complications, Farmian visited the hospital the next morning, and the
hospital record describing these symptoms was admitted as a prosecution
exhibit. (Tr., at 170-73.) The Court is persuaded that this evidence as
offered to the jury provided sufficient basis to find that Farmian had
sustained physical injury during the commission of the crime. Therefore,
the Court rejects Valtin's habeas claim regarding the sufficiency of the
evidence presented at the Trial.
C. CONSCIOUSNESS OF GUILT JURY CHARGE
Valtin's next claim is that he was deprived of a fair trial by the
trial court's refusal to instruct the jury that evidence of Valtin
discarding his sweater was at most consciousness of guilt evidence with
slight or no evidentiary value. An erroneous state jury instruction is
typically grounds for federal habeas relief only if it "so infected the
entire trial that the resulting conviction violates due process." Blazic
v. Henderson, 900 F.2d 534, 541 (2d Cir. 1990) (quoting Cupp v.
Naughten, 414 U.S. 141, 147 (1973)); see also Brecht v. Abrahamson,
507 U.S. 619, 637 (1993) (stating that where a petitioner establishes
that constitutional error occurred, he is not entitled to relief unless
the error had a "substantial and injurious effect or influence in
determining the jury's verdict"). With an omitted jury instruction,
Valtin "bears an `especially heavy' burden in demonstrating . . .
constitutional error [because an] `omission, or an incomplete [jury]
instruction, is less likely to be prejudicial than a misstatement of the
law.'" Ayala v. Hernandez, 712 F. Supp. 1069, 1075 (E.D.N.Y. 1989)
(citing Henderson v. Kibbe, 431 U.S. 145, 155 (1977)); see also Boyd v.
Babbie, No. 95 Civ. 7862, 1999 WL 138927, at *4 (S.D.N.Y. Mar. 15,
1999). Courts in the Second Circuit, when presented with the question of
an omitted jury instruction in the context of a habeas claim, have sought
to compare "the instructions which were actually given with those that
should have been given" in order to determine whether it is "logical to
conclude that [the omitted] instruction would . . . have affected the
verdict." Id., 431 U.S. at 156.
In the instant case, it is not logical to conclude that the omitted
instruction would have affected the verdict. First, the evidence of
Valtin throwing away his sweater, in the context of the entire Trial's
evidence and especially as compared to the victim's identification of
Valtin, was not pivotal to the prosecution's case. A reading of the
record as a whole supports a conclusion that a rational jury could
reasonably have reached a guilty verdict without ever having heard that
Valtin had disposed of the sweater. Second, given the overwhelming amount
of other evidence presented against Valtin at the Trial, including
Farmian's pre-arrest description of the robber, and his identification of
Valtin as the assailant and Valtin's proximity to the area shortly
thereafter under the prevailing weather conditions, the Court is not
persuaded that the failure of the trial court to give the jury an
instruction regarding consciousness of guilt evidence could have infected
the verdict or substantially influenced the jury in any way. See Gonzalez
v. Walker, 2001 U.S. Dist. LEXIS 10844, at *17 (S.D.N.Y. July 31, 2001)
(finding that omission of consciousness of guilt instruction to jury was
not injurious when considering abundance of other evidence presented
against defendant at trial). Thus, the Court rejects Valtin's claim that
the omission of the instruction violated his constitutional rights.
D. FOURTH AMENDMENT CLAIM
Valtin also argues that he was arrested without probable cause in
of the Fourth Amendment. A Fourth Amendment claim arising from
a state criminal conviction is barred from federal habeas corpus review
unless the State denied the petitioner a full and fair opportunity to
litigate the claim. See Stone v. Powell, 428 U.S. 465 (1976). As a
result, a federal court is not permitted to judge the merits of the state
court's decision, but instead must evaluate only whether the State's
procedure for resolving Fourth Amendment claims is "facially adequate,"
and determine that no "unconscionable breakdown" of the process occurred
in the petitioner's case. See Capellan v. Riley, 975 F.2d 67, 71 (2d
Cir. 1992). An unconscionable breakdown occurs when the state court fails
to conduct a reasoned inquiry into the petitioner's claim. See Papile v.
Hernandez, 697 F. Supp. 626, 633 (E.D.N.Y. 1988).
Federal courts have approved New York's procedure for litigating Fourth
Amendment claims — a process embodied in N.Y. Crim. Proc. Law
§ 710.10 et seq. (McKinney 1995) — as being facially adequate.
