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