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January 22, 2004.

MICHAEL PANZARINO, Petitioner, -v.- W. PHILLIPS, Respondent

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

Michael Panzarino 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, Panzarino was convicted of Robbery in the First and Second Degrees, Burglary in the Second Degree, Bail Jumping in the First Degree, Tampering with a Witness in the Third Degree, and Intimidating a Witness in the Third Degree. Panzarino was sentenced as a persistent violent felony offender to an aggregate term of imprisonment of 30 1/2 years to life. He is currently incarcerated pursuant to that judgment at Green Haven Correctional Facility in Stormville, New York. For the reasons below, the petition should be denied.


  A. Pretrial Hearing

  Prior to the trial in this case, a hearing was held to determine whether there was probable Page 2 cause to arrest Panzarino and whether certain physical evidence and identification testimony should be suppressed.*fn1

  On April 8, 1992, at about 10:00 a.m., Detective Joseph Redican interviewed Iris Rohrlick, who had just been the victim of a robbery. (Redican: Hr'g Tr. 10-11). Rohrlick told the detective that she had been working alone that morning in the office of Harvey's Bazaar on the 7th Floor of 155 West 72nd Street. (Redican: Hr'g Tr. 10-11). She left her office to go to the bathroom and noticed a white man near the elevators. (Redican: Hr'g Tr. 11). When she returned to the office, someone knocked on the door and said, "Vincent sent me." (Redican: Hr'g Tr. 11-12). When she opened the door, three men entered the office. (Redican: Hr'g Tr. 12). One of them — whom Rohrlick described as white, 30 years old, approximately 5'9", 140 pounds, clean shaven, and with a blue trench coat — had a handgun. (Redican: Hr'g Tr. 12, 46). The second man was white, 30 years old, about 6'0", 160 pounds, and was wearing a beige jacket. (Redican: Hr'g Tr. 12, 47). The third man was Hispanic, 30 years of age, about 5'9", slim, had a mustache, and was wearing a brown coat and carrying a briefcase. (Redican: Hr'g Tr. 12, 47).

  The first man demanded the payroll and threatened to shoot Rohrlick in the leg. (Redican: Hr'g Tr. 12-13). The second man tied her up with cord and tape, and then the three men fled, taking approximately $5000 of payroll money which was on a table in the middle of the office. (Redican: Hr'g Tr. 13). When the police responded to the scene, they found tape and electrical cord, which had been used to tie Rohrlick's hands, and a pair of rubber gloves. (Redican: Hr'g Tr. 14). Page 3

  Detective Redican later had a telephone conversation with Police Officer James Triola. (Redican: Hr'g Tr. 14). Triola had interviewed Jack Parra, who worked a few doors down from where the robbery took place. (Redican: Hr'g Tr. 14-15). Parra had seen three men walking "very hurriedly" from the direction of 155 West 72nd Street at about 9:30 a.m. on the morning of April 8. (Redican: Hr'g Tr. 15-16). Parra gave the following descriptions of the three men: (1) white male, approximately 40 years old, about 5.9", wearing a long dark coat; (2) white male, approximately 40 years old, taller than the first, about 6.0", wearing a light jacket; (3) black male with light skin. (Redican: Hr'g Tr. 16). Parra reported that the three men got into a white car bearing New York license plate number 3GF346 and that the right rear passenger window of the car was covered with plastic and tape. (Redican: Hr'g Tr. 15-16). The taller white man was driving. (Redican: Hr'g Tr. 16-17). Detective Redican learned from the Department of Motor Vehicles that the car with that license plate number was registered to Ramon Gonzalez of 400 East 161st Street in the Bronx. (Redican: Hr'g Tr. 17, 69-70).

