The opinion of the court was delivered by: SWEET
Eustace Minetos ("Minetos") was convicted in the New York Supreme Court of Westchester County of robbery in the first degree N.Y. Penal Law, § 265.09, on September 23, 1981. He was sentenced to an indeterminate prison term with a minimum of ten years and a maximum of twenty years. He petitions for a writ of habeas corpus on the grounds that his conviction was based on the admission of identification evidence secured through pretrial identification procedures which were so suggestive as to create substantial likelihood of irreparable misidentification and that he was deprived of his constitutional right to compulsory process for obtaining witnesses in his favor. For the reasons set forth below, the motion is denied.
At approximately 7:00 p.m. on February 14, 1981, Bert Wolneck ("Wolneck") started his regular evening shift as bartender at the Fife and Drum Restaurant in Mt. Kisco, New York. It was a busy evening at the bar, which usually remained open until 4:00 a.m. Minetos, known to Wolneck as "Steve," entered the tavern at about 1:00 a.m. Wolneck was casually acquainted with Minetos. During the course of the evening they spoke briefly, exchanging pleasantries. Minetos left the tavern at about 4:15 a.m. At 4:30 a.m. the lights in the bar were turned up. The remaining patrons left, and Wolneck, alone in the tavern, began the chores of closing up.
At 5:10 a.m. an individual appeared in the tavern. He was holding a pistol in his hand and wore a woman's stocking pulled over his head so that Wolneck was unable to see his face. The intruder was dressed in a blue jacket, tan slacks, brown shoes and was wearing gloves. He confronted Wolneck and said in a voice with a Southern accent that he wanted the receipts from the register. Wolneck retrieved the bagged receipts, which amounted to approximately $600 in cash and $700 in checks, and handed them to the robber, who then ordered him to the office of the tavern. Wolneck walked to the office of the tavern with the intruder behind him. At the office Wolneck was ordered to sit in a chair facing the wall. The room was well lit and Wolneck could see the robber's reflection in a mirror. At that point the robber engaged Wolneck in a brief conversation, inquiring into the location of a safe and whether Wolneck owned the establishment. Wolneck later testified at trial that once they were at the office, the intruder's Southern accent began to fade, and at that point Wolneck recognized the robber's voice and formed an opinion that the intruder was "Steve." After Wolneck responded that he was not aware of a safe on the premises and was not the owner, the intruder tied him to the chair, took the money and left. Wolneck was able to free himself from the chair in about thirty seconds. He then telephoned his boss and reported the robbery. The entire incident lasted about seven minutes. During that period Wolneck was able to observe the thief for about two or three minutes.
At approximately 5:20 a.m. Officers Richard Stoorza, William Marlbury and Ronald Buxton of the Mt. Kisco Police Department were called upon to investigate the robbery which had just taken place at the Fife and Drum Restaurant. At trial there were discrepancies in the testimony of the various witnesses as to which police officer actually interviewed Wolneck at the scene of the robbery, and whether or not Wolneck named "Steve" as the thief at that time. Stoorza and Marlbury admitted that they received their information not from the victim Wolneck but instead from Officer Buxton. Wolneck testified that he spoke to "at least three" police officers immediately after the incident, that he gave the description of the robber, including the name "Steve" to a "sergeant" whose name he did not know, but that it was not Patrolman Buxton. Patrolman Stoorza and Marlbury both testified that they did not speak to any witness at the scene. Patrolman Buxton later submitted a signed police incident report of an interview with Wolneck taken immediately after the incident. That report described the perpetrator as "a male, possibly white, speaking with a put-on Southern accent, approximately five-eight, about one hundred and fifty-five to one hundred sixty pounds." Police Officer Buxton did not testify at trial.
At approximately 6:30 a.m. a 1973 green Chrysler that Officer Stoorza had previously noticed at 5:15, the time of the robbery parked within 100 yards of the Fife and Drum Tavern was traced to 70 Barker Street, apartment 608 in the village of Mt. Kisco. The police were admitted to that residence by a female occupant. Minetos was present in the apartment as were other individuals. Minetos was wearing a sleeveless t-shirt, blue jeans and brown loafers. On a table and chair in the dining room were a blue jacket and a pair of beiged colored pants. In response to police questioning, Minetos stated that he had been to the Fife and Drum that evening, that he had used the green Chrysler and that the jacket and slacks in the dining room belonged to him. Minetos then agreed to comply with the request of the police to accompany them to headquarters. Before leaving, Minetos, on his own initiative, changed out of the jeans he had been wearing when the police arrived and into the light-colored pants that had been in the dining room. He also put on a three-quarter length coat. As they were leaving an officer picked up the blue jacket that was in the dining room and brought it along to police headquarters.
No pistol or cash was ever retrieved in connection with the robbery.
The Shop-Up Identification
After Minetos was brought to police headquarters in the early morning, a detective contacted Wolneck and asked him "to come down and make an identification." Later at trial there was considerable controversy over whether or not Wolneck had recognized the robber to be Minetos who he knew as "Steve" at the time of the robbery identification, that is, whether he believed it was Minetos who had robbed him before seeing him at the police station.
Minetos was presented by the police to Wolneck in a show-up alone rather than in a multiple person lineup. Wolneck was brought to a back office of the police station to identify Minetos, who was dressed in the brown sweater, the slacks and brown shoes he had worn from 70 Barker Street. Wolneck did not make an immediate identification. Petitioner was then asked to put on the blue jacket which the police had brought along from 70 Barker Street. After Minetos donned the blue jacket approximately two ...