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February 13, 2004.

MICHAEL HERNANDEZ, Petitioner, -against- GARY FILION, Superintendent, Coxsackie Correctional Facility, Respondent

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge


Pro se petitioner Michael Hernandez seeks a writ of habeas corpus from his September 22, 1998 conviction in Supreme Court, Bronx County, of first degree assault and fourth degree grand larceny and sentence of sixteen years imprisonment. (Dkt. No. 2: Pet. ¶ 5.) Hernandez's habeas petition alleges that: (1) the trial court erred in allowing testimony of a pre-trial photographic identification (Pet. ¶ 15(A)); (2) volunteered references to Hernandez's prior arrest violated his due process rights (Pet. ¶ 15(B)); (3) he was denied the right to fully cross-examine Detective Lauro (Pet. ¶ 16); and (4) trial counsel rendered ineffective assistance by (a) failing to object to admission of Hernandez's statement to the police and (b) failing to call a police officer who "recorded statements describing the perpetrator as someone other than" Hernandez (Pet. ¶ 17).

For the reasons set forth below, Hernandez's petition should be DENID. Page 2


  On October 13, 1997, Hernandez attacked an 83 year old woman, Florence Schiering, and stole her food stamps and cash in order to buy crack cocaine. (Dkt. No. 6: McGarvey-Depuy Aff. Ex. 4: State 1st Dep't Br. at 5.)*fn1 On October 17, 1997, Hernandez was arrested by Detective Lauro. (State 1st Dep't Br. at 9; Lauro: Trial Transcript ["Tr."] 54-55.)

  A pretrial suppression hearing was held on June 15, 1998. (6/15/98 Hearing Transcript ["H."].) Detective Lauro was the sole witness at the suppression hearing. (Id.) At the conclusion of the hearing, Justice Steven Lloyd Barrett held that the photographic arrays shown to witness Davilla and to the complainant Schiering were not suggestive and thus their identifications would not be suppressed (H. 85-88.) Justice Barrett also found that Hernandez was given his Miranda warnings by Detective Laura, was not mistreated, and thus Hernandez's statements to the police were admissible. (H. 88-90.)

  After jury selection, trial began on June 22, 1998. (Trial Transcript ["Tr."] 1-2.) Detective Lauro testified to, among other things, the inculpatory statement that Hernandez made to him (Lauro: Tr. 87-88), as follows: Hernandez said that another drug addict (Davilla) suggested that he rob this "old lady" who lived in Davilla's building. (Lauro: Tr. 87.) Inside the building, Hernandez "`put [his] hand inside her sweater pocket and took out a purse. She told [him] to give her back her money, and [he] told her to shut up.'" (Lauro: Tr. 88.) Hernandez ran to a "crack spot" and gave half the food stamps in the purse to the other addict. (Lauro: Tr. 88.) Page 3

  The victim, Ms. Schiering, similarly described the robbery at trial: her attacker reached inside her pocket, took out her purse containing $30 of food stamps, "put his face" into hers and said "`just don't holler.'" (Schiering: Tr. 705-06.) The next thing she knew she woke up in the hospital. (Schiering: Tr. 706, 733-34.) In the hospital, Detective Lauro and another officer showed her a large photo book, with twelve to fifteen pages full of photographs and then a smaller photo book with six Polaroid photos per page, and in that second book she identified Hernandez's picture as that of her attacker, although only with a "90 percent" certainty. (Schiering: Tr. 735-37, 740-42.)

  The Court will not review the balance of the trial testimony, which is summarized in the parties' briefs to the First Department (see Ex. 3: Hernandez 1st Dep't Br. at 4-16; Ex. 4: State 1st Dep't Br. at 5-11), except for the testimony relevant to Hernandez's habeas claims.

 Detective Lauro's Trial Testimony: Describing An Area Search As Where Someone Has Been Arrested Before

  Detective Lauro testified that as part of his investigation of the robbery and attack of Schiering, he went to the scene of the crime, 3400 Tryon Avenue in the Bronx, and interviewed several witnesses. (Lauro: Tr. 61-67.) On direct examination by the prosecutor, Detective Lauro testified that he conducted a further investigation, including an "area search":
Q. Can you describe what type of investigation you conducted afterwards?
A. An area search.
Q. Can you define for the members of the jury what is an area search?
  A. An area search is basically a drive by. walk by of an area where a person that is a subject of an investigation has been previously arrested. Page 4

  MR. RAMOS [Defense Counsel]: Objection.

