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Oquendo v. Senkowski

September 18, 2006

ROLANDO OQUENDO, PETITIONER,
v.
DANIEL A. SENKOWSKI, SUPERINTENDENT, CLINTON CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Richard J. Holwell, United States District Judge

MEMORANDUM OPINION AND ORDER

Petitioner Rolando Oquendo brings this habeas petition pursuant to 28 U.S.C. § 2254 challenging his state court conviction for two counts of First Degree Robbery, N.Y. Penal Law § 160.15(4) (McKinney 1998), two counts of Second Degree Robbery, § 160.10(3) (McKinney 1998), one count of Criminal Possession of a Weapon in the Second Degree, N.Y. Penal Law § 265.03 (McKinney 2006), one count of Criminal Possession in the Third Degree, N.Y. Penal Law §265.02(4) (McKinney 2006), and one count of Criminal Possession of Stolen Property in the Fourth Degree, N.Y. Penal Law § 165.45(5) (McKinney 2006). These charges stem from a series of livery cab robberies occurring in 1996.

Petitioner makes five arguments in support of his habeas petition: (1) the procedures police used to identify him as the perpetrator were unduly suggestive; (2) the fact that the prosecutor allowed the Grand Jury to consider evidence of one robbery as proof of guilt of another invalidated his indictment; (3) the trial court erred when it declined to give a requested jury charge regarding the evaluation of identification evidence; (4) the prosecutor violated his obligations under People v. Rosario, 9 N.Y.2d 286, 289 (1961), by not disclosing a handwritten police report to the defense; and (5) the prosecutor violated his obligations under Brady v. Maryland, 373 U.S. 83 (1963), by refusing to identify the owner of license plates recovered from one of the stolen cabs.

On December 9, 2005, United States Magistrate Judge Michael H. Dolinger issued a Report and Recommendation ("Report") recommending that the petition be denied in its entirety. On January 9, 2006, petitioner filed timely objections to the Report ("Objections"). For the reasons set forth below, this Court adopts the Report and denies the petition.

BACKGROUND

Petitioner's arrest and convictions arose out of a series of three livery cab robberies occurring in 1996. A Grand Jury indicted petitioner on charges regarding these three crimes, as well as on charges arising out of a subsequent confrontation related to the robberies. At trial, a jury acquitted petitioner of the charges relating to the February 4, 1996 robbery and convicted him on all other charges. However, as the factual circumstances underlying all of these crimes, and the identifications made by the victims, are relevant to petitioner's claims, they will be described below.

1. Crimes

On the night of February 4, 1996, livery cab driver Marcos Frometa picked up a passenger at 148th Street and Broadway in New York City's Upper East Side. (May 16, 1996 Grand Jury Tr. 9.) Brandishing a gun, the passenger robbed Frometa of his car, coat, radio and cash. (Id. at 10-13.) Frometa hailed a cab and followed the perpetrator to Brooklyn, where he eventually escaped. (Id. at 13.)

On the night of February 10, 1996, livery cab driver John Gonzalez picked up a passenger in Manhattan at 146th and Broadway. (April 12, 1996 Grand Jury Tr. 6.) The passenger robbed Gonzalez of his car and cash at gunpoint. (Id. at 6-8.) Gonzalez hailed a cab and pursued the perpetrator. (Id. at 9.) When Gonzalez stopped to request police assistance, the perpetrator escaped. (Id.)

On March 6, 1996, livery cab driver Angel Martinez picked up a passenger in the Upper East Side. (May 16, 1996 Grand Jury Tr. 25.) At gunpoint, the passenger robbed Martinez of his car. (Id. at 27.) Martinez flagged down a passing car and chased the perpetrator to Brooklyn. (Id. at 28.) When he stopped to alert a police officer of the crime, the perpetrator escaped. (Id. at 29.)

The following day, March 7, 1996, livery cab driver Rodhame Carmona spotted Martinez's stolen car at East 110th Street between Second and Third Avenue. (Id. at 33.) After he notified police, he called fellow cab drivers, including Sammy Paralta (id. at 56) and Elvis Vargas (id. at 34) to the scene. Eventually, a man appeared, removed a gun from inside the stolen car and threatened the drivers. (Id. at 35.) The gunman then fled on foot toward a nearby subway station. (Id. at 36, 55.) As police and cab drivers gave chase, the suspect discarded several items including a gun, hat, bag, and eyeglasses. (Id. at 37.) Eventually, the suspect escaped. (Id. at 38.)

2. Investigation

After each crime, investigating officers asked the victims to look through several police photo books. (Mapp/Wade Hearing Tr. ("Hr.") 113-14, 199, 221-22.) Frometa and Martinez failed to identify any suspects using these books. (Hr. at 213, 222.) Gonzalez, on the other hand, identified a photo of George Rivera with ninety percent certainty. (Hr. at 118, 120-21.) Later, police discovered that Rivera was incarcerated the night Gonzalez was robbed. (Hr. at 121.)

On March 29, 1996, Gonzalez, Peralta, Carmona and Frometa were invited to view a photo line-up. (Hr. at 130.) They were placed in a waiting room and instructed not to speak to one another about the case. One by one, they were brought to a different room to view the photo line-up. Police instructed the witnesses to "focus on the facial features" of the men pictured. (Hr. at 132.) Each witness identified photo number 4, a photo of the petitioner. (Hr. 201-02.)

On April 10, 1996, Detectives Porteus, Ortiz and Dibisceglio invited Gonzales, Martinez, Vargas and Frometa to view a live line-up. (Hr. at 133, 135.) They were placed in a waiting room and instructed to not speak about the case. (Hr. at 135.) Because petitioner was the tallest participant,*fn1 the line-up was conducted in a sitting position. (Hr. at 140.) Also, because petitioner had very short hair, each participant wore a shower cap. (Hr. at 138.) Petitioner was the only participant with a visible scar, but no steps were taken to conceal it. Petitioner was allowed to choose his position in the lineup: He selected position number 2. (Hr. at 136.)

One by one, the witnesses viewed the line-up. (Hr. at 135.) After viewing, the witnesses were separated from one another. Gonzalez was first to view the line-up. (Hr. at 140-41.) Initially, Gonzalez chose number six, a filler. (Hr. at 141.) After Gonzalez chose the filler, Detective Porteus asked Gonzalez if he wanted to "take a closer look." (Id.) Gonzalez said yes, and each participant was asked to stand and walk toward the viewing area. (Id.) When petitioner stood and approached, Gonzalez changed his mind and chose him. (Hr. at 142.)

Vargas was the next to view the line-up. He identified number 6, a filler, as the man that retrieved the gun from Martinez's car, threatened the gathered crowd and then fled. (Hr. at 142-43.)

Martinez was the next to view the line-up. Martinez failed to identify anyone as the person who robbed him. (Hr. at 222.) However, Detective Ortiz testified that he thought Martinez appeared "nervous" and "fidgety." (Hr. at 223.) Detective Ortiz thought Martinez recognized petitioner but was too nervous to identify him. (Hr. at 233-34.) Nevertheless, Martinez called the police two days later and informed them that, after further reflection, he thought number 2, the petitioner, was the man who robbed him. (Hr. at 144.)

Frometa was the last to view the April 10th line-up. He failed to identify anyone as the man who had ...


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