See Capellan, 975 F.2d at 70 n. 1. Therefore, "federal scrutiny of
[petitioner's] Fourth Amendment claim is not warranted unless he
demonstrates that he was in fact precluded from utilizing [that
procedure] by an unconscionable breakdown in the review process." Shaw v.
Scully, 654 F. Supp. 859, 863-64 (S.D.N.Y. 1987)
In the instant case, Valtin availed himself of the procedures set forth
in Section 710.10 et seq., and the state courts conducted a reasoned
inquiry into the relevant questions of facts and law. On October 4,
1999, the trial court held a pretrial hearing (the "Hearing") where
evidence concerning the circumstances surrounding petitioner's arrest was
introduced. McGillicuddy and Paone and Detective Joseph Scalogna
testified, and were cross-examined by Valtin, who at the time was acting
as his own lawyer, with assistance from Stephen Pokart, his former
attorney and then legal advisor. Immediately following the Hearing, the
judge presiding over the Hearing issued an oral opinion denying all
motions by Valtin, including the one to exclude as inadmissible the
evidence pertaining to Farmian's identification of Valtin as his
assailant. In his opinion, the judge asserted that McGillicuddy and
Ballesteri acted "in the least intrusive manner possible" in stopping
Valtin, and they had a reasonable basis for detaining Valtin —
namely, his discarding of the sweater which resembled the item of
clothing described on the police radio as being worn by the perpetrator
in the commission of the crime. (See Transcript of Hearing, dated October
4, 1999, at 121.)
The Appellate Division subsequently affirmed the hearing court's ruling
on the merits. See Valtin, 728 N.Y.S.2d at 435. Since the hearing
transcript and the opinion of the hearing judge both reflect a "reasoned
inquiry" into Valtin's claims, the Court is persuaded that Valtin was not
the victim of an unconscionable breakdown in state procedure and that his
Fourth Amendment claim is unreviewable by this Court. See Ortiz v.
Artuz, 113 F. Supp.2d 327, 336 (E.D.N.Y. 2000)
E. SHOW-UP IDENTIFICATION
In his final habeas claim, Valtin asserts that the Show-up was
improperly suggestive and was not justified by any exigent
circumstances. Over the past twenty-five years, the Supreme Court has
developed the general principle that, while a jury should make the
ultimate decision on the reliability of eyewitness identification
testimony, such testimony can be excluded in order to preserve the
defendant's due process rights if the degree of unreliability is "so
impermissibly suggestive as to
give rise to a very substantial likelihood
of irreparable misidentification." Simmons v. United States, 390 U.S. 377,
384 (1968); See also Kennaugh v. Miller, 289 F.3d 36, 43-44 (2d Cir.
2002). However, a court can still admit such testimony if the court
determines it to be independently reliable. See Manson v. Brathwaite,
432 U.S. 98, 114 (1977) ("[R]eliability is the linchpin in determining
the admissibility of identification testimony."). Thus, "an alleged
impermissibly suggestive identification procedure must be weighed against
other considerations which may support reliability." Alvarez v. Fischer,
170 F. Supp.2d 379, 384 (S.D.N.Y. 2001). Such factors include the
witness's opportunity to view the accused at the time of the crime; his
degree of attention; the accuracy of his prior description of the
accused; the degree of certainty demonstrated by the witness at the
confrontation; and the amount of time that had passed between the crime
and the confrontation. See Manson, 432 U.S. at 114.
In the instant case, Valtin asserts that the Show-up was unduly
suggestive because Valtin was the only person "standing there facing the
wall for the complaintant to identify." (Supplemental Brief for Defendant
Filed With New York Supreme Court, Appellate Division, First Department
on February 26, 2001, attached as Exhibit B to Affidavit by Beth Thomas
in Opposition to Petition for a Writ of Habeas Corpus, at 14.)
Furthermore, Valtin argues that there was no pressing reason to utilize
the Show-up as opposed to a line-up or photographic array, which would
have required Farmian to pick Valtin out of a group and presumably would
have had a lower risk of suggestiveness.