THE COURT: Yes. This is more than we need to know, just general.
(Lauro: Tr. 68, emphasis added.) Detective Lauro testified that it was during this search that he arrested Hernandez. (Lauro: Tr. 69-70.) After a lunch recess, before the jury was brought back in, defense counsel Mr. Ramos moved for a mistrial:
MR. RAMOS: I have an application for a mistrial based on the Officer's testimony that he went to the location where he arrested Mr. Michael Hernandez based on the record of prior arrests, I think.
THE COURT: Based on what?
MR. RAMOS: Records of prior arrests.
THE COURT: I don't believe that was the testimony.
MR. RAMOS: We can read back the record. I asked to approach.
THE COURT: We can read back the testimony. You are saying the witness said. . . . He said a prior arrest record?
MR. RAMOS: He made reference to a prior arrest. The record will speak for itself. I ask that we refer to the record.
THE COURT: We will refer to the record, not right now.
It is my recollection that that was not the type of reference that would impress upon the jurors what you are suggesting. Jury in.
(Tr. 76-77.) The next day, when defense counsel renewed his application for a mistrial and read back Detective Lauro's testimony (Tr. 189-91), the judge again denied a mistrial: "The issue of a mistrial requires showing of substantial prejudice. I don't believe there is substantially [sic] prejudice. I don't applaud the use. I don't think it was intentional. I certainly don't applaud the Page 5 reference to the prior arrest. . . . I think a mistrial is a little excessive remedy. I'll hear your application for any other remedy. I sustained the objection. If you feel there is something else you would like me to do in the way of instruction or striking, I will do it." (Tr. 192.) The judge noted that such an instruction "might call unnecessary attention to a matter that [the judge] believe[s] went right pas[t] this jury as it just now went pas[t]" the judge. (Tr. 193.) Defense counsel dropped the issue, moved on to other issues (Tr. 193), and never asked for a curative instruction (see Ex. 4: State IstDep'tBr. at 27).

