warrant granting a habeas petition on the basis of denial of a pretrial hearing where Petitioner had the opportunity to cross-examine the witness on the identification issue and to argue in summation that there might have been a problem with the identification procedure. Here, the identifying witness did identify defendant at trial.
Case law construing New York Criminal Procedure Law Section 710.20 has allowed suppression of a witness's in-court identification under certain conditions relating to the degree of taint of the photo array, depending upon whether or not the witness had an independent basis for the identification. The issue of the denial of the Wade hearing was briefed for the appeal to the Appellate Division, First Department, and Petitioner's conviction was affirmed. Insofar as this is a matter of state law, the general rule is that it is not reviewable on a habeas petition. "It is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67, 116 L. Ed. 2d 385, 112 S. Ct. 475 (1991) (citations omitted). While under certain conditions, an identification procedure may be so impermissibly suggestive as to implicate federal due process rights, there must exist a very substantial likelihood of misidentification. Manson v. Brathwaite, 432 U.S. 98, 107, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977); Jarrett v. Headley, 802 F.2d 34, 40-41 (2d Cir. 1986).
The factors involved in determining whether the identification rose to this level of impermissibility include opportunity of witness to view the criminal at the time of the crime, witness's prior description of the criminal, level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972). Applied to Petitioner's case, it does not appear that Petitioner can demonstrate that the in-court identification was so tainted by the photo array procedure as to warrant granting of the habeas petition. The witness in question observed the crime under adequate lighting. On these facts, even under the stricter New York State standard, New York v. Adams, 440 N.Y.S.2d 902, 906 (N.Y. 1981), the in-court identification would be admissible. See People v. Hyatt, 162 A.D.2d 713, 557 N.Y.S.2d 415 (App. Div. 2d Dep't 1990) (holding that in-court identification by complaining witness, who had unobstructed view of defendant under good lighting at time of burglary and whose description of defendant was sufficiently specific as to establish her ability to observe perpetrator at time of crime was properly admitted notwithstanding existence of unduly suggestive pretrial identification).
C. Petitioner's Brady Claim
Petitioner claims a Brady violation on the basis of the State's failure to turn over to defendant statements made by Anna Oqui (spelled "Ogui in Respondents' papers) at the grand jury hearing. To establish a Brady claim, Petitioner must show that the government failed to disclose exculpatory material to the defense. There is no Brady violation if the defendant "knew or should have known the essential facts permitting him to take advantage of any exculpatory evidence." United States v. Gaggi, 811 F.2d 47, 59 (2d Cir.) (citations omitted), cert. denied, 482 U.S. 929, 96 L. Ed. 2d 701, 107 S. Ct. 3214 (1987). With respect to disclosure of grand jury testimony, the government has no duty to turn over grand jury testimony where the defendant knows the identity of the witness, knows that the witness might have testified before the grand jury, and knows that the witness's statements might have supported the defense. United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982), cert. denied, 459 U.S. 1174 (1983). Because Oqui did not testify at trial, New York State Criminal Procedure law requiring the disclosure of a trial witness's grand jury testimony was not violated.
Here, Petitioner was aware that Oqui testified at the grand jury. More importantly, Oqui's testimony was not exculpatory. Oqui testified that she observed Petitioner in a heated discussion with Wilfredo Delgado at the time of the shooting. However, she also testified that she saw Delgado's brother, Hector, drop a bat while Petitioner was chasing him. Petitioner claims that Oqui's testimony would have supported his contention that the jury should have been instructed on the justification of self-defense and/or on the lesser included offense of first degree manslaughter. As indicated in the next section, however, Oqui's testimony would not have enabled the court to give the charges Petitioner wanted.
D. Petitioner's Claim on Jury Instruction
Petitioner claims that the jury should have been instructed on both the justification of self-defense and the lesser included offense of manslaughter, first degree. Trial counsel did not request an instruction on justification. Because jury instructions are a matter of state law, Alvarez v. Scully, 833 F. Supp. 1000, 1007 (S.D.N.Y. 1993), and the Petitioner did not present this issue as a federal issue on appeal, it is not now reviewable by the habeas court as a federal issue.
Even if federal due process rights were implicated, the trial court's refusal to instruct on manslaughter is supported on the facts. As a matter of state law, justification and manslaughter instructions were unwarranted. For example, Oqui's grand jury testimony indicated that Hector Delgado had been carrying a bat before the shootings. Petitioner claims the bat was a weapon, and thereby implicated the theory of self-defense. Hector had dropped the bat, however, as he ran away before Petitioner shot him. New York State Criminal Procedure law does not allow a defense of justification when the defendant had such an escape route. See N.Y. Crim. Proc. § 35.15(2)(a).
New York provides a mitigation charge where defendant has met the burden of showing that he or she was under extreme emotional distress at the time he or she acted. Petitioner claims he was entitled to this instruction because he was in a "heated argument" with one of the victims. However, New York cases construing manslaughter do not support Petitioner's claim. That defense requires circumstances similar to those that exist where a "provocation" defense applies, which circumstances concern the relationship between the actors and the nature of the dispute. An argument over an abandoned refrigerator with an acquaintance does not rise to the required level. The trial court therefore acted properly. See, e.g., New York v. White, 581 N.Y.S.2d 651 (N.Y. 1992).
For the reasons stated above, Petitioner's petition for writ of habeas corpus is DISMISSED.
As the petition presents no question of substance for appellate review, a certificate of probable cause will not issue. Rodriquez v. Scully, 905 F.2d 24 (2d Cir. 1990) (per curiam); Alexander v. Harris, 595 F.2d 87, 90-91 (2d Cir. 1979). I certify pursuant to 28 U.S.C. § 1915(a) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 8 L. Ed. 2d 21, 82 S. Ct. 917 (1962).
New York, New York.
July 20, 1995
Harold Baer, Jr.