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McCRAY v. BARKLEY

United States District Court, S.D. New York


January 7, 2004.

JOEL McCRAY, Petitioner, -v.- WARREN BARKLEY, Superintendent, Cape Vincent Correctional Facility, Respondent

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

Joel McCray brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. Following a jury trial in New York County Supreme Court, McCray was convicted of one count of Robbery in the Second Degree. McCray was sentenced as a predicate felon to a term of 7 to 14 years in state prison. He is currently incarcerated pursuant to that judgment at Mt. McGregor Correctional Facility in Wilton, New York. For the reasons below, the petition should be denied.

I. BACKGROUND

  This case arises out of a mugging that occurred in Central Park on February 17, 1995. Page 2

  A. Identification of McCray

  Prior to trial, a hearing was held with respect to the identification of McCray as the perpetrator of this robbery.

  At approximately 10:00 p.m. on Sunday, February 19, 1995, Rudolfo Pena*fn1 approached Sergeant Paulino Brioso in the Ramble section of Central Park. (Brioso: Hr'g Tr. 32). Pena, who spoke Spanish and very little English, told Brioso that he had been robbed and that he had been chased by four or five black males in the Park. (Brioso: Hr'g Tr. 33, 43-45). Brioso understood that one of them was wearing "a tan jacket." (Brioso: Hr'g Tr. 33). After Pena calmed down he clarified that the robbery had taken place two nights earlier — on Friday, February 17, 1995 — but that the same people who had robbed him had just chased him through the Park. (Brioso: Hr'g Tr. 35, 44-45). A few minutes later, Police Officer Albert Bonilla approached the van where Brioso was talking to Pena. (Bonilla: Hr'g Tr. 10). Bonilla spoke to Pena in Spanish but found it difficult to understand Pena's Dominican dialect. (Bonilla: Hr'g Tr. 17, 28). Bonilla ascertained that Pena had been robbed by five males, one of whom was wearing light-colored "manilla" clothing. (Bonilla: Hr'g Tr. 11-12, 19). Pena reported that a few of his assailants were youths and that one was a taller adult. (Bonilla: Hr'g Tr. 17-18).

  Earlier that same evening (February 19), at about 9:30 p.m., Officer Bonilla had received a complaint that five youths were harassing people near 79th Street in the Ramble. (Bonilla: Hr'g Tr. 7, 14-15). Bonilla had approached and admonished the group, of which McCray, who was wearing a "beige tank [sic] coat," was a member. (Bonilla: Hr'g Tr. 8-9). McCray appeared Page 3 to be the only adult; the rest of the group members were teenagers. (Bonilla: Hr'g Tr. 8-9).

  After Pena's report to the police, a broadcast went out over police radio about five black teens, one of whom was wearing a beige jacket. (Bonilla: Hr'g Tr. 12, 18; Brioso: Hr'g Tr. 47). Patrol Officer Tara Burns heard the broadcast at approximately 10:20 p.m. and she remembered seeing a group of four people "a couple of minutes" earlier in the vicinity of West 86th Street and West Drive. (Burns: Hr'g Tr. 76-77, 88-89). She testified that the tallest member of the group, who was wearing a beige jacket, was obviously an adult and that the others were teens. (Burns: Hr'g Tr. 77). Burns set out north in the direction she had seen the group go and encountered them crossing Central Park West to the subway at 103rd Street. (Burns: Hr'g Tr. 78, 88-89). She asked the officers with Pena to meet her at 103rd Street and she detained the group of four males in the subway station. (Bonilla: Hr'g Tr. 12; Brioso: Hr'g Tr. 36-37, 53; Burns: Hr'g Tr. 78-80).

  According to Sergeant Brioso, who brought Pena to 103rd Street in the police van, approximately 15 to 20 minutes elapsed between Pena's report to the police and their arrival at the 103rd Street subway station. (Brioso: Hr'g Tr. 63-64). When the van carrying Pena arrived, Burns and other officers brought each of the males up to the street one at a time. (Brioso: Hr'g Tr. 38; Burns: Hr'g Tr. 80-81, 89-92). No one in the group was wearing handcuffs and the officers' guns were not drawn. (Brioso: Hr'g Tr. 40; Burns: Hr'g Tr. 80). Viewing the suspects from inside the police van approximately 20 to 30 feet away from the subway entrance, Pena got "very excited" when he saw McCray emerging from the subway; Pena pointed at McCray and said, "Yes. Him." (Brioso: Hr'g Tr. 39-40, 54, 58). According to Brioso, Pena also said, "[S]ee, tan jacket, beige jacket." (Brioso: Hr'g Tr. 41, 58). Pena also identified the other three Page 4 individuals as they emerged from the subway. (Brioso: Hr'g Tr. 58). All four were placed under arrest. (Brioso: Hr'g Tr. 58).

