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ROSA v. McCRAY

United States District Court, S.D. New York


April 1, 2004.

JOSE ROSA, Petitioner -against- FRANK McCRAY, Superintendent, Gowanda Correctional Facility and EUOT SPITZER, New York State Attorney General, Respondents

The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge

OPINION AND ORDER

Jose Rosa petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the petition is granted.

 I. BACKGROUND

  State Trial Proceedings

  By an indictment filed on September 18, 1997, the Grand Jury of Bronx County charged Page 2 petitioner with robbery in the first degree, robbery in the second degree, and criminal possession of a weapon in the fourth degree, for the September 5, 1997, robbery of a woman outside a Bronx restaurant.

  Evidentiary Hearing

  At trial, the People stated their intention to introduce petitioner's post-arrest statements to Detective Jose Arroyo ("Arroyo") that petitioner's natural hair color was brown, and that he had dyed it blonde on the previous day. Defense counsel moved to preclude that evidence because the People had not given him notice of it pursuant to Criminal Procedure Law § 710.30, New York's pre-trial notice statute. The People argued that notice was not required for pedigree information, citing People v. Rodney, 85 N.Y.2d 289 (1995). At a hearing on the issue, Arroyo was the only witness to testify. He stated that he had talked to the complainant, Juana Hernandez, and completed a complaint report based on her description of the robber's appearance, including his hair color, which he noted as brown on the complaint report. In his subsequent post-arrest questioning of petitioner, Arroyo had asked questions in Spanish and translated the answers into English for Detective Fitzgerald ("Fitzgerald"), who completed the on-line booking sheet. Arroyo testified that on-line booking sheets contain, inter alia, a physical description of the defendant "so we know who he or she is." Arroyo noticed that petitioner's hair was "bright flaming blonde," and that it had recently been dyed. He asked petitioner, "What is your real hair color?" According to Arroyo, petitioner answered "Brown, but I colored it yesterday." Arroyo claimed that he did not write that answer down anywhere, but he translated petitioner's answer for Fitzgerald. Petitioner's booking sheet contained space to note any "wig/hair dye," but that space was left blank. In addition, the space on the form for hair color was marked "BL" for blonde. Thus, the form did not refer to petitioner's natural hair color anywhere. Arroyo testified that the purpose of asking petitioner's real hair color had been that "you just want to make sure, when I put the hair color down to identify the individual, his hair is really blonde, black and not colored. And his eyebrows were darker color than the hair, so I asked what is his real hair color . . . I just wanted to make sure for the report." After the hearing, the court admitted petitioner's statements, ruling that they fell within the pedigree exception to New York's Criminal Procedure Law § 710.30. The hearing court stated:

. . . it's my view that the questions asked by the detective, as testified to at the hearing, were asked for legitimate processing purposes and that their intent was to obtain accurate information, as distinct from incriminating information. The question — all of the questions, but particularly the question regarding hair color, clearly corresponded to portions of the form that were being filled out.
I conclude that the questions were incident to ordinary — to the ordinary booking process and did not require notice.
I would also note that the color of one's hair is not an element of this crime or of any crime.
  And when compared to other cases that have discussed what pedigree is, it seems to me that this is well within pedigree, so the [petitioner's] motion to preclude is denied. Page 3

  Trial

  At trial, the court heard that the complainant had been robbed by two men. One of the men, alleged to be petitioner, pointed a gun at the complainant during the incident. The armed man's face was six or seven inches from complainant when he demanded that she give him her bag. When she asked him not to take her bag, he said "Don't look at me. Don't look at me." During the incident, which lasted three minutes, the complainant formed the belief that she had seen the armed robber in the street earlier on the day of the robbery, wearing the same shirt. She had never seen petitioner before that day. The complainant identified petitioner in court as the man who pointed the gun at her and took her bag, but stated that he looked different in court because he had a mustache and beard, and his hair, which had been down on his forehead during the robbery, was pulled back at trial and was a different color than the robber's hair. The complainant testified that approximately ten to twenty minutes after the robbery, she met with Arroyo at the police precinct, and gave him a description of the armed robber. The complainant further testified that she saw petitioner on the street the day after the robbery and pointed him out to police officers, who arrested him. She believed that he was one of the robbers, although his hair was now "yellow." No physical evidence linking petitioner to the robbery was introduced.

