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FRAZIER v. STATE OF NEW YORK

January 28, 2002

WADE FRAZIER, PETITIONER,
V.
STATE OF NEW YORK, RESPONDENT.



The opinion of the court was delivered by: Robert W. Sweet, United States District Judge.

OPINION

Wade Frazier ("Frazier"), an inmate at the Sing Sing Correctional Facility, has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254, to challenge the April 16, 1997 judgment of the Supreme Court, New York County (Brandveen, J.), convicting him, after a jury trial, of Robbery in the First Degree in violation of New York Penal Law § 160.15(3), and Robbery in the Second Degree in violation of New York Penal Law § 160.10(2)(a), as violative of the United States Constitution. For the reasons stated, the petition is denied.

Prior Proceedings

The petition was filed by Frazier on May 29, 2001, alleging numerous grounds for relief including that the lineup by which he was identified was unduly suggestive. The state moved to dismiss his petition which motion was marked fully submitted on September 20, 2001.

The State Proceedings

A. Indictment and Pretrial Hearings

Frazier was arrested on August 23, 1996 and subsequently indicted on one count each of Robbery in the First Degree in violation of New York Penal Law § 160.15(3), and Robbery in the Second Degree in violation of New York Penal Law § 160.10(2)(a).

On April 7, 1997, the defense moved to suppress, inter alia, any and all testimony regarding the identification of Frazier on grounds that the identification procedure used by the prosecution in this case was unduly suggestive and that the prosecution witness lacked independent basis for an adequate in-court identification. A Wade*fn1 hearing was held on April 7, 1997. There Frazier argued that the lineup was impermissibly suggestive because the participants in the lineup were dramatically dissimilar in appearance from him. Frazier claimed that he was the only participant with readily identifiable dreadlocks and that the police failed to take measures to cover Frazier's distinctive hairstyle. The Honorable Justice Antonio Brandveen denied the defense motion, ruling that the lineup identification was not unduly suggestive since an examination of photographs of the lineup shows that Frazier's appearance was sufficiently similar to that of other participants in the lineup. The judge also denied Frazier's request to call additional witnesses at the hearing.

B. The Trial

On April 9, 1997, Frazier's trial began before Justice Brandveen and a jury. During jury selection, the trial court granted the People's objection made pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), to a defense peremptory challenge. At trial four people testified for the prosecution and the trial court permitted an in-court identification of Frazier by the victim Zakkour.

The evidence offered by the defense at trial included the testimony of Dr. Leippe, a psychologist, called as an expert on eyewitness testimony, defense investigators Leah Gonzalez and Odetta Carberry, and Ishmael Wallace. Wallace, who was at the park during the robbery, testified that Frazier was not the individual he observed attack Zakkour. According to Wallace, the perpetrator, unlike Frazier, was a "light skinned black male," or "could be Latino," approximately "five feet, six inches and three-quarters" in height, with "unkempt" and "matted hair." However, Wallace, who has a history of mental illness and is unable to distinguish between "fantasy and reality," could not form "a clear mental image" of the person he observed attack Zakkour. Wallace also admitted that he sometimes doubts his own memory and finds it difficult to accept his memory with his "rational mind." At the time of the robbery, Wallace was under medical treatment and was taking two or three forms of psychotropic drugs.

Two police officers, Bernadette Fee and Jerry Mami, also testified for the defense. Although the defense attempted to impeach Zakkour's credibility by highlighting alleged discrepancies in her identification of Frazier and the officers admitted error in their notes of conversations with Zakkour. At trial, Officer Fee testified that her notes were not a verbatim transcription of Zakkour's statements immediately following the crime and that she paraphrased much of what Zakkour had said. Additionally, Zakkour never reviewed what the officers wrote and was not asked to correct any discrepancies.

C. Conviction and Sentence

On April 16, 1997, the jury returned a verdict convicting Frazier of both counts charged in the indictment. Frazier was sentenced as a second felony offender to concurrent terms of twenty years in prison for the First Degree Robbery Count and ten years in prison for the Second Degree Robbery Count.

