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,
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,
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 found guilty by the jury of two counts of
robbery in the first degree, two counts of robbery in the second degree
and one count of criminal possession of a weapon in the third degree.
Gonzalez, by counsel, appealed his conviction on the grounds that the
government presented insufficient evidence to prove, beyond a reasonable
doubt, that Gonzalez "displayed" what appeared to be a gun and that
Gonzalez shared the other robbers' intent. Citing New York State law, the
Appellate Division, First Department, affirmed the conviction on October
21, 1999. Specifically, the Appellate Division found that "the verdict
was based on legally sufficient evidence" of Gonzalez's "active and
intentional participation in the robbery and his display of what appeared
to be a firearm." People v. Gonzalez, 698 N.Y.S.2d 3, 4 (N.Y. App. Div.
1st Dept. 1999). The Appellate Division's decision did not discuss any
federal claims or reference any federal law.
The facts set forth above are not in dispute. Gonzalez, in his habeas
petition, raises two questions of legal sufficiency: whether there was a
legally sufficient amount of evidence to show that under New York State
law he either (1) displayed a weapon or (2) had the requisite intent to
commit robbery. Reiner, in his opposition to the petition, asserts that
there was legally sufficient evidence and that a writ of habeas corpus
should not issue. Gonzalez, in his Traverse Response to Respondent's
Opposition to Petition for Habeas Corpus (hereinafter "Traverse Brief"),
raises a new issue regarding whether the impermissibly suggestive
in-court identification deprived him of his rights to due process under
the Fourteenth Amendment of the United States Constitution. Reiner has
not had an opportunity to respond to Gonzalez's second claim.
Nevertheless, the Court addresses this claim.
A. STANDARD OR REVIEW
Gonzalez's petition was filed on October 30, 2000 and is governed by
28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective
Death Penalty Act (hereinafter "AEDPA"). See Morris v. Reynolds,
264 F.3d 38 (2d Cir. 2001). Under AEDPA, a federal court may not grant a
writ of habeas corpus with respect to any claim that was "adjudicated on
the merits" in the state court unless the state court decision is either
contrary to clearly established federal law or involved an unreasonable
application of clearly established federal law, as determined by the
United States Supreme Court. See 28 U.S.C. § 2254(d); Morris, 264
F.3d at 46 (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). Clearly
established federal law refers to the holdings only, not the dicta, of
the United States Supreme Court. See id. The state court's application of
clearly established federal law must be objectively unreasonable, not
merely erroneous. See Williams, 529 U.S. at 387 n.14; accord Clark v.
Stinson, 214 F.3d 315, 320-21 (2d Cir. 2000). of course, where, as here,
a party appears pro se, the courts are required to broadly construe the
pro se pleadings and interpret them "to raise the strongest arguments
that they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).
Whether a matter was adjudicated on the merits depends on whether the
state court made a decision based on the "substance of the claim
advanced." Sellan v. Kuhlman, 261 F.3d 303, 312 (2nd Cir. 2001); see also
Washington v. Schriver, 255 F.3d 45 (2d Cir. 2001). In Sellan, the issue
was whether a state court's disposition of a petitioner's claim for
ineffective assistance of counsel was "adjudicated on the merits" where
the Appellate Decision issued a summary order without discussion of
federal law or basis in federal law.*fn2 See
Sellan, 261 F.3d at 308. The Second Circuit stated that "[n]owhwere does
the statute make reference to the state court's process of reasoning."
Id. at 311. Accordingly, it held that
a state court "adjudicates" a state prisoner's federal
claim on the merits when it (1) disposes of the claim "on
the merits," and (2) reduces its disposition to judgment.
Id. at 312. As to the first prong, whether a decision is made on the
merits" may be contrasted against a decision made for procedural
reasons. Analytically, the Second Circuit instructed that a federal
habeas court should consider
(1) what the state courts have done in similar cases; (2)
whether the history of the case suggests that the state
court was aware of any ground for not adjudicating the
case on the merits; and (3) whether the state court's
opinion suggests reliance upon procedural grounds rather
than a determination on the merits.
Id. at 314 (citing Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999)).
To hold otherwise, would be "at odds with the animating spirit of the
AEDPA which respects the state court's decision as to all [state and
federal] claims." Id. at 313.
Applying the analysis set forth by the Second Circuit, this Court finds
that the State Appellate Division's decision here qualifies as an
adjudication on the merits under the AEDPA, even though the Appellate
Division did not discuss any federal claim. It is well-settled that in a
criminal prosecution, failure to prove an element of a crime beyond a
reasonable doubt would violate the United States Constitution. See
Jackson v. Virginia, 443 U.S. 307 (1979). The Appellate Division held
that, based on the record before it, there was "legally sufficient"
evidence of both Gonzalez's "display" of an object that appeared to be a
gun and of his having the requisite intent. Gonzalez, 698 N.Y.S.2d at 4.