  Arroyo testified largely as he had at the hearing, regarding his and Fitzgerald's collection of information from petitioner. He stated that in a post-arrest interview he had asked petitioner a series of questions, including his name, date of birth, age, race, height, weight, eye color, and hair color. The People introduced petitioner's admissions to Arroyo at trial and, in summation, argued that the jury should consider petitioner's act of dying his hair "bright blonde the day after he robbed Juana Hernandez, that is evidence of the defendant's guilty conscience." The People obtained a jury charge highlighting the fact that petitioner had dyed his hair. The jury was charged that it could consider evidence of petitioner's "having dyed his hair and when" as proof of consciousness of his guilt. The jury was also told that the identification of petitioner as the perpetrator had to be proven beyond a reasonable doubt. During deliberations, the jury asked to see the arrest photos, photos of the scene, the street map, the "61 form," and "pedigree info." The jury also asked for the complainant's testimony and clarification on the four counts charged. The court provided all of the requested evidence, except that the court explained that there was no written information about the 61 form or pedigree information in evidence. The court therefore instructed the jury to submit another note if it wanted to hear any testimony about either subject. The jury later requested, and received a readback of, the testimony of the complainant during cross-examination, "[s]pecifically questions pertaining to the robbery, defendant's identification, and arrest." On October 1, 1998, a judgment was rendered, in the Supreme Court of the State of New York, Bronx County, convicting petitioner of robbery in the first degree, robbery in the second degree, and criminal possession of stolen property in the fourth degree. Petitioner was sentenced to concurrent prison terms of seven to fourteen years, six to twelve years, and two to four years respectively.

  State Appellate Proceedings

  Petitioner appealed his conviction to the Supreme Court of the State of New York, Appellate Division, First Department. In his brief to the Appellate Division, petitioner included the Page 4 following point heading:

The court erred in denying defense counsel's motion to preclude appellant's statement that his natural hair color was brown, where Detective Arroyo, who knew that the robber's hair was brown, asked the blonde-haired appellant his natural hair color while collecting pedigree information. U.S. Const., Amends. V, VI, XIV; N.Y. Const., Art. I, § 6.
  Under that heading, petitioner included the following reference to the United States Constitution: "Because Arroyo intended to elicit inculpatory information, the People should have provided defense counsel with notice of their intention to introduce the admission at trial. They failed to provide such notice and, as defense counsel argued, they should have been precluded from introducing that evidence at trial. U.S. Const., Amends. V, VI, XIV; N.Y. Const., Art. I, § 6." The argument also included a restatement of the holding of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), and explained the mechanism under § 710.30 for suppressing a statement obtained in violation of the rights guaranteed by Miranda. Petitioner also cited People v. Rodney, 85 N.Y.2d 289 (1995), in support of his argument regarding the suppressibility of statements on Fifth or Sixth Amendment grounds. Petitioner quoted from Rodney the phrase "reasonably related to the police's administrative concerns" that comes originally from one of the key Supreme Court precedents, Pennsylvania v. Muniz, 496 U.S. 582, 601-02, 110 S.Ct. 2638, 2650 (1990). Petitioner used Rodney again to demonstrate the limits on the pedigree exception, and indicated that the passage in question was followed by citations to, inter alia, Muniz, 496 U.S. 582, 602 n. 14 (1990), and Rhode Island v. Innis, 446 U.S. 291, 301 (1980), another key Supreme Court precedent. He also stated that: "Certainly, defense counsel could have moved to suppress this statement as involuntarily made if he had received proper notice of it, as the record is void of any reference to appellant receiving his Miranda warnings or waiving them before answering the officer's questions."

  In his reply brief, petitioner argued that "In People v. Rodney, 85 N.Y.2d 289, 294 (1995), the Court of Appeals established an objective standard to determine whether a statement falls outside of the pedigree exception, which focuses, not on the officer's intent, but on whether the question was `reasonably likely to elicit an incriminating response,'" a standard found originally in Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689 (1980). He also cited state and federal cases from other circuits that had used the "reasonably likely to elicit an incriminating response" standard, and he applied that standard to petitioner's case.