  From there Pena was taken to the Central Park Precinct. (Brioso: Hr'g Tr. 41; Burns: Hr'g Tr. 81). Approximately 5 to 10 minutes after the identification at the 103rd Street subway station (Brioso: Hr'g Tr. 64), Pena was asked to examine each suspect more closely and "verify" his identification, (Brioso: Hr'g Tr. 41-42, 59; Burns: Hr'g Tr. 82). Officer Burns brought each of the four arrestees one at a time into the vestibule inside the station where Pena could see them. (Brioso: Hr'g Tr. 41-42, 60; Burns: Hr'g Tr. 82-83). McCray was brought out in handcuffs. (Brioso: Hr'g Tr. 60). When McCray appeared Pena nodded his head and said, "That's him." (Brioso: Hr'g Tr. 42; Burns: Hr'g Tr. 83). However, this time Pena said he was not sure that two of the other suspects were involved in the robbery two days prior, although they were involved in the chasing incident that evening. (Brioso: Hr'g Tr. 42, 61-63).

  McCray moved to suppress the identification made at the 103rd Street subway station, the subsequent stationhouse identification, and McCray's beige jacket, which was seized after his arrest. The trial judge found the testimony of the prosecution's witnesses — Officer Bonilla, Sergeant Brioso, and Officer Burns — to be credible (Hr'g Tr. 112-13) and held that "[t]he identification procedures that were conducted were in no way suggestive," (Hr'g Tr. 126). In making this determination, the court relied on the "proximity [in] place and proximity in time" between Pena's report to the police and the identifications. (Hr'g Tr. 127-30). Additionally, but not at issue in the instant petition, the trial judge determined that there was probable cause to arrest McCray and that the seizure of his jacket was incident to that lawful arrest. (Hr'g Tr. 124-26, 130). Page 5

  B. The Trial

  McCray's trial was scheduled to begin on Monday, January 8, 1996. However, that day New York City was brought to a standstill by a blizzard. On Wednesday, January 10, McCray still had not appeared and the trial court issued a warrant. (Tr. 2). The court also held a hearing to determine whether the trial could proceed in McCray's absence. (Tr. 8-43). The court found that McCray had absented himself voluntarily and thus waived his right to be present. (Tr. 43). Nevertheless, the court decided not to swear in the last juror until the following Tuesday, January 16, to give McCray every chance to appear. (Tr. 43). McCray did not appear on that date and the trial proceeded in his absence. (Tr. 102).

  1. Prosecution's Case at Trial

  Rudolfo Pena testified that at about 8:30 p.m. on February 17, 1995, he was walking through a wooded area of Central Park from the ice skating rink towards his home on 87th Street on the Upper West Side of Manhattan. (Pena: Tr. 118, 130, 137). Three individuals approached him. One man began walking parallel to Pena and asked him for the time. (Pena: Tr. 118). Pena testified that he first tried to ignore the man but then the man stopped right in front of Pena and asked him again for the time. (Pena: Tr. 118, 132). When Pena looked at his watch, the person hit him in the face, grabbed his throat, and demanded Pena's money. (Pena: Tr. 118, 132-33). Although Pena managed to hit his attacker in the groin, the other two individuals came forward and took his property — one took his backpack and the other his cap. (Pena: Tr. 119). Pena screamed for the police and the assailants fled. (Pena: Tr. 119).

  Pena testified that he got a good look at the man who physically attacked him as they were face-to-face during the incident. (Pena: Tr. 131-33). He also testified that the two others Page 6 who took his property were "shorter and much younger" than the man who hit and choked him. (Pena: Tr. 133). However, he testified that at first glance he thought the man who choked him was "very young." (Pena: Tr. 134). All three were dark-skinned males. (Pena: Tr. 134).

  When Pena got to the street, he saw two police officers and reported to them what had just happened. (Pena: Tr. 119, 137-39). Pena and the officers drove around in search of the three individuals but did not find them. (Pena: Tr. 119-20). Pena recalled telling one of the officers that the three men were "from fifteen years [old], all the way up to thirty." (Pena: Tr. 138).

