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BROWN v. FISCHER

May 27, 2004.

JOHN BROWN, Petitioner, -against- BRIAN FISCHER, Respondent


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

REPORT AND RECOMMENDATION

Pro se petitioner John Brown seeks a writ of habeas corpus from his March 13, 2000 conviction in Supreme Court, New York County, of second degree robbery and his sentence to fourteen years imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-5.)

Brown's habeas petition alleges that: (1) the second degree robbery conviction was contrary to the weight and sufficiency of the evidence (Pet. ¶ 13 & Art., Point I); and (2) his sentence is excessive (Pet. ¶ 13 & Att., Point II).

  For the reasons set forth below, Brown's habeas petition should be DENIED. FACTS

 The Prosecution Case at Trial

  In the early morning hours of September 13, 1999, David Goodlette and petitioner John Brown approached Mohammed Farooq and robbed him of money, keys and a cellular phone. (State Opening: Trial Transcript ["Tr."] 222-23.) Within minutes of the robbery, these items were recovered from Brown by the police. (State Opening: Tr. 223.) Brown was charged with one count of first degree robbery and one count of second degree robbery. (Dkt. No. 2: Pet. ¶ 5.)*fn1 At Brown's trial, the prosecution offered testimony by Farooq and police officers and a tape recording of an eyewitness' 911 call. (See discussion below.)

  September 13.1999

  In the early morning hours of September 13, 1999, Mohammed Farooq parked his limousine on West 45th Street between Ninth and Tenth Avenues to wait for an assignment from his dispatcher. (Farooq: Tr. 232-33, 260-62.) Around 3:30 a.m., Farooq received a call from his dispatcher, asking him to pick a passenger up in Westchester County. (Farooq: Tr. 233-34.) Farooq stepped out of the car in order to retrieve a map he kept in his trunk. (Farooq: Tr. 234-36.) While standing by the trunk, Farooq was grabbed from behind by two men. (Farooq: Tr. 236-39.) Farooq described one (Goodlette) as a skinny guy, white or Hispanic, about five-feet, eight-inches, wearing a white shirt. (Farooq: Tr. 236-37, 259.) Farooq described the second man (Brown) as a little bit heavy, black, about the same height, and wearing a red baseball cap. (Farooq: Tr. 237, 259.) As the men held Farooq from behind, Brown placed a hard object above Farooq's ear on the right side of his head. (Farooq: Tr. 239, 259, 265.) Although Farooq could not see what the object was, it felt like a gun. (Farooq: Tr. 239, 259, 265.) After the men cursed at him and tried checking his pockets, Goodlette forced Farooq to the ground and placed a black plastic bag over his face. (Farooq: Tr. 240-42.) The men searched Farooq's pockets and found receipts and a couple of dollars. (Farooq: Tr. 242-43.) Brown tore off Farooq's front pants pocket. (Farooq: Tr. 243.) Farooq heard one man ask the other, "Did you got something from him?," to which the other man replied, "No, not a single dollar, no." (Farooq: Tr. 243.) After a few moments, the car door slammed and Farooq heard one man ask if anything was found, but there was no answer. (Farooq: Tr. 243.) The men checked Farooq's back pocket and removed his keys and wallet, containing about fifty dollars in paper currency and two silver dollar coins dated 1870 and 1976. (Farooq: Tr. 243-44, 265.)

  Before Goodlette and Brown left, they warned Farooq, "Don't move because we'll shoot you." (Farooq: Tr. 244-45, 266.) Farooq heard running, removed the bag from his head, and saw the man in the red cap (i.e., Brown) carrying a telephone in his hand. (Farooq: Tr. 245.) Since Farooq's cellular phone was no longer in his car, he radioed his dispatcher and asked him to call the police. (Farooq: Tr. 245.)

  Police Testimony

  About two minutes after Farooq had relayed the message to his dispatcher, Police Officers Frank Wolf and James Gallagher arrived at the scene. (Farooq: Tr. 246.) They could see that Farooq's pants had been torn from the pocket and that he was "pretty hysterical." (Wolf: Tr. 282-83; Gallagher: Tr. 308, 316.) Farooq reported that he had been robbed by two men, one wearing red pants and a red hat and the other wearing blue jeans and a white t-shirt. (Wolf: Tr. 301; Gallagher: Tr. 309-10; Farooq: Tr. 258-59.) Officer Gallagher transmitted those descriptions and the direction the men were seen heading. (Wolf: Tr. 283; Gallagher: Tr. 310-11.) The officers asked Farooq if he would accompany them on a canvas of the area and he obliged. (Wolf: Tr. 284; Gallagher: Tr. 311; Farooq: Tr. 262.)