  In a decision and order dated May 9, 2002, the Appellate Division affirmed petitioner's conviction. On the question of whether petitioner's utterances should have been precluded, the Appellate Division held:

  The People were not required to give notice pursuant to CPL 710.30 of [petitioner's] statement that he had changed his hair color the day before, made in response to a pedigree question asked as part of routine processing. Since [petitioner's] hair appeared to the processing officer to be dyed, the officer's inquiry as to [petitioner's] actual hair color was reasonably related to administrative concerns, and was neither intended, nor reasonably likely, to elicit an incriminating response (see, People v. Rodney, 85 N.Y.2d 289, People v. Page 5 Espinal, 262 A.D.2d 245, Iv. denied, 93 N.Y.2d 1017).

  People v. Rosa, 743 N.Y.S.2d 400, 401, 294 A.D.2d 159, 160 (1st Dept. 2002).

  Petitioner applied for leave to appeal to the Court of Appeals of the State of New York. In his application, petitioner asked the court to consider and review, inter alia, the issue raised under the following point heading contained in petitioner's Appellate Division brief:

The court erred in denying defense counsel's motion to preclude appellant's statement that, his natural hair color was brown, where Detective Arroyo, who knew that the robber's hair was brown, asked the blonde-haired appellant his natural hair color while collecting pedigree information. U.S. Const., Amends. V, VI, XIV; N.Y. Const., Art. I, § 6.
  In a letter supporting the application, petitioner argued that "Questions `Reasonably related to the police's administrative concerns,' including pedigree related questions, are generally not suppressible on any Fifth or Sixth Amendment grounds, and, therefore, are not subject to the notice requirements of Criminal Procedure Law section 710.30. People v. Rodney, 85 N.Y.2d 289, 292 (1995). The question falls outside of the pedigree exception, however, if it was Reasonably likely to elicit an incriminating response.'" Thus petitioner drew quotations from Rodney that had as their original source the key Supreme Court cases Muniz (Reasonably related to the police's administrative concerns") and Innis ("reasonably likely to elicit an incriminating response."). Petitioner also cited state and federal cases from other circuits that had used the Innis standard, and applied both standards to the facts of petitioner's case.

  Petitioner's application for leave to appeal to the Court of Appeals was denied on September 18, 2002. People v. Rosa, 749 N.Y.S.2d 482, 98 N.Y.2d 732 (2002).

 Habeas Petition

  Petitioner makes the following argument in his petition for a writ of habeas corpus:

The detective's question, "What is your real hair color?" posed to petitioner during the booking process, amounted to interrogation because the detective knew that the robber's hair was brown and observed that petitioner's hair appeared to be dyed blonde, and, thus, the detective should have known that the question was reasonably likely to elicit an incriminating response; the state courts' contrary conclusion was based on an unreasonable application of clearly established Supreme Court precedent. U.S. Const., Amends. V, XIV; N.Y. Const. Art. I, § 6; Rhode Island v. Innis, 446 U.S. 291, 301 (1980); Miranda v. Arizona, 384 U.S. 436, 444, 479 (1966); C.P.L. § 710.30.
  Respondents oppose the petition on three grounds. Firstly, they claim that petitioner failed to exhaust his claims at the state level, because he did not present the instant issue to the trial or state appellate courts. Secondly, they deny that the state courts applied Supreme Court precedent unreasonably. Thirdly, they claim that even if any constitutional error occurred in the state court system, the error was harmless in the light of the other evidence produced at trial. Page 6

 II. DISCUSSION

  A. Exhaustion of Remedies

  The federal habeas corpus statute, 28 U.S.C. § 2254, embodies the principle that a state prisoner seeking federal habeas review ordinarily must first exhaust available state remedies. Daye v. Attorney Gen. of New York, 696 F.2d 186, 191 (2d Cir. 1982). 28 U.S.C. § 2254(b) and (c) provide as follows:

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement. 28 U.S.C. § 2254(b)(c).
  The exhaustion requirement is not satisfied unless the federal claim has been "fairly presented" to the state courts. Daye, 696 F.2d at 191. A petitioner satisfies the "fair presentation" aspect of the exhaustion requirement by presenting the essential factual and legal premises of the federal constitutional claim to the highest state court capable of reviewing it. Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir. 2003). The petitioner must have placed before the state court essentially the same legal doctrine asserted in the federal petition. Daye, 696 F.2d at 192. If the petitioner has cited the state courts to the specific provisions of the constitution relied on in the habeas petition, that will constitute a fair presentation of the legal basis to the state courts. Id. A defendant may fairly present the substance of a federal constitutional claim to the state court without citing "book and verse on the federal constitution." Id. The requirement is satisfied if the legal basis of the claim made in state court was the "substantial equivalent" of that of the habeas claim. Id. (quoting Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513 (1971)). This means, in essence, that in state court the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature. Id. The Second Circuit has stated that "the ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include:

 

(a) reliance on pertinent federal cases employing constitutional analysis;
(b) reliance on state cases employing constitutional analysis in like fact situations;
(c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution; and
  (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation." Id. at 194. Page 7

  In the instant case, we conclude that petitioner exhausted his state remedies. We disagree with respondents' characterization as "fatal" petitioner's failure to move for suppression at the trial level, once his motion to preclude was denied. The success or otherwise of the motion to preclude the statements pursuant to § 710.30 depended on the court's judgment of whether they were suppressible because they had been obtained in a manner that involved a constitutional violation. See N.Y.C.P.L. § 60.45(b)(ii). The relevant federal constitutional standards were squarely before the court, as indicated by the People's citation to Rodney, a state case employing constitutional analysis in a similar fact situation. See Daye, 696 F.2d 192 n.5 (noting that "Even if not alerted [to the constitutional nature of a claim] by the defendant, the state court might be alerted by the briefs filed by the state in opposition."). Since the same argument would have been made in support of suppression, failure to make a suppression motion did not constitute failure to exhaust. In his brief to the Appellate Division, petitioner cited the Fifth and Fourteenth Amendments, in both a point heading and the body of his argument. He discussed and applied Miranda, indicating how the state statute operated to protect the Miranda rights. He also cited, in support of his Fifth Amendment argument, Rodney, a state case employing federal constitutional analysis in a similar fact situation, and quoted from Rodney the phrase "reasonably related to the police's administrative concerns" that comes originally from Muniz, 496 U.S. at 601-02, 110 S.Ct. at 2650 (1990). Petitioner used Rodney to demonstrate the limits on the pedigree exception, and indicated that the passage in question was followed by citations to, inter alia, Muniz, 496 U.S. 582, 602 n. 14 (1990), and Innis, 446 U.S. 291, 301 (1980). In his reply brief, he drew on Rodney for its characterization of the relevant standard. Rodney is a case that draws upon Miranda, as well as Innis and Muniz, and petitioner's brief referenced the Rodney court's citations to those cases. Petitioner also cited state and federal cases from other circuits that had used the "reasonably likely to elicit an incriminating response" standard, and he applied that standard to petitioner's case. In support of its decision, the Appellate Division cited, inter alia, Rodney, which, as respondents state, "expressly adopted Innis." Petitioner's application to the Court of Appeals incorporated the explicit cite to the Fifth and 14th Amendments contained in his Appellate Division brief. His letter in support of that application indicated the way in which a violation of the Fifth Amendment can lead to a violation of § 710.30, as well as the scope of the pedigree exception to Fifth Amendment protection. In addition, petitioner cited to Rodney, and quoted portions of that case that were drawn originally from the Supreme Court cases Muniz and Innis. In the light of the foregoing, we find that the instant claim was "fairly presented" to the state courts.

 

B. Petitioner's Claim 1. Standard for Habeas Review
28 U.S.C. § 2254 provides, in part, as follows:
(d)An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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 Page 8 light of the evidence presented in the State court proceeding.

