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VERNON LONG, Petitioner,
DONNELLY, Warden of Wende C.F., Respondent.

The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Pro se petitioner Vernon Long ("Long") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("§ 2254") challenging his conviction in New York State Supreme Court, New York County (the "trial court") of five counts of robbery in the first degree, in violation of New York Penal Law ("NYPL") § 160.15(4), and one count of attempted robbery in the first degree, pursuant to NYPL §§ 110.00/160.15(4). The trial court imposed a sentence of imprisonment in two consecutive sentences of 20 years to life to run concurrently with three sentences of 20 years to life and one sentence of 16 years to life. Long's habeas petition alleges that his federal constitutional rights were violated during different portions of his criminal proceedings. Respondent, Superintendent of New York State's Wende Correctional Facility where Long is in custody (the "State"), interposes both procedural and substantive arguments in opposition to Long's petition. By Decision and Order dated August 19, 2004, the Court denied Long's petition and indicated that its findings, reasoning, and conclusions would be set forth in a separate Decision and Order. Accordingly, for the reasons discussed below, Long's petition is denied in its entirety.



  From October 1997 through January 1998, Long robbed or attempted to rob five different businesses in midtown Manhattan in six separate criminal acts, and stole between $300 and $1,300 during each robbery. Long performed his robberies by either verbally demanding the money from the store employee and/or displaying a written demand on a note, and maneuvering his hand in his pocket to give the impression that he possessed a gun. Police officers identified Long as a suspect in the robberies after the officers matched Long's fingerprints to one of the robbery notes and after two store employees identified Long in a photograph as the perpetrator.

  On January 12, 1998, police officers arrested Long at his residence after Long robbed a store of approximately $300. The officers knocked on Long's door and when Long opened it, they ordered him to step into the hallway and drop to his knees. During the arrest, the police found $191 and two glassines of heroin in Long's possession. Although the arresting officers did not have a warrant to search the apartment, Long's girlfriend, who lived there with Long, consented to the search. In the apartment, the officers recovered two jackets, a New York Mets cap, and a firearm.*fn2 After the arrest, the police conducted a lineup where all but one of the five witnesses identified Long as the perpetrator. Two of the witnesses, however, identified Long only after having heard the lineup participants speak a scripted phrase that the perpetrator used during particular robberies.

  Long was subsequently charged with five counts of robbery in the first degree, one count of attempted robbery in the first degree, and one count of criminal possession of a weapon in the third degree. During a combined hearing, the trial court denied Long's motion to suppress the money and heroin he possessed during his arrest, and the items recovered during the apartment search. On June 8, 1998, a jury found Long guilty of the robbery and attempted robbery counts. The trial court sentenced Long as a violent felony offender pursuant to NYPL § 70.08 ("NYPL § 70.08") to two consecutive sentences of 20 years to life imprisonment, to run concurrently with three sentences of 20 years to life and one sentence of 16 years to life.

  On direct appeal to the New York Supreme Court Appellate Division, First Department (the "Appellate Division"), Long argued that: (1) the trial court erred in denying his suppression motion because the heroin and money found on his person after his arrest amounted to a violation of Payton v. New York, 445 U.S. 573 (1980), and that the Payton violation also tainted the subsequent lineup identification;*fn3 (2) the evidence found in his home was seized without the proper consent from his girlfriend; (3) the State failed to meet its burden of producing evidence at the Wade hearing*fn4 that the identification procedures had not been unduly suggestive; (4) the admission of evidence that he possessed two glassine vials of heroin at the time of his arrest deprived him of a fair trial; and (5) his sentence as a persistent violent felony offender violated the rule pronounced by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000). (See Opp. at Ex. A.) On January 22, 2002, the Appellate Division held that while Long's arrest had amounted to a Payton violation, the lineup identifications were sufficiently attenuated from, and therefore not tainted by, the arrest. See People v. Long, 737 N.Y.S.2d 65, 66 (App. Div. 1st Dep't 2002). In affirming Long's conviction, the Appellate Division considered all of Long's arguments on the merits and affirmed all of the trial court's rulings. See id. at 66-67.

