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January 8, 1997

ROBERT DEY a/k/a ROBERT CONNYER, Petitioner, against CHARLES J. SCULLY, Superintendent, Green Haven Correctional Facility, Respondent.

The opinion of the court was delivered by: BLOCK

 BLOCK, District Judge:

 Petitioner Robert Dey, a/k/a Robert Connyer ("Dey"), brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1989 convictions on one count of criminal sale of a controlled substance in the third degree (crack cocaine) and one count of criminal possession of a controlled substance in the seventh degree (heroin), following a jury trial in New York State Supreme Court, Queens County. *fn1" Dey argues (1) that the exclusion of his arrest photograph deprived him of a fair trial and due process with respect to his conviction for sale of crack cocaine, and (2) that the evidence was insufficient to support his conviction for possession of heroin. Dey's petition is granted with respect to his conviction for sale of crack cocaine and denied with respect to his conviction for possession of heroin.


 A. The Arrest and Identification

 On the evening of January 6, 1988, members of the New York City Police Department's ("NYPD") Queens Special Anti-Crack Unit conducted a "buy and bust" operation in the vicinity of 170th Street and Liberty Avenue in Queens, New York. In a buy and bust operation, an undercover police officer ("undercover") is given pre-recorded "buy money" to purchase narcotics from a drug seller at a particular location. Once a purchase is completed, the undercover radios a physical description of the seller to a nearby backup team, which then locates and arrests the seller.

 Sometime shortly after 8 p.m., one of the two undercovers involved in the buy and bust operation that evening (shield number 22602) approached an individual, who later introduced himself as Robert, and asked him if "he was working." (Tr. at 183.) *fn2" Although Robert answered "no," he added that he "could show [the undercover] where to get something." (Id.) The undercover and Robert then walked south on 170th Street toward Liberty Avenue and engaged in a brief conversation about the cost and color of the caps of the vials of crack cocaine to be purchased. After about a minute and a half, they arrived at a residential house located at 170-06 Liberty Avenue and Robert went inside. When he returned to the street he handed the undercover two "red cap" vials of crack cocaine. In exchange, the undercover handed Robert a ten-dollar bill from the pre-recorded buy money. The undercover then left the area and headed to his car.

 Approximately one minute after making the exchange, the undercover reached his car and radioed the backup team, reported these events, and gave a physical description of Robert. No contemporaneous notes of the description radioed by the undercover exist; however, the undercover did prepare a report upon returning to the precinct. In that report, apparently created between 10:00 p.m. and 12:30 a.m., the undercover recorded the description of the second individual who sold to him that night as "John Doe-Robert- male/black/ burgundy jacket, blue jeans, black/white sneakers, dark-skinned[,] mustache/goatee." *fn3" (Ex. A to Decl. of Carol Gette in Support of Pet.) Another report, called a DD5, prepared on January 10, states that the description was "Male/Black, Red Jacket, bl jeans, blk & wt sneakers, darked skined (sic)." (Ex. C to Decl. of Carol Gette in Support of Pet.)

 Upon receiving this information, the backup team proceeded to the location where the sale had occurred, but did not see anyone matching the description. After a search of the surrounding area, which lasted approximately two minutes, two members of the backup team, Police Officer Steven Curasi ("Curasi") and Sergeant James McCool ("McCool"), observed an individual who they believed matched the description at the corner of 170th Street and 93rd Avenue, approximately two blocks from the site of the sale. The individual the officers observed was Dey.

 The officers placed Dey under arrest at approximately 8:10 p.m. and conducted a quick pat and frisk search before handcuffing him. During the course of this search, Curasi recovered one glass crack pipe, but nothing else -- no pre-recorded buy money and no drugs. A police van was then summoned to the arrest location and Dey was placed, with his hands handcuffed behind his back, on the floor of the rear left side in the back of the van. Because Dey was not the first individual arrested during the course of the buy and bust operation, there was at least one other person in the van at that time. However, there was nothing on the floor where Dey was placed. In addition, the van was searched before the evening's operation began and was found to be empty.