 

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
  28 U.S.C. § 2254(d)(e)(1). "Clearly established federal law, as determined by the Supreme Court," refers to the "holdings, as opposed to the dicta, of [the Court's] decisions as of the time of the relevant state-court decision." Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir. 2002) (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1496, 1523 (2000)). A state court decision falls within 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." Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001) (quoting Williams, 529 U.S. at 413, 120 S.Ct. at 1523). An "unreasonable" application of federal law "is different from an incorrect or erroneous application of federal law." Id. (quoting Williams, 529 U.S. at 412, 120 S.Ct. at 1523 (emphasis in original)). Thus, a federal habeas court is not empowered to grant the writ when it determines that the state court incorrectly applied the relevant federal law. Id. The state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable. Id. However, "the increment need not be great; otherwise, habeas relief would be limited to state court decisions `so far off the mark as to suggest judicial incompetence.'" Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (quoting Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 889 (3d Cir. 1999)).

  2. State Law

  Under § 710.30 of New York's Criminal Procedure Law, the People's failure to give notice of a suppressible statement precludes their use of it at trial. People v. Chase, 85 N.Y.2d 493, 500 (1995). § 710.30 provides, in part, as follows:

1. Whenever the people intend to offer at a trial . . . evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible upon motion pursuant to subdivision three of section 710.20, . . . they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered.
2. Such notice must be served within fifteen days after arraignment and before trial, and upon such service the defendant must be accorded reasonable opportunity to move before trial, pursuant to subdivision one of section 710.40, to suppress the specified evidence. For good cause shown, however, the court may permit the people to serve such notice thereafter, and in such case it must accord the defendant reasonable opportunity thereafter to make a suppression motion. N.Y.C.P.L. § 710.30.
  Subdivision three of section 710.20 allows for the suppression or exclusion, upon defendant's motion, of evidence that "Consists of a record or potential testimony reciting or describing a statement of such defendant involuntarily made, within the meaning of section 60.45 . . ." N.Y.C.P.L. § 710.20. Section 60.45, in turn, defines an "involuntarily made" statement as Page 9 one obtained from a defendant:

 

(b) By a public servant engaged in law enforcement activity or by a person under his direction or in cooperation with him:
(i) by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself; or
(ii) in violation of such rights as the defendant may derive from the constitution of this state or of the United States. § N.Y.C.P.L. 60.45.
  Thus, an involuntary statement includes one that has been "obtained by the failure to give Miranda warnings." Chase, 85 N.Y.2d at 500.

  3. Federal Law

  "The Self-Incrimination Clause of the Fifth Amendment guarantees that no person `shall be compelled in any criminal case to be a witness against himself.'" Withrow v. Williams, 507 U.S. 680, 688, 133 S.Ct. 1745, 1751 (1993) (quoting U.S. Const, amend. V). In Miranda, the Supreme Court held that the prosecution is prohibited from using a statement made by a defendant during a custodial interrogation unless it can demonstrate "the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. In the absence of proof that the defendant was given the Miranda warnings and knowingly and intelligently waived them, "no evidence obtained as a result of interrogation can be used against him." Id., 384 U.S. at 479, 86 S.Ct. at 1630. In Innis, the Court observed that "[a] practice that the police should know is reasonably likely to evoke an incriminating response from a suspect . . . amounts to interrogation." Innis, 446 U.S. at 301, 100 S.Ct. at 1690. The Court added that "This is not to say that the intent of the police is irrelevant, for it may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response. In particular, where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect." Innis, 446 U.S. at 301 n. 7,100 S.Ct. at 1690 n. 7. The Court stated that by "Incriminating response" it meant "any response — whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial. Id., 446 U.S. at 301 n. 5,100 S.Ct. at 1690 n. 7 (emphasis in original).

