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Gray v. Ercole

November 25, 2008


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


Darryl Gray, currently incarcerated in Green Haven Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking relief from his conviction in New York State Supreme Court of nine counts of robbery in the first degree and one count of criminal possession of stolen property in the fifth degree. Gray alleges that the trial judge erroneously failed to suppress certain identification evidence and that his trial counsel was constitutionally ineffective for failing to investigate an alibi defense. For the reasons stated below, Gray's petition is denied.


A. The Crimes and the Investigation

The government's evidence at trial established that during December 2000 and January 2001, a suspect described by witnesses as a black male standing approximately 6'4" tall and weighing roughly 250 pounds committed a series of robberies in Queens. Witnesses also stated that the man wore a green coat and black pants and carried a knife.

On January 4, 2001, at approximately 7:45 P.M., Detective James Conlon received a police radio call stating that a woman had been robbed by a 300-pound black man in a brown jacket, brown pants, and a brown cap. Because the call indicated that the suspect may have fled in the direction of the number 7 subway train, Conlon proceeded to the Roosevelt Avenue subway station and held the train there. During his search of the train cars, Conlon saw petitioner Darryl Gray, a black male who was approximately 6'4" tall and 220 pounds and was wearing a green jacket. Conlon did not see anyone else matching the description of the robber, and he asked Gray to get off the train. While doing so, Gray reached into his jacket, at which point Conlon grabbed Gray's hand and reached into Gray's jacket pocket, where he found a knife.*fn1 Conlon then handcuffed Gray.

Gray was taken to the station house, where Detective Paul Heider read him his Miranda warnings. Gray stated that he understood the warnings and signed a statement to that effect. Heider told Gray that if he discussed the robberies, Heider would present the information involving all nine robberies to the district attorney in a single package. Gray waived his rights and told Heider of his involvement in the robberies. Gray also rode with Heider to four locations where robberies had been reported and admitted that he had robbed women in those locations at knifepoint. He also told Heider that he began to commit the robberies in mid-December, after losing his job. The police then conducted a series of line-ups, in which all six victims in attendance identified Gray as the man who had robbed them.

On February 3, 2003, Queens County Supreme Court Justice Robin Dunlop began a suppression hearing to determine whether any of the statements, identifications, or physical evidence implicating Gray had been obtained illegally. Justice Dunlop ruled that the physical evidence had been seized pursuant to a lawful arrest, that Gray's statements were made after a knowing and voluntary waiver of his Miranda rights, and that the identification procedures were not impermissibly suggestive or otherwise unlawful. Gray's motion to suppress was therefore denied in its entirety.

At a trial beginning on June 2, 2003, victims of nine robberies testified that they were robbed by Gray. The government also introduced a video surveillance tape of the January 4, 2001 robbery, the ring and the two-dollar bill allegedly taken during that robbery and found on Gray at the time of his arrest, evidence of the line-up identifications, and the statements Gray made to Detective Heider. Gray presented no evidence at trial. On June 23, 2003, a jury found Gray guilty of nine counts of first-degree robbery and one count of fifth-degree criminal possession of stolen property. Gray was ultimately sentenced, in the aggregate, to a fifty-year term of imprisonment.

B. Appeal and Collateral Proceedings

On appeal, Gray filed a counseled brief arguing that his suppression motion was improperly denied. He argued that Officer Conlon did not have reasonable suspicion to order Gray off the train because he did not match the description transmitted in the January 4 radio call and because the description of the serial robber was overly vague. Gray also filed a pro se brief arguing that his trial counsel was constitutionally ineffective because she failed to investigate the possibility that his subway Metrocard or his employer, Lodell's Restaurant in Manhattan, would provide alibi evidence.

The Appellate Division affirmed Gray's conviction, finding that Detective Conlon had reasonable suspicion to detain and search Gray "based upon, inter alia, the contents of a police dispatcher's radio broadcast providing a general description of the perpetrator which matched the description of the defendant, information that the detective had regarding a series of robberies with a similar pattern, and the short passage of time between the commission of the crime and the observation of the defendant." People v. Gray, 825 N.Y.S.2d 746, 746 (2d Dep't 2006). It declined to review Gray's ineffective assistance claim because it was "based on alleged facts dehors the record." Id. The Court of Appeals denied Gray leave to appeal on May 9, 2007. People v. Gray, 8 N.Y.3d 984 (2007). On August 4, 2008, Gray filed the instant petition for a writ of habeas corpus in this Court.


A. Review of State Court Adjudications ...

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