 Detective Lauro's Trial Testimony; Photographic Identification

  On cross-examination, Hernandez's attorney questioned Detective Lauro about conversations that he had with the victim, Florence Schiering:
Q. When you spoke to Mrs. Schiering, what date was that?
A. That would be the 16th. 10/16/97. Three days after the incident.
Q. And would it be fair to say that by that date you had a picture of Michael Hernandez?
A. Yes, I did.
Q. Okay. Have you spoken to Miss Schiering since that date?
A. Yes, I have.
Q. How many times?
A. Three or four times since that date.
Q. And in connection with what?
  A. In connection with getting ready for this case to come to trial. Page 6
Q. Okay. And on those — any of those occasions when you spoke to Miss Schiering, did you show her the picture of Michael Hernandez?
A. Never.
Q. Never at all?
A. After the first time?
Q. That's correct.
A. Miss Schiering identified defendant Hernandez —
MR. RAMOS: Objection, may I be heard off the record?
A. She saw a picture on the 16th. and she — that was shown to her by me and I never after that date showed her any other photos of the defendant or anybody else for that matter.
MR. RAMOS: Objection, Your Honor. I'd like to be heard outside the presence of the jury.
(Lauro: Tr. 167-68, emphasis added.) After the jury was excused, the following colloquy occurred:
MR. RAMOS: Your Honor, at this time I'm moving for a mistral. At this moment we have two very egregious errors admitted by the witness on the stand.
MR. RAMOS: As I indicated initially, he testified earlier about him going to the area where Mr. Hernandez was arrested, based on prior arrest records, something to that effect. I don't recall his exact —
THE COURT: We have to check the record on that.
MR. RAMOS: On this occasion, I asked him whether he had ever shown the photograph to Miss Schiering and he basically testified about out-of-court identification. Clearly improper.
  THE COURT: What did he do? Sorry, you asked him whether he showed a photograph of the defendant to Miss Schiering and he apparently Page 7 answered that he showed a photograph of the defendant to Miss Schiering —
MR. RAMOS: And that she made an out-of-court identification. He testified about an out-of-court identification, Your Honor.
THE COURT: Can I have a read back of that. (Whereupon, the requested testimony was read back by the Court Reporter.)
THE COURT: Counsel, there's no basis for a mistrial.
(Tr. 170-71.) The court pointed out that an out-of-court identification is improper if the district attorney elicits it on direct examination, but this was elicited by defense counsel, who "went right to into this point." (Tr. 172: see also Tr. 173-74, 176-78.)
  Before his redirect examination, the Assistant District Attorney made an application to further explore the issue of the photographic identification brought up by the defense during Detective Lauro's cross-examination:
[A.D.A.] FERRERA: My application is to ask them both [Detective Lauro and Ms. Scheiring about the photographic identification] because impressions have been left upon this jury that an improper identification was done. Mr. Ramos this morning asked repeatedly questions about whether or not any photos were shown by either this officer or even myself during any period of trial prep . . . is leaving a very clear impression to a very intelligent jury, and that it is that the police department did something inappropriate in this case. . . .
. . . .
  Mr. Ramos asked [Detective Lauro] questions about showing a photograph when we in fact know that it wasn't a single photograph that was shown to this complainant, that in fact there was a whole series of photographs a whole book shown to this complainant and that she leafed through approximately forty to fifty photographs and then picked out the defendant. Page 8
The questioning regarding showing Miss Florence Schiering a single photograph leaves the impression that even if she does make a court identification it's based only on that showing of one single photograph, that an intelligent jury looking at the testimony . . . will say the detective showed her a photograph of the guy they arrested, one photograph. She looked at that, yeah, so she picked him out.
. . . .
Mr. Ramos chose to ask those questions. No one told him to ask those questions. He knew what the responses would have been. . . . He was on full notice of what the circumstances of the identification were, and yet he elicited only the fact that a photograph was brought to Frances Schiering and that elicited the evidence that a photograph was actually identified by Florence Schiering clearly misleading this jury . . . [although] this Court has ruled on the record [at the suppression hearing] that the detective showed forty to fifty photos to this complainant and at that point she made her identification.
(Tr. 247-49.) The trial judge agreed with the prosecutor, noting that the line of questioning explored by the defense was not in good faith:
THE COURT: The identification that anybody heard on a good faith basis only occurs at the hospital in which a book of photos was shown.
MR. RAMOS: Correct.
THE COURT: She selected a photo that was created to look like other photographs in that format.
MR. RAMOS: Correct.
THE COURT: No single photograph identification was ever done.
MR. RAMOS: I didn't refer to that date. I referred to showing of a picture afterwards, jury trial preparation I specifically asked.
  THE COURT: Why did you ask that question? What basis did you have to believe that a single photo identification, a suggestive photo identification that has not been noticed was in fact made by the DA's office? Page 9
MR. RAMOS: No, what I'm saying is that during the period of trial preparation.
THE COURT: Trial preparation still is a period that you would be required to be noticed on. If they made an identification, if they showed a single photo to a witness during preparation, they are required to notice that. It's still a pretrial identification. Did you get notice of any such thing?
MR. RAMOS: No, I didn't.
THE COURT: The clear impression I think, the officer had the clear impression which the Court had was that you were speaking of the photographic identification that was the subject of the pretrial hearing because that is the only photographic identification procedure that any of us knew occurred, and to this moment that is the only one that I believe any of us have any right to believe did occur.
That being so I am denying a mistrial motion. I believe the Officer acted and answered in a manner that was appropriate in light of the fact he expected your question went only to the identification procedure this was had.
But, moreover, the DA now makes a very fair point, that this jury clearly has the impression, and I can go back to my own notes to confirm this, that you were talking about showing a photo, a single photo.
MR. RAMOS: I was.
THE COURT: A suggestive procedure.
MR. RAMOS: I was inquiring whether a single photo was shown . . . after the photo array on October 16th.
THE COURT: How is that a good faith question? . . . There was no basis that this was done. Your client didn't tell you it happened, and you are not given notice.
. . . .
  [W]hatever the motivation of counsel, I certainly don't find that he had a basis to believe a single photographic identification was ever connected in this case, and I think the District Attorney will have a Page 10 large latitude to correct the misimpression that the identification procedure utilized with respect to the complainant in this case was a single photo procedure.
I'll allow the DA to elicit the full dimensions of the identification procedure as mounted by the Detective, that being the presentation of a book containing Polaroid pictures that were all similar in nature and the manner in which the witness examined the book and made her selection. . . .
The purpose of this ruling is simply to allow this clarification of the methodology to negate the improper suggestion that a single photographic identification was elicited.
In light of the Trowbridge rule I will not allow the DA to elicit through this witness the fact that the complaining witness made an identification when shown this book.
(Tr. 251-56; see also Tr. 257-64.)
  On re-direct examination, the prosecutor asked Detective Lauro to describe the circumstances in which he showed Hernandez's photograph to Schiering:
Q. Did you have anything with you at the time that you went to the hospital [to interview the victim, Schiering]?
A. Yes.
Q. And can you describe for the members of the jury what it was that you brought with you to the hospital?
A. I had two binders, standard college student, three ringed style binders and each contained plastic sleeves which in turn contained one book contained polaroid photographs of male Hispanics and the other book contained official Police Department mug shots of male Hispanics.
  . . . . Page 11
Q. Directing your attention to the book that had the poloroid photographs, can you describe how many sleeves were in that book?
A. I believe . . . there was about 30 to 40 pages of sleeves inside that book.
Q. How many photographs were on each page?
A. Well, when you open up the first page it would be initially, open up the book you would be looking at one page with six photos on the first. And as you start flipping the pages into the book you have photos on the righthand side page and lefthand side page . . .
. . . That book contained anywhere from 50 to 60 photographs . . .
Q. Now, you indicated that you had taken a polaroid photograph of the defendant at the 52 precinct; right?
A. That's correct.
Q. What did you do with respect to that particular photograph?
A. I added it to the book. . . . It was towards the very end.
(Lauro: Tr. 296-300, emphasis added.) The prosecutor asked Detective Lauro further questions about the circumstances surrounding Schiering's viewing of the photo book, but did not ask him, and Detective Lauro did not volunteer, whether Schiering identified Hernandez when she looked through the book. (Lauro: Tr. 300-03.) The prosecutor ended his examination of Detective Lauro by asking him how many pages in the book Schiering viewed, and Detective Lauro responded that she went through the entire book. (Lauro: Tr. 303.) Page 12

