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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


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. 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 ...

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