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July 17, 2003


The opinion of the court was delivered by: Jack B. Weinstein, Senior District Judge.


Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth in this Memorandum Order & Judgment, the petition is denied. No hearing is necessary.

I. Facts

On the evening of May 14, 1995, petitioner and two unapprehended accomplices entered Chao Keyvan's apartment where a dinner party was being held. Petitioner, who was holding a gun, said in Mandarin, "I am going to rob you." The victims emptied their pockets. Petitioner taped their hands with duct tape. One of the guests, Hong Zhang, was taken out of the apartment and ordered to take the robbers to rooms in the basement. That guest later identified petitioner as the assailant brandishing the gun. See Trial Transcript ("Tr."), at 464-65.

Several days after the robbery, Zhang saw one of the accomplices in the grocery store where he worked. Zhang followed him back to a nearby building. Days later, he saw the two accomplices playing basketball in a neighborhood park. He again followed them home to the same building. Zhang then informed police that he knew where the robbers lived. The police conducted surveillance of the building. When petitioner left the building, Zhang recognized him and he was arrested. At the police station, petitioner was advised of his Miranda rights in Mandarin. Petitioner confessed to the robbery. Detective Ng wrote petitioner's statement down and petitioner signed the statement.

The trial court held a combined Wade/Huntley/Dunaway hearing. It found that there was no basis to suppress the confession or the identification. It declared that the confession was given voluntarily after the administration of Miranda warnings in Mandarin. The court concluded that "defendant's motion to suppress identification testimony and statements is denied in all respects." Hearing Tr., at 56.

Petitioner was convicted after a jury trial of two counts of robbery in the first degree, one count of robbery in the second degree, two counts of attempted robbery in the first degree, one count of attempted robbery in the second degree, and two counts of unlawful imprisonment in the first degree. He was acquitted of a number of related charges.

Petitioner was later sentenced to twelve and one-half years to twenty-five years for the first degree robbery charges, seven and one-half to fifteen years on the second degree robbery charge and the attempted robbery in the first degree charges, three and one-half to seven years on the attempted second degree robbery charge, and two to four years on the unlawful imprisonment charges. All sentences were ordered to run concurrently.

Approximately two and one-half months after the jury rendered its verdict, petitioner filed a motion pursuant to section 330. 30(2) of the New York Criminal Procedure Law to set aside the verdict. The motion alleged that information discovered after the conclusion of the trial indicated that the jurors had engaged in misconduct. In particular, a juror wrote the following letter to the trial judge the day after the verdict was rendered:

I was a member of a recent jury in a trial that took place in your courtroom. I have served on jury duty before and have experienced a similar situation to the one I found myself in this time.
This latest was the State vs. Bab Lin You. We as a jury sat thru [sic] difficult and tedious testimony which I realize as part of our job and our duty as jurors. However, the process by which the actual jury is selected is in great need of improvement.
We had one juror, Helen Williams, who during the course of the trial exhibited no signs of prejudice. However, on the day we were to get the case she came to court with a book entitled "Black Justice in a White World" by Justice Bruce Wright. I realize that reading this book by this author does not necessarily constitute prejudice, however, once we began to deliberate she in no way had an open mind. Nor did she exhibit reasonable behavior. We as a jury 3 hours into deliberation were at an 11-1 vote and were deadlocked. She would not verbally nor could she verbalize her "reasonable doubt." She just had it. She claimed to have [illegible] agreed that she could make a decision on one credible testimony and she said she simply does not believe the police.
The fact that the verdict actually came in so quickly after we requested refreshments is because our foreperson (a saint) began to write a note to the court that we were hopelessly deadlocked and needed guidance. It was our assumption that she felt, when she questioned him about this note, that she might be singled out by the court to answer questions. She knew if that was the case that the court would not tolerate her lack of cooperation. I am aware that this would not have happened however, she quickly was ready to vote and [illegible] a verdict. I have been a victim of this prejudice before on jury duty. It is both frustrating and stressful. There has to be a better way of screening potential jurors. Thank you for listening to my concerns.

Dorothy Currao

See Petitioner's Appellate Division Brief, Exhibit 3. Petitioner argued that the note proved that the holdout juror changed her mind based on factors other than the evidence presented at trial. The trial court summarily denied the motion without a hearing.

Petitioner appealed his conviction to the Appellate Division, Second Department. He raised three claims: 1) the trial court should have granted the motion to set aside the verdict or at least have held a hearing; 2) the trial court's identification charge was erroneous; and 3) the police detective bolstered the victims' identifications by telling the jury that there was not doubt that petitioner committed the crimes and that petitioner knew why he was being arrested.

The Appellate Division affirmed. See People v. Bab Lin You, 694 N.Y.S.2d 760 (N.Y. App. Div.2d Dep't 1999). It held that the trial court did not err in summarily denying the motion to set aside the verdict because the "motion was supported only by hearsay allegations contained in an affidavit of defense counsel." Id. at 760. It found the remaining contentions unpreserved for appellate review and declined to review them in the exercise of its interest of justice jurisdiction. See id. Petitioner ...

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