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September 24, 1985

HUBERT SNOW, Petitioner,

The opinion of the court was delivered by: BRIEANT

Brieant, J.

This petition by a state prisoner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was filed on December 4, 1984 by petitioner Hubert Snow. The Attorney General of the State of New York filed a memorandum of law and affidavit in opposition on May 20, 1985. In addition, the Court has been supplied with transcripts of both the Wade hearing [United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967)] and the trial in state court, as well as the briefs of both parties on appeal.

 On September 16, 1981, petitioner was charged by a grand jury in New York County in an indictment containing two counts of robbery in the second degree, N.Y. Penal law § 160.10(1). Co-defendant Cameron Cintron was indicated on these counts on the same day. On June 30, 1982, after an evidentiary hearing denying suppression of a pre-trial identification of the petitioner, petitioner was convicted of both counts by a trial jury. He was sentenced to an indeterminate term of imprisonment of from four to eight years.

 Petitioner's conviction was affirmed without opinion by the Appellate Division, First department, on April 26, 1984. People v. Snow, 100 A.D.2d 984, 474 N.Y.S.2d 1003. On June 20, 1984 his application for leave to appeal to the Court of Appeals of New York was denied. People v. Snow, 62 N.Y.2d 992, 479 N.Y.S.2d 1048 (1984).

 Petitioner alleges three grounds in support of his application for a writ of habeas corpus: (1) that the prosecution failed to prove beyond a reasonable doubt that petitioner committed the crimes of which he is charged; (2) that the testimony of a prosecution witness improperly "bolstered" the complainants' in-court testimony in denial of petitioner's due process rights to a fair trial; and (3) that misconduct by the prosecutor during her summation deprived him of his due process rights to a fair trial.

 All of the petitioner's state remedies have been exhausted. The Court will therefore address the merits of his claims.

 Failure to Prove petitioner's Guilt Beyond a Reasonable Doubt.

 Petitioner contends that the state had failed to produce sufficient competent evidence to identify him as the alleged perpetrator beyond a reasonable doubt. Specifically, petitioner contends that the prosecution witnesses' in-court identification of him as their assailant is a product not of their independent recollection of the actual events, but rather of an unfairly suggestive and prejudicial identification procedure employed by the arresting officers. He argues that, as a result of this procedure, neither the in-court nor pre-trial identification is reliable, and therefore under the Constitution neither may properly support his conviction that rests substantially or exclusively on eyewitness identification testimony.

 A federal habeas corpus court must uphold a state court conviction if "review of the record in the light must favorable to the prosecution convinces [the federal court] that a rational factfinder could readily have found the petitioner guilty beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). to apply this standard, this Court must consider whether the facts presented to the jury were properly before them. The petitioner specifically challenges the competency of the victims' pre-trial identification, which the trial court admitted after an evidentiary hearing, upon finding that the circumstance surrounding the identification were not unnecessarily suggestive. (Wade Tr. p. 46). Although federal habeas corpus courts are required to defer to fair and reliable state findings of fact, see Townsend v. Sain, 372 U.S. 293, 318, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963); 28 U.S.C. § 2254 (d), the constitutionality of pre-trial identification procedures in a specific case poses a mixed question of fact and law. See Sumner v. Mata, 455 U.S. 591, 597, 71 L. Ed. 2d 480, 102 S. Ct. 1303 (1982) (per curiam). This permits a federal habeas corpus court to review the facts in the record and to reach a different conclusion in light of the legal standard. See id.

 A conviction based on eyewitness identification will be set aside if the pre-trial identification procedure used was "so impermisibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968).

 This Court, upon its review of the record, finds that the state trial court properly admitted evidence of the witnesses' pre-trial identification and that a conviction based upon that evidence did not violate petitioner's due process rights.

 In this case, the confrontation of Snow by the witnesses, occurring within five minutes of the crime, was not so suggestive as to taint their identification of him as their assailant. The witnesses, Sui Ming Chan (S.M. Chan) and Shu Lung Chan (S.L. Chan), who were the victims of the crime, had an adequate opportunity to view Snow on the night they were robbed. Both men testified that the crime had occurred on a public sidewalk in Manhattan, at 4:00 A.M. under the light of a street lamp (Tr. at 49, 138); S.M. Chan testified that he recognized Snow as one of the men who reached into his pocket (Tr. at 133); and S.L. Chan testified that he focused on the petitioner's face as Snow forcibly removed S.L. Chan's watch from his writs (Tr. at 161-62). Moreover, the Chans' identification of Snow moments later was swift and positive.

 The challenged confrontation itself was purely fortuitous. Two plainclothes police officers on patrol in an unmarked car observed a group of young men in physical contact with the Chans. Before the police arrived at the scene, the group had left. Upon ascertaining from the victims that a robbery had occurred, the officers immediately pursued the group down a crowded street. Minutes later, an unknown civilian singled out an individual on the street as one of Chan's robbers. As Officer Thomas DeWitt grabbed that man, Snow leaped out of the crowd and tackled DeWitt, allowing the first man to escape. officer DeWitt eventually subdued Snow and placed him in the doorway of a nearby restaurant in the custody of the other plainclothes officer. A minute or two later, the Chans arrived from the crime scene, less than a city block removed from the point of arrest, and, upon spotting Snow, immediately and unequivocally identified Snow as one of the robbers, based on their recollection of the crime that had occurred only moments before.

 From this account, this Court concludes that any danger of "irreparable misidentification" invited by the inherent suggestiveness of custodial identifications of the customary sort was absent in this case because of these unusual circumstances. The victim-witnesses each had an opportunity to view the petitioner at the time of the crime and they were attentive to detail. The interlude of time between the robbery and the confrontation was brief. The witnesses evinced a high degree of certainty in making the identification. These factors, taken together, made the identification sufficiently reliable to satisfy the Simmons standard for admissibility. See Manson v. Brathwaite, 432 U.S. 98, 114, 116, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977); Neil v. Biggers, 409 U.S. 188, (1972). The weight to which that evidence was entitled is of course a question of fact for the jury. See Manson v. Brathwaite, supra, at 116. It is clear, however, that from the evidence presented, a rational factfinder readily could have found Snow guilty beyond a reasonable doubt.

 Improper "Bolstering" of Witnesses' Identification.

 As his second basis for attacking his conviction, petitioner alleges that the court improperly admitted testimony of Officer DeWitt that had the effect of "bolstering" the ...

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