The opinion of the court was delivered by: POLLACK
MILTON POLLACK, District Judge.
Milton Pollack, District Judge.
Petitioner Michael Doyle, a state prisoner, seeks a writ of habeas corpus setting aside the judgment of his conviction by a jury in State Supreme Court, New York County, on two counts of assault in the first degree, two counts of assault in the second degree, and riot in the first degree. He was sentenced as a youthful offender to concurrent indeterminate four year terms on all counts. Doyle was also later convicted of offenses with which he was charged in Supreme Court, Bronx County, for which he received a sentence to run consecutive to the New York County judgment.
Doyle's conviction in New York County arose out of an attack of black people by a mob of more than fifty youths in Washington Square Park on September 8, 1976. Doyle moved in state court prior to trial to suppress identification testimony on the ground that the identification procedures used were unduly suggestive. The motion was denied. The name of the witness who made the identification was not disclosed to the petitioner at that time.
Following his conviction on March 15, 1978 Doyle appealed to the New York Supreme Court, Appellate Division, First Department. The appellate court remanded the case with instructions to reopen the suppression hearing on the ground that the trial judge should have reopened this hearing when the name of the identifying witness was revealed at trial. At this new hearing, the trial judge found that the identification procedure did not create a very substantial likelihood of misidentification.
Doyle again appealed. This time the Appellate Division affirmed the conviction by a divided court, one judge dissenting and stating that the evidence against Doyle was insufficient for conviction. Leave to appeal to the New York Court of Appeals was denied.
Three grounds are asserted for issuance of the writ:
(1) That the evidence presented at the trial was insufficient as a matter of law to establish his guilt beyond a reasonable doubt;
(2) That the procedures used at the line-up at which he was identified were violative of his Sixth Amendment right to counsel;
(3) That a photo identification procedure undertaken prior to the line-up was impermissibly suggestive and was violative of the Fourth Amendment because photographs were ...