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March 9, 1982

ROBERT CARTER, Petitioner,
CHARLES SCULLY, Superintendent, Green Haven Correctional Facility, Respondent

The opinion of the court was delivered by: SWEET


 Petitioner Robert Carter ("Carter") seeks a writ of habeas corpus, pursuant to 28 U.S.C. ยง 2254, to set aside a judgment of conviction upon charges of murder in the second degree, assault in the first degree and possession of a weapon as a felony, entered by Honorable William Kapelman, after a jury trial on March 4-15, 1974. There being no factual issue presented, a hearing on the petition was held on December 4, 1981. For the reasons set forth below, Carter's petition is denied.

 Carter's conviction was unanimously affirmed without opinion on May 22, 1980, by the Appellate Division, First Department of the New York State Supreme Court. Leave to appeal to the New York Court of Appeals was subsequently denied and Carter is presently serving his sentence of concurrent terms of twenty years to life, and up to five and ten years on the three counts.

 Carter claims first, that the identification by Hubren Davis ("Davis"), the only eyewitness, was irreparably tainted by an impermissibly suggestive photo show-up, and second, that a reference to "mug shots" by a witness prejudiced the jury beyond the repair of a curative instruction. Carter raised the first claim at a pretrial Wade1 hearing, at which time the trial judge ruled that the eyewitness identification was admissible.

 Davis testified that he left his apartment when Carter and Benny Kelly ("Kelly"), an acquaintance of Davis and an unknown male, arrived at his door, that he returned approximately ten minutes later to find them handling drugs, and that after Kelly put the drugs into two plastic bags, the unknown male demanded both bags, then shot Kelly and ordered Davis to lie on the floor, a position from which he could see the assailant search the apartment and Kelly's body, after which he shot Davis in the neck and left the apartment. At the trial Davis identified Carter as the unknown male. Acquaintances of both Carter and Kelly placed the two together earlier on the night of the murder.

 Carter now contests the outcome of the Wade hearing, which permitted the in court identification. Davis testified that he had never seen the assailant before the night of the murder. The investigating officer, Detective Hallinan ("Hallinan"), testified that on the morning after the shooting he showed Davis, then in the hospital, a single color photograph of Carter, to which Davis responded "Yes, he's the dude that shot Benny and me." At the Wade hearing and at trial, Davis did not recall being shown a single photograph. In addition, Davis acknowledged that he had been addicted to heroin, although the record is unclear about whether and for how long he had been off the drug before he was shot. Carter contends that all subsequent identifications, including a photo line-up and an in-court identification, were irreparably tainted by the photo show-up and that the in-court identification should have been suppressed.

 The Supreme Court has recognized that in some instances eyewitness identifications based on suggestive procedures, such as show-ups, may undermine the reliability of eyewitness identifications, making the identifications inadmissible. United States v. Wade, 388 U.S. 218, 229-35, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), Gilbert v. California, 388 U.S. 263, 269-74, 87 S. Ct. 1951, 18 L. Ed. 2d 1178, (1967), Foster v. California, 394 U.S. 440, 442 n.2, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969). However, as the New York Court of Appeals later perceived, "the rule excluding improper showups and evidence derived therefrom is different in both purpose and effect from the exclusionary rule applicable to confessions and the fruits of searches and seizures." People v. Adams, 53 N.Y.2d 241, 250, 440 N.Y.S.2d 902, 423 N.E.2d 379 (1981). In Fourth and Fifth Amendment cases, illegally obtained evidence is suppressed even though it may otherwise be reliable evidence of guilt. See Manson v. Brathwaite, 432 U.S. 98, 113 n.13, 97 S. Ct. 2243, 53 L. Ed. 2d 140, (1976). The exclusion of evidence based on improper pretrial identifications, however, is based on the reliability of the evidence itself. "It is the likelihood of misidentification which violates a defendant's right to due process," Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), (emphasis added), rather than the manner in which the evidence was obtained.

Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive confrontations are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall [ v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967)] makes clear, the admission of evidence of a showup without more does not violate due process.

 Id., 409 U.S. at 198. Thus a suggestive pre-indictment identification, unlike a warrantless search, does not itself intrude upon a constitutionally protected interest.

 Instead of a strict exclusionary rule in this area

convictions based on witness identification at trial following photo identifications will be set aside only if the photo identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

 Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). This analysis has been further refined requiring courts to consider whether, despite a suggestive confrontation, an identification is reliable under "the totality of circumstances." Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375. Factors to be weighed against the corrupting effect of the suggestive confrontation include

the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, ...

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