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July 21, 2004.

SUNNY L. SCHRIVER, Respondent.

The opinion of the court was delivered by: NINA GERSHON, District Judge


Petitioner brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 1988 conviction, after a jury trial, in the New York Supreme Court, Queens County (Sherman, J.), of Robbery in the First Degree in violation of N.Y. Penal Law § 160.15; Robbery in the Third Degree in violation of N.Y. Penal Law § 160.05; and Grand Larceny in the Fourth Degree in violation of N.Y. Penal Law § 155.30. Petitioner was sentenced as a second felony offender to an indeterminate term of imprisonment of ten to twenty years on the Robbery in the First Degree count, and concurrent terms of two to four years on the Robbery in the Third Degree and Grand Larceny counts. Petitioner has completed his term of imprisonment.

The Appellate Division, Second Department, affirmed the conviction. People v. Turner, 187 A.D.2d 469 (2d Dept. 1992), lv. denied, 81 N.Y.2d (1993). Petitioner's two motions under N.Y. Criminal Procedure Law ("CPL") § 440.10 are discussed below.

  The Trial

  At petitioner's trial for the robbery of William Clarke, the prosecutor called three witnesses: Police officers John Cardo and Paul Krien, and Mr. William Clarke.

  Officer Cardo testified that, at around five a.m. on October 17, 1987, he responded to a radio call of an assault in progress and found four individuals arguing over a Toyota that was parked in front of a Dunkin' Donuts on College Point Avenue in Brooklyn, NY. Three of the individuals were black males and one was a white male. The white male, Mr. Clarke, told Officer Cardo that, as he was walking to his car, he was approached by four individuals, the three black males who were present and one person who fled after robbing him. The robber was carrying a knife and wearing black pants, a shirt, and had a Ninja mask over his face. He was approximately six feet tall and around thirty years old. Mr. Clarke gave the individual with the knife his wallet, which contained approximately $1500 in cash. After the man took his wallet, he pulled the Ninja mask off of his head which allowed Mr. Clarke to see his face. The three black males were placed under arrest and were subsequently transported to the 109th precinct. Officer Cardo wrote the name "Screwgie" on the complaint report as information that pertained to the robber. Mr. Clarke's appearance was normal, and he did not appear to be under the influence of any drugs or alcohol at the time he gave his statement. Officer Cardo did not run a fingerprint check on Mr. Clarke or search him.

  Officer Paul Krien testified that he was assigned to the Robbery Investigation Unit at the 109th precinct. In connection with that assignment, he knew that the nickname "Screwgie" belonged to petitioner. On the day of the robbery, after reading the complaint report, he called Mr. Clarke and got a description of the perpetrator. In subsequent conversations, Mr. Clarke told Officer Krien that he was robbed at about 5:15 in the morning after he found some people breaking into his car and that he chased one of the individuals into one of the project buildings and confronted him. The individual pulled out a knife and wanted Mr. Clarke's wallet and money. Mr. Clarke kicked the individual, at which time the mask he was wearing came off. Mr. Clarke left the scene because there were too many other people there. Mr. Clarke identified petitioner at the line-up at the police station. On crossexamination, Officer Krein stated that, in his first interview with Mr. Clarke, at his residence, Mr. Clarke did not mention that he was approached by four black individuals when he was returning to his car that evening or that one of them pulled a knife on him. Nor did he tell Officer Krien that he was robbed. Mr. Clarke told Officer Krien only that, when he approached his car, he saw three individuals around it and one inside. The person inside was the person with the mask. The first time he saw the knife was after he chased the individual with the mask, for approximately two to three blocks, into one of the project buildings.

  Mr. Clarke's testimony was as follows: On October 17, 1987, at approximately 4:45 a.m., he stopped by the Candlewood Bar in Brooklyn, New York. He was driving a Ford Mustang that he parked in front of the Dunkin' Donuts on College Point Boulevard. He had been at a birthday party earlier that night, but he had nothing to drink at the party or at the bar. He does not drink or smoke. The bar was closing, and he asked only if he could look around for some friends he was supposed to meet earlier in the evening.