  In Muniz, a four-justice plurality recognized a "routine booking question exception which exempts from Miranda's coverage questions [designed] to secure the biographical data necessary to complete booking or pretrial services." Muniz, 496 U.S. at 601, 110 S.Ct at 2650 (internal quotation marks omitted) (plurality of four justices). The plurality's routine booking question exception "has been uniformly recognized since Muniz by the federal and state courts." Thomas v. United States, 731 A.2d 415, 421 (2d Cir. 1999) (giving examples). As interpreted by the Second Circuit, the Supreme Court in Miranda was "concerned with protecting the suspect against interrogation of an investigative nature rather than the obtaining of basic identifying data required for booking and arraignment." U.S. v. Gotchis, 803 F.2d 74, 79 (1986) (quoting United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1113 (2d Cir. 1975)). Solicitation of pedigree information Page 10 normally does not amount to custodial interrogation." U.S. v. Montana, 958 F.2d 516, 518 (2d Cir. 1992). However, the plurality opinion in Muniz noted that "[r]ecognizing a `booking exertion' to Miranda does not mean, of course, that any question asked during the booking process falls within that exception. Without obtaining a waiver of the suspect's Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions." 496 U.S. at 602 n. 14, 110 S.Ct. at 2650 n. 14 (internal quotations and citations omitted).

  4. Application

  We find that the state courts' adjudication of petitioner's claim resulted in a decision that involved an unreasonable application of Supreme Court precedent. We note at the outset that we share petitioner's doubts, voiced at oral argument, about whether this question falls squarely within the group of questions termed pedigree." As petitioner noted, the presence of the "wig/hair dye" section on the booking form is not sufficient to guarantee the pedigree status of Arroyo's question, since it is for the courts, and not the police, to define the contours of Miranda. Petitioner's "real" hair color is not easily categorized as "basic identifying data required for booking and arraignment," Hines, 521 F.2d at 1113 (emphasis added); see also Muniz, 496 U.S. at 601, 110 S.Ct at 2650 ("biographical data necessary to complete booking or pretrial services"). Indeed, we note that the answer to the question was not recorded anywhere on the booking form. The Second Circuit has noted the danger inherent in a pedigree exception that would be vulnerable to abuse by police officers whose purposes went beyond the eliciting of pedigree data, and has suggested that the exception is best "limited to simple identification of the most basic sort (e.g., name, address, marital status)," so that "the risk is minimal." Hines, 521 F.2d at 1113 n. 2. Where, as here, the ground for suppressibility was the lack of Miranda warnings, the scope of the pedigree exception to § 710.30 must be no broader than the scope of the federal constitutional pedigree exception.

  However, it is not our task to probe for possible error, but for unreasonableness. See Lainfiesta, 253 F.3d at 155. We find that even if the question fell within pedigree, the state courts unreasonably applied Supreme Court precedent in determining that preclusion was not required. Even pedigree questions and their answers are admissible only if the rights afforded by Miranda and its progeny are protected. Ordinarily, pedigree questions and the answers thereto are excepted from the protection of Miranda. See Montana, 958 F.2d at 518 (2d Cir. 1992). However, a response to a question that ostensibly seeks identifying data from an arrestee who, like petitioner, has not been given Miranda warnings, can be suppressed if the questioner should have known that the question was reasonably likely to elicit an incriminating response. See Innis, 446 U.S. at 301, 100 S.Ct. at 1690. The state courts correctly identified the governing legal principle that the circumstances in which custodial questioning is carried out will determine whether that questioning, and the answers thereto, need be suppressed. Both the trial court and the Appellate Division, however, were unreasonable in the circumstances they relied upon and in the conclusions they drew from them. It is not the purpose or intent behind police questioning that determines whether interrogation is occurring; the inquiry, rather, is whether the officer should know that the question is reasonably likely to evoke an incriminating response from the suspect. Innis, 446 U.S. at 301, 100 S.Ct. at 1690. In addition, as a justification for its refusal to preclude the statements, the trial court stated that all of Arroyo's questions "corresponded to portions of the form that were being filled out," yet, as noted above, the existence of the "wig/hair dye" section of the form does not insulate Arroyo's question from constitutional scrutiny, and in this case that section was not Page 11 even filled in. Finally, to note that "color of one's hair" is not an element of any crime is to suggest that it is only where a question concerns elements of crimes that the question and answer might be suppressible. Rather, an "incriminating response," as defined by the Supreme Court, is "any response — whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial." Innis, 446 U.S. at 301 n. 5,100 S.Ct. at 1690 n. 7 (emphasis in original). In reaching its decision, the trial court made no mention of the most salient circumstances in terms of what Arroyo knew or should have known: namely, that the robber had brown hair, and that, at the time of petitioner's post-arrest questioning, petitioner's hair was bright blonde, and appeared to have been recently dyed.