  Two days later, on February 19, 1995, Pena was again walking through Central Park from the ice skating rink towards his home when the man who had choked him two days earlier cursed at him. (Pena: Tr. 140-41). The man was with four shorter males and was wearing the same "cream colored coat" he had been wearing the previous Friday. (Pena: Tr. 142). The group came towards Pena and chased him until Pena lost them in the Park. (Pena: Tr. 143). The last time Pena saw the group they were headed north towards Harlem. (Pena: Tr. 144). Pena then approached a police jeep and reported what had happened. (Pena: Tr. 143-45).

  At around 10:30 p.m. Officer Tara Bums received a radio call and, as she drove north on the west side of the Park, she saw an older, taller black male wearing a tannish jacket accompanied by three younger black males exiting the Park at 103rd Street. (Burns: Tr. 219-22). Burns had seen the group five minutes earlier at 86th Street and the West Drive. (Burns: Tr. 220-21). She called for Pena to be brought to the 103rd Street subway station while she went into the station and stopped the four males. (Burns: Tr. 221-22). The officers with Pena took him to the 103rd Street subway station, where he identified the four males and they were placed under arrest. (Pena: Tr. 145; Burns: Tr. 222). Pena was then taken to the precinct where he identified Page 7 McCray as the man who punched and choked him on Friday, and who cursed and chased him on Sunday. (Pena: Tr. 145-49; Burns: Tr. 225).

  In court, Pena identified McCray from a photograph taken at the time of McCray's arrest, stating that he had no doubt that McCray was the perpetrator. (Pena: Tr. 148-49).

  On cross-examination, defense counsel elicited several matters in an effort to show inconsistencies in Pena's testimony. For example, the police report prepared on February 17th noted that Pena was mugged at 10:20 p.m., whereas Pena testified at trial that the whole incident was over by 9 p.m. (Pena: Tr. 155-56). The criminal complaint also indicated that Pena reported being hit on the chin, not on the cheek as he testified at trial. (Pena: Tr. 159-60). Pena testified to telling a police officer that one of his assailants, though not McCray, was wearing a "bright yellow jacket." (Pena: Tr. 172-73). Defense counsel elicited that Pena testified in front of the Grand Jury that the man who choked him was wearing a coat that was the same color of a manilla folder the district attorney was holding. (Pena: Tr. 173-75).

  2. McCray's Case at Trial

  The defense focused on Pena's inability to accurately identify McCray as his attacker. Officer David Tavarez, to whom Pena spoke after being mugged on February 17, was called as a defense witness. Tavarez testified that he spoke "very little" Spanish but that he prepared a police report regarding the incident as best as he could understand. (Tavarez: Tr. 249-51). His report indicated that Pena's assailant was 15 to 18 years old, and approximately 5'10" tall, with no facial hair and no scars. (Tavarez: Tr. 252-54). In fact, McCray was thirty-three years old, approximately 6'3" tall, had facial hair, and had obvious scars on his face and hand. (Burns: Tr. 231-33). Tavarez testified that he did not know the Spanish word for "scar" or "facial hair" and Page 8 that he did not independently remember what Pena had told him. (Tavarez: Tr. 251-55, 262, 267). Pena had previously testified that he did not tell the officer this information. (Pena: Tr. 180). Tavarez also wrote that one of the perpetrators had on a bright yellow coat. (Tavarez: Tr. 255). He did not know to which perpetrator this description applied. (Tavarez: Tr. 267). Tavarez stated that he conducted only a "preliminary investigation" and then brought Pena back to the precinct to be interviewed by detectives. (Tavarez: Tr. 264-65).

  Police Officer Fernando Losado was also called as a defense witness.*fn2 On February 20, 1995, Officer Losado spoke with Pena over the telephone in Spanish for the purpose of filling out a criminal complaint. (Losado: Tr. 279-81, 290-91). The complaint, which was introduced into evidence, indicated that Pena was hit on the chin rather than on the cheek as Pena had testified (Pena: Tr. 159-60; Losado: Tr. 281), and that one person punched him and one person took his property, but that the third just "hovered," (Losado: Tr. 281-89). Officer Losado had no independent recollection of his conversation with Pena. (Losado: Tr. 281, 288-89).

