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GONZALEZ v. REINER
November 15, 2001
JONATHAN GONZALEZ, PETITIONER,
CHARLES R. REINER, SUPERINTENDENT GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.
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,
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 ...