules, the due process test for eyewitness identification is not designed to deter untoward police conduct. Instead, "the central question (is) whether under the "totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive." Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401 (1972); Accord, Manson v. Brathwaite, 432 U.S. at 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 . Therefore, the Supreme Court has established a two-step test which requires first an investigation to determine whether the identification was impermissibly suggestive and, if so, whether it was thus so unreliable to raise "a substantial likelihood of irreparable misidentification." Manson v. Brathwaite, 432 U.S. at 107, 97 S. Ct. at 2249; Neil v. Biggers, 409 U.S. at 188, 93 S. Ct. 375, 34 L. Ed. 2d 401; Jackson v. Fogg, 589 F.2d 108, 111 (2d Cir. 1978). The Biggers court listed five factors to consider when ascertaining reliability: a) the opportunity of the witness to view the suspect at the time of the crime; b) the witness' degree of attention; c) the accuracy of the witness' prior description; d) his level of certainty at the confrontation; and e) the lapse of time between the crime and the confrontation. 409 U.S. at 199-200, 93 S. Ct. 375. The Manson court further weighed these factors against "the corrupting effect of the suggestive identification itself." 432 U.S. at 114, 97 S. Ct. at 2253.


 I find the prolonged opportunity of the witness to view petitioner handcuffed and under interrogation in the stationhouse, in the presence of no other possible suspects but Velez, to be impermissibly suggestive.

 Although a showup, "without more," does not violate due process, Neil v. Biggers, 409 U.S. at 188, 93 S. Ct. 375, 34 L. Ed. 2d 401, its use, especially in a police station when less suggestive methods are available, has generally been condemned as the least reliable form of eyewitness identification. See e.g., Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); United States v. Wade, 388 U.S. 218, 234, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Jackson v. Fogg, 465 F. Supp. 177, 185 (S.D.N.Y.), Aff'd, 589 F.2d 108 (2d Cir. 1978). Furthermore, this is not a case of a showup "without more." Although Grant was not specifically told: "(H)ere is the perpetrator, identify him," he was the recipient of many elements of suggestion, which "can be created intentionally or unintentionally in many subtle ways." United States v. Wade, 388 U.S. 218, 229, 87 S. Ct. 1926, 1933, 18 L. Ed. 2d 1149 (1967). He had been told by his manager that he was to go to the precinct to discuss the robbery (Tr. 292-93); he was asked by Officer Moroney (while petitioner was visible in an adjoining room) if he saw anybody who was involved in the robbery (W. 273); he had a prolonged opportunity to ...

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