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November 15, 2001


The opinion of the court was delivered by: Victor Marrero, United States District Judge.


Jonathan Gonzalez ("Gonzalez"), pro se and incarcerated, petitions the Court for a writ of habeas corpus. Gonzalez claims he is entitled to habeas corpus relief because his state conviction is based on (1) insufficient evidence and (2) impermissibly suggestive identifications. Respondent Charles R. Reiner ("Reiner"), who serves as Superintendent of the Green Haven Correctional Facility ("Green Haven") and is recresented by the Bronx County District Attorney, filed opposition to Gonzalez's petition. For the reasons set forth below, Gonzalez's petition is Denied.


Gonzalez, incarcerated at Green Haven, was convicted on September 4, 1997 of robbery in the first and second degrees and criminal possession of a weapon after a jury trial before the New York State Supreme Court, Bronx County. At trial, the prosecution introduced evidence that at approximately 12:14 a.m. on January 14, 1996, two men, Edson Velasquez ("Velasquez") and his uncle Mario Arzu ("Arzu"), were robbed while walking on 152nd Street in the Bronx. Velasquez and Arzu testified that on that night they passed a group of three young men standing outside a pool hall, including Gonzalez, who began to follow them. Trial Transcript (hereinafter "Tr.") at 5-6, 8, 39, 94, 368, 370-71. When a fourth man began following them, Velasquez told Arzu: "[L]et's run, those guys are going to rob us," and began to walk faster. Tr. at 88, 95-96, 370.

Arzu testified that he, however, stopped walking. He observed Gonzalez standing approximately eight feet away, looking at him with what appeared to be his clenched fist positioned at his waist area inside his coat jacket. Tr. at 375, 378, 414. Suddenly, one of the four men*fn1 grabbed and held Arzu from behind while another took Arzu's chain out from under his shirt, felt it, and snatched it off Arzu's neck. Tr. 374-75, 414.

Velasquez testified that, upon realizing that he had left his uncle behind with the four men, he returned because he feared trouble. Tr. 88, 95-96, 370. Upon his return, he saw that one of the men had Arzu's chain in his hands while Gonzalez remained standing against the wall with his clenched fist steadied inside his coat jacket at his waist area, approximately four feet away from Velasquez. Tr. 14, 16, 38, 95, 99, 100, 105, 165. Velasquez did not run to obtain help because, observing Gonzalez's stance, he believed Gonzalez was armed with a weapon. Tr. at 7, 16, 99, 102.

Velasquez was watching Gonzalez when another man suddenly approached Velasquez and demanded to see his chain. Velasquez refused, and Jackson immediately held Velasquez while another man attempted to snatch the chain. A struggle ensued during which Velasquez was thrown on the sidewalk, at which point his chain was taken. Tr. at 43-45, 87-88, 102, 106-07, 200, 250, 374, 376, 379, 416, 419-20, 429.

Velasquez and Arzu then ran to a telephone booth, called the 911 emergency number and reported the incident. Minutes later, Police Sergeant Joseph Erbetta ("Erbetta") and Police Officer Victor Dempsey ("Dempsey") were driving north on Prospect Avenue when they observed Velasquez and Arzu signaling them to stop. Tr. 48, 96, 264-66, 382, 396-97, 441-43, 453. Arzu, Velasquez and Dempsey testified that when the officers stopped, Velasquez and Arzu informed them they had been robbed by one white Hispanic man and three black men. Tr. 48, 313, 315, 316, 320, 382. Velasquez and Arzu then sat in the backseat of the patrol car, while the officers drove westbound, against the flow of traffic, on East 152nd Street in an attempt to find the perpetrators. Tr. 51, 75, 176, 197, 266, 284, 287, 249, 383, 403, 443-44, 460. Approximately one minute into this search, they found a group of at least ten individuals standing in front of the pool hall mentioned above. Tr. 180, 266, 297, 325, 401, 408.

Velasquez and Arzu pointed out Gonzalez, whom they recognized as the white Hispanic male, as one of the robbers.

Tr. at 7, 76-77, 85, 176, 179-82, 189, 231, 246-47, 383-84,

408. Officer Dempsey stopped the car, exited the vehicle, and jogged across the street to approach Gonzalez, saying, "stop where you are." Tr. 268, 408, 446. Gonzalez ran away. Tr. at 268, 446.

Dempsey and Erbetta chased Gonzalez. Dempsey testified

-4| that he saw Gonzalez remove a gun from his jacket pocket and place the gun in a snow bank. Dempsey recovered the gun, which contained six live rounds, while Erbetta chased Gonzalez. After a brief struggle, Erbetta, with the assistance of Dempsey, apprehended Gonzalez in an alleyway at 152nd and Tinton Avenue. Tr. at 269, 273, 285, 291-94, 447, 450, 478.

Velasquez and Arzu had exited the police car and stood on the sidewalk outside the alleyway. They identified Gonzalez as one of the robbers and the officers arrested Gonzalez. Tr. at 77-78, 86, 250, 273-74, 326-27, 447. Shortly thereafter, Jackson was identified by Arzu and Velasquez, and arrested, in front of the pool hall. Tr. at 250, 327, 421.

Initially, Gonzalez and Jackson were tried together. However, at trial, Velasquez made an impermissibly suggestive identification of Gonzalez. In response to counsel's objection, the trial judge ordered the identification stricken from the record to avoid prejudice to Gonzalez. The trial judge also granted Jackson's motion for a mistrial, without prejudice, because Jackson's defense would be jeopardized if he were not permitted to cross-examine Velasquez about the in-court identification. Tr. 358-61. Gonzalez and his attorney considered but decided against moving for a mistrial without prejudice, even though the trial judge indicated that he would grant it. Tr. 345-46, 357-61. Tried individually, Gonzalez was ...

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