  At approximately 3:40 in the morning, Sergeant Donald Dermody and his partner, Officer Thomas Flynn, received a radio transmission about a robbery on 45th Street between Ninth and Tenth Avenue. (Dermody: Tr. 347-48; Flynn: Tr. 366-67.) At the corner of Ninth Avenue and 45th Street, an unidentified male informed the officers that the suspects had just fled north on Ninth Avenue and that one man had been wearing red pants and a red hat. (Dermody: Tr. 349; Flynn: Tr. 367-68.) They began a search of the area and Officer Flynn spotted two men walking down West 47th Street. (Dermody: Tr. 350; Flynn: Tr. 368.) One of the men (Brown) was wearing red pants and holding a red hat. (Dermody: Tr. 350; Flynn: Tr. 368.) Sgt. Dermody and Officer Flynn stopped the two men at gunpoint. (Dermody: Tr. 350; Flynn; Tr. 368.) Sgt. Dermody frisked Brown and found a blue Nokia cellular phone in his pocket. (Dermody: Tr. 351; Flynn: Tr. 370.) Brown insisted that the phone was his and Sgt. Dermody returned it. (Dermody: Tr. 351; Flynn: Tr. 370.) Officer Flynn searched Goodlette but found nothing. (Flynn: Tr. 370.) Officer Flynn alerted the dispatcher that two men had been stopped who fit the robbers' descriptions and requested that Farooq be brought for a showup. (Dermody: Tr. 351; Flynn: Tr. 370.) Farooq was informed that two possible suspects had been stopped on 47th Street between Eighth and Ninth Avenues. (Wolf: Tr. 284-87; Gallagher: Tr. 311.) When they reached the area, Farooq remained in the police car, which stopped about twenty to twenty five feet from the suspects. (Farooq: Tr. 246, 262-63; Wolf: Tr. 298.) Although Farooq identified both men, it took him longer to identify Brown because his view was blocked initially by Officer Flynn. (Farooq: Tr. 247. 258, 262-64; Wolf: Tr. 287, 298; Gallagher: Tr. 312-13, 318; Dermody: Tr. 352-56, 359, 364; Flynn: Tr: 371-72, 377-78.)*fn2 Brown and Goodlette were handcuffed and placed under arrest. (Wolf: Tr. 291; Dermody: Tr. 356; Flynn: Tr. 372.) The officers searched for a gun but could not find one. (Wolf: Tr. 302-04; Dermody: Tr. 361, 363-64.)

  Farooq told Sgt. Dermody that Brown and Goodlette had stolen his cellular phone and wallet. (Dermody: Tr. 355, 360.) Sgt. Dermody removed the phone from Brown's pocket and showed it to Farooq, who confirmed that it was his — indeed, when the phone was turned on it had his name. (Farooq: Tr. 247, 263; Wolf: Tr. 299-300; Dermody: Tr. 355, 360-61.) After Officer Jose Segura transported Brown to the station house, he searched the back of his police car and found a set of keys. (Segura: Tr. 322-24.) Farooq confirmed that the keys belonged to him. (Farooq: Tr. 248, 250.) Officer Wolf searched Brown and recovered seventy-one dollars in paper currency and one 1976 silver dollar coin. (Wolf: Tr. 292-95.)*fn3 Sgt. Dermody and Officers Wolf, Gallagher, Segura and Flynn all identified Brown at trial as the man who was wearing red pants and carrying a red hat when he was arrested. (Wolf: Tr. 288; Gallagher: Tr. 313; Segura: Tr. 322-23; Dermody: Tr. 350-51; Flynn: Tr. 369.)

  Mario Ongania's 911 Tape

  Mario Ongania, who lived at 440 West 45th Street, called 911 and reported that two black men had "mugged" a limousine driver parked across the street. (Ortiz: Tr. 396; Ongania: Tr. 400; see Dkt. No. 6: State Br. at 3.)*fn4 Ongania told the operator that one of the muggers wore red pants and a red hat and that the other wore a white shirt and dark pants. (State Br. at 4; see Ongania: Tr. 405.) He also reported that after seeing the two men throw the driver to the ground and steal his money (see also Ongania: Tr. 407-08, 411), Ongania yelled out the window that he was going to call the police, but the men told him to mind his own business and ran off.* ...


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