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October 25, 1980

Seymour STYERS, Petitioner,
Harold SMITH, Superintendent, Attica Correctional Facility, Respondent

The opinion of the court was delivered by: ELFVIN


This is a proceeding for a writ of habeas corpus brought by petitioner, an inmate at the Attica (N.Y.) Correctional Facility, against respondent, the Superintendent of said facility.

 Petitioner was arrested in Buffalo, N.Y. December 28, 1973 and charged with two counts each of first degree robbery, second degree robbery, and possession of a dangerous weapon. The charges arose out of the robbery of Faso's Liquor Store ("the store") located at 207 Niagara Street in Buffalo by two armed men December 27, 1973. At a jury trial commencing June 24, 1974, petitioner was convicted of two counts of first degree robbery and possession of a dangerous weapon. Petitioner is currently serving indefinite terms of imprisonment not to exceed twenty-five years on the robbery charges and definite terms of imprisonment of one year on the weapons charges.

 In this proceeding, petitioner claims that his conviction was unconstitutionally obtained in that: (1) his Sixth Amendment and Fourteenth Amendment rights were violated by hearsay testimony at trial regarding conversations between police and an unidentified informant; (2) identification testimony obtained in violation of the Fourth and Fourteenth Amendments was introduced at trial; and (3) testimony concerning identifications of petitioner predicated upon impermissibly suggestive procedures was admitted by the trial court in violation of the Fourteenth Amendment. I have concluded that petitioner's Sixth Amendment claim warrants the relief requested herein.

 At about three o'clock in the afternoon of December 27, 1973, two men entered the store and inquired about various brands of whiskey. Stephen Faso, the store proprietor, and Paul Dodge, a friend of Faso's, were in the store at the time. The two men carried on brief conversations with both Dodge and Faso and then left the store after about five minutes, saying they had to call their sister about the purchase. Dodge watched the two men leave the store and saw them meet a third person on the corner. Shortly thereafter, the two men re-entered the store. One man, later alleged to be petitioner, approached Dodge, held a knife to his throat and took twenty-five dollars from him. The second man pulled a knife on Faso and took seventy-five dollars from the cash register. The robbery lasted about one to three minutes.

 Faso called the police immediately after the hold-up. Dodge and Faso described the robbers as follows: "a colored male twenty-five to thirty years old, five foot eight inches tall; a colored male about six foot, between twenty-five to thirty years old, wearing a black hat."

 The following day, Buffalo Police Officer Angelo Cannizzaro received a phone call from an informant saying that three persons had been involved in the robbery. Subsequently, Cannizzaro brought Dodge to the police station to examine photographs. Dodge identified a photograph of Anthony Burt as one of the robbers. Dodge was not shown photographs of either Vincent Burt or petitioner at this time. While Dodge was still at the police station, the informant called Cannizzaro a second time and said that two of the robbery participants were Vincent and Anthony Burt. The informant did not identify the third robber but said all three could be found at 47 Whitney Place in Buffalo at that moment. After receipt of the call, Cannizzaro informed Dodge that he was leaving to arrest the three robbers. Although Dodge stated to Cannizzaro that there were only two robbers, Cannizzaro and Detective DiPasquale went to 47 Whitney Place and arrested the two Burt brothers and petitioner.

 Cannizzaro returned to the police station with the three suspects who were immediately exhibited to Dodge. Dodge identified Vincent Burt and petitioner as the men who robbed the liquor store. Vincent Burt and petitioner were booked and photographed; the photographs were Polaroid color prints. Dodge made a statement at that time that Vincent Burt had been the robber who held a knife to his throat.

 DiPasquale and Dodge then went to the liquor store to have Faso examine the photographs. When they entered the store, Dodge told Faso that he had seen the two hold-up men at the police station. Dodge went to the rear of the store as DiPasquale showed Faso an array of photos. The array included the two Polaroid pictures of Vincent Burt and petitioner taken at the time of their arrests and several black and white mug shots of other persons. DiPasquale set all of the photos in front of Faso and asked "Are these the two fellows?", but did not specifically point out any two pictures. Faso selected the pictures of Vincent Burt and petitioner as those of the robbery participants.

 Anthony Burt was not charged with any crime in the robbery of the liquor store. Vincent Burt pled guilty to Third Degree Robbery as a result of the hold-up. Petitioner's essential position at trial was that he had been misidentified and that Anthony Burt had been the second robber.

 A pretrial hearing (hereinafter "the Wade hearing") was held June 13, 1974, before an Erie County Supreme Court Justice in order to determine the admissibility of testimony regarding identifications of petitioner by Dodge and Faso. Counsel for petitioner urged that such testimony should be excluded because the identifications were made under suggestive circumstances. Counsel also argued that the prosecution should be forced to disclose the identity of the informant whose calls had led to the arrest of petitioner. The judge ruled that the identification testimony by Dodge and Faso would be admissible and that disclosure of the informant's identity was unnecessary. Counsel did not raise the issue whether petitioner's arrest was without probable cause and whether Dodge's and Faso's identification testimony therefore should be excluded as fruit of the poisonous tree.

 At trial, Dodge and Faso identified petitioner as one of the robbery participants. Dodge also gave direct examination testimony concerning his identification of petitioner at the police station. Both witnesses were cross-examined extensively about their out-of-court identifications of petitioner and their testimony given at the Wade hearing. The identification testimony given by Dodge and Faso is somewhat confused. Both men testified that they knew the Burt brothers and petitioner by sight and that the Burts and petitioner had been customers in the store. *fn1" Yet, in initially describing the robbers to the police, Dodge and Faso failed to indicate that they were familiar with the robbers. *fn2" There is confusion regarding the basis for Dodge's identification of petitioner. Dodge initially relied upon a scar on petitioner's chin but also seemed to say that his recognition of petitioner was based on petitioner's sideburns and wide nose, and that Vincent Burt had a scar on his chin. *fn3" Dodge and Faso both identified petitioner as having been the robber who held a knife to Dodge's throat, but in a written statement made immediately after the police station identification, Dodge had said that Vincent Burt was that robber. *fn4" The identification testimony given by Dodge and Faso is further confused by Dodge's photographic identification of Anthony Burt prior to the show-up at the police station, *fn5" Dodge's initial in-court identification of Anthony Burt at the Wade hearing, *fn6" and Faso's initial selection of a photograph of Anthony Burt at the Wade hearing. *fn7"

 At trial, Cannizzaro testified as to the substance of his telephone conversations with the unidentified informant. *fn8" On cross-examination, Cannizzaro refused to disclose the identity of the informant and the court declined to order him to do so.

 On appeal, petitioner argued that the refusal of the trial court to order disclosure of the identity of the informant violated petitioner's rights to confrontation and due process. Petitioner also argued that the court should have suppressed the identification testimony because such testimony was the result of suggestive police procedures. For the first time, petitioner challenged the admissibility of the identification testimony on the grounds that it was the result of an arrest made without probable cause. The Appellate Division of the Supreme Court, Fourth Department, affirmed petitioner's conviction without opinion. People v. ...

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