The opinion of the court was delivered by: SOFAER
Petitioner Freddie Brockington, together with Theodore Washington and Michael Jones, was indicted and charged with robbery in the first degree, robbery in the second degree (two counts), assault in the second degree (two counts), grand larceny in the third degree and criminal possession of a weapon in the fourth degree. Michael Jones pleaded guilty to attempted robbery in the third degree. Petitioner and Washington pleaded not guilty and proceeded to a jury trial before Justice Florence Kelly in Supreme Court, New York County. Petitioner was represented by assigned counsel, who replaced another assigned attorney before trial. Defendant Washington was represented by privately retained counsel, who replaced an assigned attorney on the second day of trial. Both defendants were convicted of one count of robbery in the second degree,
and were sentenced as predicate felons to an indefinite term of imprisonment (from three years and nine months, to seven and one-half years).
Brockington appealed his conviction to the Appellate Division, First Department, which affirmed without opinion on October 12, 1978. The New York Court of Appeals denied leave to appeal. Petitioner now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. All issues raised in this proceeding were raised in petitioner's state court appeal, so he has exhausted state remedies.
The petition, filed pro se, challenges Brockington's conviction on several grounds. Some of the facts presented are troubling. The writ is denied, however, for the reasons that follow.
A. Effective Assistance of Counsel
Petitioner's first claim is that he was denied his right to the effective assistance of counsel. A determination of the effectiveness of counsel cannot be divorced from the factual situation with which counsel was confronted. When the prosecution has an overwhelming case there may be little that defense counsel can do. See United States v. Katz, 425 F.2d 928, 930 (2d Cir. 1970).
The case against Brockington was very strong. The evidence at trial established that, on November 17, 1975, at approximately 9:20 P.M., three individuals entered a Checker taxi driven by the complaining witness Kalman Jacobs. Jacobs drove his passengers to 25th Street and Lexington Avenue at their request. The trip took approximately 12 minutes, during which time Jacobs had ample opportunity to observe his passengers' faces. As the taxi approached its destination and stopped, one of the three men moved to the jump seat of the cab and struck Jacobs on the right side of his face with a blunt instrument. Another of the men hailed a second taxi while the third man went around to the driver's open window, reached inside and removed $ 65.00 in bills from Jacobs' shirt pocket.
Jacobs used an emergency button in his cab to radio his dispatcher, Stuart Fogler, that a robbery was in progress. Jacobs then observed his assailants enter the second taxi (six or so feet away) and radioed its location, operating company and number to Mr. Fogler, who wrote it down and radioed the police. Fogler also notified the second taxi's operating company and dispatched a general alert to all taxis in that area on his radio network.
Jacobs reentered his cab and pursued the second taxi. Its driver, David Kaplan, noticed the taxi following him and recognized Jacobs as the driver he had observed standing outside a taxi and speaking into his radio at 25th Street and Lexington. Jacobs later lost sight of the second taxi but kept in touch with Fogler by radio. Mr. Kaplan discharged his passengers at 57th Street and Third Avenue. Stephen Rosenthal, another taxi driver who belonged to Fogler's radio network, and had heard the robbery alert, saw the three assailants leave Kaplan's taxi, and run on 57th Street to a third cab, driven by Nicholas Topaloglou. Rosenthal followed the third cab, broadcasting his movements to his dispatcher until the third taxi was stopped by the police. The cab's passengers were Brockington, Washington and Jones, who were immediately arrested and taken to a station house.
At the station house, all three men were positively identified by Kalman Jacobs as his assailants. Jacobs specifically identified Brockington as the passenger who struck him. Topaloglou identified Brockington at trial as one of his three passengers when his taxi was stopped by the arresting officer. After Jacobs' identification at the station house, the three men were searched; $ 66.00 in crumpled bills was found, divided roughly evenly between them. The use of a blunt instrument was established at trial by Jacobs' testimony concerning the robbery sequence itself, as well as by his later visit to a physician for treatment of his injury. Additionally, the arresting officer testified that he observed Jacobs' injured face at the time of the identification.
Confronted with so strong and persuasive a case, the attorneys for petitioner and his co-defendant Washington presented a unified defense at trial. This defense "team" led by Washington's retained attorney, called no witnesses but pursued a coherent theory in their opening statements, cross-examinations and summations. Their strategy was to overcome the state's evidence of a robbery by suggesting to the jury that the defendants, both black, had merely quarreled with the white complainant whose later claim of a robbery was motivated by anger and racial prejudice. This strategy required that defendants concede through counsel that they were two of the three passengers in complainant's taxi at the time in question, a limited sacrifice in light of the State's overwhelming evidence establishing a chain of testimony identifying the defendants from the moment they left Jacobs' cab until their arrest.
In evaluating a claim of ineffective assistance of counsel, the Second Circuit has adhered to the stringent standard first enunciated thirty years ago in United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S. Ct. 478, 94 L. Ed. 586 (1950): Mere allegations of incompetency or insufficiency will not ordinarily suffice as grounds for issuing a writ of habeas corpus "unless the purported representation by counsel was such as to make the trial a farce and a mockery of justice." To reach constitutional dimensions, the representation must be so inadequate as to "shock the conscience of the Court." Indiviglio v. United States, 612 F.2d 624, 627 (2d Cir. 1979); United States v. Yanishefsky, 500 F.2d 1327, 1333 (2d Cir. 1974). Even assuming that the Second Circuit were to shift to the standard of "reasonable competence" adhered to by some other circuits, see United States v. Aulet, 618 F.2d 182, 187 - 190 (2d Cir. 1980), the same result would be proper here.
Petitioner's allegations fall far short of the requisite showing. His attorney formulated and pursued a rational and plausible defense theory, cross-examined the State's witnesses with vigor, made frequent objections and succeeded in obtaining acquittals on all but one of the counts ultimately sent to the jury. The record reveals that petitioner's counsel failed to prepare for trial, to conduct obvious factual and legal investigations, and to make important pre-trial motions. Though serious and unprofessional, these failures were insufficient in context to warrant relief. Thus, while counsel was late in making a motion under People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (1974), and was unprepared at the hearing,
petitioner has failed to establish any prejudice, since under New York law his lengthy record of theft-related offenses, as well as his one drug-related offense, were admissible to impeach his credibility as a witness in his own behalf. E. g., People v. Duffy, 36 N.Y.2d 258, 367 N.Y.S.2d 236, 326 N.E.2d 804, cert. denied, 423 U.S. 861, 96 S. Ct. 116, 46 L. Ed. 2d 88 (1975); People v. Sandoval, supra.
Petitioner's counsel also failed timely to move to suppress the money taken from Brockington at the station house, and thereby lost any opportunity thereafter to raise this claim.
Counsel had nothing to lose by timely moving to suppress, and his failure to do so was clearly a lapse in performance rather than a tactical judgment.
Nevertheless, counsel could reasonably have foregone making a motion to suppress at any time, since the record reveals overwhelming evidence of probable cause for petitioner's arrest. Had a timely motion to suppress been made, it would have been denied, so counsel's failure cannot be deemed prejudicial. See, e.g., United States v. Aulet, supra, pp. 190 - 191; United States v. Yanishefsky, supra. Finally, while counsel failed to conduct a vigorous Wade hearing,
petitioner suffered no actual prejudice, since petitioner's challenges to the identification procedure were sufficiently explored by his co-defendant's counsel, and by questions and comments from the bench. Justice Kelly concluded, in fact, that the identification procedure was suggestive, allowing Jacobs to testify to his station house identification only because the totality of the circumstances indicated his identification was reliable in spite of the suggestiveness of ...