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SMALLS v. McGINNIS

August 10, 2004.

ERIC SMALLS, Petitioner,
v.
MICHAEL McGINNIS, Respondent.



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

OPINION AND ORDER

Pro se petitioner Eric Smalls seeks a writ of habeas corpus from his October 2, 1998 conviction of three counts of first degree burglary, three counts of first degree robbery, one count of first degree attempted burglary, eight counts of first degree sexual abuse, and sentence to an aggregate term of thirty-two years imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-4.) See People v. Smalls, 287 A.D.2d 277, 277, 731 N.Y.S.2d 16, 16-17 (1st Dep't), appeal denied, 97 N.Y.2d 685, 738 N.Y.S.2d 309 (2001). Smalls' ninety-three page habeas petition raises "two" grounds: ineffective assistance of trial counsel (Pet. at 49-88) and ineffective assistance of appellate counsel (Pet. at 13-48). (See also Smalls 6/21/04 Traverse.) Each of those claims, however, has numerous subparts — hence a ninety-three page petition. This is yet "another case where petitioner's lengthy laundry-list of claims `suggests the poverty of his position.'" Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *1 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); accord Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *1 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Adeniji v. Administration for Children Servs., 43 F. Supp.2d 407, 438 (S.D.N.Y.) (Wood, D.J. & Peck, M.J.) (quoting Cooper v. New York State Dep't of Human Rights, 986 F. Supp. 825, 829 (S.D.N.Y. 1997)), aff'd, No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999).

The parties have consented to decision of the petition by me as a Magistrate Judge pursuant to 27 U.S.C. § 636(c). (Dkt. No. 16: Consent Form.)

  For the reasons set forth below, Smalls' habeas petition is DENIED.

  FACTS

  Petitioner Eric Smalls was arrested on October 14, 1996 while trying to escape from an attempted burglary, when undercover officers noticed his suspicious behavior and recognized him as fitting the description of the suspect wanted in three prior burglaries with sexual abuse of the victims. (Dkt. No. 13: State Br. at 2.) Between late July and October 1996, Smalls broke into the apartments of three single women living in upper Manhattan, stole property, threatened each victim with a knife, and sexually abused them. (State Br. at 2.) After Smalls' arrest, he initially was released after two victims could not identify him from a line-up, but later rearrested when DNA analysis of his sneakers connected him to one of the victims. (State Br. at 2.)

  The Evidence at Smalls' Trial

  The July 24, 1996 Attack on S.S.*fn1

  In July 1996, S.S. lived at 270 Seamon Avenue in Inwood in a third floor apartment in a building with a recessed entrance from the street and no doorman. (S.S.: Trial Transcript ["Tr."] 54-56.) She filled her prescriptions at the local Rite Aid drugstore on Broadway and shopped at the local Dynasty Supermarket two doors down from the pharmacy. (S.S.: Tr. 55, 79.) On the night of July 23, 1996, S.S. went to bed between 10:30 and 11 p.m. with no lights on in her apartment and two windows open in the living room. (S.S.: Tr. 57-58.) She awoke somewhere between 4:20 and 4:30 a.m. due to "the sensation some one was standing in the door of [her] bedroom," and opened her eyes to see "some one standing in the door of [her] bedroom" with nothing obstructing her view of the individual. (S.S.: Tr. 58, 72.) Through the darkness, she saw that he was "wearing dark sneakers, blue jeans, a dark colored shirt and [a] very light Members Only type jacket," and was "about six feet tall," weighed "about 170 pounds," and "was athletically built but not heavily muscled." (S.S.: Tr. 73.) His skin tone was a "little rough," and "dark with a warm brown undertone," he had "short" hair, was "not heavily bearded," and "smelled very strongly of alcohol." (S.S.: Tr. 74-75.) S.S. screamed, and the person moved to the right side of the bed and told her "shh" and "put one hand over [her] mouth and another hand over [her] throat." (S.S.: Tr. 58-59.) He asked her where her money was, and she "told him the money was in the kitchen." (S.S.: Tr. 60.) As she walked down the hallway leading to the kitchen, the man kept his arm around her neck "like a chokehold," and "took out a knife and he poked the side of [her] neck with it." (S.S.: Tr. 60-61.) S.S. described the knife as having a four or five inch blade "where you pull the blade out, [and it has] a place for your finger to attach to pull the blade out." (S.S.: Tr. 62-63.)