  On April 12th, Detective Redican spoke to Parra, who confirmed the information he had previously given to Officer Triola. (Redican: Hr'g Tr. 17-18, 55-67). On April 13th, Detective Redican and his partner, Detective Stephen Kuspiel, drove to 400 East 161st Street in the Bronx in an unmarked car. (Redican: Hr'g Tr. 18-19; Kuspiel: Hr'g Tr. 145). When they reached the address, they saw a white hatchback with the license plate number 3GF346 and a broken right rear window covered with plastic and tape going in the opposite direction. (Redican: Hr'g Tr. 19, 22-23; Kuspiel: Hr'g Tr. 146). They made a U-turn and followed the car for a few blocks before pulling it over. (Redican: Hr'g Tr. 20, 73; Kuspiel: Hr'g Tr. 146). Detective Redican described Panzarino, the sole occupant of the car, as a white male, between 30 and 40 years old, Page 4 about 6'0", 190 to 200 pounds, with long light hair and a moustache. (Redican: Hr'g Tr. 74-75, 109). Detective Redican believed that Panzarino's appearance matched the victim's description of one of the robbers contained in the complaint report prepared by the officer who first responded to the crime scene, which described a 6'0" white male, approximately 20 to 30 years old, about 200 pounds, with short light brown hair and no facial hair. (Redican: Hr'g Tr. 73-75, 107-09).

  Detective Kuspiel approached the car with his gun drawn and ordered Panzarino to get out of the car. (Kuspiel: Hr'g Tr. 147, 160-61). The detectives handcuffed Panzarino and frisked him for weapons, finding none. (Redican: Hr'g Tr. 77; Kuspiel: Hr'g Tr. 147). When asked if he had a driver's license or the vehicle registration, Panzarino indicated that the registration was in his wallet. (Kuspiel: Hr'g Tr. 149). One of the detectives removed Panzarino's wallet from his pocket and took out the registration. (Kuspiel: Hr'g Tr. 147-49, 161-62). Panzarino stated that the car belonged to his friend, Raymond Gonzalez, who had been in jail for approximately six months and had allowed Panzarino and his wife to use the car during that time. (Redican: Hr'g Tr. 21-22; Kuspiel: Hr'g Tr. 148). Detective Kuspiel testified that he believed he had probable cause to arrest Panzarino when he handcuffed him because he was driving the car Parra described as the getaway car and because Panzarino's appearance matched the description of one of the perpetrators given in the complaint report. (Kuspiel: Hr'g Tr. 159-60). Detective Kuspiel testified that he also took into account Panzarino's statement that he and his wife had been driving the car for the past six months and the fact that Panzarino did not have a driver's license, although he gained this information after Panzarino was handcuffed. (Kuspiel: Hr'g Tr. 160-62, 168). Page 5

  The detectives took Panzarino and the car to the precinct in Manhattan. (Redican: Hr'g Tr. 23, 75-76; Kuspiel: Hr'g Tr. 150-51, 162). On the way, Detective Redican told Panzarino that the car was used in a crime somewhere on the Lower East Side of Manhattan and Panzarino responded that he had not been in Manhattan in about a year. (Redican: Hr'g Tr. 23-24, 79-80). As they approached the west side of Manhattan, Detective Redican told Panzarino that the crime had actually occurred in the 20th Precinct. Panzarino thereupon became more "worried" and "inquisitive" about the crime. (Redican: Hr'g Tr. 24-25).

  After arriving at the precinct, Detective Redican was unable to contact Iris Rohrlick. (Redican: Hr'g Tr. 25-26). In the course of processing Panzarino, Detective Michael Rooney found a civil court judgment in Panzarino's wallet. The judgment was in the amount of approximately $3600 and included a notice that Panzarino would be evicted on April 8, 1992 unless the judgment was paid. (Redican: Hr'g Tr. 26-27; Kuspiel: Hr'g Tr. 152). Detective Rooney copied these papers and returned the originals to where he found them without telling Panzarino. (Redican: Hr'g Tr. 85-86). Detective Redican removed the tape and plastic from the window of the car and took photos of Panzarino and of the car. (Redican: Hr'g Tr. 27-28, 87-88). Detective Redican took Panzarino to Central Booking. (Redican: Hr'g Tr. 113). The District Attorney's Office, however, declined prosecution of the case and Panzarino was released. (Redican: Hr'g Tr. 27, 82-84, 88).