  3. Verdict and Sentencing

  The jury found McCray guilty of Robbery in the Second Degree. (Tr. 399-402). Defense counsel moved for judgment notwithstanding the verdict, arguing that no reasonable jury could have come to the conclusion that McCray was guilty. (Tr. 403). The trial court denied this application. (Tr. 403). McCray failed to appear for sentencing held on February 8, 1996 and, in his absence, he was sentenced as a predicate felony offender to incarceration for a period of 7 to 14 years. (Sentencing Tr. 1-8). Page 9

  On May 14, 1998, McCray was returned to court on the outstanding bench warrant and his sentence was executed. (Resentencing Tr. 1-14).

  C. McCray's Direct Appeal

  Prior to filing his appeal, it became apparent that the trial transcript was incomplete in that there was no transcript for a significant portion of the jury selection. Rose Dunn, the court reporter, submitted an affidavit stating that she had searched for but was unable to find her notes from January 11, 1996 and was thus unable to provide a complete transcript of that day's proceedings. Affidavit of Rose Dunn, dated October 17, 2000 ("Dunn Aff") (annexed to Petition for Writ of Habeas Corpus, filed June 11, 2003 (Docket #1) ("Petition")), ¶¶ 2-5. Appellate counsel moved for a reconstruction hearing with regard to the missing portions of the transcript. See Notice of Motion for a Reconstruction Hearing, dated April 27, 2001 (annexed as Ex. C to Declaration of Darian B. Taylor, dated September 8, 2003 (Docket #6) ("Taylor Decl.")). This motion was denied by the Appellate Division on June 7, 2001. See Order of Appellate Division, First Department, dated June 7, 2001 ("Order") (annexed as Ex. E to Taylor Decl.).

  McCray's appeal of his conviction to the Appellate Division, First Department, raised the following three points:

  1. Whether, where the complainant's identification of appellant was the only evidence against him, but that complainant had described the robber just after the robbery as 15 to 18 years old, clean-shaven and without any scars on the night of the offense, and appellant, who was arrested two nights later, was 33 years old, bearded, and had a facial scar, the prosecution failed to prove beyond a reasonable doubt that appellant was the robber and the verdict was against the weight of the credible evidence. U.S. Const., Amend. XIV; N.Y. Const., Art. I, § 6; Jackson v. Virginia, 433 U.S. 307 (1979); C.P.L. § 370.15(5); People v. Bleakley, 69 N.Y.2d 490 (1987). Page 10

 

2. Whether appellant's right to fair trial was undermined by the inherently suggestive stationhouse show-up identification which followed a show-up at the subway station two days following the crime and in the absence of any exigency. U.S. Const. Amend. XIV; N.Y. Const., Art. I, § 6.
3. Whether appellant was deprived of his right to a meaningful appeal and effective assistance of appellate counsel by the court's refusal to order a re-construction hearing. U.S. Const., Amends. VI, XIV; N.Y. Const., Art. I, §§ 6, 12.
Brief for Defendant-Appellant ("Pet. App. Div. Brief) (annexed to Petition), at 2.

  On October 15, 2002 the Appellate Division unanimously affirmed the conviction. People v. McCray, 298 A.D.2d 203 (1st Dep't 2002). The court held that (1) the verdict was based on legally sufficient evidence and the jury had properly considered any inconsistencies in the victim's identification of McCray, which were the product of a language barrier; (2) both the subway showup and the stationhouse showup were "merely confirmatory" as they occurred shortly after the victim had independently recognized his assailant; and (3) there was no reason to depart from the court's previous rejection of the request for a reconstruction hearing. Id. at 203-04.

  McCray's application for leave to appeal to the New York Court of Appeals was denied on January 23, 2003. People v. McCray, 99 N.Y.2d 583 (2003).

  D. McCray's Habeas Petition

  McCray timely submitted his petition to this Court on June 11, 2003. The respondent filed opposition papers on September 8, 2003. McCray filed a reply memorandum on November 24, 2003. Page 11

  McCray's habeas petition raises the same three grounds raised before the Appellate Division. See Petition at 4. McCray has properly exhausted his state law remedies, as he fairly presented the constitutional nature of his claims to each level of the New York State courts. See generally Dave v. Attorney Gen., 696 F.2d 186, 190-92 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048(1984).

 DISCUSSION

  Standard of Review

  Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a petition for a writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Moreover, a state court determination of a factual issue is "presumed to be correct" and that presumption may be rebutted only "by clear and convincing evidence." Id. § 2254(e)(1).