The Appellate Division did not cite what New York courts have done to
resolve such matters in similar circumstances. However, its decision was
based on the parties' legal memoranda which detailed relevant state laws
and precedents. Further, that court was not presented with any procedural
or other ground that would bypass adjudicating the appeal on the merits.
Moreover, the Appellant Division's written opinion itself explicitly
states that it is based on the merits of the claim, rather than
procedural grounds. Finally, there can be no doubt that the Appellate
Division's adjudication of the sufficiency of the evidence was reduced to
a judgment because it affirmed the conviction on that ground.
Accordingly, this Court is constrained under § 2254(d) to give due
deference to the State court's ultimate decision regarding the
sufficiency of the evidence, unless that determination is deemed to be an
unreasonable application of, or contrary to, clearly established federal
Critical to Gonzalez's second claim, as will be discussed below in
Section 11(C), apart from the trial proceeding itself, there is no record
of any State court proceeding or adjudication regarding the
identification issues raised by Gonzalez in his Traverse Brief.
B. SUFFICIENCY OF THE EVIDENCE
The Due Process Clause of the Fourteenth Amendment protects a defendant
in a criminal case against conviction except upon proof beyond a
doubt of every fact necessary to constitute the crime with which he is
charged. See Jackson, 443 U.S. at 307; Fiore v. White, 531 U.S. 225
(2001). The standard for reviewing claims of insufficient evidence asks
"whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at
319 (emphasis in original); Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir.
1994), cert. denied, 514 U.S. 1066 (1995). Only when the record is
totally devoid of evidentiary support is a due process issue raised and
habeas corpus relief warranted. See Bossett v. Walker, 41 F.3d 825, 830
(2d Cir. 1994) (citing Mapp v. Warden, 531 F.2d 1167, 1173 (2d Cir.
1976)). The burden on petitioner is "very heavy" because all inferences
are to be drawn in the prosecution's favor, and "a conviction may be
based upon circumstantial evidence and inferences based upon the
evidence, and the jury is exclusively responsible for determining a
witness' credibility." United States v. Strauss, 999 F.2d 692, 696 (2d
Cir. 1993) (citations omitted) Thus the relevant inquiry is not whether
this federal court sitting in habeas corpus would find the same facts to
be true, but whether any reasonable fact finder could.
Gonzalez claims that there was insufficient evidence of his "display"
of a weapon and of his intent for a jury to find him guilty of robbery
beyond a reasonable doubt. As explained below in further detail, the
Court does not find the record to be devoid of evidence to support the
essential elements of Gonzalez's robbery conviction. Accordingly, the
Appellate Division's decision affirming Gonzalez's conviction as based on
sufficient evidence was not contrary to or an unreasonable application of
clearly established federal law.
1. "Display" under New York Law
Gonzalez was convicted of robbery under New York Penal Law §
160.15, which is committed when, during the course of a forcible
stealing, a participant in the crime "[d] isplays what appears to be a
pistol, revolver, rifle, shotgun, machine gun or other firearm." Gonzalez
was also convicted of robbery under New York Penal Law § 160.10,
which is committed by a participant in a forcible stealing when he
displays "what appears to be a pistol, revolver, rifle, shotgun, machine
gun or other firearm" during the course of the crime or immediate flight
therefrom. To establish the element of display, the prosecution must
demonstrate that: (1) the defendant consciously displayed "something that
could reasonably be perceived as a firearm with the intent of compelling
an owner of property to deliver it up or for the purpose of preventing or
overcoming resistance to the taking;" and (2) the display was actually
witnessed by the victim by sight, sound or touch. People v. Baskerville,
457 N.E.2d 752, 756 (N.Y. 1983). The element has been construed broadly
to require that "the defendant, by his actions, consciously manifests the
presence of an object to the victim in such a way that the victim
reasonably perceives that the defendant has a gun." People v. Lopez,
535 N.E.2d 1328, 1332 (N.Y. 1989). A person is criminally liable for the
conduct of another, who engages in conduct that constitutes a crime, if
he "solicits, commands, importunes, or intentionally aids such person to
engage in such conduct." New York Penal Law § 20.20; see People v.
Jackson, 574 N.Y.S.2d 661 (N.Y. App. Div. 1st Dept. 1991).