 After Dey was placed in the van, the buy and bust operation continued at several other locations. By the time it ended and the van, the undercovers, and the backup team returned to the 113th precinct ("precinct") at 10:00 p.m., seven individuals, including Dey, had been arrested and placed in the van. *fn4" Although the arrestees could move around in the back of the van, when they arrived at the precinct Dey was seated in the same area in which he was initially placed. As Curasi lifted him in order to help remove him from the van he noticed seven glassine envelopes directly under Dey. It was later discovered that these glassine envelopes contained heroin.

 Upon entering the precinct, Dey and the other arrestees were placed in a holding pen. At 12:30 a.m., Dey was removed from the holding pen for a confirmatory identification by the undercover. Confirmatory identifications proceeded in the following way: the undercover officer stood with the arresting officer on one side of a doorway that contained a viewing glass; the individuals who were arrested as a result of that undercover's buys were then brought before the viewing glass, individually, in the order of their arrest; the undercover then simply confirmed or denied whether the individual was the person from whom he had bought drugs at a particular place and time. Accordingly, undercover 22602, whose buys led to two arrests that evening, stood with Curasi on one side of the doorway while each of the arrestees who had allegedly sold the undercover drugs were placed before him for identification. As the second person arrested as a result of the undercover's buys, Dey was the second person placed before him for identification. The undercover identified him as the individual who had sold him crack cocaine in front of 170-06 Liberty Avenue.

 1. The Hearing

 At a "Mapp-Wade" hearing held on September 28, 1988, Curasi, the only witness called, testified about the circumstances leading to Dey's arrest and the manner in which the glassine envelopes of heroin were discovered. He testified that the description radioed by the undercover was "a male black with a goatee, approximately 5' 10, 5' 11, red jacket, blue jeans and black and white sneakers." (M-W Hr'g at 4.) *fn5" He stated that the individual he and McCool arrested matched "the exact description that was radioed to us," and identified Dey, in-court, as the individual they had arrested. (Id.) He added that at the confirmatory identification, the undercover pointed to Dey and said "that's him, you know, wearing whatever," and he explained what transpired at the location. (M-W Hr'g at 24.)

 The court concluded that Curasi's testimony did not "indicate any departure from good or accepted police procedure or any violation of the defendant's Constitutional rights," and that the "identification procedure and testimony were legal and valid." (M-W Hr'g at 28.) The court also denied a motion to suppress the seized evidence.

 2. The Trial

 At trial, the primary issue was the identification of Dey -- specifically, whether the backup team had arrested the right individual based on the physical description radioed by the undercover. The undercover made an in-court identification of Dey as the "Robert" who had sold him drugs in front of 170-06 Liberty Avenue, *fn6" and testified that the description he had radioed was a "male black, dark skin, he had a mustache and goatee, he had on a burgundy jacket, blue jeans and black and white sneakers." (Tr. at 188, 209.) He testified that at the confirmatory identification Dey "looked the same way." (Tr. at 190.) On redirect, he elaborated that he based his identification at the precinct on the individual's "appearance," meaning, "the way [he] saw him at the time of the buy. The description of what he had on. His facial hair. His skin color. The color of his clothing." (Tr. at 217-218.) However, he admitted that he did not write down the description of the individual from whom he bought drugs until after he returned to the precinct that night, and thus, the recorded description was based on his memory.

 Curasi's testimony at trial mirrored his testimony at the Mapp/Wade hearing. He stated that the description was a "male black, approximately five-ten, red jacket, blue jeans, black and white sneakers, beard, mustache," and that the individual he and McCool arrested "was, in fact, wearing those articles of clothing and did match the general physical description given by the undercover officer." (Tr. at 87-88.) He identified Dey, in court, as that individual. He also stated that Dey at the confirmatory identification "was dressed in the same article of clothing that he was arrested in," a "red burgundy type jacket." (Tr. at 137.)

 McCool testified that the description was: "Male black, dark skinned, mustache and goatee with a burgundy jacket, and, I believe, jeans." (Tr. at 37.) He stated that the individual he and Curasi arrested "matched the description" and, specifically, that the individual was wearing a burgundy jacket. (Tr. at 38.) He also identified Dey, in court, as the individual he and Curasi arrested. He stated that when the undercover performed the confirmatory identification, Dey was wearing a "burgundy jacket the whole time." (Tr. at 69.)