  The Second Circuit has held that an "adjudication on the merits" only requires that the state court base its decision on "the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). Furthermore, it is not necessary for the state court to refer to any federal claim or to any federal law for AEDPA's deferential standard to apply. Id. at 312. In light of the Appellate Division's decision in this Page 12 case, McCray's claims were adjudicated on the merits. Accordingly, the state court's decision will be reviewed under the standard set forth in 28 U.S.C. § 2254(d).

  In Williams v. Taylor, the Supreme Court held that a state court decision is "contrary to" clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision [of the Supreme Court] and nevertheless arrives" at a different result. 529 U.S. 362, 405-06 (2000). The Williams Court also held that habeas relief is only available under the "unreasonable application" clause "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been "objectively unreasonable." Id. at 409.

  B. The Merits of McCray's Claims

  1. Sufficiency of the Evidence

  McCray's first ground for relief asserts that his due process rights were violated because the prosecution failed to prove his guilt beyond a reasonable doubt and the jury verdict was against the weight of the credible evidence. See Petition at 4. As an initial matter, this Court has jurisdiction to consider only the argument as to the sufficiency of the evidence. The claim regarding the "weight" of the evidence is purely a state law claim that is not subject to federal habeas review. See, e.g., Glisson v. Mantello, 287 F. Supp.2d 414, 425 (S.D.N.Y. 2003) (citing cases); Correa v. Duncan, 172 F. Supp.2d 378, 381 (E.D.N.Y. 2001); Kearse v. Artuz, 2000 WL Page 13 1253205, at *1 (S.D.N.Y. Sept. 5, 2000); accord Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) ("A federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the `weight' of the evidence. . . .), cert. denied, 476 U.S. 1123 (1986).

  McCray's argument as to the sufficiency of the evidence is based entirely on discrepancies in how Officer Tavarez recorded the complainant's description of his robber and McCray's actual appearance. See Petition at 4. The Appellate Division considered this argument and held that assigning weight to specific evidence — including inconsistencies in testimony — is within the province of the jury and there was no basis for overturning the jury's determinations. McCray, 298 A.D.2d at 203-04. Furthermore, the Appellate Division attributed "many of the purported inconsistencies" to the language barrier between the victim and the police. Id. at 204.

  A habeas petitioner challenging the sufficiency of the evidence underlying his conviction bears a "very heavy burden." Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir.) (internal quotation marks and citation omitted), cert. denied, 515 U.S. 1136 (1995). To prevail, the petitioner must show that "upon the record evidence adduced at the trial, no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979); accord Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002). In conducting this inquiry, all of the evidence and all possible inferences that may be drawn from the evidence are to be considered in the light most favorable to the prosecution. Jackson, 443 U.S. at 319; accord Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996). Furthermore, "assessments of the weight of the evidence or the credibility of witnesses are for the jury" and thus a habeas court will "defer to the jury's assessments of both of these issues." Maldonado, 86 F.3d at 35; accord Rosa v. Page 14 Herbert, 277 F. Supp.2d 342, 347 (S.D.N.Y. 2003); Fagon v. Bara, 717 F. Supp. 976, 979-80 (E.D.N.Y. 1989).

  Under New York law, Robbery in the Second Degree requires proof that the defendant "forcibly" stole property "aided by another person actually present." N.Y. Penal Law § 160.10(1). McCray does not argue that there was insufficient evidence as to the elements of the offense. Rather, McCray's only contention is that the prosecution did not prove beyond a reasonable doubt that McCray was the perpetrator of this crime. See Petition at 4; see also Pet. App. Div. Brief at 17-30.

  McCray relies on inconsistencies between the report prepared by Officer Tavarez, which was based on Pena's initial description of his assailant, and Pena's later descriptions of the man who choked him to argue that the identity of the robber was not proven beyond a reasonable doubt. See Petition at 4; see also Pet. App. Div. Brief at 17-18, 20-23. Officer Tavarez's report indicated that the perpetrator of the robbery was a black male, 15 to 18 years old, 5'10" tall, no facial hair or scars, and was wearing a bright yellow long coat, camouflage pants, and a wool hat. See Complaint Report, dated February 17, 1995 (annexed as Ex. C to Memorandum of Law in Opposition to Respondent['s] Brief, filed November 24, 2003 (Docket #18)). But Officer Tavarez testified at trial that he spoke very little Spanish and had only filled out the police report based on what he thought he understood Pena to have told him. (Tavarez: Tr. 250-51). Pena testified that in fact he did not tell Tavarez that the person who punched him was a teenager or that he lacked facial hair or scars. (Pena: Tr. 180).

