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BENJAMIN v. FISCHER

December 17, 2002

DONALD BENJAMIN, PETITIONER,
V.
BRIAN FISCHER, SUPERINTENDENT, SING SING CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Shira A. Scheindlin, Distirct Judge

OPINION AND ORDER

I. INTRODUCTION

Donald Benjamin ("petitioner"), an inmate at the Sing Sing Correctional Facility in Ossining, New York, brings this petition for a writ of habeas corpus pursuant to section 2254 of Title 28 of the United States Code ("§ 2254"). On March 19, 1997, following a jury trial, Benjamin was convicted of one count of burglary in the second degree and one count of robbery in the third degree and was sentenced to eight years of imprisonment.

Respondent opposes both claims, seeking to dismiss the petition. See Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus ("Opp. Mem.") at 1-2, 43. For the reasons stated below, the petition is granted.

II. BACKGROUND

A. The Robbery

The following facts are not in dispute. On March 7, 1996, Harold Wenglinsky was robbed in his apartment building at 500 West 122nd Street in Manhattan by an African-American man. See Tr. at 236-37. When Wenglinsky returned from work at approximately 8:20 p.m., his wife buzzed open the lobby door, and an unknown man followed Wenglinsky in before the door closed. See id. at 236-37, 239. Wenglinsky waited for the elevator in the lobby with the unknown man standing beside him. See id. at 237, 239-40. The unknown man was wearing a black hooded "bubble" jacket with the hood up, but "his entire face was exposed." See id. at 254, 259-60, 264-65. When the elevator came, the two men got on the elevator. See id. at 237-40. A woman headed to the basement laundry room was also in the elevator. See id. at 237-38.

As soon as the woman got out of the elevator, the unknown man grabbed Wenglinsky by the neck, pushed him against the wall and demanded his wallet. See id. at 238, 244, 253, 259. When the elevator doors opened on the first floor, the assailant shoved Wenglinsky off the elevator and ran out into the lobby. There were three other people in the lobby at this time. See id. at 238, 247, 266. Wenglinsky removed his coat and threw it, 238, 248-49. The assailant picked up the coat, and ran out of the building. See id. at 248-49. Wenglinsky ran after the assailant, followed him down the block and chased him into another building, at which point Wenglinsky lost him. See id. at 249. The entire incident lasted approximately two minutes. See id. at 264-65.

Shortly after the incident, Wenglinsky reported the crime to Police Officer Dennis Ryan, who was assigned to the 26th Precinct's Detective Squad to investigate robberies. See id. at 255, 285. At trial, Ryan testified, after reviewing the police report he made shortly after the robbery, that Wenglinsky had told him that the attacker was a black man, see id. at 18-22, 6'1" tall and 170 pounds, see id. at 295. There was no indication in Officer Ryan's report about the assailant's puffy eyes or cheeks. See id. at 296. About two hours after the crime, Officer Ryan took Wenglinsky and Daniel Nexon, one of the witnesses at the crime scene, to the Manhattan Catch Unit to view photographs of persons fitting Wenglinsky's description who had been previously arrested for similar crimes. See id. at 286, 293-94, 305-06. Wenglinsky viewed approximately 100 to 200 photographs in about ten to fifteen minutes, see id. at 7, 18, 20, 270, and picked out three or four individuals, including petitioner, who resembled his assailant, see id. at 9, 271, 303. After Officer Ryan said that he was "not interested in photos that looked like the guy," and that he "wanted the guy", see id. at 303, Wenglinsky settled on petitioner as the assailant, see id. at 18-20, 271. Unlike Wenglinsky, Nexon was unable to identify petitioner from the pictures shown at the photo viewing. See id. at 306.

Eleven days later, on March 18, 1996, Wenglinsky and two other eyewitnesses, Greg Alling and Richard Brun, viewed a six man lineup that included petitioner. See id. at 23-24. Wenglinsky picked Benjamin out of the lineup, see id. at 304; People's Ex. 1, while both Alling and Brun, who did not participate in the earlier photo view, failed to identify petitioner, see People's Exs. 2, 3. According to the police report, when a police officer asked Alling whether he recognized anyone in the lineup, Alling replied, "no, I can't be sure." See People's Ex. 2. When a police officer asked Brun the same question, he similarly stated, "no." See People's Ex. 3.