 Karen Connyer ("Connyer"), Dey's wife, provided a description of the clothing Dey was wearing on the night of his arrest that contradicted the police description in every respect. She testified that he was wearing "a blue hooded jacket that's called a bench warmer and it comes down past the hips. It had an attached hood. He was wearing another blue hooded sweatshirt under that, a pair of maroon or wine colored corduroy pants and green gym shoes." (Tr. at 222.) She testified that she and Dey were walking home that evening from a friend's house on 171st Street, with their dog, when a passing vehicle backfired and the dog broke loose. She stated that she gave chase to the dog, but did not catch up with it until she was almost at home. According to Connyer, she did not have any contact with her husband until shortly after midnight when he called and told her that he had been arrested.

 On three separate occasions, both before and after Connyer's testimony, the defense attempted to move Dey's official arrest photograph into evidence. This photograph, dated January 8, 1988, two days after the arrest, depicts Dey wearing a blue hooded jacket and blue hooded sweatshirt, and thus is corroborative of Connyer's testimony. It also shows Dey to be a black male with a goatee and a large belly. Despite Dey's considerable girth, the jacket in the picture fits him quite well.

 The court refused to admit the arrest photograph, stating that "to offer a photograph taken two days after an arrest to try to prove the point of what the defendant allegedly was wearing would be an unfair inference for the jury to conclude and draw." (Tr. at 30.) The court later elaborated on its ruling as follows:

As I stated to you earlier when I ruled on this subject matter, I said that so long as you have that kind of interval of time from the time of his arrest to the time of this photograph, two days, or even if you wanted to call it only one day or one-and-a-half days, the fact of the matter is a great many events may occur. Visits, change of clothing, any number of possibilities.

 (Tr. at 102.)

 Despite the court's refusal to admit the arrest photograph, the issue of the identification remained hotly contested. In fact, the first issue addressed by the Assistant District Attorney ("ADA") in his closing was the veracity of Connyer's testimony about the clothing Dey wore on the night he was arrested: "The truth or the accuracy of that story that she had given you must be viewed in light of the fact that she is, in fact, an interested witness." (Tr. at 260.) In order to reinforce this point, the ADA requested that the court include an interested witness charge as part of its instructions. That request was granted.

 The jury was charged on the morning of March 8, 1989. At 4:30 p.m. that afternoon, the jury submitted a note stating that it was "hopelessly deadlocked" on Counts One (sale of crack cocaine) and Two (possession of heroin). (Tr. at 320.) In response, the court gave the jury a modified Allen charge, encouraging it to continue deliberating and stating that "if it's at all possible, it's desirable that a jury should reach a verdict one way or the other." (Id.) The jury returned a verdict the next day, convicting Dey on each of the three counts in the indictment. The court sentenced Dey to concurrent terms of four and a half to nine years on the criminal sale count and to one year on each of the criminal possession counts.

 3. The Appeals

 Dey's conviction was subsequently affirmed by the Appellate Division. People v. Dey, 184 A.D.2d 779, 585 N.Y.S.2d 485 (2d Dep't 1992). That court briefly addressed each of the issues presented in the instant petition, concluding that (1) it was not error to refuse to admit the arrest photograph into evidence to establish that Dey had been the victim of mistaken identification because "[Dey] was confined to a holding cell with numerous other prisoners," and thus, the photograph was "inherently unreliable as proof of his appearance at the time of the drug transaction"; and (2) viewing the evidence in the light most favorable to the prosecution, it was legally sufficient to establish Dey's guilt on the heroin possession count beyond a reasonable doubt. Thereafter, the New York Court of Appeals denied Dey's application for leave to appeal. People v. Connyer, 80 N.Y.2d 928, 603 N.E.2d 960, 589 N.Y.S.2d 855 (1992); People v. Dey, 80 N.Y.2d 928, 603 N.E.2d 961, 589 N.Y.S.2d 856 (1992).