  The testimony elicited by the defense alerted the jury to the fact that the report prepared by Tavarez contained a description of the assailant which differed in significant respects from Page 15 Pena's testimony and McCray's actual appearance. (Pena: Tr. 179-85; Tavarez: Tr. 250-60). However, a reasonable jury easily could have concluded that the language barrier provided a satisfactory explanation for these inconsistencies. In addition, at least one of the purported inconsistencies — Pena's telling Officer Tavarez about the "bright yellow jacket," (Pena: Tr. 172-73; Tavarez: Tr. 255) — could have been construed by the jury as not being inconsistent at all. At trial, Pena conceded that he had told Officer Tavarez that one of the perpetrators wore a bright yellow jacket but described the person wearing the bright yellow jacket as someone other than McCray. (Pena: Tr. 172-73, 181-83).

  Finally, the jury heard ample evidence concerning Pena's identification of McCray as one of the people who robbed him. Two days after the robbery, Pena independently recognized McCray when McCray cursed at him. (Pena: Tr. 140-41). He was able to describe McCray and his cohorts well enough that Officer Burns recalled seeing a group of similar description in Central Park that night. (Burns: Tr. 219-21). Pena identified McCray twice: once at the subway station and once at the precinct. (Pena: Tr. 145-49). Notably, at the precinct, Pena's memory was discerning enough to allow him to state that while two of the suspects were part of the group that had chased him through the Park on the 19th, they had not participated in the robbery on the 17th. (Pena: Tr. 146-48). At trial, Pena testified that he had no doubt that McCray was the man who cursed at him on the 19th as well as the man who hit and choked him on the 17th. (Pena: Tr. 148-49).

  A federal habeas court may not adjudge the credibility of witnesses or decide what weight should be afforded to their testimony. Maldonado, 86 F.3d at 35. As a result, "the testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction." United States Page 16 v. Danzey, 594 F.2d 905, 916 (2d Cir.), cert. denied, 441 U.S. 951 (1979); accord Glisson, 287 F. Supp.2d at 441-42 (citing cases). The evidence presented at trial was more than sufficient for a rational fact-finder to conclude that McCray was the perpetrator of the robbery. See Jackson, 443 U.S. at 324. Thus, the decision of the Appellate Division was not "contrary to" or an "unreasonable application of federal law and habeas relief may not be granted on this ground.

  2. Identification Procedures

  McCray argues that his due process rights were violated by the "inherently suggestive" identification procedures that were used both at the 103rd Street subway station and at the precinct on February 19, 1995, two days after the robbery occurred. See Petition at 4. After holding a pretrial hearing to determine whether to suppress the identification testimony, see United States v. Wade, 388 U.S. 218 (1967), the state court denied McCray's motion and the testimony was admitted at trial. The Appellate Division affirmed this ruling, holding that the showup identifications made at the subway station and at the precinct were "merely confirmatory" and were justified by their proximity to the victim's independent recognition of McCray. McCray, 298 A.D.2d at 204.

  The admission of identification testimony violates due process only when the identification is "`so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law.'" United States v. Bautista, 23 F.3d 726, 729 (2d Cir.) (quoting Stovall v. Denno, 388 U.S. 293, 302 (1967)), cert. denied, 513 U.S. 862 (1994). The inquiry consists of essentially a two-part test. First, a court must determine whether the identification procedure was "unnecessarily suggestive." Id. at 729-30. Second, even where the procedure is unnecessarily suggestive, the court must determine "`if, Page 17 when viewed in the totality of the circumstances, [the out-of-court identification] possesses sufficient indicia of reliability.'" Id. (quoting United States v. Simmons, 923 F.2d 934, 950 (2d Cir.), cert. denied, 500 U.S. 919 (1991)). In the absence of either element, there is no constitutional error. See id.

