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January 14, 2004.

BRIAN BROWN, Petitioner -against- FRANK TRACY, Superintendent, Down state Correctional Facility, Respondent

The opinion of the court was delivered by: NINA GERSHON, District Judge


Petitioner pro se, Brian Brown, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, on the grounds that: (1) there was insufficient basis for the in-court identification of petitioner that was independent of suppressed lineup and photographic identifications; (2) trial counsel was ineffective; (3) the prosecutor's summation deprived petitioner of a fair trial; and (4) the verdict was not supported by the weight of the evidence.


  Petitioner was indicted for two counts of robbery in the first degree (N.Y. Penal Law § 160.15), two counts of robbery in the third degree (N.Y. Penal Law § 160.05), grand larceny in the fourth degree (N.Y. Penal Law § 155, 30), and two counts of petit larceny (N.Y. Penal Law § 155.25). Prior to trial, an identification hearing was conducted to determine if Carlos Rodriguez, one of the victims and the State's key witness, would be permitted to testify to his identifications of petitioner. The court held that, because the investigating officer failed to memorialize the photographic array, and the lineup participants looked "so vastly different" from petitioner, both the Page 2 photographic and lineup identifications must be suppressed. The court then granted the State's application to reopen the hearing to determine if Rodriguez had an independent basis for an in-court identification of petitioner.

  Rodriguez testified at the hearing that, on November 28, 1999, at approximately 1:30 A.m., he and Ernest Rebeiro were making a purchase from the 24 hour window of a stove, when they were approached from behind by petitioner, who held a gun to Rebeiro and demanded their wallets. Rodriguez testified that during the incident petitioner was about two arms lengths away, nothing was blocking his view of petitioner, lights from the stove and its neighbors were illuminating petitioner's face, and that the incident lasted about 15 seconds, Rodriguez provided a detailed description of petitioner's stature and appearance and stated that he was angry about being robbed and as a result he stared at the robber so he would remember his face, Rodriguez further testified that, when he viewed the photographic array, the petitioner's picture stood out because the petitioner's image was etched into his mind "[f]rom the night of the robbery." Rodriguez identified petitioner in the court room as die robber, As a result of this testimony the court found that Rodriguez had testified "credibly and substantially uncontradictedly" that, throughout the incident, he was close to and intently watched the perpetrator, that nothing blocked his view and that the location was unusually well-illuminated, The court went on to state that Rodriguez "always appeals to have been immediately and unshakeably positive in his identification of the defendant as the perpetrator," and he therefore allowed Rodriguez to make an in-court identification of petitioner.

  After a jury trial in New York State Supreme Court, Kings County, petitioner was convicted of two counts of robbery in the first degree. On December 19, 2000, petitioner was sentenced to concurrent determinate terms often years for both counts of robbery in the first degree. Petitioner Page 3 appealed his conviction on the grounds that (1) there was insufficient basis for the in-court identification; (2) trial counsel was ineffective; (3) the verdict was not supported by the weight of the evidence; and (4) the prosecutor's summation deprived defendant of a fair trial. The Appellate Division affirmed the judgment of conviction on April 22, 2002, People v. Brown, 293 A.D.2d 686 (2d Dep't 2002), specifically finding that the identifying witness had an independent source for his in-court identification. Leave to appeal to the New York Court of Appeals was denied on July 11, 2002. People v. Brown, 98 N.Y.2d 695 (2002). Petitioner also moved in the Supreme Court, Kings County, to vacate his judgment of conviction pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10, claiming ineffective assistance of trial counsel. By order dated July 26, 2002, the Supreme Court, Kings County, denied petitioner's Section 440, 10 motion, and leave to appeal the denial was denied on December 23, 2002.


  Title 28 U.S.C. § 2254(d)(1), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides that a habeas corpus petition shall not be granted on a claim mat was "adjudicated on the merits" in a state court proceeding unless the adjudication of the claim "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." 28 U.S.C. § 2254(d)(1). In addition, a state court's factual findings which are supported by the record must be presumed correct by a court analyzing a habeas corpus petitioner's claims. See 28 U.S.C. § 2254(e)(1). Page 4

  Pursuant to the Supreme Court precedent provided by Neil v. Biggers, 409 U.S. 188 (1972), a witness who is subject to suggestive identification procedures may make an in-court identification so long as the totality of the circumstances establish the reliability of the identification. Id. at 199. A number of factors must be considered in determining whether an in-court identification is reliable, including, "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of lime between the crime and the confrontation," Id. at 199-200. These factors must be considered collectively "and weighed against the corrupting effect of the suggestive confrontation." Id. at 200.

  Petitioner raises several objections to the hearing judge's admission of the in-court identification. First, petitioner notes Rebiero's grand jury testimony that "When the (petitioner) took [Rodriguez's] wallet [petitioner] said `Don't turnaround' and told him to back up . . .; "he argues that this indicates that Rodriguez was not facing petitioner and therefore was unable to see petitioner's face. This grand jury testimony was admitted into evidence at the hearing at the behest of petitioner's counsel. That the hearing judge nonetheless found Rodriguez's testimony sufficient to support his in-court identification is well-supported by the record, and Rebiero's testimony is not to the contrary. Rebiero maintained that he, not Rodriguez, always had his back to the petitioner, Therefore, petitioner's direction to not turn around obviously was addressed to Rebiero. Further, the order to "back up" could just as well have been made to a person facing the speaker, as someone facing away from him, and in this instance that person was Rodriguez, This conclusion is supported both by Rebiero's statements that he was always facing away from petitioner and Rodriguez's statements Page 5 that, although he was facing the store window when petitioner first approached them, he turned around and saw petitioner holding a gun to Rebiero's head.

  Petitioner also argues that Rodriguez's opportunity to view him was too abbreviated to allow him to make a reliable in-court identification, However, Rodriguez testified that he had 15 seconds to observe petitioner. See United States v. Wong, 40 F.3d 1347, 1360 (2d Cir. 1994), cert. denied 516 U.S. 870 (1995)(allowing identification following two to three second observation, United States v. Mohammed, 27 F.3d 815, 821-822, cert. denied, 406 U.S. 927 (1972) (thirty second observation), United States ex rel. Phipps v. Follette, 428 F.2d 912, 916 (2d Cir. 1970), cert. denied, 400 U.S. 908 (1970) (twenty to thirty second observation).

  Petitioner's final contention on this point, that Rodriguez testified that he was able to identify petitioner at trial because of the photographic array is meritless. In fact, Rodriguez testified that petitioner's face was "burned" into his mind at the time of the incident because he was so angry about being robbed, not as petitioner contends, that he memorized petitioner's face from the photo array. Accordingly, this argument is rejected.

  As already discussed, Rodriguez had an unobstructed, well-illuminated view of petitioner during the robbery that lasted for approximately 15 seconds. This view allowed Rodriguez to provide officers with a detailed, mostly accurate description of petitioner, to identify the defendant with a high degree of certainty; and the two month lag between the incident and initial confrontation is not fatal, See Wong, 40 F.3d at 360(holding that a thirty-one month delay could be outweighed by other indicia of reliability). Accordingly, the Appellate Division's decision that the hearing court ...

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