  After he left the bar and was walking back to his car, he noticed that one of the small rear windows seemed broken. As he approached the car, he noticed someone going through the glove compartment. The person got out of the car after Mr. Clarke saw him, and Mr. Clarke chased him across the street and into the housing projects. The individual, later identified as petitioner, was black with short black hair and had on dark jeans and a dark shirt. After Mr. Clarke chased petitioner into a crowded hallway, petitioner stepped out from behind a pillar and began slashing at him with a large butcher knife without a handle. Petitioner had thrown a hood of some sort over his head at that point. Petitioner grabbed a chain hooked to Mr. Clarke's pants and attached to his wallet and said "give me your money." Petitioner ripped the wallet from Mr. Clarke's back pocket and then told Mr. Clarke to take off his pants. At that point, Mr. Clarke kicked petitioner on his chest and the hood fell off. Mr. Clarke's wallet contained a little less than $100, his driver's license, his social security card and his check cashing card.

  When he returned to his car, Mr. Clarke saw three individuals in it who exited the car and then tried to run to a Toyota parked across the street that also had broken windows. Mr. Clarke picked up a pipe and chased the three individuals into the Dunkin' Donuts, locked the door and called the police. When the police arrived, Mr. Clarke told them that there had been four men and that one of them had taken his wallet with a knife. Mr. Clarke described the person who stole his wallet to the police as wearing dark jeans and a dark jacket with a hood. Mr. Clarke did not make any other statement that morning because the officers were "looking to go home." Trial Transcript ("Tr.") 121.

  Mr. Clarke picked petitioner out of a line-up and also identified him in court as the person who stole his wallet at knife-point. He had never seen petitioner before that night, and he never received any of the stolen property back. Assistant District Attorney ("ADA") Sligh's closing questions on direct examination were as follows:
ADA Sligh: Have you ever been arrested?
Mr. Clarke: No.
ADA Sligh: Ever been convicted of crime?
Mr. Clarke: No.
Tr. 126-27. Prior to trial, petitioner's counsel had requested, among other things, the arrest and conviction records of any witnesses the State intended to call. The District Attorney's office did not make any response to that request.
  On cross-examination, when Mr. Clarke was asked how often he was down in the area of the alleged crime, ADA Sligh objected. At sidebar the following colloquy occurred:
ADA Sligh: I fail to see the relevance in whether Mr. Clarke was in the area four times a week or five times a week. I would like an offer of proof. Certainly he's not going to say that he's in that area, and his client lives there, and he saw his client there, so it must be perhaps he was there to buy drugs or something which is ridiculous.
Defense: That this man has been in the area on a regular time, on a regular basis, known to the people in the area, including the defendant.
The Court: He knows the defendant?
Defense: Yes, your honor.
Tr. 128-130. At that point defense counsel proceeded on the record.
Defense: Approximately how many nights a week are you in this vicinity of College Point Boulevard?
Mr. Clarke: Very rarely. But on Friday nights, the guys I work with get together and they go to that bar almost every Friday night.
Defense: That's the Candlewood Bar?
Mr. Clarke: Yes, Sir.
Defense: And you never buy drugs on that street; do you sir?
Mr. Clarke: No, sir.
Defense: You do not use any controlled substances?
Mr. Clarke: No, sir.
Defense: You never used them?
Mr. Clarke: No, sir.
Defense: You don't know this defendant; do you?
Mr. Clarke: No, sir. Defense: Ever been in the projects before?
Mr. Clarke: No, sir.
Tr. 131-32. Mr. Clarke testified that he never told the police or anyone else that petitioner was wearing a Ninja mask. Mr. Clarke did not see petitioner take anything out of his car. Petitioner did not have anything on his head when Mr. Clarke found him in the car or during the chase, and Mr. Clarke never told the police that there was anything on his head at that time.

  Petitioner took the stand on his own behalf and testified as follows: He did not rob anyone on October 17, 1987, but he had been convicted of other crimes. He met Mr. Clarke in March of 1987 in one of the parks in the neighborhood and sold drugs to him up until the time of the alleged robbery. Petitioner was using crack and heroin at that time. He knew that Mr. Clarke drove a 1972 Mustang because he had been in the car several times and even to Mr. Clarke's home on one occasion, although he did not go inside. He saw Mr. Clarke approximately three times a week, mostly on weekends. He bought drugs that he sold to Mr. Clarke, but sometimes he would substitute bread crumbs or grits in the supposed vial of crack and keep the real drugs for himself.

  Petitioner saw Mr. Clarke on October 16, 1987, the day before the alleged robbery, and sold him four vials filled with crack and four vials filled with fake drugs. Mr. Clarke told petitioner that some of the vials were not real and petitioner told him "that's what I got." Petitioner knew Mr. Clarke as "Slim," and Mr. Clarke knew him as "Screwgie." Tr. 176. Petitioner maintained that he did ...

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