  After seeing the knife, S.S. stopped screaming and the man walked her into the kitchen where she gave him her wallet. (S.S.: Tr. 63-64.) Her attacker fondled her right breast and slipped his left hand in the "pant hole" of her underwear, "felt around" the "outside of [her] vagina" and made "little gurgling noises." (S.S.: Tr. 67-68.) Up to this point, the attacker's "tone" had not been "hostile or violent," but when S.S. told him "no" and to stop, his tone changed and he "sounded angry" and said "don't say no to me." (S.S.: Tr. 68-69.) S.S. "stopped saying no to him" and tried to reason with him, telling him that "he had what he came for" and "if he left now [she] wouldn't say anything to anyone." (S.S.: Tr. 69.) He told S.S. to take him to the front door. (S.S.: Tr. 69-70.) He followed her to the door with his knife at her neck and his other arm around her throat, made S.S. open the door for him and left. (S.S.: Tr. 70-71.) After he left, S.S. called the police. (S.S.: Tr. 71-72.) She determined that her attacker had climbed into her apartment through the living room window. (S.S.: Tr. 81-82.)

  S.S. viewed a photo array in April 1997, and identified Smalls and another individual as looking familiar. (S.S.: Tr. 87-88, 92.) In a line-up on May 15, 1997 she picked out Smalls, and when asked how she recognized him, she said that she remembered him entering her apartment, not from seeing his picture in a New York Times article about his arrest months before. (S.S.: Tr.75-77, 90-91, 100.) Additionally, at trial S.S. pointed to and identified the Smalls as her attacker. (S.S.: Tr. 83-84.)

  On cross-examination, defense counsel pointed out that her attacker was only in her apartment for a short period and that it was dark. (S.S.: Tr. 86-87.) He also asked other questions to cast doubt on her identification of Smalls. (S.S.: Tr. 88-92, 95, 97-98.) The September 25, 1996 Attack on K.W.

  In September 1996, K.W. was living at 62 Park Terrace West, in Inwood, the same neighborhood as S.S. (K.W.: Tr.106.) She lived in a first-floor apartment in a building with a recessed entrance from the street and no doorman. (K.W.: Tr. 107-09.) She also shopped at the same local Rite Aid drugstore and Food Dynasty Supermarket. (K.W.: Tr. 108, 153-54.)

  K.W. went to sleep on a futon in her living room at around 11:00 p.m. on the night of Tuesday, September 24, 1996, with her kitchen window part-way open, which she believes is how the intruder entered. (K.W.: Tr. 110-11, 132.) She awoke at around 3:15 a.m. and "saw a man, a stranger standing there, looking at" her, and with the only light coming from the kitchen behind him, she could only see his silhouette, not his face. (K.W.: Tr. 112-13, 130) K.W. immediately told the man to leave and stood up, but he came towards her and "quickly made [her] turn around," so that he was behind her, and he put "his arm around [her] throat." (K.W.: Tr. 112-14.) He pulled out a "sharp" object and held it against her neck. (K.W.: Tr. 114-15.) K.W. told her attacker, "I'm going to cooperate completely." (K.W.: Tr. 115.) He asked her "where is your money?" (K.W.: Tr. 115.) K.W. indicated that it was on the desk in the same room, and her attacker walked her over to the desk, still holding one arm around her throat and with the other holding a knife to it. (K.W.: Tr. 115.)

  K.W. gave him her wallet containing $35 and spare cash she kept in an envelope. (K.W.: Tr. 116.) He asked "where is the man of the house?," and K.W. told him that she lived alone. (K.W.: Tr. 117.) He next asked if she had anything else, and she took him to the bedroom, as he continued to walk behind her, and showed him her jewelry. (K.W.: Tr. 118.) He took only one necklace, and K.W. started naming other things, including a camera and tape player, but he "didn't respond at all." (K.W.: Tr. 118-19.) As they walked back to her living room, he "pulled out the electrical connection" of the answering machine, mistaking it for the phone cord. (K.W.: Tr. 126.) When they walked back to her futon, he put his hand "in the front of [her] genital area." (K.W.: Tr. 120-21.) K.W. begged, "please don't do that, you have everything you want," and he told her, "I don't have everything I want." (K.W.: Tr. 121.) He told her to lie down and "pushed [her] down too." (K.W.: Tr. 121.) He reassured her that he would not hurt her, and he lay down "behind" her on the futon. (K.W.: Tr. 122.) With his right hand he touched her breasts, and he inserted the other into her vagina and rectum. (K.W.: Tr. 122.) At this point, she could see that his skin was "medium brown." (K.W.: Tr. 122.)

