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June 16, 1980

In the Matter of the Application of DONALD McINTOSH for a Writ of Habeas Corpus.

The opinion of the court was delivered by: LASKER

Donald McIntosh petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, on the grounds that he was incarcerated in violation of his due process rights.

At approximately 2:00 A.M. on July 16, 1977, three men armed with two revolvers and a shotgun entered a social club in White Plains, New York, and removed jewelry and personal property from the fifteen to thirty individuals there. About an hour and a half later, after the police had investigated, Doyle Roberts (the owner of the club), Willis Johnson, and several others, all of whom had witnessed the incident, went to police headquarters to view the suspects being held there. They told the police that those men were not the ones who had committed the crime.

Ten days later, Roberts was driving along a street at about 11:00 A.M. and saw standing in front of his building four men he believed to have been responsible for the robbery. *fn1" He called the police, who arrested the four men.

 Roberts notified Johnson *fn2" that the police had arrested the men Roberts believed to have committed the robbery, and both went to the police station to identify them. There they independently observed each suspect who was handcuffed and seated next to a police officer. McIntosh was identified by Roberts and Johnson as the robber who held a silver or white revolver.

 At trial in Westchester County Court, testimony as to this "showup" identification was ruled inadmissible, but Roberts and Johnson were permitted to identify McIntosh in court. The jury found him guilty on several counts of first and second degree robbery and second degree burglary, and he was sentenced to five to fifteen years imprisonment.

 I. The Admission of the Identification Testimony

 McIntosh argues that the in court identifications by Roberts and Johnson was tainted by the suggestive showup procedure, and that under the criteria established by the Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), and Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), those identifications were insufficiently reliable so that the failure to suppress that testimony violated his Fourteenth Amendment due process rights.

 In Manson v. Brathwaite, supra, the Court reaffirmed that an identification tainted by improper police procedures may nevertheless be admissible "so long as (it) possesses sufficient aspects of reliability." Id., 432 U.S. at 106, 97 S. Ct. at 2249 (footnote omitted). To determine that reliability, the factors set forth in Neil v. Biggers, supra, 409 U.S. at 199-200, 93 S. Ct. at 382 are weighed:

"These include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself."

 Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253.

 Although not disputing that Johnson's identification was tainted by the showup and is subject to this analysis, the State argues principally that Roberts' identification occurred when he spotted the group of men on the street and that unprovoked confrontation was not tainted by the police showup and not subject to the Manson and Biggers standard. McIntosh contends that at the time of the encounter on the street, Roberts identified only the "group" who robbed him, and did not identify McIntosh individually, and that Roberts' subsequent identification of him was impermissibly tainted by the suggestive showup procedure.

 Whether Roberts' identification of the group of men on the street failed to identify McIntosh individually need not be determined because the suggestive showup intervened between that street encounter and Roberts' identification of McIntosh before the jury. Since any identification subsequent to the showup was tainted by that suggestive procedure, the reliability of Roberts', as well as Johnson's, identification of McIntosh must be measured by the Manson and Biggers test.

 We find that both Roberts' and Johnson's identifications were sufficiently reliable so that their admission met the Manson and Biggers test and did not violate McIntosh's due process rights. Roberts and Johnson had ample opportunity to view McIntosh at the time of the crime. According to Roberts' testimony, the robbery lasted about ten minutes (T35; W9) *fn3" and to Johnson's, it lasted about five minutes (W73). Both testified that the room was well lighted. *fn4" Roberts was five to six feet from McIntosh at the time (W8) and was looking from one of the robbers to another throughout the incident (W10). Although for part of the time the man he believed to be McIntosh was standing behind him, Johnson testified that the man was as close as one foot pointing a revolver in his side (T94; W73) and that he was able to observe him (T98; W73).

 As to their degree of attention during the crime, both Roberts and Johnson were anything but "a casual or passing observer." Manson, supra, at 115, 97 S. Ct. at 2253. As Roberts testified, he was looking from one of the robbers to the other throughout the time they were in the club ...

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