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February 22, 1999


The opinion of the court was delivered by: Spatt, District Judge.


The habeas corpus petitioner, Rodolfo Taylor, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he claimed the following six grounds for relief: (1) he was denied the right to counsel during a series of lineups; (2) the witnesses identifications of him were the product of unduly suggestive lineups; (3) the trial court committed two evidentiary errors during the pre-trial Wade/Dunaway suppression hearing when it precluded defense counsel from establishing the exact time of petitioner's arrest and how the lineup participants were selected; (4) the trial court erred by entering a conviction under Indictment Number 1135-84 for Robbery in the First Degree rather than Robbery in the Second Degree; (5) he was illegally arrested at his home in violation of his Fourth Amendment rights; and (6) he was denied the effective assistance of counsel at trial.

In a Report and Recommendation dated November 13, 1997, United States Magistrate Judge Arlene R. Lindsay recommended that Taylor's petition be denied in its entirety. This Court granted Taylor an extension of time to object to the Report. He filed an initial objection on September 11, 1998 and a supplemental objection on October 16, 1998. By a letter to the Court dated December 9, 1998, respondent's counsel indicated that he was not filing any objections to the Magistrate Judge's Report and Recommendation.

Pursuant to 28 U.S.C. § 636(b)(1), any party may file written objections to the Report and Recommendation of the Magistrate Judge. See also Fed.R.Civ.P. 72(a). Where, as here, objections have been filed, the district court is required to make a de novo determination as to those portions of the Report and Recommendation to which objections were made. See 28 U.S.C. § 636(b)(1); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989).

The Court has carefully reviewed Judge Lindsay's thoughtful, detailed and thorough Report and Recommendation, as well as the petitioner's submissions and objections, and concurs with Judge Lindsay's recommendations for the reasons set-forth in her well-reasoned Report.

Accordingly, it is hereby

ORDERED, that the Court adopts the Report of United States Magistrate Judge Arlene R. Lindsay, dated November 13, 1997, recommending that Taylor's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed; and it is further

ORDERED, that Taylor's petition for a writ of habeas corpus is dismissed in its entirety; and it is further

ORDERED, that the Clerk of the Court is directed to close this case.



The district court has referred Rodolfo Taylor's ("Petitioner's" or "Taylor's") habeas corpus petition, filed pursuant to 28 U.S.C. § 2254, to the undersigned for a report recommending whether habeas relief is warranted. In his pro se petition, Taylor challenges two convictions entered after two separate jury trials in the County Court of the State of New York, Suffolk County, for three counts of robbery in the first degree. (New York Penal Law § 160.15). A judgment of conviction for two counts of robbery in the first degree was entered on September 3, 1985 under Indictment No. 1355-84, and a judgment of conviction for one count of robbery in the first degree was entered on October 31, 1985, under Indictment No. 1185-84, as amended on November 1, 1985. Petitioner was sentenced to two indeterminate terms of incarceration of nine to eighteen years on each indictment to be served consecutively.

Taylor has raised the following grounds in support of his petition: (1) that he was entitled to have an attorney present at the time he appeared in a series of lineups and, the failure to provide him with counsel violated his constitutional rights; (2) that the lineups were unduly suggestive; (3) that the trial court committed reversible error with respect to two evidentiary rulings during the Wade/Dunaway hearing when it precluded defense counsel from establishing the exact time of petitioner's arrest and how the lineup participants were chosen; (4) that the trial court committed reversible error by entering a conviction under Indictment No. 1135-84 for robbery in the first degree rather than robbery in the second degree; (5) that he was illegally arrested at his home in violation of his fourth amendment rights and, therefore, the lineup identifications obtained as a result of the illegal arrest should have been suppressed; and (6) that his trial counsel's assistance was ineffective because counsel failed to move for suppression of the lineup identifications as a product of his illegal arrest. For the following reasons, it is RECOMMENDED that the district court deny Taylor's petition.


A. Photo spread-Arrest:

Prior to July 1984, Detective Robert Anderson of the Third Precinct of the Suffolk County Police Department had been assigned to investigate a series of gas station robberies including the robbery of a Texaco station located at Motor Parkway and the Long Island Expressway in Brentwood, New York ("the Texaco robbery") which occurred on February 22, 1984, and two robberies of a Shell gas station located at Route 111 and Spur Drive in Central Islip, New York, which occurred on June 2nd and again on June 10, 1984.*fn1 (T. 10-11, 77-80). Harold Bailey had been working as an attendant at the Shell station on June 10th and had witnessed that robbery. (T. 15). On July 1, 1984, Detective Anderson asked Bailey to come to the Third Precinct to view a photo spread. (T. 13). Bailey was shown a photo spread and identified the petitioner Rodolfo Taylor as the person who committed the June 10th robbery. (T. 16). Based on Bailey's identification, Anderson told Taylor's parole Officer, Officer Houlan, that Taylor was a robbery suspect in the robberies and they discussed transporting the petitioner to the precinct to appear in a lineup. (T. 139, 140).