B. Pretrial Sandoval Hearing

On January 16, 1997, the trial court conducted a Sandoval hearing.*fn2 See id. at 33-35. Benjamin had a prior felony conviction for attempted robbery in the second degree and a prior misdemeanor conviction for assault in the third degree. See id. at 33-34. Judge Berkman ruled that Benjamin's prior convictions were inadmissible, but if Benjamin testified at trial, the prosecutor could ask whether Benjamin had been convicted previously of any crimes without inquiring into the underlying facts of those convictions. See id. at 34-35.

C. Trial

1. The People's Case

The prosecution called three witnesses at trial to put on its case-in-chief: (1) Wenglinsky; (2) Antonio Herrera, superintendent of the building where the crime occurred;*fn3 and (3) Officer Ryan. Wenglinsky testified that the assailant was an African-American male in "his late teens, early twenties," who was "about six feet in height." See id. at 253-54. He also testified that the assailant had puffy cheeks, see id. at 253, although he did not mention that detail to the police at the time of the crime, see id. at 296, 387. Wenglinsky identified Benjamin in court as his assailant.

The suggestion made by defense counsel during cross-examination was that Wenglinsky had identified the wrong person at the lineup and incorrectly identified the person he saw in the photographs at the Manhattan Catch Unit. See id. at 270-73. Defense counsel emphasized that the encounter between Wenglinsky and his assailant lasted only two minutes during which the assailant wore a hood most of the time. See id. at 264-65, 273-74. By contrast, after Wenglinsky settled on Benjamin's photo as that of his assailant, he was able to study the photo for an indefinite period of time, possibly solidifying an incorrect identification in his memory. See id. at 271.

In addition, cross-examination of Officer Ryan revealed that the description Wenglinsky gave the police immediately after the incident did not match that of petitioner, whose height and weight was recorded by Officer Ryan as 5'10" and 200 pounds, respectively. See id. 302-03. Defense counsel emphasized that an error of three to four inches and thirty pounds was significant. In addition, when Wenglinsky arrived at the precinct after the robbery, he gave two different descriptions of his assailant, one to Officer Ryan and the other to a different officer.*fn4 See id. at 295-96. Each officer wrote down the description in a police report. The reports were taken within twenty minutes of each other. See id. Both police reports were taken before Wenglinsky reviewed the photographs at the Manhattan Catch Unit. See id. at 294.

On re-direct, Wenglinsky reiterated that petitioner was the assailant, and stated that his identification was based on the "face, the cheeks, the puffy eyes, and the shape of the head." See id. at 275. However, as Officer Ryan testified, there was no description of puffy checks or puffy eyes in either police report. See id. at 296, 387.

To emphasize the inconsistencies between the two police reports made shortly after the incident, defense counsel sought to introduce the reports into evidence. See id. at 295. The People ultimately did not object to the admission of Officer Ryan's report as defense Exhibit B. See id. at 301. The following discussion took place in open court:

MR. GAY [the prosecutor]: Judge, the only objection I would have is that there are some things underlined on [the report]. I have a clean copy if that would be sufficient.
MS. ONOFRIO [defense counsel] : That's fine. We can have it remarked.
(Document marked as Defendant's Exhibit B in evidence).

See id. There was no mention of the portion of the report containing petitioner's prior arrest record, nor was there any mention of the report being redacted to remove any reference to any prior crimes. However, as stated in her affidavit, defense counsel blacked out with an ink marker the portion of the exhibit referring to petitioner's two prior robbery arrests.*fn5 See Affirmation of Adrienne R. Onofrio In Support of Motion To Set Aside the Verdict, dated February 4, 1997 ("Onofrio Aff."), Ex. F to Simone Aff., at ¶ 4.

At trial, the court sustained the prosecutor's objection to a question defense counsel posed to Officer Ryan designed to elicit the fact that Brun and Alling had failed to pick petitioner out of the same lineup that Wenglinsky had viewed. See id. at 305-06. The trial court similarly sustained the prosecution's objection to questions regarding ...


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