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LOZADO v. LEFEVRE

February 15, 1984

JESUS LOZADO, Petitioner, against EUGENE S. LeFEVRE, Superintendent, Clinton Correctional Facility, Dannemora, New York and ROBERT ABRAMS, Attorney General of the State of New York, Respondents


The opinion of the court was delivered by: WARD

WARD, J.

Pro se petitioner Jesus Lozado seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.Petitioner has exhausted his available state court remedies, and so may properly petition this Court for habeas corpus relief. He has, however, failed to demonstrate any error of sufficient constitutional dimension to warrant such relief. Accordingly, the application is denied and the petition is dismissed.

 BACKGROUND

 On June 21, 1979, Lozado was convicted, following a jury trial in the Supreme Court of the State of New York, Bronx County (Zimmerman, J.), on two counts of robbery in the second degree, see N.Y. Penal Law § 160.10, and one count of assault in the second degree, see N.Y. Penal Law § 120.05. Lozado was sentenced to three concurrent terms of from seven and one-half to fifteen years, which he is currently serving at Clinton Correctional Facility in Dannemora, New York.

 Following his conviction, petitioner appealed to the New York Supreme Court, Appellate Division, First Department, asserting the same constitutional argument that forms the basis of the instant petition. On September 29, 1981, the Appellate Division unanimously affirmed the conviction, without opinion; the New York Court of Appeals denied leave to appeal on November 20, 1981 (Jasen, J.). Lozado thereafter filed the instant petition for a writ of habeas corpus, which is his first such application to a federal court.

 Petitioner's conviction is based on the violent mugging of one Leah Hirschtritt in the Bronx, New York on December 12, 1978. Hirschtritt was accosted in the lobby of her apartment building by a lone man, whom both Hirschtritt and another witness identified at trial as petitioner. After a brief struggle, the man fled with Hirschtritt's purse. Hirschtritt gave chase, accompanied by the female neighbor who had witnessed the mugging. After another violent exchange with her assailant, Hirschtritt followed him out of her apartment building. Once outside, the assailant handed Hirschtritt's purse to another man, and both men fled separately. Shortly after the robbery, two police officers, apparently assisted by another local resident, apprehended one William Lopez. Lopez was carrying Hirschtritt's purse, and was immediately identified by Hirschtritt as the man whom she had seen receive and flee with the purse. Lopez later pleaded guilty to a charge of second degree robbery, and was sentenced to a term of one and one-half to four and one-half years of incarceration.

 THE INSTANT PETITION

 Lozado's petition for a writ of habeas corpus sets forth a single challenge to his state-court conviction. That challenge is based primarily on the admission at trial of testimony from the police officer who arrested William Lopez, regarding the officer's report of Lopez" arrest. The officer testified that Lozado's name was listed on the report as an "associate of the defendant," although Lozado's name was subsequently crossed out. Petitioner now contends that his name could have been listed on Lopez" report only as a result of hearsay statements made by Lopez upon his arrest. The admission of testimony regarding that part of Lopez" arrest report is therefore said to have deprived Lozado of his right to confront and cross-examine an accuser, Lopez, in violation of the Sixth and Fourteenth Amendments to the United States Constitution. That denial also allegedly deprived petitioner of his due process right to a fair trial.

 A. The Challenged Testimony

 Lopez was apprehended near the scene of the robbery, and arrested shortly thereafter, by officer Bart Higgins, of the New York City Police Department. On direct examination by the People, Officer Higgins described the circumstances of Lopez" arrest and arraignment, as well as the subsequent referral of the case to the Senior Citizens Robbery Unit of the local police precinct. He also testified regarding his conversation with witnesses, his own observations at the crime scene, and his observations of Lozado's physical appearance when the latter was arrested one week after the crime.

 During cross-examination of Officer Higgins, petitioner's counsel questioned the witness at length about the report Officer Higgins had completed when Lopez was arrested. The Assistant District Attorney had not referred to that report on direct or redirect examination, nor sought to introduce it into evidence. This cross-examination was apparently intended to highlight supposed contradictions between the testimony given by various witnessses at trial, including Higgins, and the version of events described to Higgins by witnesses on the day of the robbery. At trial, the witnesses unanimously described a robbery committed by two persons: one assaulting Hirschtritt and taking her purse, and the other subsequently fleeing with the purse. Lopez" arrest report, however, is worded in a way that seems to suggest that both perpetrators committed each act in the chain of events. Officer Higgins offered an entirely reasonable explanation for his narrative on Lopez" arrest report; one which the jury apparently found satisfactory.

 More important for present purposes, however, is the direct examination of Officer Higgins that followed the recross-examination. The Assistant District Attorney directed his questioning to a single fact: that the name China Lozado was listed on Lopez" arrest report under the heading "associates" of the arrestee. Defense counsel immediately objected, albeit in a somewhat ill-focused manner. In a colloquy at the side-bar, in which the objection was implicitly overruled, the trial court offered to give a curative instruction to the jury, and suggested that defense counsel was free to question Higgins more directly on the Lopez" arrest report. Defense counsel declined the curative instruction, indicating that he did not wish to highlight the damaging testimony. He nonetheless questioned Higgins once more to establish that Lozado's name had been crossed out on Lopez" arrest report. Higgins explained that after he had filled out the report he had been informed that only persons actually arrested with the subject arrestee were to be listed as "associates."

 Although not explicitly challenged here, other testimony and statements made at Lozado's trial are relevant to the instant petition, and were challenged by Lozado on his direct appeal. Construing the pro se application liberally, the Court views those other matters as within the scope of the petition.These matters relate to the fact that the name of Lopez" arrest report was not "Jesus Lozado," petitioner's legal name, but "China Lozado." Despite the best efforts of defense counsel at trial, the Assistant District Attorney managed to remove any doubt that "China" was petitioner's nickname. Over the objections of defense counsel, the prosecutor questioned Detective John Moretti, who had arrested Lozado one week after the robbery, as to whether Lozado had disclosed a nickname to Detective Moretti. Moretti testified that Lozado had stated that his nickname was "China."

 The trial court seems to have been of two minds about testimony regarding the "China" nickname. On the one hand, Justice Zimmerman overruled defense counsel's objection, and allowed the Assistant District Attorney to question Detective Moretti regarding the nickname. On the other hand, the trial court explicitly instructed the prosecutor that the nickname was not to be mentioned in the People's summation, unless the defense made such mention necessary by attacking Officer Higgins' credibility. That instruction was flatly disobeyed by the prosecutor during summation, prompting a defense motion ...


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