The opinion of the court was delivered by: Go, United States Magistrate Judge
REPORT AND RECOMMENDATION
Petitioner Michael James seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition in this matter was referred to me to report and recommend by the Honorable Nicholas G. Garaufis.*fn1 For the following reasons, I recommend that the petition be denied.
Michael James was charged with one count each of robbery in the first degree, N.Y. Penal Law § 160.15(3), robbery in the second degree, id. § 160.10(1), criminal possession of a weapon in the fourth degree, id. § 265.01(2), criminal possession of stolen property in the fifth degree, id. § 165.40, and menacing in the second degree, id. § 120.14(1). Following a jury trial before the Honorable Jaime Rios, petitioner was convicted of both robbery counts, criminal possession of a weapon in the fourth degree and menacing in the second degree. On July 11, 2000, Justice Rios sentenced petitioner to concurrent terms of imprisonment of seven to fourteen years for each of the robbery convictions and one year each for the other two convictions. According to the New York Department of Correctional Services' website, petitioner was released on parole on April 11, 2007.*fn2
Prior to trial, the Honorable Thomas A. Demakos conducted a hearing to determine the admissibility of, inter alia, testimony regarding the show-up and in-court identifications of petitioner and the knife seized from a car he was driving. Police Officers Carmine Antoniello and James O'Connor of the 110th Precinct in Queens testified.
On May 11, 1998, at approximately 11:05 p.m., while he was on routine patrol, Officer Antoniello received a radio transmission concerning a robbery in progress on 111th Street and 49th Avenue. Transcript of Dunaway/Mapp/Huntley/Wade Hearing held on June 3, 1999 ("Hearing Tr.") at 6, 22-23, 62. The radio report described the perpetrators as four male blacks in their late teens to early twenties, who fled the scene in a 1990's blue Ford Taurus, with the license plate number "K363Z6." Id. at 7, 22-25, 27, 62, 66. Approximately twenty minutes later, as Officer Antoniello canvassed the area looking for the suspects, he spotted a vehicle traveling eastbound on Corona Avenue, about one mile from the scene of the crime. Id. at 8, 29, 33, 57. The car drew his attention because it was a blue Ford Taurus and the first three characters on its license plate were "K36." Id. at 8-9, 57. He also noticed that the driver appeared startled when he made eye contact with him. Id. at 9-10, 57. When Officer Antoniello pulled the car over, he saw that the full license plate number was "K363ZS." Id. at 10-11, 30, 56, 58.
There were three men in the car: petitioner in the driver's seat, co-defendant Dwayne Bryan in the front passenger seat and another man, Supreme Clark, in the back seat. Id. at 12-13. While his partner reported over the radio that they had stopped a vehicle and that the victim should be brought to the scene, Officer Antoniello ordered the three occupants of the vehicle to step outside of the car. Id. at 12, 14, 31-33, 36-38, 60.
Police Officer James O'Connor, who arrived at the car stop between 11:20 and 11:25 p.m., looked through the open front door of the passenger side of the vehicle and observed part of a knife blade and handle sticking out of the front passenger seat. Id. at 63-66, 68-70, 72. He retrieved the knife and handed it to Officer Antoniello. Id. at 64, 70.
Within five minutes of the radio call by Officer Antoniello's partner, the complaining witness, Robert Vargas, arrived in a police van, which pulled up across the street. Id. at 14, 35, 38-39, 41, 45. At that time, the three suspects were standing at the rear of the blue Ford Taurus, with 10 to 12 police officers standing "right near them." Id. at 14, 16-17, 33, 35, 38-41, 45, 67. There were at least four or five police cars at the scene. Id. at 63, 67. Remaining in the van, Vargas told Officer Antoniello that four men had robbed him and that the three suspects had been involved in the robbery. Id. at 14-16, 22, 41-42, 45, 54-56. In response to the officer's question as to each suspect's role in the robbery, Vargas stated that petitioner wielded a knife and ordered him to give them money, while co-defendant Bryan, also holding a knife, took Vargas' money. Id. at 16, 55-56. Supreme Clark and another man stood in the background during the robbery. Id. at 16, 41-42, 54-55.
After Vargas' identification, the three suspects were placed under arrest. Id. at 16, 46. At the precinct, the arrestees were searched and $8 was recovered from co-defendant Bryan's pocket. Id. at 17. Petitioner asked Officer Antoniello why he was arrested. Id. at 18-19, 49-51. After Officer Antoniello replied that he was arrested for robbery, petitioner responded that they had been out looking for girls and did not rob anyone. Id. at 19, 49-51.
The hearing court denied the motions to suppress the knife and the identification, ruling that the police properly stopped the car because it matched the complaining witness' description and correctly brought the complaining witness to the scene to confirm whether the suspects were involved in the robbery. Id. at 77. The court also found that the identification was proper and that the police had probable cause to arrest petitioner once the complaining witness identified the suspects as the men who robbed him. Id. at 78. The court further held that the knife was properly seized since it was in plain view and would have been recovered in any event pursuant to an inventory search of the vehicle. Id. at 78-79. The court did, however, suppress petitioner's statement because it was made without Miranda warnings. Id. at 79.
After the first trial of petitioner and co-defendant Dwayne Bryan resulted in a hung jury, a second jury trial commenced on April 7, 2000. Besides Officers O'Connor and Antoniello, Robert Vargas also testified.