  When he was finished, he stood her up and walked her into the bedroom and told her not to call the police because he lived in the neighborhood. (K.W.: Tr. 124-25.) He left her in the bedroom and walked out the front door. (K.W.: Tr. 125.) As soon as he left, K.W. called the police. (K.W.: Tr.130.) K.W. was able to estimate that her attacker was taller than 5'8", "kind of average height for a man," not "heavy," had an "urban African-American accent," "spoke quietly," "smelled of alcohol," and did not appear angry during their encounter. (K.W.: Tr. 127-29.) On October 14, 1996, she viewed a line-up but was not able to identify anyone because she had not seen her attacker's face. (K.W.: Tr. 147-50.) The October 5, 1996 Attack on I.M.

  In October 1996, I.M. lived at 251 Seaman Avenue in Inwood. (I.M.: Tr. 186.) She lived alone in a second floor one-bedroom apartment in a building with a recessed entrance from the street and no doorman. (I.M.: Tr. 188-89.) Like S.S. and K.W., she shopped at the local Rite Aid pharmacy and Food Dynasty grocery store. (I.M.: Tr. 187.)

  On Friday, October 4, 1996, I.M. went to sleep at about 11:00 p.m., leaving the living room window halfway open. (I.M.: Tr. 189-91.) In the middle of the night, at around 3:00 a.m., she suddenly awoke because she "felt somebody up on me and covering [her] mouth." (I.M.: Tr. 191, 210-11.) She started screaming and the attacker "put a pillow over [her] head and suffocated" her while using his other hand to put a knife to her throat. (I.M.: Tr. 191-92, 194.) She saw that the knife was about four or five inches, and thicker at one end. (I.M.: Tr. 195-96.) As she fought back, the knife cut the palm of her hand, and she began bleeding. (I.M.: Tr. 192.) Her hand continued dripping blood because her blood is thin due to heart medication. (I.M.: Tr. 196-97, 230.)

  Her attacker "demanded jewelry and money," and she gave him her engagement ring, wedding ring and watch. (I.M.: Tr. 197.) She discovered that he already had her purse in "a knapsack," and he gave it to her to go through, but she noticed and told him that he had already removed her wallet; he answered, "yeah, blame it on me." (I.M.: Tr. 198-99.) As her hand continued dripping blood, I.M. told the attacker she needed water, and he "took" her to the bathroom, but would not let her turn on the light in order to keep his face hidden. (I.M.: Tr. 199-201.) He repeatedly told her during this time, "Don't look at my face," and she could not see it because the room was dark. (I.M.: Tr. 199.) After she washed her hand, he "pushed" her back to the bedroom and "pulled [her] pants down and threw [her] face down on the bed." (I.M.: Tr. 202.) She started telling him, "please don't hurt me, don't do this to me." (I.M.: Tr. 203.) He "started fondling [her] breast" and inserted his finger into her vagina and rectum. (I.M.: Tr. 203-05.) When she told him not to do this to her since she had children, he asked their ages. (I.M.: Tr. 204.) She told him they were "[a]bout 29 and 31," and "he said they are about [his] age." (I.M.: Tr. 204.) As he touched her, he asked when her husband was coming home, and I.M. told him "we're separated." (I.M.: Tr. 208.) Finally, he let her go. (I.M.: Tr. 206.) The attacker asked "where is the phone" and, after I.M. pointed to it, he "cut the cable of the phone and told [her] don't call the police . . . I'm observing you. I live nearby." (I.M.: Tr. 207, 209.) He "grabbed [her] again and with the knife in [her] throat and said take me to the door now." (I.M.: Tr. 210.) After he left, she called her family, and her daughter took her to the hospital to treat her sliced hand (I.M.: Tr. 211.) The police interviewed her at the hospital. (I.M.: Tr. 226-27.) The only thing she could identify about her attacker was that he had "dark skin," wore "a cap backward," "smelled of alcohol," wore "a knapsack," and his shoes made no noise when he walked across her wooden floors. (I.M.: Tr. 213-16.)