Valtin, however, fails to distinguish his Show-up from other exigent
showup identifications effected immediately following a street crime that
other courts in this Circuit routinely have held to be permissible. The
Second Circuit has held that, as opposed to police-arranged lineups,
"prompt confrontation [is] desirable because it serve[s] to insure `the
immediate release of an innocent suspect and at the same time [to] enable
the police to resume the search for the fleeing culprit while the trail
is fresh.'" United States ex rel. Cummings v. Zelker, 455 F.2d 714, 716
(2d Cir. 1972), cert. denied, 406 U.S. 927 (1972). Accordingly, "it is
now settled law that prompt on-the-scene confrontation is `consistent
with good police work' and does not offend the principles established in
United States v. Wade." Id. (citing, inter alia, United States v.
Sanchez, 422 F.2d 1198, 1200 (2d Cir. 1970)); accord Jamison v. Grier,
No. 01 Civ. 6678, 2002 WL 100642, at *20 (S.D.N.Y. Jan. 25. 2002).
In the instant case, the Show-up constituted a desirable, prompt,
on-the-scene confrontation that served to insure that Valtin was the same
person described by Farmian who allegedly had just robbed Farmian. Such a
situation qualifies as one where "prudent police work necessitated the
on-the-spot identification in order to resolve any possible doubts the
police may have had when they first took the petitioner into custody."
Zelker, 455 F.2d at 716; see also United States v. Butler, 970 F.2d 1017,
1021 (2d Cir. 1992) (identification proper where, less than thirty
minutes after the robbery of a check cashing business, suspects were
brought to victim who was sitting in a police car).
Moreover, this Court must evaluate the situation based on the factors
articulated in Manson. Applying those factors, the Court is persuaded
that Farmian's identification was reliable. First, Farmian had sufficient
time to view his assailant when the robbery occurred, and he gave a
description that accurately identified Valtin's footwear, his dark baggy
pants, the color and style of the zippered sweater he was wearing, and his
short hair.*fn1 (Tr., at 159.) Moreover, Farmian recognized Valtin
immediately when he arrived at the scene of the crime, (Tr. at 173),
indicating a high degree of certainty in his identification.
Finally, the close proximity in both time and location between the
crime and the Show-up here helped ensure its reliability. The fact that
the Show-up took place approximately four blocks away from the crime, and
within thirty to forty-five minutes of the event, mitigated any potential
prejudice that might have resulted from Farmian viewing Valtin in police
custody. See e.g., Johnson v. Gilmore, 940 F.2d 665, 1991 WL 155984, at
**4 (7th Cir. Aug. 15. 1991) (unpublished table decision) (show-up
occurring twelve to eighteen minutes after crime is close enough in
proximity to "significantly diminish the concern of misidentification
due to fading memory"); Zelker, 455 F.2d at 716 (holding show-up to be
reasonable because "[w]hen the two suspects were brought to [be seen by
the identifier], only 30 minutes had elapsed since [the identifier had]
reported the crime."); see also Willin v. Ajello, 496 F. Supp. 804, 809
(D. Conn. 1980) ("Such promptness of identification is recognized to be a
powerful sign of its trustworthiness, for it suggests that the
identification was based on a fresh mental picture of the criminal's
Furthermore, Valtin was not handcuffed and was surrounded by
plain-clothes officers, not uniformed ones, further reducing any potential
prejudice that could occur from viewing Valtin in a custodial situation.
Boles v. Senkowski, 878 F. Supp. 415, 421-23 (N.D.N.Y. 1995) (showup
identification not impermissibly suggestive where mugging victim
identified unhandcuffed suspect on a street corner by driving by in a
police car twenty minutes after the crime); Styles v. Zandt, No. 94 Civ.
1863, 1995 WL 326445. at *4 (S.D.N.Y. May 31, 1995) (citing fact that
petitioner "was neither in handcuffs nor visibly restrained" as factor in
judging show-up identification permissible). The Court does note that
Paone testified that he had told Farmian before they went to the site of
the Show-up that the police had a possible suspect for him to view,
(Tr., at 214.), a fact that could have increased the level of
suggestiveness. However, in the context of the other factors discussed
above, the Court is not persuaded that the Show-up was unduly or
impermissibly suggestive and therefore concludes that the evidence of it
was properly admitted.
III. CONCLUSION AND ORDER
For the reasons discussed above, it is hereby
ORDERED that Valtin's petition for a writ of habeas corpus is denied.
As Valtin 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); 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) Pursuant to 28 U.S.C. § 1915 (a)(3), the Court certifies that
any appeal from this Order would not be taken in good faith. See
Coppedge v. United States, 369 U.S. 438 (1962).
The Clerk of the Court is directed to close this case.