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December 4, 1981

David DICKERSON, Petitioner,
Walter FOGG, Superintendent, Eastern Correctional Facility, Respondent

The opinion of the court was delivered by: LASKER

David Dickerson was convicted in the New York State courts of robbery in the first degree on November 18, 1977. He was sentenced to an indeterminate prison term with a minimum of five years and a maximum of fifteen years. He petitions for a writ of habeas corpus on the ground that his conviction was based on the unconstitutional admission of identification evidence secured through pretrial identification procedures which were so suggestive as to create a substantial likelihood of irreparable misidentification.


Robert Colon, Jr. ("Colon") works as a security supervisor for Sloan's Supermarkets. Part of his job is to respond to alarms at various Sloan's stores. On May 19, 1977, at approximately 4:00 A.M., he received a call at home to respond to an alarm at one of the stores. As he entered his car *fn1" on Jerome Avenue in the Bronx, a young man banged on the driver's window and pulled open the door. The man had a gun wrapped in a jacket. He ordered Colon to move over and open the front passenger door. Colon complied. As he was doing so, the first man took a seat behind the steering wheel, and another young man, since identified as Jeffrey Brown, entered the car through the passenger door. Colon then became aware that the rear doors were opening and that other people were entering and sitting on the back seat. Colon was told that it was a stick-up and the man in the driver's seat passed the gun to the man sitting behind him.

 After the car pulled away, the man sitting in back of Colon held a gun to his neck. When a police car came into view, the gun was held down and Colon was warned that he had better stay quiet because the gun could shoot through the seat. At another point, the men threatened to kill Colon because they thought he was a police officer. Sometime during the ride, Brown took Colon's money and jewelry. During the entire ride, Colon did not look into the back seat. (App. at 136-141, 164-168, 181).

 After proceeding for about seven or eight blocks, the car stopped and Brown let Colon out on the passenger's side. While walking back in the direction from which the car had been driven, Colon turned around and saw the left back seat passenger looking at him and trying to pull a hat down over his face. The hat came down only to the man's eyebrows. When Colon first saw this back seat passenger, the car was stationary. While he was watching, it began to pull away. (App. at 156-57, 182-85).

 Colon reported the robbery to the police, who sent a patrol car. While Colon could not remember what he was asked by the police and specifically whether he was asked for a description of his assailants (App. at 169-70), Officer Dugan testified that, before identifying Dickerson, Colon had described the robbers as "four young black males" (App. at 67-69).

 Some eighteen hours later, Police Officers James D. Dugan and Craig Moruzzi were on radio motor patrol on Seventh Avenue in Manhattan when they became suspicious of a car proceeding in the opposite direction. Moruzzi made a U-turn while Dugan radioed to determine whether the car was stolen. When they were informed that the vehicle was in fact stolen, they pulled up on its left and, at gunpoint, ordered the driver of the car to stop. Instead, the driver slid down in his seat below the window of the car and accelerated. The police chased the stolen car until it drove up behind a stopped car at the intersection of 153rd Street and Eighth Avenue. There the three occupants of the stolen car jumped out, fell to the ground, and then began running away. The stolen car itself crashed into another car stopped at the intersection. As the driver of the stolen car began to run, he first took a step toward the police car, and Officer Moruzzi again saw his face, as he had earlier when he had ordered the driver to pull the car over. Officers Moruzzi and Dugan chased the running men, Dugan chasing the front seat passenger and Moruzzi chasing the two men who had got out from the driver's side. Moruzzi was unable to apprehend the men he was chasing, but Dugan caught Jeffrey Brown. (App. at 12-19, 32-41, 83-89, 98-107, 113-25).

 The following night, May 20, 1977, Brown was arraigned in Manhattan Criminal Court. Earlier, the police had phoned Colon and told him that his car-which was the stolen car-had been recovered. They requested that he come to the Manhattan Criminal Court at 8:00 P.M. to sign a complaint. (App. at 148, 170, 188). Dugan went to the court for the arraignment of Brown and planned to meet Colon there. Prior to Colon's arrival, Dugan learned that two men and one or two women *fn2" had come to attend Brown's arraignment. *fn3" (App. at 21-23, 53-57). When Colon arrived, Dugan met him, wearing Colon's security badge which had been found in Colon's car. (App. at 189). He told Colon the details of Dugan's arrest of Brown, including the fact that the car had been damaged in the chase. He also advised Colon that there were some people in the courtroom who had come to attend Brown's arraignment and that Dugan would like to see if Colon could identify any of them, (App. at 55-57). *fn4" Dugan then took Colon to the courtroom where the people who had asked for Brown were seated, directed Colon's attention to the "one female and two males," (App. at 150, 190) and asked Colon to go into the courtroom to "see if (he) could identify anybody." (App. at 150). Colon went into the courtroom, walked down the middle of the aisle towards the front, and then returned. He told Dugan that he was "pretty sure" that one of the men was the man who had sat behind him in the car and held the gun to his neck. (App. at 153). He did not recognize the other man. Dugan sent Colon back into the courtroom with a court officer for a "better look." (App. at 153). This time, Colon returned stating that one of the men "looked just like" the back seat passenger. (App. at 154). The two men whom Colon had been observing at Dugan's instruction then left the courtroom. When they walked by the spot where Dugan and Colon were standing, Dugan asked Colon, "Is it him or not?" (App. at 154). Colon said "yes" as to one of the men and that he couldn't tell anything about the other man. Dugan then placed the man Colon had identified, David Dickerson, under arrest in Colon's presence. (App. at 154-55).