  On October 14, 1996, I.M. viewed a line-up, but she was unable to recognize anyone. (I.M.: Tr. 227-28.) On October 30, 1996, I.M. went to the Medical Examiner's office and gave blood for DNA analysis. (I.M.: Tr. 229.)

  On cross-examination, defense counsel brought out that the police dusted her apartment but did not find Smalls' prints. (I.M.: Tr. 235-36.) Counsel also pursued, as he had with the other witnesses, that she had given her address to the Rite Aid pharmacist. (I.M.: Tr. 240-41; Johnson: Tr. 406-07.) The October 14, 1996 Attack on Ella Johnson*fn2

  On October 14, 1996, Ella Johnson lived in an apartment on the first floor of 67 Park Terrace East, a non-doorman building in an "isolated," "residential area" in Inwood. (Johnson: Tr. 380-82, 385-86.) Like the other three victims, she shopped at the local Rite Aid and Food Dynasty stores. (Johnson: Tr. 380-81, 389.)

  During the evening of October 14, 1996, Ella Johnson was asleep in her bed when she was suddenly awakened by a "thud or shaking of [her] window." (Johnson: Tr. 388-91.) She looked at the clock in her VCR and saw that it was about 4:00 a.m. (Johnson: Tr. 392.) When she looked at the bedroom window that she had left ajar, she saw the silhouette of a person. (Johnson: Tr. 391-92, 404.) She jumped up, turned on the light, ran towards the image, but changed her mind and headed back to her bed. (Johnson: Tr. 392.) Looking out the window, she saw "the person running south" and noticed he was wearing a "shirt or a sweater" and no hat. (Johnson: Tr. 393-95, 400-01, 404.) Johnson did not phone the police to tell them what happened until later that morning. (Johnson: Tr. 401.) She viewed a line-up later that day, October 14, 1996, and selected individual number "[t]hree" because she "recognized that the build was similar" to her attacker's build, but she was not certain. (Johnson: Tr. 401-03.) Smalls' Arrest and Identification,*fn3 and the DNA Evidence

  From midnight to 8:00 a.m. on October 14, 1996, Sergeant James West was in charge of an undercover team of officers looking for a serial burglar who had sexually attacked and robbed three single women living alone in apartments in an elevated residential area of the 34th precinct. (West: Suppression Hearing ["H."] 6-7, 10; West: Tr. 422-24, 426, 452-54; Maric: Tr. 471, 489-90; Pinzone: Tr. 503.) The prior attacks had all occurred within one block of each other between 1:00 a.m. and 5:00 a.m. (West: H. 7-8; West: Tr. 424-25, 456.) Sgt. West had been given a description of the attacker as a black male, early twenties, thin to muscular build, from 5'10'< to 6' tall, soft spoken with alcohol on his breath, carrying some type of bag, and armed with a folding knife. (West: H. 8-9; West: Tr. 424-25, 454-56.)

  On October 14, 1996 at approximately 4:00 a.m., Sgt. West and Officer Maric, both dressed in plain clothes, received a radio transmission from Officer Pinzone to be aware of an individual heading their way who fit the suspect's description. (West: H. 12; Maric: H. 66; West: Tr. 428-30, 456; Maric: Tr. 474; Pinzone: Tr. 503-04.) As a man approached them from the steps leading up to the elevated residential area, Sgt. West and Officer Maric followed him as he walked North on Park Terrace East, Ella Johnson's street. (West: H. 12-13; West: Tr. 430; Maric: Tr. 474-76.) Sgt. West and Officer Maric noticed that he was a black male in his early twenties of a thin build, wearing a backpack. (West: H. 12-13; West: Tr. 433.) The officers followed him for several blocks, but lost sight of him when he turned the corner on 216th or 217th Street, and the officers could not find him when they searched the alleys. (Maric: H. 67; West: Tr. 431, 433-35, 457; Maric: Tr. 476-77.) During the period he was out of sight, Ella Johnson was asleep in her bed and was awakened by someone trying to break into her apartment. (Johnson: Tr. 392.)

