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October 25, 1982

DALLAS SIMON, Petitioner, against ROBERT H. KUHLMAN, Superintendent, Woodbourne Correctional Facility, Respondent.

The opinion of the court was delivered by: CONNER



Petitioner Dallas Simon ("Simon") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Simon originally filed his petition in this Court in 1978 attacking his August 9, 1974 conviction for first-degree robbery, possession of weapons and reckless endangermant in the first degree. In his first submission, Simon claimed (1) that his conviction was obtained as a result of improper identification procedures; and (2) that the jurors at his state court trial improperly considered evidence outside the record by conducting an experiment. This Court, in an Opinion and Order dated November 7, 1979, rejected Simon's first claim. As to the second claim, however, the Court ordered an evidentiary hearing to ascertain the nature and extent of the alleged experiment so that a determination could be made as to whether the alleged experiment amounted to a deprivation of constitutional rights.

 At the request of the Monroe County Assistant District Attorney, the hearing was transferred to the Monroe County Court, Rochester, New York, for the convenience of the prospective witnesses. On May 7, 1980, the Honorable Hyman T. Maas conducted the hearing, at which time Simon was represented by the Monroe County public defender. *fn1" Judge Maas issued his findings of fact on June 23, 1982. The case is currently before the Court for review of Simon's claim in light of that hearing. After reviewing the findings, the hearing transcript, the trial transcript and the submissions of the parties, the Court concludes that the petition must be denied.


 The evidence at Simon's trial can be summarized as follows: *fn2"

 The State's Case

 A. The Victim's Testimony

 Eve Clements, the proprietor of "Eve's Birdland," a restaurant located at 368 Hudson Avenue, in Rochester, New York, testified that shortly after midnight on the morning of December 28, 1973, she was standing behind the counter in her restaurant, near the cash register, when a man, whom she identified at trial as Simon, came into the restaurant, walked up to where she was standing, pointed a gun at her stomach, and demanded money from her. At the time of the attempted robbery, two customers were seated at the counter directly in front of Mrs. Clements: Sheila Strother, a part-time employee at Eve's Birdland who was not working at the restaurant on that evening, and James Thompson. Mrs. Clements told the robber that her money was in a money bag in a back room of the restaurant. Just as the robber was making his way to the back room to get the money bag, a police officer entered the restaurant. The robber came out of the back room, walked past the police officer and out of the restaurant and the police officer followed him.

 Mrs. Clements testified that the lights in the restaurant were on at the time of the attempted robbery; that, in total, the robber was in the restaurant for one and one-half to two minutes; that for much of that time he was only three feet from her and faced her directly; and that he wore a long tan overcoat and a very sheer stocking over his face, through which she was able to see that he had a moustache, a beard and that his hair was in braids. Mrs. Clements testified that she recognized the robber as someone whom she had seen in her restaurant on a prior occasion. When asked whether she had any question in her mind that Simon was the man who attempted to rob her on the night in question, Mrs. Clements said: "No, sir, there is no question about it."

 On cross-examination, Mrs. Clements testified that after the attempted robbery, she went down to police headquarters where a police officer asked her to look at several photographs of Black men and thereafter, she was asked to identify a man who was being held in a room at the stationhouse. On redirect examination, she testified that she immediately selected Simon's photograph from the four or five photographs that she was shown and that when she was asked to identify a man seated alone in a room at the police station, she was immediately able to identify him as the man who had attempted to rob her earlier that morning.

 B. Miss Strother's Testimony

 Miss Strother testified that the robber was in the restaurant for approximately fifteen minutes; that he wore a brown coat, dark, baggy pants, and sheer brown stocking over his face, which did not obstruct her view of his facial characteristics, including his moustache, long sideburns, and braided hair. At trial, she identified a coat which had been recovered by the police near the location of the restaurant as the coat worn by ...

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