 Sometime after the Brown arraignment, Dugan discussed the case with Moruzzi, telling him of Colon's identification of Dickerson. (App. at 73-74, 127, 131-132). On June 14, 1977, Dugan showed Moruzzi seven police department arrest photographs of black males between the ages of 20 and 25. Each of the photographs bore the arrest dates of the subjects. Dugan asked Moruzzi if he could identify anyone or if he recognized anyone as the driver of the stolen vehicle who had not been apprehended on the night of the chase. Moruzzi identified the photos of Brown as the person who had been apprehended when they stopped the stolen car and of Dickerson as the driver of the car. Brown and Dickerson's pictures were the only ones bearing May, 1977, arrest dates. (App. at 28-32, 47, 75-76, 81-82, 91-92, 193).

 Prior to trial the state court held a hearing on Dickerson's motion to suppress the identifications made by Colon and Moruzzi. After eliciting testimony to establish the facts above, the court found that the circumstances surrounding Colon's identification of Dickerson at Brown's arraignment were "entirely without any suggestiveness" (App. at 215) and that the identification of Dickerson was based on Colon's observation on the night of the crime. The hearing court also found that Colon had given the police a description of Dickerson. (App. at 212). With respect to Moruzzi's identification, the court found the photographic array to be unnecessarily suggestive and suppressed it, but denied Dickerson's motion to suppress Moruzzi's in-court identification. The court found that Moruzzi had a sufficiently independent basis to render an identification, based on Moruzzi's testimony that he was able to identify the photograph because he recalled Dickerson's face from his observation on May 20th. (App. at 213).

 At trial, the state introduced Colon's arraignment identification as well as his in-court identification of Dickerson, and Moruzzi's in-court identification. In addition to the evidence adduced at the suppression hearing, Colon testified that the hat he had seen the back seat passenger pull down was a beach hat (Tr. at 86), and that he might have initially reported to police that he would be able to identify only two of his four assailants. (Tr. at 133-34). All that Colon recalled of his initial description to the police was that it referred to "four black males," the same description that Dugan testified he had received. (Tr. at 129-30).

 Dickerson was convicted. He appealed to the Appellate Division of New York, which affirmed the trial court by a vote of 3-2. People v. Dickerson, 67 A.D.2d 122, 414 N.Y.S.2d 712 (1979). The majority found that an independent basis for Colon's identification of Dickerson existed. It relied primarily on the fact that the car was stationary when Colon observed the back seat passenger and on Dickerson's description of the back seat passenger as a black man with a short afro and a little moustache. While the majority found the circumstances of Colon's identification of Dickerson "somewhat suggestive," id. at 124, 414 N.Y.S.2d 712, it considered the suggestiveness to be unoffensive since the police had no reason to suspect Dickerson or his companions and their request that Colon view them was accordingly a "shot in the dark." Id. at 124, 414 N.Y.S.2d 712. Furthermore, the majority found the short interval between the crime and the identification to be an index of reliability. The majority also found that the police did not intrude into Colon's process of identification and that Colon's failure immediately to give a positive identification "evince(d) a reflection which only serves to buttress the probability of a reliable identification." Id. at 124, 414 N.Y.S.2d 712. With respect to Moruzzi's identification, the court found that he had had a sufficient time to observe the driver of the car on the night of the car chase and that a sufficient basis independent of the photographic array existed for his identification. Id. at 126, 414 N.Y.S.2d 712.

 The dissenters contended that the confrontation at Brown's arraignment was impermissably suggestive and that Colon's identification was unreliable. The dissenters emphasized that Colon was directed to a small group including only two black males and that his first two identifications were not positive. Finally, the dissenters disagreed that Colon's opportunity to observe on the morning of the crime provided an independent basis for the identification, since he ...

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