  Showing a suspect singly to a witness for the purpose of identification shortly after a crime — commonly known as a "showup" — is not inherently unconstitutional. The procedure has been upheld by the Second Circuit and other courts on numerous occasions. See, e.g., Bautista, 23 F.3d at 729-32 (showup not unnecessarily suggestive where defendant was presented to the witness "in handcuffs; at night; in the custody of police officers; with his face lit by flashlights; and in the presence of [an officer] who, each time the [witness] identified a suspect, radioed to his fellow officers, `it's a hit'"); United States v. Butler, 970 F.2d 1017, 1021 (2d Cir.) (identification proper where suspects were brought to victim who was sitting in a police car), cert. denied, 506 U.S. 980 (1992); United States v. Sanchez, 422 F.2d 1198, 1199-200 (2d Cir. 1970) (police drove suspects by witnesses at the scene of the crime); United States v. Ortiz, 2000 WL 37998, at *1 (S.D.N.Y. Jan. 18, 2000) (defendants were in handcuffs, standing next to a marked police car, and accompanied by uniformed police officers). Thus, courts on habeas review have found showups not to be unnecessarily suggestive where they took place shortly after the crime. See, e.g., Valtin v. Hollins, 248 F. Supp.2d 311, 318-19 (S.D.N.Y. 2003); McBride v. Senkowski, 2002 WL 523275, at *5-*6 (S.D.N.Y. Apr. 8, 2002); Jones v. Strack, 1999 WL 983871, at *11 (S.D.N.Y. Oct. 29, 1999); Boles v. Senkowski, 878 F. Supp. 415, 421-22 (N.D.N.Y. 1995). The Bautista court noted that a showup procedure conducted in this manner serves the "very valid function" of "prevent[ing] the mistaken arrest of innocent persons." 23 Page 18 F.3d at 730. 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.'" Valtin, 248 F. Supp.2d at 318 (quoting United States ex rel. Cummings v. Zelker, 455 F.2d 714, 716 (2d Cir.), cert. denied, 406 U.S. 927 (1972)).

  The situation in McCray's case differs from the typical case upholding a showup identification only because the identification was not made until two days after the robbery for which McCray was ultimately charged and convicted. But the proper inquiry is not the period of time that elapsed from the robbery to the showup but rather the period of time that elapsed from Pena's second confrontation with McCray, whom Pena recognized as one of the men who had robbed him. The officers were able to apprehend the suspects only as a result of Pena's description following the latter incident — not the February 17 robbery. Thus, the need for the prompt on-the-scene confrontation arose because of the urgency surrounding the second encounter. See generally Malik v. Kelly, 1999 WL 390604, at *2, *5 (E.D.N.Y. Apr. 6, 1999) (showup upheld on habeas review where identification occurred promptly after victim recognized perpetrator of robbery that had taken place two weeks earlier).

  Judging the showups from this perspective, it is obvious that whatever suggestiveness existed in the February 19 showups was not "unnecessary." The first showup was conducted approximately 15 to 20 minutes after Pena reported being chased by the group; the second was conducted only 5 to 10 minutes later. (Brioso: Hr'g Tr. 63-64). When Pena was taken to the 103rd Street subway station, he was told only that he would look at "five possible suspects" to "see if they were responsible for the crime." (Brioso: Hr'g Tr. 37-38, 53-54). The suspects were not in handcuffs and no guns were drawn. (Brioso: Hr'g Tr. 40). Pena made an immediate Page 19 identification of McCray. (Brioso: Hr'g Tr. 39-40, 54, 58). The subsequent identifications at the stationhouse were used to clarify each suspect's involvement in the robbery. (Burns: Hr'g Tr. 82). While McCray was again identified, (Brioso: Hr'g Tr. 42; Burns: Hr'g Tr. 83), two others were released based on Pena's statements, (Brioso: Hr'g Tr. 42, 61-63; Bums: Hr'g Tr. 84-85).

  After holding an evidentiary hearing, the state trial court held that "[t]he identification procedures that were conducted were in no way suggestive." (Hr'g Tr. 126). The Appellate Division agreed that the showup identification procedures used were not unduly suggestive based on the fact that they "occurred shortly after the victim had independently recognized his assailant without police involvement." McCray, 298 A.D.2d at 204. This conclusion is not "contrary to" or an "unreasonable application of federal law. As a result, it is unnecessary to reach the respondent's argument that the identification was also independently reliable.

  3. Missing Transcripts

  McCray's final ground for relief is that the Appellate Division's denial of his motion for a reconstruction hearing with regard to a missing portion of the jury selection transcript deprived him of his right to a meaningful appeal and effective assistance of appellate counsel. See Petition at 4. The transcript skips from the beginning of the afternoon session on Thursday, January 11 to Tuesday, January 16. Although there is a notation that the trial was adjourned until January 12th, in fact no proceedings occurred on the 12th. See Affirmation of James D. Gibbons, dated May 14, 2001 ("Gibbons Affirm.") (annexed as Ex. D to Taylor Decl.), ¶ 3. January 13 and 14 fell on a weekend. January 15 was a holiday. Thus, it appears that a only portion of the transcript for the afternoon of January 11 is missing. See also Dunn Aff. (stating that only the January 11 transcript is missing). The record of jury selection ends after the first group of jurors was Page 20 individually questioned but before any juror was chosen or stricken. (Tr. 98). From there, the record begins again after the entire panel was chosen. (Tr. 99).