On July 3, 1984, Taylor was asked to accompany Officer Houlan and two Suffolk County police officers to the Third precinct where he appeared in a series of ten lineups. (T. 96) Five witnesses — Dennis Ford, Daniel Farrell, and Kathleen Young (the eye-witnesses of the June 2nd Shell robbery), Gary Meenahan (the victim of the February 22nd Texaco robbery) and Bailey — each viewed two separate lineups in which they all positively identified Taylor as the individual who had committed the robbery he or she had witnessed. (T. 24, 26, 39, 43, 53, 55, 64A, 65, 71, 72). Although Detective Anderson considered Taylor to be technically under arrest after each witness identified him, petitioner was not actually placed under arrest until the conclusion of the lineups. (T. 56, 74). At that time, Detective Anderson recorded his pedigree information: Taylor was 23 years old, 6'2½" tall and weighed approximately 160 pounds. (S.102).

Rodolfo Taylor was subsequently charged with two counts of robbery in the first degree under Indictment No. 1185-84 for the Texaco and June 10th Shell robberies and with two counts of robbery (robbery in the first and second degree) under Indictment No. 1355-84 for the June 2nd Shell robbery.

B. Pre-Trial Wade/Dunaway Hearing:

On June 13 and June 17, 1985, the trial court held an extensive pre-trial Wade/Dunaway hearing on the charges contained in both indictments.*fn2 Taylor challenged the photo spread identification and the lineups as unduly suggestive and violative of his due process rights. (T. 8). He further challenged the failure to provide him with counsel at the lineups and raised the issue of probable cause for his arrest. Id. Detective Anderson was the only witness who testified at the hearing. He described the procedures used to conduct both the photo spread shown to Bailey and the lineups viewed by all the witnesses.

With respect to the photo spread, Detective Anderson testified that on July 1, 1984, Harold Bailey was shown a photo spread at the Third Precinct. (T. 13). Anderson had prepared a folder of photographs that had been numbered one through eight. (T. 131). Each photograph was placed behind a manila folder with a cut-out exposing only the face of a black male. (T. 14). Anderson told Bailey to look at the photographs and, if he recognized one of them as the subject who robbed him, to tell Anderson the number of the photograph. (T. 15). Bailey looked at the photographs for about a minute and identified photograph numbered "2" as the person who robbed him. This was a photograph of Rodolfo Taylor. (T. 16, 131-132). Bailey indicated that he was 100% certain of his identification, and placed his initials on the back of the photo as did Detective Anderson and Sergeant Sievers, who was also present. (T. 16-17). The photo spread was then introduced into evidence. (T. 14-15).

Detective Anderson then proceeded to describe in detail the procedures used to conduct each of the lineups in which Taylor participated on July 3, 1985. Anderson described the two lineups which were viewed by Bailey: The lineups consisted of five black males, one of whom was Rodolfo Taylor, all dressed in blue coveralls. (T. 18). Taylor was given his choice of a number and the remaining numbers were distributed to the four stand-ins. (T. 19). Each stand-in placed his signature on the back of his numbered card. Id. The lineup participants were then placed in a room equipped with a one-way mirror. (T. 18). Taylor was given his choice as to his position in the lineup, (T. 19), and before the witnesses viewed the lineup, a photograph was taken of the lineup in the exact positions in which the participants would be viewed. (T. 23).

Prior to the lineups, Bailey had been brought to the precinct and was asked to wait in a room which resembled a "lunchroom." Id. While Detective Anderson and Bailey were alone in the lunchroom with the door shut, Anderson instructed Bailey that he would see five black males standing and holding numbers, that each participant would step forward, look left, then right, and then return to his place in line, (T. 21-22), and that if he should happen to see the subject that robbed him he was to identify him by the number which he held. (T. 22-23). Anderson then escorted Bailey to the lineup room. (T. 23-24). Bailey identified Rodolfo Taylor as the person who had robbed him. (T. 24). Bailey was then sent back into the lunchroom, the door was shut and a second viewing was arranged. (T. 24-25). The procedure for the second lineup was the same as that used to conduct the first lineup.*fn3 Bailey again identified Taylor, as the person who had robbed him. (T. 26). The photographs of each of the lineups which Bailey viewed were introduced into evidence. (T. 27).

Detective Anderson testified as to the procedures used to conduct each of the two lineups viewed by Farrell (T. 34-47), Ford (T. 48-56), Young (T. 57-66), and Meenahan. (T. 67-74). A review of the hearing record reveals that this testimony is virtually identical to the testimony given about the lineups which were shown to Bailey.*fn4 After each witness viewed each of the two lineups shown, he or she identified Rodolfo Taylor as the perpetrator of the respective robbery.*fn5 Anderson testified that at no time did he mention to any of the witnesses who viewed the lineups that a suspect was in the lineup, nor did he suggest to any of the witnesses who they should identify. (T. 76-77). The photographs of the lineups viewed by Farrell, Ford, Young and Meenahan were all admitted into evidence, (T. 44, 60, 66, 74).