 Detective Lauro's Trial Testimony; Davilla's Intimidation of Witnesses and Police Reports

  During re-cross-examination, defense counsel Mr. Ramos attempted to question Detective Lauro about a police report that was not in evidence:
Q. Okay.Now, in the report that was previously marked as Defense Exhibit E, Okay, that is the — a complaint report relating to Jesus Davilla?
A. Yes.
Q. You make reference to Miss Conroy in that report, correct?
A. She — her name appears on that report.
Q. And it appears within the section of the narrative that describes the acts done by Jesus Davilla, correct?
A. No, her name appears.
THE COURT: No, no. I'm sorry. Neither one of you are permitted to discuss the contents of this report. It is not in evidence. My recollection is it was used for limited purposes or did — it's been used in that matter. I think it was to refresh his recollection, that's all you can do with it. It was not before the jury and the jury — it's not in evidence.
(Lauro: Tr. 340.) Mr. Ramos, however, continued his attempt to bring in testimony about the report, the possible involvement of Jesus Davilla in the robbery, and Davilla's arrest. (Lauro: Tr. 341-45.) On hearsay grounds, the judge again stopped the line of questioning. (Tr. 346-49.) Mr. Ramos told the judge that he wished to question Detective Lauro on the DA's write-up, stating that "[i]n the DA's redirect he brought out an entire line of questioning about how he had no reason to suspect Jesus Davilla." (Tr. 349.) The judge pointed out that those questions were in response to Mr. Ramos' earlier questioning of Detective Lauro about Davilla. (Tr. 349-65.) The judge instructed defense Page 13 counsel that he "may not use these documents in the fashion you are using them. And you may not ask the detective unless you are prepared to squarely ask him about a prior out of Court statement [by a witness] and waive any objection on your . . . part to the hearsay, you are not going to put it in indirectly through these reports." (Tr. 364.)*fn2

 Verdict and Sentence

  The jury found Hernandez guilty of fourth degree grand larceny and first degree assault. (Tr. 1036-37.) On September 22, 1998, the judge sentenced Hernandez to sixteen years imprisonment. (See Dkt. No. 2: Pet. ¶ 5.)

 Hernandez's Direct Appeal

  On September 20, 2001 the First Department affirmed Hernandez's conviction, holding in relevant part:
The court properly exercised its discretion in denying defendant's request for a mistrial based upon testimony from the arresting detective concerning a photo identification by the complainant, since defendant opened the door to such testimony and actually elicited it during cross-examination. Likewise, the court properly exercised its discretion in denying defendant's mistrial motion based upon the detective's fleeting reference to what could have been construed as a prior arrest of defendant. Significantly, defendant did not accept the court's offer to provide a curative instruction.
  The court properly exercised its discretion in limiting the cross-examination of the detective concerning the contents of a document not in evidence, since the questions asked sought to elicit hearsay that was not admissible under any hearsay exception and lacked a good faith basis. Accordingly, there was no violation of defendant's right of confrontation. Page 14

 People v. Hernandez, 286 A.D.2d 623, 623-24, 730 N.Y.S.2d 229, 230 (1st Dep't 2001) (citations omitted).

  The New York Court of Appeals denied leave to appeal on December 19, 2001. People v. Hernandez. 97 N.Y.2d ...

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