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HOWARD v. LACY

July 2, 1999

TRACY HOWARD, PETITIONER,
v.
PETER J. LACY, RESPONDENT.



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

ORDER

The above-captioned action having come before this Court, and Magistrate Judge Peck having filed a Report and Recommendation dated May 7, 1999, recommending that the petitioner's petition be denied, and the Court having extended petitioner's time in which to file objections to the Report and Recommendation, and the petitioner having filed an objection dated June 11, 1999, and the Court having considered all matters raised, it is

ORDERED that the Court adopts Magistrate Judge Peck's Report and Recommendation, and it is further

ORDERED that the instant petition shall be and hereby is dismissed, and it is further

ORDERED that as petitioner has not made a substantial showing of the denial of a constitutional right, see 28 U.S.C. § 2253, no certificate of appealability shall issue, and it is further

ORDERED that the Clerk of Court shall dismiss the above-captioned action.

REPORT AND RECOMMENDATION

PECK, United States Magistrate Judge.

To the Honorable John E. Sprizzo, United States District Judge.

Petitioner Tracy Howard seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, from his conviction of five counts of first degree robbery. (Pet. ¶ 1; Howard Br. at 2.)*fn1 See People v: Howard, 235 A.D.2d 232, 232, 653 N.Y.S.2d 102, 103 (1st Dep't), appeal denied, 89 N.Y.2d 1036, 659 N.Y.S.2d 867, 681 N.E.2d 1314 (1997). Howard's petition alleges that (1) the state unconstitutionally consolidated the two indictments under which he was convicted (Pet. ¶ 12(A)); (2) he was denied his constitutional right to a speedy trial (Pet. ¶ 12(B)); and (3) suggestive pretrial identifications deprived him of due process (Pet. ¶ 12(C)).

For the reasons set forth below, I recommend that Howard's petition be denied. Howard's identification and unconstitutional consolidation of indictments claims are unexhausted, not amenable to further state court review, and therefore procedurally barred from habeas review; Howard's constitutional speedy trial claim is ripe for habeas review but is meritless under the four-part balancing test set down by the Supreme Court for use in analyzing speedy trial claims.

FACTS

On April 17, 1990, a Bronx Grand Jury indicted Howard (Indictment No. 3259-90) for acting in concert to commit five counts each of first and second degree robbery (and related lesser offenses), in connection with two robberies at a grocery store at 822 Morris Avenue on January 15, 1990, and March 4, 1990. (Koplin Aff. ¶ 4 & Ex. 2: State 1st Dep't Br. at 3; Koplin Aff. Ex. 1: Howard 1st Dep't Br. at 4, 11, 25; Howard Br. at 6.)

On July 31, 1990, a Bronx Grand Jury filed a second indictment (No. 5932-90) accusing Howard of acting in concert to commit three counts each of robbery first and second degree robbery in connection with a robbery of the Melisa Grocery at 614 Morris Avenue on March 17, 1990. (Koplin Aff. ¶ 5 & Ex. 2: State 1st Dep't Br. at 3; Koplin Aff. Ex. 1: Howard 1st Dep't Br. at 4, 11, 25; Howard Br. at 6.)

The State moved to consolidate indictments 5932-90 and 3259-90 pursuant to N Y CPL § 200.20(2)(c) "on the grounds that both indictments alleged incidents of armed robberies that are 'the same or similar in law.'" (Koplin Aff. Ex. 1: Howard 1st Dep't Br. at 25; see also Koplin Aff. ¶ 6 & Ex. 1 at 11, 13; Howard Br. at 6.) On December 19, 1990, the Supreme Court granted the consolidation, with leave for Howard to renew his objection at a later date. (Koplin Aff. ¶ 6 & Ex. 2: State 1st Dep't Br. at 13; Koplin Aff. Ex. 1: Howard 1st Dep't Br. at 12, 25; Howard Br. at 7.)

On June 28, 1991, Howard's attorney renewed his objection on the ground that consolidation would be "overly prejudicial" to Howard:

    I think that there's three matters that we have to
  take up, . . . and the third matter is the matter of
  the consolidation of the two indictments.
    If Your Honor will recall, back — I don't have a date on it. The
  District Attorney's Office made a motion to consolidate the two
  indictments before Your Honor, Your Honor granted "that motion but gave
  me leave to reargue your order granting a consolidation after the Wade
  Hearings were concluded.
    Now, the basis of my argument to prevent a consolidation of the two
  indictments was, number one, that it would be overly prejudicial for
  Mr. Howard to go to trial on three separate robberies rather than the
  two robberies that involved the same witness and that is on Indictment
  3259 of 1990.
    We now have a situation where he would be going to trial on three
  separate robberies, on three separate dates, two of those would involve
  the same store and the same alleged witness, but the third one was on a
  different date involving different witnesses.
    So, in addition to the prejudicial effect that I think it would
  have, we also have, a situation here where the identification
  testimony, I believe, on Indictment 3259 of 1990 is much stronger than
  the identification testimony on Indictment Number 59[3]2 of 1990. . . .
  [T]herefore, if a jury felt that Mr. Howard was involved in the
  robberies charged in 3259, they might also convict him for the robbery
  in 59[3]2; although the evidence of identification in that matter was
  much weaker.

(6/28/91 Wade Tr. at 30-33.) The trial court denied Howard's objection, thus reaffirming the consolidation. (Id. at 46.)

On September 26, 1991, Howard's scheduled trial date, Howard's counsel filed a motion to dismiss pursuant to N.Y. CPL § 30.30 and the Sixth and Fourteenth

Amendments, alleging denial of the right to a speedy trial. (See 10/24/91 Duffy Op. at 1.) The trial court denied the motion, holding:

    As to that branch of defendant's motion for
  dismissal of the charges based I upon the Sixth
  Aniendment to the United States Constitution, it is
  denied. No facts have been set forth to support the
  assertion that defendant's constitutional right to a
  speedy trial has been denied in this matter. (See
  People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79,
  335 N.E.2d 303).
    The Court accordingly now turns to the second branch
  of defendant's motion based upon statutory "speedy
  trial" considerations under CPL § 30.30. . . .
    From these calculations, the Court determines that
  the defendant has shown, by his papers, that the
  People are chargeable with no more than 156 days. As
  this is well within the 183 day statutory period, the
  defendant has failed, in his papers, to show the
  People have exceeded their time.

(10/24/91 Duffy Op. at 3.)

Howard's trial began in November 1991 (Tr. at 1-2, 18, 19), and on December 10, 1991, the jury convicted Howard on the two consolidated indictments of five counts of first degree robbery, finding him not guilty of two additional first degree robbery counts. (Tr. at 615-21.) On January 27, 1992, Howard was sentenced to five concurrent terms of seven to twenty-one years, to run consecutively to a two to six year sentence he had previously received in New York County for another robbery. (1/27/92 Sentence Tr. at 9; Koplin Aff. ¶ 7; Howard Br. at 9) See also People v. Howard, 235 A.D.2d 232, 232; 653 N.Y.S.2d 102, 102-03 (1st Dep't 1997).*fn2

Howard's Direct Appeal

In March 1996, Howard appealed his January 27, 1992 Bronx conviction on the grounds that: (1) the trial court erred in consolidating the two indictments; (2) the trial court erred in denying his motion to dismiss on speedy trial grounds pursuant to CPL § 30.20 and CPL § 30.30 and his constitutional rights; and (8) the conviction on indictment 5932-90 should be reversed since the complainant's trial identifications were tainted by unduly suggestive pretrial ...


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