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November 7, 1979

DALLAS SIMON, Petitioner, against ROBERT H. KUHLMAN, Superintendent, Woodbourne Correctional Facility, Respondent.

The opinion of the court was delivered by: CONNER


This is a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254.

 Petitioner is presently confined at Woodbourne Correctional Facility pursuant to a judgment of conviction rendered on August 9, 1974 in the Monroe County Court convicting him, following a jury trial, of attempted first-degree robbery, possession of weapons and reckless endangerment in the first degree. Petitioner's conviction was affirmed without opinion by the Fourth Department on October 24, 1975, and leave to appeal to the New York Court of Appeals was denied on December 11, 1975. Petitioner subsequently moved, pursuant to New York Criminal Practice Law § 440.10, to vacate the judgment of conviction or for a new trial. The trial court denied petitioner's motion without conducting a hearing and leave to appeal to the Appellate Division was denied on May 11, 1977.

 In the instant application, petitioner claims (1) that his conviction was obtained as a result of improper identification procedures; and (2) that the jurors at petitioner's state-court trial improperly considered evidence outside the record. As the claims turn on the facts, this Court must first review the relevant testimony at the jury trial and at the Wade *fn1" hearing held to determine the constitutionality of the identification procedure.

 The State's Case

 A. The Victim's Testimony

 Mrs. Eve Clements, the proprietor of "Eve's Birdland," a restaurant located at 368 Hudson Avenue in Rochester, New York, testified that shortly after midnight on the morning of December 28, 1973, she was standing behind the counter in her restaurant, near to the cash register, when a man, whom she identified at trial as petitioner, came into the restaurant, walked up to where she was standing, pointed a gun at her stomach, and demanded money from her. At the time of the attempted robbery, two customers were seated at the counter directly in front of Mrs. Clements: Miss Sheila Strother, a part-time employee at Eve's Birdland who was not working at the restaurant on that evening; and Mr. James Thompson. Mrs. Clements told the robber that her money was in a money bag in a back room of the restaurant. Just as the robber was making his way to the back room to get the money bag, a police officer entered the restaurant. The robber came out of the back room, walked past the police officer and out of the restaurant and the police officer followed him.

 Mrs. Clements testified that the lights in the restaurant were on at the time of the attempted robbery; that, in total, the robber was in the restaurant for one and a half to two minutes; that for much of that time he was only three feet from her and faced her directly; and that he wore a long tan overcoat and a very sheer stocking over his face, through which she was able to see that he had a moustache, a beard and that his hair was in braids. Mrs. Clements testified that she recognized the robber as someone whom she had seen in her restaurant on a prior occasion. When asked whether she had any question in her mind that petitioner was the man who attempted to rob her on the night in question, Mrs. Clements said: "No, sir, there is no question about it."

 On cross-examination, Mrs. Clements testified that after the attempted robbery, she went down to police headquarters where a police officer asked her to look at several photographs of black men and thereafter, she was asked to identify a man who was being held in a room at the station-house. On redirect examination, she testified that she immediately selected petitioner's photograph from the four or five photographs that she was shown and that when she was asked to identify a man seated alone in a room at the police station, she was immediately able to identify him as the man who had attempted to rob her earlier that morning.

 B. Miss Strother's Testimony

 Miss Strother testified that the robber was in the restaurant for approximately fifteen minutes; that he wore a brown coat, dark, baggy pants, and a sheer brown stocking over his face, which did not obstruct her view of his facial characteristics, including his moustache, long sideburns, and braided hair. At trial, she identified a coat which had been recovered by the police near the location of the restaurant as the coat worn by the robber on the night in question; she also identified petitioner as the man who attempted to rob Mrs. Clements.

 C. Officer Perry's Testimony

 Officer Robert Lee Perry testified that he entered Eve's Birdland shortly after midnight on December 28 to use the telephone and that as he approached the counter a man wearing a very sheer stocking cap and holding a gun in his pocket passed by him. Officer Perry testified that he and the robber were face to face for fifteen to twenty seconds and that Officer Perry recognized the robber as an individual whom he had seen on eight or nine previous occasions, the most recent being two weeks prior to that morning. The robber had a moustache and long sideburns and he was wearing a black hat, blue jeans, and a brown knee-length overcoat.

 Officer Perry pursued the robber for about ten minutes, during which time the police officer and the robber exchanged gun shots. Officer Perry testified that from the time the robber left Eve's Birdland to the time he was captured in a house on Putnam Street, the robber was always in the police officer's view with the exception of two occasions. On the first occasion, Officer Perry lost sight of the man when he climbed over a fence near Cleveland Street, but the police officer ran around to where he thought the man might reappear and observed him removing the brown overcoat. The stocking cap and the black hat which Officer Perry had seen the man wearing earlier were gone, however. The man then ran into the backyards between Hudson Avenue and Putnam Street and Officer Perry got into his vehicle and drove around the corner to Putnam Street. When he left his car and walked down Putnam Street, Officer Perry saw the man walking toward the rear of 4 Putnam Street. By that time, several additional police officers had arrived and together with Officer Perry they entered the house and found petitioner fully clothed and under the covers in a bed in the house. The police officers found forty-five dollars which belonged to petitioner in that bedroom.

 Another police officer, Officer Brighton, testified that he found a gun and a brown coat during a search of the area surrounding ...

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