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November 18, 1992



The opinion of the court was delivered by: CAROL E. HECKMAN

This habeas corpus petition was referred to the undersigned by the Hon. John T. Curtin to hear and report. For the reasons set forth below, I recommend that the District Court dismiss the petition.


 Shortly before 1:00 a.m. on October 20, 1977, Dwight Battles entered the Holiday Inn on Genesee Street in Cheektowaga, New York (T. 103). *fn1" Ronald Antes was the night clerk on duty at the front desk. After inquiring as to the availability of rooms, Battles went behind the desk and pointed a gun at Antes' head (T. 104).

 Battles removed currency from the cash register drawer, triggering a silent alarm (T. 105). He then demanded that Antes open the safe in the office at the rear of the desk. Antes explained that he did not have the key to the door concealing the safe, nor did he know the combination to the safe. Battles continued to demand more money, and Antes gave him cash from a cigar box kept in a file cabinet (T. 105-06). Battles then ordered Antes to remove his clothes, and Battles took Antes' watch (T. 106-09).

 At this point, the night auditor Mike Siracuse entered the office (T. 109-10). Battles ordered Siracuse to take off his clothes and get down on the floor with Antes (T. 110). Battles then went back out to the front desk (T. 115).

 In response to the silent alarm, Cheektowaga Police Officers Robert Walker and David Tolsma arrived at the Holiday Inn during the course of the robbery. Walker and Tolsma entered through the main entrance, and observed Battles standing at the front desk (T. 119-22). Battles turned his head toward the officers, and then turned back toward the desk. As Officer Tolsma stepped back and turned to look down the foyer, Battles turned from the desk, crouched, and began firing, first at Officer Walker and then at Officer Tolsma (T. 123-24).

 Walker drew his revolver and returned fire at Battles, who was now moving backwards and sideways toward a service corridor while continuing to fire at Tolsma. Out of the corner of his eye, Walker saw Tolsma fall (T. 125). Battles then directed his fire back toward Walker while proceeding toward the corridor. When he reached the corridor, Battles ran down the corridor to a service exit and escaped (T. 125-27). Officer Tolsma later died as a result of the head wounds he received during this exchange of gunfire.

 Diane Constantino was in the lounge at the Holiday Inn that night, and shortly before 1:00 a.m. heard "loud popping sounds" coming from the front desk area (T. 159). She then saw a black male run through the dining room of the lounge, and heard someone say that he had a gun (T. 162). She picked up her things and left the lounge.

 She exited the building, got in her car and drove out of the parking lot toward Sugg Road (T. 163). As she was about to make a right onto Sugg Road, she observed a black male driving a white mid-size American-made car with its lights out (T. 165-66).

 At approximately 12:55 a.m. that same night, Cheektowaga Police Officers Paul Cramer and Gerald Barber received a call over the radio of their vehicle instructing them to investigate a holdup at the Holiday Inn on Genesee Street (T. 177-78; H. 72). About three-tenths of a mile from the Holiday Inn, the officers observed a white Oldsmobile with its headlights off traveling westbound on Genesee Street away from the direction of the Holiday Inn (T. 179). Officer Cramer turned his vehicle around and followed the Oldsmobile, stopping it at the entrance for the west terminal of the Buffalo International Airport (T. 180). Officer Cramer approached the Oldsmobile with his revolver drawn, and a black male exited from the vehicle with his hands above his head (T. 180).

 Officer Cramer conducted a brief pat-down of the driver, and Officer Barber read him his Miranda rights and conducted a brief search of the vehicle (H. 7-11). The driver consented to a search of the trunk (T. 11). He then produced a New York State driver's license issued to Gary Moore (T. 183-84). He told the officers that he was coming from Erie Community College (H. 9). Pursuant to the officers' request, he followed them to the Holiday Inn for possible identification by the witnesses to the robbery. When no witness identified him, he was released (H. 11, 61).

 Later on the morning of October 20, 1977, at approximately 8:00 a.m., several police officers arrived at 91 Laurel Street in the City of Buffalo, which was the home of Lenora Olds Burress, the registrant of the white Oldsmobile stopped by Officers Cramer and Barber (H. 142-43). After entering the residence and questioning Mrs. Burress concerning the automobile, Buffalo City Police Detective Robert Grabowski observed a black male sitting on the couch in the living room (H. 143). Detective Grabowski asked the man his name several times, but received no response (T. 285-86). Grabowski then went into the kitchen and asked Mrs. Burress who the man was. She identified him as her husband, Petitioner Michael Burress (T. 286).

 Detective Grabowski immediately ran a spot warrant check on Petitioner, and was informed by the dispatcher that there was an outstanding Buffalo City Court bench warrant for his arrest for failure to appear on a charge of obstruction of governmental administration (T. 288; H. 144). Detective Grabowski then informed Petitioner that he was under arrest on the basis of the outstanding warrant, and read him his Miranda rights from a card (T. 288). When asked if he understood the rights read to him, Petitioner did not respond (H. 144). He did not ask for a lawyer (H. 144-45).

 Petitioner put on his clothes, was handcuffed, and taken out of the Laurel Street premises (T. 289). In the police car on the way to headquarters, Detective Grabowski questioned Petitioner regarding the Oldsmobile registered to his wife, to which Petitioner responded: "All I did was drive the car. I didn't have anything to do with the holdup" (T. 290; H. 145-46). At that point in time, the police had told Defendant nothing about a robbery, only that a police officer had been killed.

