The opinion of the court was delivered by: David G. Trager United States District Judge
Petitioner was convicted of three counts of robbery in the first degree in New York State Supreme Court, Kings County. Petitioner files this pro se petition for a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254 (2000), to vacate his judgment of conviction. For the following reasons, his petition is denied.
Petitioner was tried at a jury trial for two robberies in October and November 1999. The evidence presented at trial supports the following statement of facts.
On the morning of October 21, 1999, petitioner, his co-defendant, Yamani Ravenell, and another accomplice, who was never arrested or identified, robbed the cashier, Blas Taveras, at a bodega in the Bedford-Stuyvesant neighborhood of Brooklyn, New York. Petitioner aimed a pistol at Taveras and asked him to render all the money in the bodega to him. Petitioner, Ravenell and their accomplice took the money from the cash register, several packs of cigarettes and an envelope containing more than $700 for rent. None of the robbers wore masks, and Taveras had an unobstructed view of petitioner's face.
About one month later, on the evening of November 26, 1999, a surveillance camera recorded two men wearing masks and hoods robbing a bodega four blocks north of the one that petitioner robbed on October 21. The robbers ordered the cashier, Carlos Tejada, to empty the cash register and give them the money. When Tejada could not open it, the robbers escaped with the unopened register, cash that was hidden in a refrigerator under the cash register and money they took from Tejada and from the owner of the bodega, Nelson Cuevas. Police officers arrived at the bodega in time to witness the robbers running to a Chevrolet Monte Carlo parked around the corner from the bodega. Before the robbers could drive away, they were blocked by a police car. The robbers quickly exited the car and ran away from the police, who chased them down the block and arrested one of them in the yard of a house down the street from where the car was parked. The robber the police apprehended was dressed in a black sweatshirt with a hood. He was later identified as petitioner. The police also found a handkerchief near petitioner and a yellow sweatshirt in a yard nearby. The driver of the Monte Carlo was also arrested and identified as Ravenell. The other robber escaped. The cash register from the bodega was found in the back seat of the car.
Ravenell and petitioner were brought back to the bodega in custody. There, the police asked Tejada and Cuevas if they recognized either of them. Neither Tejada nor Cuevas recognized Ravenell, but they both identified petitioner by his build and attire. They did not recognize his face because he had worn a mask during the robbery.
The next day, the police placed petitioner in a lineup with four "fillers." Because petitioner was the only man in the lineup to wear braids, the police had all the participants wear hats. Petitioner chose his hat and identification number. He chose the only red hat. The police then escorted Taveras into the viewing area, and he quickly identified petitioner as one of the men who robbed the bodega on October 21, 1999.
At a pretrial hearing, petitioner claimed that the lineup at which Taveras identified him was suggestive because there were only five participants, instead of six, and, of the five lineup participants, he had the lightest skin, was the youngest, and was the only one to wear braids. The hearing court declined to exclude the identification evidence, holding that the identification was not suggestive. In particular, the court found that the police avoided suggestion by using fillers who were similar to petitioner and by taking adequate measures, like hiding any distinctive hair styles under hats, to moderate the differences between petitioner and the fillers. Joint Mapp/Wade/Dunaway Hr'g Tr. 561-62. The court also refused to exclude evidence that the witnesses to the robbery on November 26 recognized petitioner by his clothing, build, and hair. The court held that such testimony did not amount to an identification and, thus, the State need not give notice of its intention to elicit it under section 710.30 of New York State Criminal Procedure Law. See N.Y. Crim. Proc. Law § 710.30 (requiring notice to be given when the State intends to offer testimony at trial regarding the observation of a defendant at the crime scene by a witness who has identified him before trial).
Petitioner was charged with the robberies of Taveras on October 21, and of Cuevas and Tejada on November 26. At trial, Taveras testified in the State's case-in-chief. After testifying about the illumination of the store at the time of the October 21 robbery, he identified petitioner. Taveras also testified about the lineup at which he identified petitioner. The State offered into evidence a photograph of the lineup which included petitioner and all four fillers.
Cuevas and Tejada testified about the November 26 robbery. Cuevas testified that, when the police asked him to identify petitioner, he could not identify petitioner's face but said his clothing and build were similar to those of the man who robbed his store. Trial Tr. 181-82. Similarly, Tejada ...