  On April 23, 1992, Detective Redican showed Jack Parra the photo of the car and a photo array of six photos, including the April 13th photo of Panzarino. (Redican: Hr'g Tr. 28-30, 100-01). Parra identified the car as the one he had seen in front of the store on April 8th, the day of the robbery, but could not identify anyone from the photo array. (Redican: Hr'g Tr. 28-29, 89-90, 100-01). Page 6 On May 6th, Detective Redican showed the same photo array to Rohrlick, who identified Panzarino as the robber who had tied her up. (Redican: Hr'g Tr. 29-33, 39, 114-16). She was not told ahead of time that any of the robbers' photographs were in the array; nor was she told that she had correctly identified a suspect. (Redican: Hr'g Tr. 29, 32-33, 116).

  Following Panzarino's release on April 13th, Detective Redican spoke to him on the telephone several times regarding scheduling a lineup. (Redican: Hr'g Tr. 117). On May 13, 1992, in response to a call from Detective Redican, Panzarino voluntarily came to the precinct to participate in a prearranged lineup. (Redican: Hr'g Tr. 33, 116, 118-19; Kuspiel: Hr'g Tr. 166). That day, Panzarino had a full beard. (Redican: Hr'g Tr. 33-34). Detective Redican asked Panzarino to sit in the lineup room with the "fillers." (Redican: Hr'g Tr. 34-35, 119). Rohrlick viewed the lineup and recognized Panzarino, noting that he did not have a beard on the day of the robbery. (Redican: Hr'g Tr. 36, 121-23).

  The defense presented Detective Michael Rooney as their sole witness at the pretrial hearing. He testified that on April 8, 1992, Officer Triola called him and conveyed the information he had received from Parra, including Parra's description of the three males and the car they were driving. (Rooney: Hr'g II Tr. 5-6). Detective Rooney passed this information along to Detective Redican, who was at the scene of the crime when Officer Triola's call came in. (Rooney: Hr'g II Tr. 5-7). On April 13, Detective Rooney assisted with processing Panzarino. (Rooney: Hr'g II Tr. 7-8). He asked Panzarino for identification and Panzarino handed him a civil court judgment for $3800. (Rooney: Hr'g n Tr. 8-9, 13). Panzarino told Detective Rooney that the money was due on April 8 and "that's where [he] was that day." Page 7 (Rooney: Hr'g II Tr. 10-12). Detective Rooney had the judgment copied and returned the original to Panzarino. (Rooney: Hr'g II Tr. 10-11, 14-15).

  On October 21, 1994, the court issued an oral decision, finding as follows:
I draw the following conclusions: First, on the issue of probable cause, I find that the police did have probable cause for the arrest for defendant. They had received information concerning the robbery. They had descri[ptions of] the participants. They had interviewed a witness who had also described the persons fleeing from the scene. They had received a description of the car used and most importantly, they had received the license plate number of the car. Some days later when they went to the place where the car was — the registered owner lived, they saw the car and they saw a person who fit the description.
I find coupled with the information that the police received, couple[d] with what they saw on 161st Street was sufficient to constitute probable cause. . . .
As to the physical evidence, that taken from the car, that taken from the defendant's person were all taken subsequent to an arrest with probable cause and instant to the arrest.
Brief for Defendant-Appellant, dated January 2000 ("Pet. App. Div. Brief) (reproduced as Ex. A to Declaration of Jennifer K. Danburg, filed October 1, 2003 (Docket #8) ("Danburg Decl.")), at 9 (quoting Decision at 7-10); see also Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, filed October 1, 2003 (Docket #9) ("Resp. Mem."), at 9-10. The court denied Panzarino's suppression motion with respect to the physical evidence recovered and the subsequent identifications. The court did, however, grant the motion to suppress with regard to Panzarino's post-arrest statements. See Pet. App. Div. Brief at 9; Resp. Mem. at 9-10.

