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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


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


  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


  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 ...

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