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NIEVES v. KELLY

November 13, 1997

PHILIP NIEVES, Petitioner, against WALTER R. KELLY, SUPERINTENDENT, Respondent.


The opinion of the court was delivered by: PECK

REPORT AND RECOMMENDATION

 ANDREW J. PECK, United States Magistrate Judge:

 To the Honorable Denise L. Cote, United States District Judge:

 Petitioner Philip Nieves petitions for a writ of habeas corpus, alleging that his trial counsel was ineffective and that the State committed Brady violations by failing to disclose a photographic array, lineup sheet and witness statements from a different robbery with which Nieves also was charged. (See Petition P 12(A) - (B).) This petition involves Nieves' conviction for robbing Milton Moran on February 16, 1982 at 7:15 P.M. In a separate trial occurring some months after the Moran trial, Nieves was convicted of robbing Tony's Deli at around 7:00 P.M. on February 16, 1982. Nieves' habeas claim is premised on the argument that since he was found guilty of the Tony's Deli robbery that occurred at approximately the same time as the Moran robbery, he could not have been guilty of the Moran robbery. Not surprisingly, his defense counsel did not pursue such a risky second robbery alibi defense at trial. For the reasons set forth below, I recommend that the Court deny Nieves' habeas petition.

 FACTS

 Petitioner Nieves was convicted after a jury trial for the armed robbery of Milton Moran, and sentenced to 12 1/2 to 25 years imprisonment. (See Petition, PP 1-4, 12.)

 THE MORAN ROBBERY

 Milton Moran testified that on February 16, 1982 at approximately 7:15 P.M., when he entered his apartment house at 2121 Grand Concourse and 181st Street in the Bronx, Nieves robbed him at gunpoint. (3/15/83 Wade Tr. at 8, 19-20; 3/17/83 Trial Tr. at 5-6, 12.) Nieves stood in front of Moran for one to two minutes, while two accomplices came behind Moran and stole his wallet containing $ 60. (3/15/83 Wade Tr. at 8-9, 21-22, 24-25; 3/17/83 Trial Tr. at 6-7, 24, 34.) Moran did not see the faces of the robbers who were behind him. (3/15/53 Wade Tr. at 22; 3/17/83 Trial Tr. at 25, 36.) When Moran ran after the robbers, Nieves fired three shots at him. (3/15/83 Wade Tr. at 9-10; 3/17/83 Trial Tr. at 8, 26-27.)

 Moran reported the robbery and went to the police station to look at two books of photographs, but could not identify any of his assailants. (3/15/83 Wade Tr. at 10-11, 13-14.) On February 17, 1982, Officer McNamara showed Moran a four-photograph array and Moran identified Nieves, and then picked Nieves out of a lineup on February 18, 1982. (Id. at 11-12, 14-15, 31-35, 40-42, 55-56; 3/17/83 Trial Tr. at 10, 33; see also 3/16/83 Trial Tr. at 17-21, 24-32.) Moran noted that he had seen Nieves four times before the robbery, hanging around the neighborhood. (3/15/83 Wade Tr. at 12-13, 31; 3/15/83 Trial Tr. at 10-12.) The assistant district attorney produced to the defense at the Wade hearing a photograph of the lineup, but indicated that he did not have the photo array at that time. (3/15/83 Wade Tr. at 15-16, 39-40.) The Court at the Wade hearing denied Nieves's motion to suppress Moran's identification testimony, finding that the photo array and lineup were not suggestive. (Id. at 56-56a.)

 Nieves' counsel's cross-examination of Moran at trial raised questions as to the lighting conditions, how long Moran saw Nieves, that the assailant was wearing a hood that covered part of his face, that Moran was nervous, etc., to raise reasonable doubt as to Moran's identification of Nieves. (E.g., 3/17/83 Trial Tr. 17, 24, 55-61.) Counsel also argued that Moran may have picked Nieves out of the lineup because he was a "familiar face," not from the robbery but from Moran having seen Nieves hanging around the neighborhood. (Id. at 63-64.)

 The People rested after the trial testimony of Officer McNamara and Mr. Moran. (Id. at 37.) Mr. Nieves indicated, on the record outside the jury's presence, that he did not wish to testify. (Id. at 43-44.) The defense rested without calling any witnesses. (Id. at 44.)

 After lengthy deliberation, the jury found Nieves guilty of robbery. (3/19/83 Trial Tr. at 130-32.) Nieves was sentenced to 12 1/2 to 25 years imprisonment. (Petition P 3.)