  As for the Appellate Division, the only justification given for the court's conclusion that Arroyo's inquiry was not "reasonably likely . . . to elicit an incriminating response" was that petitioner's hair "appeared to the processing officer to be dyed." This is an inadequate, and unreasonable, conclusion. Where Arroyo had ascertained from the complainant, on the day before petitioner's arrest, that the robber had brown hair, and could see that petitioner's hair was bright blonde, and appeared to have been recently dyed, Arroyo should have known that his inquiry to petitioner about his "real" hair color was reasonably likely to evoke an incriminating response. The fact that the robber had brown hair and that petitioner's hair appeared to have been dyed were salient circumstances in terms of what Arroyo knew or should have known. The Appellate Division made no mention of the first in reaching its decision. As for the second, the court mentioned it, but presented it as if it removed, rather than required, the protections of Miranda. The court made no attempt to explain the reasoning behind this presentation. For these reasons, we find that the state courts unreasonably applied the Supreme Court precedents Miranda and Innis.

  C. Harmlessness Review

  We apply harmlessness review, because the trial error:

"occur[red] during the presentation of the case to the jury," and is amenable to harmless-error analysis because it "may . . . be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial],"
  Brecht v. Abrahamson, 507 U.S. 619, 629, 113 S.Ct. 1710, 1717 (1993) (citing Arizona v. Fulminante, 499 U.S. 279, 280-81, 111 S.Ct. 1246, 1249 (1991)).

  In making a harmful error determination, the court looks to the record as a whole, considering the overall strength of the prosecution's case, the importance of the improperly admitted evidence, and whether the evidence was emphasized at trial. Brown v. Keane, 2004 WL 35993 at *8(2d Cir. 2004).

  The Second Circuit has yet to decide what standard governs the harmless error determination on collateral review when, as in this case, the state court applied no harmless error analysis. Carracedo v. Artuz, 81 Fed.Appx. 741, 745, 2003 WL 22055115 at *3 (2d Cir. 2003); see also Santana-Madera v. United States, 260 F.3d 133, 140 (2d Cir. 2001). The Supreme Court has set forth two different tests for determining whether an error may be overlooked by reason of its harmlessness. The Chapman standard provides that "before a federal constitutional error can be held harmless the court must be able to declare a belief that it was harmless beyond a reasonable Page 12 doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 878 (1967). "The State bears the burden of proving that an error passes muster under this standard." Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S.Ct. 1710, 1718 (1993). Under the more deferential Brecht standard, the inquiry is "whether the error `had substantial and injurious effect or influence in determining the jury's verdict,'" Brecht, 507 U.S. at 623, 113 S.Ct. at 1713-14 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239 (1946)). We are persuaded by the reasoning contained in Lyons v. Johnson, 912 F. Supp. 679 (S.D.N.Y. 1996), aff'd 99 F.3d 499 (2d Cir. 1996), that the Chapman standard is the appropriate one to apply. In choosing to apply the more deferential standard, the Brecht court noted that it was "the sixth court" to pass on the question whether the constitutional error in question was harmless, Brecht, 507 U.S. at 636, 113 S.Ct. at 1721, and that "State courts are fully qualified to identify constitutional error and evaluate its prejudicial effect on the trial process under Chapman, and state courts often occupy a superior vantage point from which to evaluate the effect of trial error." Id. It was for "th[o]se reasons" that it "scarcely seemed logical to require federal habeas courts to engage in the identical approach to harmless-error review that Chapman requires state courts to engage in on direct review." Id. In cases such as this, by contrast, where we find ourselves the first court to pass on the question of whether a constitutional error was harmless, we find the above-mentioned justifications for the more deferential standard to be absent, and the Chapman standard to be the more appropriate.