  The officers returned to their car and began circling the area when, at approximately 4:30 a.m., they spotted the individual walking southbound on Park Terrace East back towards the steps. (Maric: H. 68; West: H. 13-14; West: Tr. 431-32, 435, 457; Maric: Tr. 478.) Sgt. West and Officer Maric got out of their car and followed him on foot. (Maric: H. 69; West: H. 14-15; Maric: Tr. 479.) Eventually, Sgt. West called out "Police, can I talk to you for a second?" (Maric: H. 69; West: H. 15; West: Tr. 435, 437, 459-60, 464; Maric: Tr. 479.) In response, the individual started "walking very quickly," then "took off running down the steps" while "trying to take off the backpack that he's carrying." (West: H. 15; Maric: H. 69-70; West: Tr. 436-37, 441, 460, 474; Maric: Tr. 479; Pinzone: Tr. 506-07.) While radioing for backup, Sgt. West and Officer Maric chased the individual down the steps, then east on 215th Street, south to 214th Street, and next back towards Broadway. (Maric: H. 71; West: Tr. 437-39; Maric: Tr. 479-80; Pinzone: Tr. 505-06.) Meanwhile, Police Officers Colon and Weinberg responded to the backup call, intercepted the individual in their car, and pursued him on foot. (Pinzone: H. 129-30; Maric: Tr. 480; Colon: Tr. 423-24.) Finally, the exhausted individual just stopped and sat down on a park bench and the officers approached him. (Maric: H. 72; Pinzone: H. 130; West: Tr. 440, 466; Maric: Tr. 480.)

  Officer Pinzone picked up the individual's backpack and gave it to Sgt. West. (Pinzone: H. 148-49; West: H. 19-20; West: Tr. 441; Pinzone: Tr. 510.) Sgt. West, knowing that the serial robber carried a knife, felt the backpack to see if it contained any weapons. (West: H. 20; West: Tr. 441-42, 464.) Upon feeling something that felt like a folding knife, he opened the backpack and found a folding knife with a four- to five-inch blade knife, and also found a tube of penis-desensitizing cream. (West: H. 20-21; West: Tr. 442; Maric: Tr. 480-81.)

  Before being read his rights, the individual was asked a series of questions to ascertain whether he was the man they sought. (Maric: H. 82.) Responding to why he had run, the individual said "I've had dealings with the police before. I'm on parole." (West: H. 17; see West: Tr. 467.)*fn4 The officers also asked him to identify himself and explain what he was doing in the area. (West: H. 17; West: Tr. 447.) He responded that his name was Eric Smalls, and said that he was drunk and had gotten off at the wrong subway stop. (West: H. 17; West: Tr. 448-47.) Sgt. West noticed Smalls was "[s]oft spoken," "well spoken" with "a military manner of speaking" and had "alcohol on his breath." (West: H. 19; West Tr. 451-52; Bonilla: Tr. 535.) Sgt. West was familiar with the neighborhood, and he knew that Smalls' subway story was suspicious because it meant Smalls had apparently walked seven blocks north of the 207th Street stop, where he claimed he mistakenly exited the train, instead of walking south to the Dyckman Projects where he lived. (West: H. 18-19; West: Tr. 447-51.) "[K]nowing that certain parolees have restrictions," such as "prohibitions against drinking and carrying weapons and certain hours of the evening they are not suppose to be out," Sgt. West decided to bring Smalls back to the station house, where they arrived at about 5:00 a.m. (West: H. 22.)

  Detective Bonilla of the Special Victims Squad, who was investigating the series of prior attacks, read Smalls his Miranda warnings, and Smalls refused to answer any questions other than pedigree information. (Bonilla: H. 88-89; Bonilla: Tr. 530-31.) Smalls said he was twenty-six years old, five feet eleven inches tall, and weighted about 170 pounds. (Bonilla: H. 89-90; Bonilla: Tr. 535.) Around noon later that day, October 14, 1996, Detective Bonilla conducted separate lineups viewed by I.M., K.W., and Ella Johnson. (Bonilla: Tr. 537-38.) S.S. did not view the line-up on that day because she was out of the country. (Bonilla: Tr. 538.) Smalls chose to stand in position number three at the line-up. (Bonilla: Tr. 537, 540-41.) I.M. and K.W. were unable to make an identification; however, K.W. recognized Smalls' voice, and she asked numbers three and six to reread a statement because they sounded like her attacker. (Bonilla: H. 91-92; Bonilla: Tr. 541-42.) The fourth victim, Ella Johnson, said that "it possibly could be number three [i.e., Smalls] but she wasn't sure." (Bonilla: H. 91-92.)

