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Rivera v. Fischer

April 25, 2006


The opinion of the court was delivered by: Joseph F. Bianco, District Judge


Ralph Rivera petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his state conviction. Petitioner alleges the following: (1) his equal protection rights were violated by the prosecutor's use of peremptory challenges against minorities; (2) petitioner's rights to effective assistance of counsel, due process and a fair trial were violated by the alleged improper admission of evidence of an out-ofcourt identification; and (3) the trial court's pre-trial Sandoval ruling failed to define the limits of permissible cross-examination into facts of prior convictions and, thus, petitioner was deprived of the ability to make an informed choice about taking the stand at trial.



A. The Underlying Facts

The following facts are adduced from the trial record.

On December 19, 1999, at approximately 6:00 a.m., petitioner and Tyrone Dingle entered the office of the Bergen Car Service. (Trial Transcript (hereinafter "TT") at 197.) Petitioner and Dingle requested a car, but were told by the dispatcher, Mohammad Hamden, that a car would not be available for another hour. (Id.) While the two men were in the office, a driver walked into the office to return his radio and go off duty. (Id. at 198.) When asked why that driver could not drive them, Hamdan informed the two men that the driver had worked all night, was tired, and was going off duty. (Id.) Petitioner and Dingle cursed and grabbed the radio from Hamden. (Id.) One of the men punched Hamdan in the shoulder while the other said, "Give me your money, [expletive]." (Id.) Petitioner then approached Hamdan and cut his hand and his face with a box cutter. (Id. at 198, 207-08.) Petitioner and Dingle fled the office and ran into the Bergen Street G-train station across the street. (Id. at 206, 321.) The two men were apprehended several minutes later, one stop away from the Bergen Street station on the northbound G-train line at the Hoyt-Schermerhorn train station. (Id. at 321-26.) Hamdan was treated and released from the hospital the same day; his wound required over fifty stitches. (Id. at 209.) Upon his release, Hamdan was taken to the 84th Precinct where he identified both petitioner and Dingle in separate lineups. (Id. at 211-14.)

B. Pre-Trial and Trial Procedures

Petitioner was charged with Assault in the Second Degree (N.Y. PENAL LAW § 120.05[2]), Assault in the Third Degree (N.Y. PENAL LAW § 120[1]), Menacing in the Second Degree (N.Y. PENAL LAW § 120.14[1]), and Criminal Posession of a Weapon in the Fourth Degree (N.Y. PENAL LAW § 265.01[2]). Co-defendant Dingle pled guilty and petitioner proceeded to trial by jury.

At a pre-trial Sandoval hearing,*fn1 the prosecutor requested permission to elicit on cross-examination if the defendant took the stand, among other things, the fact that petitioner was convicted of three felonies and their underlying facts. (TT at 18-21.) One of these prior felonies involved a plea to Criminal Sale of a Controlled Substance in the Third Degree, another involved a plea to Assault in the Second Degree, and a third involved a plea to Attempted Robbery in the Second Degree. Defense counsel did not address the drug conviction, but instead argued that the underlying acts of the other two felonies should be precluded because they were too similar to the incident for which petitioner was on trial and that, therefore, the prejudice to petitioner would be outweighed by the probative value of the information. (TT at 21-22.)

The court excluded the "events giving rise to the youthful offender adjudications." However, the court permitted the prosecutor to elicit the fact that petitioner had three felony convictions and allowed "a limited inquiry concerning the underlying facts as to each." (TT at 23.)

When trial counsel for petitioner inquired what was meant by a "limited inquiry," the court explained:

A limited inquiry is an inquiry concerning the underlying facts which will be sufficient to elicit a quick description of the underlying facts unless, of course, there is fencing or evasiveness, or something along that line, which would necessarily lead to a longer inquiry concerning the underlying facts than would be if there were no quarrel concerning the events giving rise to the charges.

(TT at 23.) Counsel informed the court that "[he] still do[es]n't know what quick means" and that he had an obligation to "inform [his] client." (Id. at 23-24.) The court further responded:

I just got through saying that is a short inquiry [sic] the underlying facts. And the determination as to how short it must be, how short it ought to be, must abide the event and the weight whether [sic] or not this is a problem that develops should the defendant desire to testify. I guess to be safe, maybe the thing to do is proceed on the assumption it's going to be a long inquiry concerning the underlying facts.

(Id. at 24.) Counsel made no more objections to the court's ruling.

At trial, the victim was unable to make an in-court identification of petitioner. (Id. at 200-01.) The victim testified as to the two lineups he was shown the day of the incident. (Id. at 212-14.) He stated that he looked at each lineup for a "few seconds" before recognizing the perpetrators. (Id. at 213, 214.) The victim was asked if "there was any doubt in [his] mind when [he] viewed that . . . lineup and identified . . . the individual who cut [him]," and the victim responded, "I never forget his face." (Id. at 215.) There was various testimony from other witnesses that petitioner's appearance changed from the day the lineup was conducted. (Id. at 294-95, 327, 379-80.) There was also testimony from an officer identifying the petitioner in the courtroom as the subject of the lineup conducted. (Id. at 379.)

After the close of the State's case, the court asked petitioner if he "consulted with counsel as to whether or not it would be a good idea for [him] to testify." (Id. at 404.) Petitioner responded, "Yes." (Id.) The court also instructed petitioner that he was "entitled . . . to the advice of counsel in that regard. But insofar as whether or not [to] testify as a witness . . . that ultimately [was petitioner's] decision and nobody else's." (Id.) Petitioner responded that he understood, and confirmed that it was his decision not to testify. (Id. at 404-05.)

Petitioner was convicted of Assault in the Second Degree (N.Y. PENAL LAW ยง 120.05[2]) and sentenced as a persistent violent felony offender to a term ...

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