  We are not persuaded that the constitutional error discussed above was "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 878 (1967). The prosecution's case rested on a narrow range of evidence, all of which depended on the complainant's identification of petitioner. The complainant testified that during the three-minute robbery she was very nervous, and was told by the armed robber not to look at him. She had two, or at most three, opportunities to view the armed robber during the robbery. There was no physical evidence linking petitioner to the crime, and no other witness identification. The complainant did not claim to have seen the robber before the day of the robbery. From the People's perspective, the evidence in contention was of value not only to increase the importance of the description given by the complainant after the robbery, and of complainant's identification of petitioner on the day after the robbery, but also to suggest petitioner's consciousness of guilt. That the evidence was of importance to the jury is suggested by their request to see, inter alia, the "pedigree info." The evidence was emphasized at trial, by both the People and the judge. The People argued in summation that the jury should consider petitioner's act of dying his hair the day after the robbery as evidence of his "guilty conscience." In addition, the People obtained a jury instruction highlighting the fact that petitioner had dyed his hair. The judge instructed the jury that the jury could consider evidence of petitioner's "having dyed his hair and when" as proof of consciousness of his guilt.

  Even under the Brecht standard, however, the error cannot be called harmless. Under this standard, where a judge "is in grave doubt about whether a trial error of federal law had `substantial and injurious effect or influence in determining the jury's verdict,' that error is not harmless. And, the petitioner must win." O'Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 994 (1995). "The burden of persuasion is on the government, meaning that if `the matter is so evenly balanced that [the federal judge] feels himself in virtual equipoise as to the harmlessness of the error' the petitioner should prevail." Lainfiesta, 235 F.3d at 158 (quoting O'Neal, 513 U.S. at 435, 115 S.Ct. at 994). The determination of whether this standard is met depends upon "a host Page 13 of . . . factors" including `the importance of the witness' testimony in the prosecution's case whether the testimony was cumulative the presence or absence of evidence corroborating or contradicting the testimony, and the overall strength the prosecution's case." Latine v. Mann, 25 F.3d 1162, 1167 (2d Cir. 1994), cert. denied, 514 U.S. 1006, 115 S.Ct. 1319 (1995). "[T]he principal factors to be considered are the importance of the witness's wrongly admitted testimony, and the overall strength of the prosecution's case." Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000). In assessing the importance of the testimony, we consider questions such as "`whether the testimony bore on an issue that is plainly critical to the jury's decision, . . . whether that testimony was material to the establishment of the critical fact or whether it was instead corroborated and cumulative, . . . and whether the wrongly admitted evidence was emphasized in arguments to the jury." Wray, 202 F.3d at 526. Although the strength of the prosecution's case is "probably the single most critical factor in determining whether error was harmless." Latine, 25 F.3d at 1167-68 (internal quotation marks omitted), "the mere fact that the properly admitted evidence, standing alone, would have been sufficient to support the conviction is not determinative of whether the improperly admitted evidence had a substantial and injurious effect." Wray, 202 F.3d at 526. The issue on which this evidence was wrongly admitted "was plainly a crucial one: identification of the defendant as the person who committed the crime." Id. ("The more tangential the issue to which the wrongly admitted evidence pertains, the less likely it is that the evidence was a substantial factor in determining the jury's verdict."). As the jury was instructed, identification of petitioner as the perpetrator had to be proven beyond a reasonable doubt before petitioner could be found guilty. None of the other factors alters our conclusion that this error was not harmless. Respondents claimed at oral argument that the evidence in question was "arguably cumulative." We note, however, that this was the only direct evidence of two important facts: that petitioner's real hair color was brown (the color of the robber's hair), and that petitioner had dyed his hair shortly after the robbery. For these reasons and the reasons contained in our Chapman analysis, this court is left, at the very least, in grave doubt as to whether, under the Brecht standard, the trial court error had a "substantial and injurious effect or influence in determining the jury's verdict" in this case. Brecht, 507 U.S. at 623, 113 S.Ct. at 1713-14.

 III. CONCLUSION

  For the foregoing reasons, the writ is granted. Petitioner's convictions shall, therefore, be dismissed, unless a new trial is commenced within sixty days of the date of entry of this order.

  SO ORDERED. Page 1

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