 C. The Habeas Petition and Hearing

 Under 28 U.S.C. § 2254(d), federal courts conducting habeas proceedings must give a "presumption of correctness" to "a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction," unless the conditions for one of seven listed exceptions are met or unless the state court findings are not "fairly supported" by the record as a whole. See Ventura v. Meachum, 957 F.2d 1048, 1054 (2d Cir. 1992); Campaneria v. Reid, 891 F.2d 1014, 1019 (2d Cir. 1989). "Deference need not be given when 'the material facts were not adequately developed at the State court hearing,'" Pagan v. Keane, 984 F.2d 61, 64 (2d Cir. 1993) (quoting 28 U.S.C. § 2254(d)(3)), or when "the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing." 28 U.S.C. § 2254(d)(2). Nor does § 2254(d) require deference to state court findings "on mixed issues of fact and law such as whether a plea agreement was entered into voluntarily . . . or whether there has been ineffective assistance of counsel." Ventura, 957 F.2d at 1055; see also Tyson v. Trigg, 883 F. Supp. 1213, 1218 (S.D. Ind. 1994) (petitioner is correct in his contention that the "decision to exclude [the proffered] evidence raises a mixed question of law and fact and that no deference is due the state courts' conclusions on this matter."), aff'd, 50 F.3d 436 (7th Cir. 1995), cert. denied, 133 L. Ed. 2d 655, 116 S. Ct. 697 (1996). *fn7"

 Although at one time "district courts were required to hold evidentiary hearings in habeas cases whenever 'for any reason not attributable to the inexcusable neglect of petitioner, evidence crucial to the adequate consideration of the constitutional claim was not developed at the state hearing,'" Pagan, 984 F.2d at 63-64 (quoting Townsend v. Sain, 372 U.S. 293, 317, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963)), a hearing is now required only when "the petitioner can establish cause for his failure to develop an adequate factual record below and prejudice resulting from that failure; it no longer suffices to show merely that he did not deliberately bypass the opportunity to present facts to the state forum." Pagan, 984 F.2d at 64; see Keeney v. Tamayo-Reyes, 504 U.S. 1, 118 L. Ed. 2d 318, 112 S. Ct. 1715 (1992). Despite this recent limitation on the situations in which evidentiary hearings are mandatory, federal "'district courts . . . still possess the discretion . . . to hold hearings even where they are not mandatory.'" Pagan, 984 F.2d at 64 (quoting Keeney, 504 U.S. at 23). "Factors relevant to the District Court's discretionary determination include the existence of a factual dispute, . . . the strength of the proffered evidence, . . . the thoroughness of the prior proceedings . . . and the nature of the state court determination." Id.

 Since the state court failed to hold any evidentiary hearing regarding the arrest photograph, and instead, made a conclusory determination based solely on the length of time it was taken after Dey's arrest, the Court was not required to defer to the state court's finding. Accordingly, in the exercise of its discretion, the Court ordered an evidentiary hearing in order to elucidate the facts surrounding the arrest photograph and the processing of Dey after his arrest.

 1. Typical Booking Procedures

 Many of the specific facts of Dey's processing have been lost in the course of time due to the disappearance of documentary evidence and the limits of human memory. Nonetheless, as a result of the hearing, the Court is able to discern the likely booking process, which concluded with the taking of the arrest photograph and Dey's arraignment on January 8, 1988.

 Curasi's testimony revealed that the following procedures were in effect at the precinct at the time of Dey's arrest. After an individual was arrested, he would be brought to the precinct, presented before the precinct desk to be "logged into" the "command log," and fingerprinted. (Hr'g at 71.) *fn8" An arrest report would be completed and a Polaroid photograph, which would not be the official arrest photograph, may or may not be taken during this initial processing. *fn9" The arrestee would then be moved to another area where he would be extensively searched. On many occasions, this search would consist of a full "strip" search. After the search was completed, the arrestee would put whatever clothing that was removed during the search back on and be placed into the precinct's holding cell.

 There is some uncertainty concerning the exact number of arrestees that could be held in the holding cell. According to Curasi, it held as many as ten to twenty arrestees at one time. McCool testified that it could hold as many as twenty-five to thirty arrestees. More importantly, McCool revealed that the precinct holding cell was not one large area, but rather, consisted of several individual cells, each of which held no more than three arrestees:

[MR. DUMBACH]: Do you recall how many persons the holding cell in the 113th Precinct could hold in January of 1988?
[McCOOL]: Depending if you put more than one person in an ...

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