  A search warrant was issued for Smalls' home on October 14, 1996, the day of his arrest. (Bonilla: Tr. 542-43.) None of the items stolen from the victims' apartments were found in Smalls' apartment. (Bonilla: Tr. 571.) The police recovered four pairs of sneakers, one of which had a spot of blood on the eyelet. (Bonilla: Tr. 543-44, 459-50.) On October 30, 1996, the sneaker with blood was sent to Cellmark Laboratory for testing, along with the knife from Smalls' knapsack and a sample of I.M.'s blood obtained from her on October 30, 1996. (Bonilla: Tr. 552-53, 556; Flaherty: Tr. 644-47.) Dr. Charlotte Word, Deputy Laboratory Director at Cellmark who oversees the work done by the scientists, testified that her lab conducted DNA analysis on all of the items received. (Word: Tr. 653, 661, 669, 673-74.) An insufficient amount of DNA was recovered from the knife for analysis, but the blood on the sneaker was analyzed. (Word: Tr. 675.) The DNA results from the blood on the sneaker and I.M.'s blood were consistent with each other. (Word: Tr. 682.) The results showed that the chance of another individual besides I.M. having the same DNA as that found on Smalls' shoe would be one in fourteen billion Caucasian individuals, one in sixty-one billion African Americans, one in forty-one billion Hispanics. (Word: Tr. 686-87.)

  Six months later, on April 15, 1997, S.S., the third victim, viewed a photo array, where she said her attacker was "possibly number six or five and that she would have to see the person in person to be able to make sure." (Bonilla: H. 94-95; Bonilla: Tr. 557.) Smalls was number five in the photo array. (Bonilla: H. 95.) On May 15, 1997, a line-up was conducted, and Smalls chose to stand in number three again after consulting with his former attorney. (Bonilla: H. 96-97; Bonilla: Tr. 557-58.) The line-up included five fillers who were all black males of a slim or medium build, who matched Smalls as "best as possible at the time." (Bonilla: H. 97; Bonilla: Tr. 557, 566-67.) Pictures were taken of the line-up at the time, with one given to Smalls' attorney, and the other was xeroxed and filed, but it was later "misplaced" before the suppression hearing. (Bonilla: H. 98-99; Bonilla: Tr. 558-603.) The xerox copy was admitted, but it only showed "silhouettes." (H. 99-102.) At the line-up, S.S. said she recognized "number three" — Smalls — as the "person who came into [her] apartment." (S.S.: Tr. 76-77; Bonilla: H. 100.)

  After the pretrial suppression hearing, on May 15, 1998 Justice Leibovitz issued a sixteen-page decision, denying Smalls' motion to suppress the evidence recovered from him due to an alleged unlawful search and seizure, his statements to the police, and S.S.'s line-up identification. (Dkt. No. 14: Martland Aff. Ex. A: Justice Leibovitz 9/15/98 suppression hearing decision.)*fn5 Justice Leibovitz found that the police had "lawfully stopped" Smalls and were "permitted to clarify the situation through brief pre-Miranda questioning." (Ex. A: Justice Leibovitz decision at 7.) Justice Leibovitz found that Sergeant West "reasonably feared that the knapsack contained the weapon" and was permitted to feel the bag, and once he felt the knife he was permitted to open the bag and remove the knife. (Id. at 9-10.) Justice Leibovitz found that "the police had probable cause to arrest [Smalls] for the prior burglaries" because of the "match of time, location and the suspect's description," and also had probable cause to arrest him "on an independent ground, violation of parole." (Id. at 10-11.) Concerning the photo array viewed by S.S., the court found that the photo array was fair because a copy of the array showed that "the fillers fairly resembled him," and S.S.'s "inability to choose between defendant and a filler demonstrated that the procedure was fair." (Id. at 13.) Justice Leibovitz determined "that the May 15th lineup itself was not suggestive." (Id. at 14.) "While the loss of the original copies of the lineup photographs may give rise to a presumption of suggestiveness, any such presumption was overcome by the information on the lineup expense report and the testimony of Detective Bonilla." (Id.) The fillers all had "similar builds, wore short hair and were seated to minimize discrepancies," and overall had a "sufficient resemblance" so that any discrepancies between goatees and mustaches and hair length "were minor details." (Id. at 14-15.) Smalls' Defense

