Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MCMURRAY v. HERBERT

December 1, 1992

RUSSELL McMURRAY, Petitioner,
v.
VICTOR T. HERBERT, Superintendent, Collins Correctional Facility, Respondent.



The opinion of the court was delivered by: DENIS R. HURLEY

MEMORANDUM AND ORDER

 HURLEY, District Judge

 BACKGROUND

 On July 26, 1986, at approximately 10:00 A.M., Bibi Insanally entered an elevator on the eleventh floor of an apartment building in Queens County. As she stepped into the elevator, she noticed another occupant, a male, approximately 5'9" in height, who was wearing a blue T-shirt and carrying a duffle bag on his shoulder. During the time the elevator went from the eleventh floor to the eighth floor, Bibi Insanally faced the man. When the elevator stopped on the eighth floor, the man stepped out, glanced to the left and to the right, and stepped back into the elevator. When he re-entered the elevator, he said to Insanally, "This is a robbery, give me everything you have." The man, facing her, held a knife to her throat. She removed her bracelet and pocketbook and gave them to him. When the elevator door opened on the seventh floor, the man rushed out.

 When she arrived on the first floor, Insanally told the doorman what had happened, and the doorman radioed for assistance. When security officer Colon and his partner arrived in response to the call, Bibi Insanally spotted the man across the street and said, "That's the guy who just mugged me."

 The security officers pursued the man, and security officer Colon yelled at the man, who then turned around. As they approached him, he dropped the duffle bag he was carrying. The guards placed him on the ground on his stomach, attempting to cuff him, but he managed to escape. The guards returned to the apartment building with the duffle bag.

 Meanwhile, in response to a radio communication, Police Officer Druckman and his partner arrived at the apartment building and spoke to Bibi Insanally. She accompanied the officers in their car and drove around the corner to see if she could locate the individual, but failing to do so, they returned to the building. When the security guards returned, they gave the duffle bag to Police Officer Druckman. In the presence of Bibi Insanally, the officers opened the bag and took out the contents. She immediately recognized the knife, the T-shirt the male had worn, and her pocketbook. Also included among the contents were papers, a social security card, a driver's license and some photographs. Police Officer Druckman showed the photographs to Bibi Insanally and she immediately identified the man in the photographs as the person who had robbed her approximately ten minutes earlier. The person in the photographs was identified as Russell McMurray, the petitioner.

 At trial, petitioner's duffle bag was not allowed into evidence, although the jury was permitted to see the photographs found in the bag. Moreover, Ms. Insanally made an in-court identification of petitioner. The jury found petitioner guilty of robbery in the first degree, criminal possession of stolen property in the third degree, and possession of a weapon in the fourth degree. As a second violent felony offender, he was sentenced to concurrent terms of ten to twenty years for robbery in the first degree, one year for criminal possession of stolen property in the third degree, and one year for possession of a weapon in the fourth degree.

 By Decision and Order dated August 19, 1991, the Appellate Division affirmed the judgment of the Supreme Court, noting that since the victim had seen the defendant during the commission of the crime, had given a detailed and accurate description to the police immediately following the event, and had made the photographic identification within fifteen minutes of the robbery, the showing was not unduly suggestive.

 Petitioner sought leave to appeal to the Court of Appeals of the State of New York, which denied his application on November 14, 1991.

 As noted above, petitioner currently seeks federal relief in this Court asserting that he was denied his due process right to a fair trial because 1) another judge allegedly approached the trial judge and asked him to help the assistant district attorney obtain a conviction in the trial; 2) the trial judge abused his discretion when he allowed photographs found in a duffle bag to be shown to the jury, even though the bag was suppressed because of a break in the chain of custody; and 3) an in-court identification by the victim, after she had identified petitioner from an impermissibly suggestive showing of a photograph, was improperly permitted.

 Because these claims were presented to the state court on his direct appeal in a manner that put the state court on notice as to their federal nature, the Court finds that petitioner has exhausted his state remedies. See Petrucelli v. Coombe, 735 F.2d 684, 687-88 (2d ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.