Gonzalez claims that the State did not prove his participation in the
January 14, 2001 robbery beyond a reasonable doubt because there was
insufficient evidence that he ""consciously' displayed something that
could `reasonably' be perceived as a `firearm' with the "intent' to make
him `give up the property' or intent of `preventing['] the victim from
`overcoming the resistance.'" Traverse Brief at 23 (quoting Baskerville,
457 N.E.2d at 756). Gonzalez claims that the evidence only shows he stood
still with his hand in his pocket. While the evidence at trial showed
that Gonzalez was stationary during the robbery and did not touch the
victims or their jewelry, the analysis does not end at that point. Both
Arzu and Velasquez testified that Gonzalez was among the men who pursued
them prior to the robbery. Further, they testified that they observed
Gonzalez at a close distance, that he watched them, and that his hand
appeared to be clenched in a fist at his waistband. Moreover,
subjectively, Velasquez testified that he perceived Gonzalez to be armed
and that his perception discouraged him from attempting escape or
resistance. Finally, it is relevant that Gonzalez did, in fact, have a
gun in his pocket which he discarded when pursued by police officers
minutes after the robbery.
Gonzalez has not demonstrated an absence of facts to support the
conviction as to the "display" element. Here, the Court finds that on the
basis of the testimony regarding Gonzalez's pursuit before the robbery,
his proximity, and his stare and stance during the robbery, there was
sufficient evidence for a reasonable jury to find that Gonzalez
"displayed" a firearm. Accordingly, the Appellate Division's decision
affirming the trial conviction that there was legally sufficient evidence
to support the "display" element is neither contrary to, nor an
unreasonable application of, clearly established federal law.
2. Intent to Rob
The requisite intent to rob can be established by either (1) the act
itself or (2) the accessory's conduct and surrounding circumstances.
People v. Coulter, 660 N.Y.S.2d 43 (N.Y. App. Div. 2d Dept. 1997); People
v. Smith, 590 N.Y.S.2d 493 (N.Y. App. Div. 1st Dept. 1991). As already
explained, based on the record at trial, a reasonable fact finder could
find that the circumstances, viewed in their totality, created an
impression that Gonzalez had a gun. In addition, his presence and conduct
prior to and during the robbery led the victims to believe he had a gun
and to change their behavior on that basis.
Given Gonzalez's conduct in followino the victims before the robbery
and his stance and stare during the robbery, the Court is persuaded that
there is sufficient evidence from which a reasonable trier of fact would
find that Gonzalez intentionally assisted in the forcible thefts.
Consequently, the State court decision is neither contrary to, nor an
unreasonable application of, clearly established federal law.
C. IDENTIFICATION OF GONZALEZ AT TRIAL
Gonzalez raised a new ground for habeas relief in his Traverse Brief.
The Court, interpreting Gonzalez's pleadings with due liberality owed to
pro se pleadings, addresses this new claim, even though Reiner has not
Gonzalez claims that at trial "many Identification Issues arose." In
particular, Gonzalez claims that an impermissibly suggestive
identification was not cured, that the trial court judge erred in not
declaring a mistrial sua sponte, and that out-of-court identifications
were suggestive and not
corroborated. According to Gonzalez, his conviction was based on these
identifications and violates his right to due process under the
Fourteenth Amendment of the United States Constitution.
This Court is precluded from reaching the merits of any of the
"Identification Issues" complained of by Gonzalez because he has not
exhausted his state remedies. Under the doctrine of exhaustion, a claim
raised on federal habeas corcus should previously have been fairly and
fully presented to the state courts. See O'Sullivan v. Boerckel,
526 U.S. 838, 844 (1999) (holding that as to any habeas petition
presenting the claim that a prisoner's "state court conviction violates
federal law, the state courts should have the first opportunity to review
this claim and provide any necessary relief"). Here, the State has had no
opportunity to address the due process claim because Gonzalez did not
appeal or seek any other state post-conviction relief regarding either the
in-court or out-of-court identifications. Indeed, he informed the
Appellant Division that his appeal "raises no issues regarding the
Mapp/Wade hearing" at which the out-of-court identifications were at
issue. Affidavit in Opposition to Petition for Habeas Corpus, at ¶
7, Ex. 1 at 4.
Accordingly, the Court dismisses without prejudice Gonzalez's petition
for habeas corpus on the grounds that his state conviction was based on
suggestive identifications in violation of the U.S. Constitution.
III. CONCLUSION AND ORDER
For the foregoing reasons, it is hereby
ORDERED that Petitioner Jonathan Gonzalez's Application for a Writ of
Habeas Corpus on the grounds of insufficient evidence be dismissed;
ORDERED that Petitioner Jonathan Gonzalez's Application for a Writ of
Habeas Corpus on the grounds of impermissible identification evidence be
dismissed without prejudice; and it is finally
ORDERED that the Clerk of Court is directed to close this case.
As Alvarez has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability will not issue. See
28 U.S.C. § 2253(c). See also United States v. Perez, 129 F.3d 255,
259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011, 1014-16
(2d Cir. 1997). The Court certifies that, pursuant to
28 U.S.C. § 1915(a)(3), any appeal from this Order would not be taken
in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).