The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
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:
For the reasons set forth below, Smalls' habeas petition is
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.
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
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.
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.)
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.)
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
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.
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 ...