  As noted above, before filing his appeal McCray requested that the Appellate Division remand the case so that the lower court could hold a reconstruction hearing concerning the missing minutes. In support of the motion, appellate counsel stated that he had spoken to the prosecutor, defense counsel, and the judge and that "none of the parties could rule out that defense counsel had raised a Batson [v. Kentucky, 476 U.S. 79 (1986)] challenge during the voir dire or had made a challenge for cause to one of the jurors and subsequently exhausted his peremptory challenges." Affirmation of William B. Carney, dated April 27, 2001 (annexed as Ex. C to Taylor Decl.), ¶ 7. The People noted in response that there was no reason to believe that in fact a Batson challenge had been made and that McCray's counsel had not stated that any of the parties had any notes suggesting that such a challenge had been made. Gibbons Affirm, ¶ 7. The People also stated that the prosecutor had "no memory of having been subjected to a Batson challenge" and "would [have] remember[ed] such an event had it occurred." Id. The People also noted that it was McCray's status as a fugitive that caused the request for the reconstruction hearing to be made over three years after the events at issue had taken place. Id. ¶ 10.

  The Appellate Division summarily denied McCray's motion. See Order. The Appellate Division considered this issue again when McCray raised it in his direct appeal. See Pet. App. Div. Brief at 38-40. The court found that there was no basis for departing from its earlier decision denying a reconstruction proceeding. McCray, 298 A.D.2d at 204.

  The Supreme Court has addressed the issue of an indigent defendant's access to transcripts and has held that "`destitute defendants must be afforded as adequate appellate review Page 21 as defendants who have money enough to buy transcripts.'" Mayer v. City of Chicago, 404 U.S. 189, 193 (1971) (quoting Griffin v. Illinois, 351 U.S. 12, 19 (1956)): see also, e.g., Roberts v. LaVallee, 389 U.S. 40, 42 (1967). However, the issue in this case — that of an incomplete transcript — differs as McCray could not be provided with the full transcript of the voir dire even if he could have afforded it. This Court is aware of no "clearly established" Supreme Court precedent, 28 U.S.C. § 2254(d), obligating a state court to hold a reconstruction hearing whenever portions of a trial transcript are lost or otherwise unavailable.

  In Godfrey v. Irvin, 871 F. Supp. 577, 584 (W.D.N.Y. 1994), the trial transcript relied upon on appeal was claimed to be incomplete. The court stated:

In order to demonstrate denial of a fair appeal, petitioner must show prejudice resulting from the missing or incomplete transcript. Bransford v. Brown, 806 F.2d 83, 86 (6th Cir. 1986), cert. denied, 481 U.S. 1056 (1987); United States ex rel. Cadogan v. LaVallee, 428 F.2d 165, 168 (2d Cir. 1970), cert. denied, 401 U.S. 914 (1971). Speculation that the missing portions of the transcript reflect reversible error is not enough. Instead, petitioner must present "some modicum of evidence [to] support such a conclusion." Bransford, [806 F.2d at 86].
Id.; see also People v. Harrison, 85 N.Y.2d 794, 796 (1995) (absence of a stenographic record does not require reversal if defendant was not prejudiced by the absence). In Jamison v. Berbery, the court held that the petitioner's due process rights had not been violated by the state court's denial of his request to reconstruct portions of incomplete transcripts because petitioner had failed to identify a meritorious appellate issue that the missing minutes would have revealed. 2002 WL 1000283, at *22 (S.D.N.Y. May 15, 2002).

  Here, McCray has failed to present "some modicum of evidence to support" his claim that "the missing portions of the transcript reflect reversible error," Godfrey, 871 F. Supp. at 584 Page 22 (internal quotation marks omitted). Indeed, he has supplied no evidence at all on this point. Accordingly, McCray's right to a fair appeal and to effective assistance of appellate counsel were not abrogated by the Appellate Division's denial of his request for a reconstruction hearing. As a consequence, the Appellate Division did not unreasonably apply federal law in reaching its decision.

 Conclusion

  For the foregoing reasons, the petition should be denied.

 

PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Honorable Deborah A. Batts, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Batts. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).


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