During cross examination Detective Anderson acknowledged that the photograph of the petitioner which was shown to Bailey was approximately four years old, (T. 128), and that some of the lineup stand-ins were slightly shorter than Taylor. (T. 122-23).

The trial court issued a written decision denying Rodolfo Taylor's motion to suppress evidence on the grounds that the lineups or photo spread were unduly suggestive or that the arrest of the defendant was illegal and without probable cause in violation of Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) ("the Wade decision"). Judge Weissman set forth lengthy findings of fact regarding the photo spread and the lineups:

  Five individuals observed the lineups [on July 3].
  The procedure followed was the same for each witness.
  The lineups were composed of five males dressed in
  blue coveralls. Each witness viewed two lineups of
  the same five black males. Prior to each lineup, the
  defendant was given his choice of number a number to
  hold. After the defendant chose a numbered card the
  other four men in the lineup took the remaining
  cards. The defendant was then given the opportunity
  to choose the position in the lineup, after which the
  other four men also chose their positions.
  Photographs were taken of each lineup. The numbers
  and positions of the men were different in each
  lineup. The witnesses each viewed two lineups. The
  viewing was done through a one-way window. The
  witnesses were in one room with Detective Anderson
  and the defendant the other four men were comprising
  the lineup were in a room on the other side of the
  window. Each man walked up to the window, turned his
  head to the right, then left and walked back to his
  place in line. The witnesses were told to say nothing
  except to indicate the number of the person they
  recognized. Each of the five witnesses identified the
  defendant, [], at two viewings. These identifications
  were made separately. None of the witnesses viewed
  any lineups in the company of any other witnesses.
  The witnesses did not have an opportunity to speak to
  each other or discuss the lineups, nor did they have
  an opportunity to see the defendant or the other men
  who made up the lineup prior to the actual viewing.

Judge Weissman then concluded that:

  All the lineups were fairly constituted. None were
  unduly suggestive. The photo spread identification
  was also conducted fairly and free from undue
  suggestiveness. The People have also met their burden
  of showing that there was probable cause to arrest
  the defendant. A photographic identification provides
  probable cause for a valid arrest even if the
  identification would not be admissible at trial;
  People v. Nelson, 79 A.D.2d 171, 436 N.Y.S.2d 505,
  cert. denied. sub. nom., Usher v. New York,
  454 U.S. 869, 102 S.Ct. 336, 70 L.Ed.2d 172.

(See, Opinion of Hon. Weissman, Respondent's State App. Brief, Exh A).

C. The Trials:

1. The June Trial: The Texaco & June 2nd Shell Robbery

A. The People Case:

The Texaco Robbery

The First Shell Robbery

Ford, Farrell and Young testified as to what occurred during the robbery of the Shell gas station on June 2, 1984. Ford and Young were visiting Farrell who was working at the Shell station on Route 111 and Spur Drive North in Central Islip. (T. 307). At approximately 11:50 p.m., they observed a black male, who they all identified at trial to be Rodolfo Taylor, walk into the station. (T. 308, 315, 347, 350-51, 382, 402). Taylor approached them and asked "Who's got the money?" (T. 389-90). Ford and Young stood up, Young retreated towards the main building, (T. 312) and Farrell ran to the Northville gas station across the street. (T. 390). Ford testified that he remembered Taylor "standing there with his hand in his jacket," (T. 312-13) and although he actually did not see a gun, he saw "a bulge," and that it "looked like there could be a gun in there." (T. 313, 334). Young testified that when the Taylor put his hand in his pocket, he pointed something towards her, (T. 371-72) and that it "looked like a gun." (T. 360). Young stated that after Taylor asked "Who has the money?," he threatened that if he did not get the money "he'd start shooting." (T. 348). Taylor then opened up the cash drawer and started taking money. (T. 348).

At trial, Ford, Farrell and Young all gave similar descriptions of the robber of the Shell station. Ford claimed that he had observed Taylor for at least three minutes during the robbery. (T. 315) He described him as a black male, approximately 20-23 years old, about 6'0" tall, with a thin build short Afro, a thin mustache and hair in the center of his chin. (T. 310). Ford also stated he had been wearing a tan jacket. Id. According to Farrell, he had observed the robber for about five minutes, (T. 402) and described him as a black male, approximately 20-23 years old, 6'2" tall, weighing approximately 160 pounds, with "a short tight afro", a small mustache and goatee, and that he had worn a tan outfit. (T. 349-50, 387-389). Young claimed to have observed Taylor between two to three minutes. (T. 360) She described him as 6'0" tall, 160 pounds wearing a tan designer jacket and tan corduroy pants and having black hair in a ...

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