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January 5, 2004.

CHRISTOPHER GARCIA, Petitioner, — against —, BRIAN FISCHER, Superintendent, Respondent

The opinion of the court was delivered by: FRANK MAAS, Magistrate Judge


I. Introduction

In this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, pro se petitioner Christopher Garcia ("Garcia") challenges his conviction, following a jury trial in Supreme Court, New York County, on one count each of Robbery in the First and Second Degrees, in violation of sections 160.10(1) and 160.15(4) of the New York Penal Law. (Pet. ¶¶ 1, 5, 7). On January 28, 1999, Justice Richard Carruthers, before whom the case was tried, sentenced Garcia, as a persistent violent offender, to consecutive indeterminate terms of twenty years to life. (See id. ¶¶ 3-4).

  Garcia's petition raises two claims. First, he contends that he was arrested without probable cause. (Id. ¶ 3). Second, he alleges that he was denied a fair trial because the trial judge failed to instruct the jurors, before their dismissal at the end of a Page 2 trial day, that they were not to resume their deliberations until they had reassembled the following day. (Id.).

  In July 2002, the parties consented to my exercise of jurisdiction over this proceeding for all purposes pursuant to 28 U.S.C. § 636(c). (Docket No. 12).

  For the reasons set forth below, Garcia's habeas petition is denied.

 II. Background

  A. Relevant Facts

  1. People's Case

  The People's proof at trial would have permitted a reasonable juror to find as follows: At approximately 11:45 p.m. on November 29, 1997, Jose Martinez ("Jose"), was drinking a beer in front of a candy store located at 600 West 161st Street, between Broadway and Fort Washington Avenue, in Upper Manhattan. (Tr. 28-30, 154).*fn1 Garcia and another man named Anthony Garcia ("Anthony"), approached Jose, and asked whether Jose knew "Pete." (Id. at 30-31, 36, 41-42). Suspicious of the men, Jose responded that he did not know Pete and began to walk away from them toward Broadway. (Id. at 31, 43). Garcia and Anthony followed Jose into the lobby of an empty building, where Garcia grabbed Jose, threw him face-forward against a wall, and Page 3 attempted to remove his bracelet. (Id. at 50-55, 125-26). When Jose turned away from the wall, he saw Anthony aiming a revolver at his face. (Id. at 55-57, 126). After Anthony threatened to kill Jose if he moved, Jose pleaded, "don't do it . . . I have a family." (Id. at 58).

  While Anthony continued to aim the gun at Jose's face, Garcia removed a brown "Guess" wallet, several keys on a key ring, and about $800 (mostly in $20 dollar bills) from Jose's pocket. (Id. at 58-59, 123, 153). In addition, Garcia put his hand in Jose's shirt and broke the chain around his neck to remove it. (Id. at 60, 128). Garcia then told Jose to face the wall again, warning that if he said anything about the robbery, Garcia knew where to find him. (Id. at 60-62). Garcia and Anthony then left after telling Jose to remain facing the wall. (Id. at 62, 128-29).

  After leaving the building, Jose saw the two robbers unsuccessfully attempting to open a door that led to an alley. (Id. at 63-64). Jose shouted, "I ha[ve] been robbed," and then began to pursue Garcia and Anthony, who were running in the direction of Fort Washington Avenue. (Id. at 64-65). As they were running, Anthony turned and fired a shot at Jose, who lost sight of his two assailants when he stepped behind a van. (Id. 66-67).

  Police Officer Robert Savage ("Savage") heard a gunshot coming from 161st Street between Broadway and Fort Washington Avenue. (Id. at 225-26, 228-29, 233). He reported the gunfire over his police radio and ran toward the sound of the shot. Page 4 (Id. at 226). A crowd of people directed another officer and him to 160th Street and Broadway, where they encountered Jose and joined Sergeant Robert Pagliaro ("Pagliaro") and Officer Antony Demonte ("Demonte"). (Id. at 73, 101, 227-28, 230-31, 235-37, 248, 272-73, 299-300).

  Jose informed the officers that he had been robbed, and that two bystanders had told him that the men who were running had entered a white car which was being driven toward Broadway on 160th Street. (Id. at 68, 72-74, 156-57). The officers radioed that they were looking for a white two-door Honda with tinted windows and a sticker on the back with the letter "H." (Id. at 241). Although the officers' efforts to locate this vehicle were unsuccessful, Jose gave the police his beeper number so that they could contact him. (Id. at 75-77, 241-42, 300).

  Less than two hours later, Demonte and Pagliaro stopped a white Honda at 163rd Street and Broadway. (Id. at 244-45, 256, 273-74, 304-05). Garcia was in the passenger seat, alongside the driver, Hector Corniel ("Corniel"); Anthony was in the back with a man named Jose Fong ("Fong"). (Id. at 245, 256, 274-76, 305). Demonte asked the four men to step out of the vehicle after learning that Corniel did not have a driver's license. (Id. at 305-06). The men were then taken to the stationhouse, where they were searched, (Id. at 287, 307). In Garcia's jacket pocket, Demonte found a brown "Guess" wallet and a beeper. (Id. at 289-90, 293-95). Additionally, $889 in cash, consisting mostly of ten- and twenty-dollar bills, was recovered from the four men. (Id. at 291-93, Page 5 307-08). After Demonte tried to page Jose, the beeper recovered from Garcia began to ring. (Id. at 295, 309).

  Jose returned to the stationhouse later that day. (Id. at 77, 296, 309-10). He identified the wallet and the beeper recovered from Garcia as his property. (Id. at 78-80, 1 12, 296). Jose also identified Garcia and Anthony in separate lineups. (Id. at 202-04, 310-11, 340-41, 353, 355).

  2. Defense Case

  Garcia did not call any witnesses to testify ...

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