 Upon arrival at Buffalo Police Headquarters, Petitioner was taken to the Homicide Bureau interview room on the third floor, and was again advised of his rights by Buffalo Police Detective Melvin Lobbett (T. 292; H. 136). At 9:09 a.m., Petitioner signed the Miranda rights card from which Detective Lobbett had read (T. 292). Detective Edwin Gorski informed Petitioner that he was being questioned in connection with the death of a police officer who was shot during a holdup at the Cheektowaga Holiday Inn, and that his car was observed in the area (H. 181). Petitioner initially denied any involvement in the incident (id.). He denied knowing Battles in the past, claiming that he had met him just prior to the robbery and gave him a ride to the hotel. He was shown a photograph of Battles and himself found at his home, and identified Battles as "Anthony Williams."

 Eventually, however, Petitioner made the following admissions. He had met Dwight Battles at about 8:30 p.m. the night before, and they went to Petitioner's Laurel Street residence. At approximately 11:30 p.m., they left in his wife's white Oldsmobile. They stopped for gas, and bought some wine. They drove to the Genesee Street Holiday Inn, and pulled up at the front entrance. Battles got out. Petitioner then saw a police car pull up behind him. He started driving away, and almost immediately heard shots and glass breaking. He drove away with the lights off, and was stopped by Cheektowaga police and questioned. He gave his name as Gary Moore, which was the name on the driver's license he showed the police. He was taken inside the Holiday Inn, and was shown a body that was lying underneath a white sheet. He was questioned, released, and went home (H. 183).

 Petitioner was arraigned on murder charges on October 21, 1977, in Cheektowaga Town Court. On November 23, 1977, Petitioner was charged by the Erie County Grand Jury in a twelve-count murder indictment. All counts of the indictment were predicated on accessory liability under N.Y. Penal Law § 20.00.

 By oral order of March 13, 1979, Judge Ostrowski denied the People's motion to consolidate Petitioner's trial with the trial of Dwight Battles (C. 12-14).

 Petitioner's jury trial commenced on May 14, 1979, with Judge Ostrowski presiding. The court initially heard, and denied, Petitioner's motion to dismiss the indictment on speedy trial grounds (T. 11-24). On May 23, 1979, the jury found Petitioner guilty of felony murder (count 1), attempted felony murder (count 2), *fn3" robbery in the first degree (count 5), attempted robbery in the first degree (count 7), and criminal possession of a weapon in the second degree (count 12).

 On July 11, 1979, Judge Ostrowski sentenced Petitioner to indeterminate concurrent prison terms of twenty years to life on the felony murder conviction, ten to twenty years on the attempted felony murder conviction, ten to twenty years on the robbery conviction, five to ten years on the attempted robbery conviction, and five to ten years on the conviction for criminal possession of a weapon. Item 6, Exh. D.

 On or about May 26, 1984, Petitioner filed a motion pro se to vacate judgment pursuant to N.Y. Crim. Proc. Law § 440.10, based on his alleged warrantless arrest. Item 6, Exh. K. By order dated June 4, 1984 (id.), Judge Ostrowski denied Petitioner's motion, finding that no issue of illegal seizure of evidence was raised under People v. Payton, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980).

 With the exception of the attempted felony murder charge (see n.3, supra), the Appellate Division, Fourth Department affirmed Petitioner's judgment of conviction on July 11, 1986. People v. Burress, 122 A.D.2d 588, 505 N.Y.S.2d 272 (4th Dept. 1986). Leave to appeal to the Court of Appeals was denied on September 29, 1986. 68 N.Y.2d 810 (1986). Item 6, Exh. J.

 On November 6, 1987, Petitioner again moved to vacate the judgment of conviction, asserting as grounds (1) ineffective assistance of counsel, (2) unconstitutionality of the felony murder statute as applied to Petitioner, and (3) excessive sentence. Item 6, Exh. L. In an opinion dated March 7, 1988, Judge Ostrowski denied Petitioner's motion. On June 1, 1988, the Appellate Division denied permission to appeal this decision and, on August 6, 1988, leave to appeal was denied by the Court of Appeals. Id.

 Petitioner filed a Writ of Error Coram Nobis dated May 5, 1988 seeking to vacate the Appellate Division's July 11, 1986 affirmance of the trial court's judgment of conviction. In his coram nobis application, Petitioner asserted the same grounds of ineffective assistance of counsel as were asserted in his second motion to vacate. Item 6, Exh. M. By order dated July 7, 1988, a panel of the Appellate Division denied Petitioner's application on the papers. Id.

 Petitioner filed the instant petition pro se on December 21, 1988. On January 30, 1990, an amended petition was filed on Petitioner's behalf, asserting the following grounds for habeas corpus relief: (1) insufficiency of evidence supporting the judgment of conviction; (2) denial of right to a speedy trial; (3) denial of right to a fair trial as a result of the judge's incomplete and confusing jury charge; (4) ineffective assistance of counsel; and, (5) warrantless arrest. Item 15. Respondent answered the amended petition on May 2, 1990.


 I. The Sufficiency of the Evidence at Trial.

 § 125.25 Murder in the second degree

 A person is guilty of murder in the second degree when:

 * * *

3. Acting either alone or with one or more persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime or immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision, in which the defendant is not the only participant in the underlying crime, it is an affirmative defense that the defendant:
(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and
(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and
(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and
(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in ...

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