D. State Appeal

Frazier appealed his conviction to the Appellate Division, First Department, claiming that: (1) his conviction was against the weight of the evidence; (2) that the lineup was unduly suggestive and the victim should not have been permitted to make an in-court identification; (3) the trial court improperly seated a juror whom defense counsel had peremptorily challenged; and (4) that the trial court abused its discretion at sentencing by improperly relying on Frazier's lack of remorse as justification for its imposition of a harsh and excessive sentence.

On April 4, 2000, the Appellate Division affirmed Frazier's conviction. The appellate court held that Frazier's conviction was not against the weight of the evidence. The court found that Frazier's lineup identification was not unduly suggestive and that the trial court properly precluded Frazier from calling additional witnesses at the Wade hearing. The court further ruled that the trial court properly granted the prosecution's objection to the defense peremptory challenge. As to Frazier's claim regarding sentencing, the appellate court found no abuse of discretion. People v. Frazier, 706 N.Y.S.2d 30 (App. Div. 1 st Dept. 2000). The Court of Appeals denied leave to appeal on May 18, 2000.

Facts

Frazier's conviction stems from the robbery of Elizabeth Zakkour ("Zakkour") on the afternoon of August 13, 1996, in Central Park. At trial, the prosecution presented evidence showing that at the time of the crime Zakkour was standing near a bench by the 97th Street and Fifth Avenue park entrance, waiting for her infant daughter and the babysitter. The weather was clear, and it was still daylight. Zakkour testified that when she went to sit down on the bench she heard a rustling sound which seemed to be coming from behind the bench. Zakkour thought that there was a rat under the bench but when she turned around to investigate, she was struck across the back of her head, and she fell to the ground. Zakkour initially fell on her hands and knees, tearing her denim trousers on the cement pavement. However, due to the force of the impact, she slipped and landed on her back. When she looked up she saw her attacker standing behind the bench, "looking directly at [her]."

Zakkour further testified that she was lying approximately six feet from where the assailant stood. Zakkour noticed that he was about six feet tall with a muscular build, wearing a faded, khaki, brownish green t-shirt that had a circular pattern on it. She also testified that she saw he had a full beard around his lips, and a prominent brow bone, thick black lashes, very long, almond shaped eyes, alternating dreadlocks, the longest being about shoulder length. The assailant grabbed her hands and purse and began banging her head against the cement. He then ran off with her purse. Zakkour testified that the robbery lasted about two to three minutes, though that time-frame was called into question in light of the circumstances surrounding the robbery. Though there were conflicting indications in police reports, Zakkour said she remained conscious and continued staring directly into Frazier's face during this entire time.

Following the robbery, an individual named Ishmael Wallace ("Wallace") approached Zakkour and asked if she was all right. Wallace was in the park at the time of the robbery and was seated on a bench when he heard Zakkour screaming. Wallace turned and saw a man come over the back of the bench and push Zakkour to the ground. Wallace was some distance away from the incident and did not have a good mental image of Zakkour's assailant. Wallace did, however, observe the assailant while he was bent over the woman and as the individual was running away.

Other passersby soon approached Zakkour and accompanied her to a nearby hospital. Zakkour had a deep laceration on her skull and was covered in blood. As she walked from the park to Mt. Sinai Hospital she felt "very shaky," and "quite faint." At the hospital, Zakkour was treated by Dr. Michael Ramon Goy. While examining Zakkour, Dr. Goy noticed that one of the emergency room nurses (the "triage nurse"), had written "LOC" or "loss of consciousness" on Zakkour's chart. However, when Dr. Goy asked Zakkour if she was unconscious during the robbery she responded "no." Dr. Goy also found that despite having undergone a very traumatic experience, Zakkour was not hysterical and her mental state appeared normal. In addition, Zakkour's vision was not impaired by the blows to her head.

Several police officers interviewed Zakkour at the hospital on the day of the robbery and Zakkour consistently described her assailant to the officers as "approximately twenty to thirty years old, six feet tall, thin but muscular, alternating length dreadlocks, similar to that worn by singer Tracy Chapman, the longest one being sort of chin to shoulder length and shorter ones towards the top." Zakkour did not mention Frazier's eyes, prominent brows and facial hair during the initial description of the perpetrator to the police. ...


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