 THE TONY'S DELI ROBBERY

 Nieves was represented by the same lawyer, Mr. Lazarus, on both the Moran and Tony's Deli robbery charges. (See Petition P 12 at inserted p. (d).) Three armed robbers held up Tony's Deli on February 16, 1982. Nieves and two co-defendants, Jimmy Aponte and George Dodaj, were charged with that robbery. Nieves relies in his present habeas petition on evidence from the Tony's Deli robbery trial as to the timing of the Tony's Deli robbery, which, he maintains was exculpatory as to the Moran robbery. (See Petition P 12(A) - (B).)

 The Wade Hearing

 On May 16, 1983, a Wade hearing was held in the Tony's Deli robbery case. (See 5/16-19/83 Wade Tr.) Tony's Deli is a bodega located at 2071 Valentine Avenue and 180th Street in the Bronx. (Id. at 34-35, 209, 239, 250, 293-94.) Officer McNamara testified about the February 18 and 19, 1982 lineups of Nieves and his two co-defendants for the Tony's Deli robbery. (Id. at 3-4, 13-16.) Of the five Tony's Deli witnesses who viewed Nieves' lineup, only one, Carlos Romero, identified Nieves as one of the robbers. (Id. at 16-18, 58-71, 251-61, 285.) Other witnesses identified Nieves's co-defendants, Jimmy Aponte and George Dodaj, in separate lineups. (E.g., id. at 10, 25-26, 33.)

 Officer Joglar testified at the Wade hearing about the photo array involving Nieves in the Tony's Deli case. (Id. at 108-10.) Officer Joglar produced that photo array at the hearing and it was entered into evidence as People's Exhibit 5. (Id. at 110, 116; see Petition Ex. 5.) The array contained six photos -- including Nieves, co-defendant Dodaj and four "fillers." (5/16-19/83 Wade Tr. at 111; see also II Trial Tr. at 26-30.) Darinell Phillipe and Juan Ramirez identified Nieves from the photo array as the robber who shot Ramirez. (5/16-19/83 Wade Tr. at 111-12, 121-24, 141-44.)

 To establish probable cause for Nieves' arrest, the Tony's Deli Wade hearing also involved testimony by Officer McNamara concerning Moran's identification of Nieves. (Id. at 182-86.) Officer McNamara responded to Moran's robbery call, and drove Moran around the neighborhood to look for his assailants. (Id. at 184-85.) Moran spotted Nieves while Nieves was crossing the Grand Concourse at 183d Street. (Id. at 185-86.) Nieves fled, the officers apprehended him, Moran identified Nieves, and Nieves was arrested. (Id. at 186-87.) The police concluded that Nieves also fit the description for the Tony's Deli robbery. (Id. at 188-92.) Both robberies involved three male Hispanics and involved guns. (Id. at 192-93.) Moreover, the officers knew that Nieves, Dodaj and Aponte "hung around" together. (Id. at 193.)

 At the conclusion of the Tony's Deli Wade hearing, the Court denied all defense motions to suppress the lineup and photo array identifications. (Id. at 381-88; see also I Trial Tr. at 2-21.)

 The Trial

 The trial of Nieves and his two co-defendants for the Tony's Deli robbery began on May 24, 1983. (See I Trial Tr.)

 Nieves' Petition relies on a District Attorney file folder that indicates the Tony's Deli robbery occurring on February 16, 1982 at 19:05, i.e., 7:05 P.M. (See Petition Ex. B, last page.) The hearing and trial testimony, however, was that the crime occurred at around 7:00 P.M. The District Attorney's opening described the Tony's Deli robbery as occurring at approximately 7:00 P.M. (I Trial Tr. at 55.) Darinell Phillipe testified that the robbery occurred at "about 7, 7:30." (Id. at 71.) Phillipe identified Nieves as the robber who hit another deli worker with his gun. (Id. at 79-80.) He also identified Aponte and Dodaj as the other two robbers. (Id. at 75-76, 82-84.) When the three robbers left the store, they "went up 180th Street -- up a hill on 180th Street towards Grand Concourse." (Id. at 87.) Phillipe testified that the entire robbery, from the time the robbers entered to the time they left the store, took "about five to seven minutes." (Id. at 105, 110.) Phillipe could not recall if he identified Nieves in a lineup. (Id. at 127-28.)

 Carlos Romero testified that at "around seven o'clock at night [on February 16, 1982], three people walked in [to Tony's Deli] and they told us this is a holdup." (II Trial Tr. at 34.) At trial, Romero identified Nieves and Aponte as two of the three robbers. (Id. at 41-42.) He also testified to having identified Nieves in a lineup two days after the robbery. (Id. at 42-44, 61-62.) Romero was too nervous to be able to determine how long the robbers were in the store. (Id. at 70-71, 85.) The thrust of ...


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