  On April 11, 2002, the Appellate Division denied Long's application for re-argument. See People v. Long, No. M-924, 2002 N.Y. App. Div. LEXIS 3760 (App. Div. 1st Dep't Apr. 11, 2002). On May 20, 2002, the New York Court of Appeals denied Long's application for leave to appeal. See People v. Long, 772 N.E.2d 614 (N.Y. 2002).


  Long asserts four claims in the instant petition. First, he contends that the money and heroin he possessed at the time of his arrest should have been suppressed due to the Payton violation. Long further claims that the subsequent police lineup should also have been suppressed as tainted by his arrest in violation of Payton. He argues that had the money and heroin been suppressed, the State would not have been able to explain the absence of the full amount of the proceeds of the most recent robbery committed approximately an hour before his arrest, nor introduce the heroin as evidence of his motive in perpetrating the robberies. Furthermore, Long maintains that had the lineup been suppressed, the only physical evidence linking him to any of these crimes would have been his fingerprint on the note and the property seized from his apartment. The State counters that a state court's denial of a petitioner's motion to suppress physical evidence is not a cognizable claim for federal habeas corpus relief except in rare circumstances that are not applicable here.

  Second, Long claims that he was denied his due process rights by the trial court's admission of the voice identification evidence. He alleges that the State failed to present any evidence whatsoever at the pre-trial Wade hearing that a voice identification procedure had occurred, and thus, the State had failed to meet its burden of showing that the identification was not unduly suggestive. The State responds that Long was not denied any federal constitutional right as a result of the lineup identification because the federal Constitution does not require compliance with New York's procedural rules. The State contends that in any event, the trial court found as a matter of fact that the lineup and voice identification were fairly conducted and that the police officers maintained the integrity of the lineup.

  Third, Long claims deprivation of his due process right to a fair trial arising from the trial court's admission of allegedly irrelevant and prejudicial evidence concerning his uncharged heroin possession at the time of arrest. Long contends that such evidence was not relevant to prove any element of the crimes charged. Moreover, Long argues, although this evidence arguably demonstrates motive for committing the robberies, the prejudicial impact outweighs its probative value because the jury might use such evidence to condemn Long without fair consideration of the actual charges against him. The State retorts that a state trial court's evidentiary ruling is not a federal constitutional issue where such evidence is relevant to an issue in the case. In this case, the State argues, the heroin was introduced into evidence only to explain the discrepancy between the $300 Long had stolen from a store about an hour prior to his arrest and the $191 in his pocket at the time of the arrest, and to prove drug addiction as a motive for the robberies.

  Finally, Long claims that the consecutive sentences of 20 years to life imprisonment as a persistent violent felony offender pursuant to NYPL § 70.08 violates his right to notice of the charges against him, to a jury trial, and due process of law. According to Long, the enhanced sentence was premised upon the existence of prior convictions, where the existence of the prior convictions was neither submitted to a jury nor contained in an indictment. Thus, Long contends that NYPL § 70.08 violates the rule announced in Apprendi, and consequently infringes upon his rights under the Sixth and Fourteenth Amendments to the United States Constitution.

  The State responds that this claim is procedurally barred from habeas review by a federal court, and thus forfeited, because the trial court relied on an independent and adequate state ground to dismiss Long's argument. The State further argues that NYPL § 70.08 is not unconstitutional because Apprendi explicitly carves out an exception where an enhanced sentence is based solely upon the finding of prior convictions, as is the case here.



  A petitioner in custody pursuant to a judgment of a state trial court is entitled to habeas relief only if he can show that his detention violates the United States Constitution or federal law or treaties of the United States. See 28 U.S.C. § 2254(a). The purpose of federal habeas review of state court convictions is to "assure that when a person is detained unlawfully or in violation of his constitutional rights he will be afforded an independent determination by a federal court of the legality of his detention, even though the issue may already have ...

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