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.
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).
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.
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 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
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).
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
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
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.
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).
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
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
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.
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
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.
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
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
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,
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
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
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
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
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
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
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
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
(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.
For the foregoing reasons, the petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
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