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Armsworth v. Graham

November 27, 2007

KEITH ARMSWORTH, PETITIONER,
v.
HAROLD GRAHAM, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY RESPONDENT.



The opinion of the court was delivered by: John Gleeson, District Judge

FOR ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

Keith Armsworth, a prisoner incarcerated in the Auburn Correctional Facility pursuant to a judgment of the New York State Supreme Court, Queens County, petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Warren challenges his conviction following a jury trial of two counts of robbery in the first degree, four counts of robbery in the second degree, one count of criminal possession of stolen property in the fourth degree, and one count of criminal possession of stolen property in the fifth degree. He seeks habeas relief on the three grounds discussed below. For the reasons set forth below, the petition is denied.

BACKGROUND

A. The Offense Conduct

The government's evidence at trial established that just after midnight of March 9, 2002, Victor Budhoo and his friend Ramarine Singh were leaving the Golden Arrow Bar on the corner of 101st Avenue and 108th Street in Queens. They were approached by four or five men, including Armsworth. Armsworth struck Budhoo on the head with a baseball bat as one of Armsworth's accomplices stole Budhoo's wallet from his pocket. Armsworth and his accomplices then surrounded Singh and demanded that he turn over his wallet to them. Singh refused, and Armsworth hit Singh on the head with the baseball bat three times before taking his wallet and cell phone and fleeing the scene.

Budhoo and Singh got into Singh's car and pursued Armsworth and his accomplices. On 108th Street they encountered a marked patrol car. They told Police Officers Mastrande and Fox what had just occurred. The officers led Budhoo and Singh back to the scene of the crime, where Singh provided them with Armsworth's direction of flight as well as a description of him ("a male black, dark skin, wearing dark clothing"). Mastrande and his partner went looking for the robber and spotted Armsworth, who fit that general description, about three-quarters of a block from the scene. Upon spotting the police, Armsworth veered into a driveway. The police promptly detained him for a show-up. Singh was brought to the location, and he positively identified Armsworth as the perpetrator. Armsworth was arrested, and a search of his person yielded Singh's credit card, cell phone, over a hundred dollars in cash, and an imitation silver firearm. Later that morning, Officer Rottas spoke to Armsworth and advised him of his Miranda rights. He waived his rights, and thereafter admitted in a written statement that he was at the scene of the robbery but did not participate in the robbery or assault of the victims.

B. The Procedural History

1. The Trial Court Proceedings

Armsworth was charged in an indictment with two counts of robbery in the first degree, four counts of robbery in the second degree, one count of criminal possession of stolen property in the fourth degree, and one count of criminal possession of stolen property in the fifth degree. Armsworth moved to suppress the identification testimony, the physical evidence recovered from the search, and Armsworth's written statement. A hearing was held, after which the hearing court denied his motion, finding that the police had reasonable suspicion to detain Armsworth for a show-up, that the search was incident to a proper arrest (supported by probable cause once Singh identified Armsworth), and that he had knowingly and voluntarily waived his Miranda rights.

The jury found Armsworth guilty on all counts, and on December 2, 2003, he was sentenced as a second felony offender to concurrent prison terms of fifteen years on each of the first degree robbery convictions, ten years on each of the second degree robbery convictions, two to four years on the fourth degree criminal possession of stolen property conviction, and one year on the fifth degree criminal possession of stolen property conviction.

2. The Direct Appeal

On appeal to the Appellate Division, Second Department, Armsworth argued that (1) he was denied due process because the police lacked reasonable suspicion to detain him for the show-up; (2) his guilt was not proven beyond a reasonable doubt and the verdict was against the weight of the evidence; and (3) the prosecutor, during summation, improperly equated mere presence with guilt under an acting in concert theory. On March 14, 2006, the Appellate Division affirmed the convictions, holding that under the totality of the circumstances, there was reasonable suspicion to detain Armsworth and that the show-up was not unduly suggestive. People v. Armsworth, 813 N.Y.S.2d 100, 101 (2d Dep't. 2006). The court found Armsworth's remaining two contentions to be unpreserved for appellate review and without merit. Id. Armsworth sought leave to appeal, and the New York Court of Appeals denied that application on June 14, 2006. People v. Armsworth, 7 N.Y.3d 752 (2006) (Read, J.).

3. The Instant Petition

In the instant petition, dated August 31, 2007, Armsworth seeks relief on the same grounds he ...


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