  B. Trial

  The following evidence was presented at trial:
1. The People's Case
  a. The Robbery and Burglary Charges. Rohrlick worked as bookkeeper for Soll Pullman, the owner of Harvey's Bazaar and Mark Albert beauty salons. (Pullman: Tr. 57, 59; Rohrlick: Page 8 Tr. 82-83). Rohrlick only worked one day a week at a business office located at 155 West 72nd Street, 7th Floor, where she prepared the payroll for the two salons. (Pullman: Tr. 59-61; Rohrlick: Tr. 83-84).

  On the morning of Wednesday, April 8, 1992, Rohrlick was alone in the office. (Rohrlick: Tr. 87-88, 90). At approximately 9:30 a.m., she left the office to go to the ladies' room and saw a man with a navy blue overcoat pressing the button for the elevator. (Rohrlick: Tr. 90-93, 141-42). The man was about 5'5", with very white skin and thick black hair. (Rohrlick: Tr. 92, 168-69). The hallway was empty when she returned to her office. (Rohrlick: Tr. 92). Someone then knocked on the door and said "Vincent sent me" when she asked who was there. (Rohrlick: Tr. 93-95, 170). Vincent was a manager of the beauty salon. (Rohrlick: Tr. 95). Rohrlick answered the door and was confronted by three men standing one behind the other: the first was the man she had seen at the elevator, still wearing the blue coat (Rohrlick: Tr. 95, 167, 170-72); the second man was the tallest of the three, white, with sandy brown hair, no facial hair, and a beige jacket (Rohrlick: Tr. 95-96, 98, 182-83); and the third was shorter, "hispanic looking," and was carrying a briefcase (Rohrlick: Tr. 95, 109). In court, Rohrlick identified Panzarino as "the second man," meaning the tallest man who wore a beige jacket. (Rohrlick: Tr. 96-97).

  The men forced themselves into the office and the man in the blue coat demanded the payroll money. (Rohrlick: Tr. 97, 99-101, 173, 177). The man in the blue coat then took a black gun from his coat pocket and aimed it at Rohrlick's legs. (Rohrlick: Tr. 104-05, 152-53, 178-79). She told the men that the money was on top of a desk in the office and she was then ordered to lay face down on the floor. (Rohrlick: Tr. 105-07, 179-80). Her arms were tied behind her Page 9 back and her ankles bound with electrical wire. (Rohrlick: Tr. 107-11, 122-25). She saw the second, tallest man with the beige jacket working an item into a ball — an item she later found out was her leather glove. (Rohrlick: Tr. 108, 111-14, 149-51, 154-55, 192-93, 216-17). The balled-up glove was then forced into her mouth and two-inch wide tape was placed over it. (Rohrlick: Tr. 108, 112, 114-17). Rohrlick testified that the only tape kept in the office was scotch tape. (Rohrlick: Tr. 116). The three men then left the office. (Rohrlick: Tr. 117).

  Rohrlick managed to get her legs free and she tried to call for help but the phone receiver was missing. (Rohrlick: Tr. 117-18). She noticed that the payroll envelopes were missing and the contents of her purse were spilled out on the floor. (Rohrlick: Tr. 118-19). She went to another office on the floor where someone untied her hands and called 911. (Rohrlick: Tr. 119-24; Schulman: Tr. 232-34).