  At trial, although Smalls' counsel presented no witnesses, he tried to establish through cross-examination of the prosecution's witnesses the theory that Smalls was framed by the police. Counsel suggested through cross-examination that the DNA evidence did not solve the case because the sneakers were tampered with and someone placed I.M.'s blood on the shoe. (Bonilla: Tr. 575-77; Flaherty: Tr. 650-51; Word: Tr. 689.) Defense counsel pointed out that Smalls' fingerprints were not found in any victim's apartment, and there were discrepancies in the descriptions of the attacker given by the each victim. (Peruzza: Tr. 719; Bonilla: Tr. 578, 588-92.) Defense counsel pointed out that S.S., who was the only victim to positively identify Smalls in a line-up, had read a story in the New York Times in January 1997 about the suspect which included a photograph of Smalls, before she made her line-up identification. (S.S.: Tr. 94; Bonilla: Tr. 583-88.) Defense counsel also suggested an alternate suspect, with a criminal record, who worked at the neighborhood drugstore. (E.g., Bonilla: Tr. 593-95.)*fn6

  In his summation, defense counsel charged that the jury must place great scrutiny on the "credibility of those live witnesses who testified" and said there were "serious contradictions in testimony that goes to explain whether, in fact, you can believe these witnesses." (Defense Summation: Tr. 754, 766.) Defense counsel also suggested that "tampering went on" with the items presented as evidence in order to solve the case. (Defense Summation: Tr. 755-56.) In response, the prosecutor's summation highlighted the solid evidence and attacked the defense conspiracy claim, asking "why would the police want to frame Eric Smalls?" (State Summation: Tr. 789-90.) The prosecutor asked, "Why create a scapegoat here? Why frame an innocent man here?" (State Summation: Tr. 791.)

  Verdict and Sentence

  Smalls was convicted of all counts: three counts of first degree burglary, three counts of first degree robbery, one count of first degree attempted burglary, and eight counts of first degree sexual abuse. (Verdict: Tr. 930-36.) Smalls was sentenced on October 2, 1998 as a second felony offender, and given an aggregate term of thirty-two years imprisonment. (Sentencing Transcript ["S."] 7-8, 17-19.)

  Smalls' Direct Appeal

  On appeal, Smalls' new appointed counsel argued that: (1) his guilt was not proved beyond a reasonable doubt and, in any event, his conviction was against the weight of the evidence (Ex. B: Smalls 1st Dep't Br. at 18-22), and (2) the trial court had improperly ruled that Smalls' trial counsel had opened the door to Smalls' statement to police that he was on parole (id. at 23-33). Smalls also filed a pro se supplemental brief in which he argued that: (1) the police were not justified in stopping him or in searching his backpack (Ex. C.: Smalls Pro Se Supp. 1st Dep't Br. at 2, 7-15), and (2) the trial judge should have sanctioned the prosecution for the loss of the photograph of the May 15, 1997 line-up, which constituted a Rosario violation (id. at 2, 15-17.)

  On October 9, 2001, the First Department affirmed Smalls' conviction, holding: The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Moreover, we conclude that the evidence was overwhelming. In addition to reliable identification testimony and evidence of unique modus operandi, DNA testing established that a victim's blood was found on defendant's sneakers.

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Defendant's cross examination of a detective suggesting that defendant had an innocent reason for fleeing when approached by the police, as well as his recross-examination of the detective about whether he had knowledge of defendant's thoughts at the time of his arrest, opened the door to the admission of defendant's statement that he ran from the police because he was on parole.
We have considered and rejected defendant's remaining claims, including those contained in his pro ...

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