Robert Vargas testified that on May 11, 1998, at approximately 10:50 p.m., he was returning from night school to his home in Corona, Queens. Transcript of trial commenced on April 7, 2000 ("Tr.") at 689-92, 752-54. As he walked southward along 111th Street and neared the intersection of 49th Avenue, two African-American men approached him and demanded money. Id. at 692-93, 701, 740-41. He had first noticed the two men when they were about 20 feet in front of him. Id. at 693. One man was about 5'7" or 5'8" with some facial hair, while the other man was about six feet tall. Id. at 693-94, 727-28, 765. Vargas identified the shorter man as petitioner and the taller man as co-defendant Bryan. Id. at 695. When petitioner came within an arm's length away from Vargas, petitioner pulled out a knife, while Bryan walked around to Vargas' side, slightly to the back. Id. at 694, 696-98. Two other African-American men stood on the corner of 49th Avenue, about 15 to 20 feet away. Id. at 701-02, 718, 722-23.
Although Vargas told the men that he had no money, petitioner felt Vargas' front pockets. Id. at 697, 742. As Vargas removed his wallet from his back pocket to show them that he had no money, Bryan grabbed the wallet and took out about $8. Id. at 698-700. Bryan tossed the wallet to Vargas after Vargas asked for his papers back. Id. at 700.
Vargas testified that the incident lasted three to five minutes, with petitioner standing in front of him holding a knife upward toward Vargas' face. Id. at 698-99, 703, 748-49. Vargas was nervous during the encounter and did not focus directly on the men because he was looking for an escape route and paying attention to the knife. Id. at 742-43, 745, 772, 803. Vargas estimated that the nearest street light was approximately 12 feet away, but the lighting "was pretty good." Id. at 693, 743.
Because the two men who robbed him and the two other men remained in front of him at the corner of 111th Street and 49th Avenue, Vargas crossed 111th Street to go home. Id. at 701-02, 746-47. After Vargas crossed 49th Avenue, he saw the men run from behind him west on 49th Avenue to get into a sky blue Ford Taurus, parked about 15 feet from the corner where Vargas was. Id. at 703-05, 721-22. Vargas wrote down the license plate number of the car: "K363Z6." Id. at 705-06, 771-72, 802.
A few minutes later, Vargas called 911 and told the operator that he had been robbed at knife point by four black men in their late teens to early twenties, who fled in a 1993 or 1994 sky blue Ford Taurus, with the license plate number K363Z6. Id. at 687, 706-07, 723-25. The police arrived about 5 minutes later. Id. at 707. Vargas then rode around in a police van for 20 to 40 minutes looking for the suspects. Id. at 707, 739, 777.
At approximately 11:05 p.m., Officer Antoniello received a radio transmission that a robbery was in progress. Id. at 584. After first going to the scene of the crime, Officer Antoniello began canvassing the area for the suspects. Id. at 584-86, 613. At approximately 11:25 p.m., while traveling westbound on Corona Avenue, Officer Antoniello saw a blue Ford Taurus traveling eastbound on Corona Avenue, which had a license plate number beginning with "K36". Id. at 587-89. When he pulled the car over, he noticed that its license plate number was "K363ZS." Id. at 589-92. Petitioner was driving the car, co-defendant Bryan was riding in the front seat and Supreme Clark was sitting in the back. Id. at 590, 592-93. The three men in the car exited the vehicle at Officer Antoniello's request. Id. at 591-92. Officer Antoniello testified that petitioner had a beard and a mustache at the time. Id. at 670.
At approximately 11:20 p.m., Officer O'Connor went to the car stop in response to a radio transmission that a car believed to be involved in a robbery was stopped at National Street and Corona Avenue. Id. at 559-60. As he looked inside the car through the open front passenger door, Officer O'Connor observed a knife in the front passenger seat, which he retrieved and gave to Officer Antoniello. Id. at 561, 594, 631.
Approximately 5 to 10 minutes later, Vargas arrived at the car stop in a police van. Id. at 593. The officers in the van with Vargas told him that "they thought they probably have the people who did it." Id. at 707-08, 777. Upon his arrival at the car stop, Vargas recognized the car as the one the robbers drove by its model and color. Id. at 708. Vargas told Officer Antoniello that he was surrounded by four men who robbed him, two of whom wielded knives.*fn3 Id. at 618-19, 657. Officer Antoniello pointed to the suspects and asked Vargas whether those were the men who robbed him and what role each man had played in the robbery. Id. at 603, 631. Vargas immediately identified petitioner as the shorter man, co-defendant Bryan as the taller man and Supreme Clark as one of the men standing on the corner. Id. at 592, 694-95, 708-09. Vargas, however, testified that he could not identify Supreme Clark by his face and did not see the two men on the corner well enough to describe them other than to state they were black males. Id. at 701, 722-23, 781. When Officer Antoniello showed Vargas the knife seized from the car, Vargas identified it as the one used in the robbery. Id. at 641, 708, 710, 750. However, on cross-examination, Vargas admitted that he could not be certain that it was the same knife. Id. at 750.
Vargas made his identifications approximately 45 minutes after the robbery, while in the van, as the suspects stood about 20 to 30 feet away, surrounded by four to eight police officers. Id. at 572, 662-63, 707-08, 776, 780, 786, 788-89. Officer Antoniello testified that there was good lighting on the street from both the street lamps and the lights from the police cars, but that the nearest street light to the suspects was 30 to 40 feet away. Id. at 611-12, 629, 673; see also id. at 716.
At the precinct, Officer Antoniello recovered $35 from Bryan. Id. at 604, 607-08, 635-40, 787. While Officer Antoniello conceded that there was no way to know if the $8 in Bryan's possession was the same cash that was taken from Vargas, Vargas identified the cash as his money. Id. at 636-40, 787.
The jury convicted petitioner of all the counts, except for criminal possession of stolen property, and acquitted ...