  Meanwhile, Jack Parra, who worked at a home improvement store two doors west of 155 West 72nd Street, was helping a customer load paint into his car. (Parra: Tr. 263-66, 295). He noticed three men approaching from the direction of 155 West 72nd Street: the tallest of the three had a long nose, was white, about 6'0", weighed approximately 170 pounds, wore a beige corduroy jacket with lapels, and was carrying a briefcase (Parra: Tr. 268-69, 303-04); the second man was white and shorter than the first (Parra: Tr. 268-69); and the third was black and wore a brown jacket (Parra: Tr. 269). The three men got into a white, four-door car which was parked right in front of Parra's store. (Parra: Tr. 270-72). Parra found these individuals to be "suspicious" based on their dress and the kind of car they were driving, which had a broken rear window covered with plastic. (Parra: Tr. 265-66, 271-72). Parra memorized the license plate Page 10 number of the car — 3GF346. (Parra: Tr. 272-73). The taller white man in the light colored jacket was driving. (Parra: Tr. 270-73, 290).

  Police Officer Donna Kearney and Sergeant David Moreno responded to the 911 call. (Kearney: Tr. 546-47; Moreno: Tr. 574-75). Rohrlick still had plastic-coated wire on one of her wrists, which Sergeant Moreno cut off and vouchered as evidence. (Kearney: Tr. 548-50; Moreno: Tr. 586-88, 592). Sergeant Moreno also vouchered a pair of rubber surgical gloves and a roll of packing tape they found in Rohrlick's office. (Kearney: Tr. 550-51, 555-59, 562-71; Moreno: Tr. 585-88, 599-601). Sergeant Moreno sent the gloves and roll of tape to the lab for fingerprint analysis but no prints were found. (Moreno: Tr. 592-96). The gloves and the tape were marked as "investigatory evidence" because they were recovered before anyone was arrested for the crime. (Musillo: Tr. 616-18). The police department routinely destroys "investigatory evidence" after storing it for one year. (Musillo: Tr. 618-23). Thus, the gloves and tape were destroyed on May 13, 1993, because the police department had not received notice that the property should be retained. (Musillo: Tr. 618-23).

  Rohrlick described the three perpetrators to Officer Kearney: the first man was white, 20 to 30 years old, about 5'8", with dark hair and a long blue coat; the second man was white, 20 to 30 years old, about 6'0", with light brown hair and a beige jacket; and the third was Hispanic, 20 to 30 years old, about 5'10", with a brown tweed jacket and a briefcase. (Kearney: Tr. 551-52, 562). Sergeant Moreno called the 20th Precinct Detective Squad with these descriptions (Kearney: Tr. 558; Moreno: Tr. 578-79) and Detectives Joseph Redican and Steven Kuspiel responded to the scene and interviewed Rohrlick (Redican: Tr. 358-61; Kuspiel: Tr. 509-12). Page 11 Later that morning, the detectives took Rohrlick to the 20th Precinct where she looked at some photographs but made no identifications. (Rohrlick: Tr. 156-57; Redican: Tr. 369).

  Also later that morning, Police Officer James Triola, who was on foot patrol on West 72nd Street canvassing the area as part of an investigation into the robbery, spoke with Jack Parra. (Triola: Tr. 328-32). Officer Triola testified that he approached Parra, who was standing in front of the store where he worked. (Triola: Tr. 329-31). Parra testified that he approached Officer Triola. (Parra: Tr. 294, 311-12). Parra told Officer Triola what he had seen. (Parra: Tr. 293-94). Officer Triola telephoned the detectives at the 20th Precinct. (Triola: Tr. 329). After contacting the Department of Motor Vehicles, Detective Redican found out that the registered owner of the car was Ramon Gonzalez of 400 East 161st Street in the Bronx. (Redican: Tr. 371, 441-42). On April 12th, Detective Redican spoke to Parra on the phone. (Redican: Tr. 372, 385, 435-36, 487-88, 497-99).

  On April 13th, Detectives Redican and Kuspiel drove to 400 East 161st Street and as they approached they saw a car going the opposite direction matching Parra's description: specifically, a small, white hatchback with a broken rear window covered with tape and plastic, with license plate 3GF346. (Redican: Tr. 385-87; Kuspiel: Tr. 513-15). They followed the car for a few blocks and then pulled it over. (Redican: Tr. 387, 447-48). Both detectives approached the car with their guns drawn. (Redican: Tr. 447-48; Kuspiel: Tr. 516). Panzarino was the driver and sole occupant of the car. (Redican: Tr. 387-88; Kuspiel: Tr. 516-17). Panzarino was a white male, in his thirties, with light colored hair and a "slight growth on his face," including a "slight mustache." (Redican: Tr. 388, 405, 460). Panzarino got out of the car as directed, whereupon the detectives handcuffed him. (Redican: Tr. 388-89, 449; Kuspiel: Tr. 517). Detective Redican Page 12 testified that Panzarino fit the description given by Iris Rohrlick, except that he was heavier than she had described. (Redican: Tr. 449-51). Panzarino was not as tall or as thin as Parra had reported. (Redican: Tr. 452-55). The car registration, in the name of Ramon, or Raymond, Gonzalez, was in Panzarino's wallet. (Redican: Tr. 391-94; Kuspiel: Tr. 517-18). Panzarino told the detectives that Gonzalez had been in jail for about six months and that during that time Gonzalez had allowed Panzarino and his wife to use the car. (Redican: Tr. 390-91; Kuspiel: Tr. 519). Panzarino also said that he and his wife were the only two people who had driven the car while Gonzalez was in jail. (Redican: Tr. 391; Kuspiel: Tr. 519).

  The detectives took Panzarino and the car to the 20th Precinct in Manhattan. (Redican: Tr. 395; Kuspiel: Tr. 519-20). They were unable to contact Rohrlick so no identification procedures could be conducted that day. (Redican: Tr. 394, 409, 455-56). Detective Redican took photos of Panzarino which were introduced into evidence. (Redican: Tr. 406-08). While processing Panzarino's arrest, another detective found a housing court judgment against Panzarino in the amount of $3640 and a notice that Panzarino would be evicted from 1739 Lurting Avenue in the Bronx if the amount of the judgment was not paid by April 8, 1992, the date of the robbery. (Redican: Tr. 410, 414-19, 465-70; Kuspiel: Tr. 521-24, 536-37). Later that day, Detective Redican took Panzarino to Central Booking. (Redican: Tr. 419). The District Attorney's Office declined prosecution of the case and Panzarino was released. (Redican: Tr. 457-58).

  Over the next month, Panzarino and Detective Redican remained in contact. (Redican: Tr. 422, 458-59). On May 13, 1992, Detective Redican arranged to have Panzarino come to the precinct to participate in a lineup and also arranged for Rohrlick to come to view it. (Redican: Page 13 Tr. 421-27, 461; Kuspiel: Tr. 526-30). The lineup consisted of five "fillers" and Panzarino. (Redican: Tr. 423). Rohrlick viewed the lineup and recognized Panzarino "right away" as the man who was wearing a beige jacket during the robbery; she noted that he had grown a beard and had been clean shaven on the day of the robbery. (Rohrlick: Tr. 159). At trial, she again identified Panzarino, at which time she noted that Panzarino now had a moustache and a beard, that he was heavier at the time of the crime, and that she did not remembering him having a part in the center of his hair as he did at trial. (Rohrlick: Tr. 184-86, 193-94).

  b. The Bail Jumping Charge. According to court records, Panzarino was originally released on $7500 bail. (Honohan: Tr. 636-39, 643). After Panzarino's arraignment in Supreme Court, his bail was raised to $30,000, which was posted on September 16, 1992. (Honohan: Tr. 640-41, 643-45). Panzarino thereafter made several court appearances. (Honohan: Tr. 641; Ratner: Tr. 683). On October 21, 1992, the People answered ready for trial but the case was adjourned until December 2, 1992 because of a death in defense counsel's family. (Honohan: Tr. 641; Bonello: Tr. 677; Ratner: Tr. 683-87). ...

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