The opinion of the court was delivered by: Gershon, United States District Judge
Pro se petitioner Awad Ragunauth brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in custody in violation of the Constitution and laws of the United States pursuant to judgment of a court of the State of New York. For the reasons stated below, petitioner's application for a writ of habeas corpus is denied.
On February 10, 2004, following a jury trial in New York Supreme Court, Queens County, petitioner was convicted of two counts of robbery in the first degree, N.Y. Penal Law §160.15(1), assault in the first degree, N.Y. Penal Law § 120.10(1), and criminal possession of a weapon in the second degree, N.Y. Penal Law §265.03. On December 5, 2005, the Appellate Division affirmed the conviction, and, on January 13, 2006, a judge of the New York Court of Appeals denied petitioner's application for leave to appeal. People v. Ragunauth, 24 A.D.3d 472 (2d Dep't 2005), lv. denied, 6 N.Y.3d 729 (2006). On August 16, 2006, petitioner moved to vacate the judgment against him pursuant to N.Y. Criminal Procedure Law § 440.10. On November 28, 2006, the court denied petitioner's motion to vacate the judgment. On February 27, 2007, the Appellate Division denied leave to appeal.
Prior to trial, petitioner filed a motion to suppress his pretrial statement and the identification evidence against him. At a pretrial hearing, New York City Police Department Detective Kevin Meehan testified as to the events leading to petitioner's arrest. On June 7, 2002 at 11:30 p.m., Meehan was assigned to investigate the robbery and shooting of Roman Dualsky that took place on Jamaica Avenue between 256th and 257th Streets. On June 8, 2002 at approximately 1:30 a.m., in the emergency room at Winthrop Hospital, Meehan interviewed Dualsky who described his attacker as a tall and slim Hispanic or Indian male, approximately 19 years of age, wearing all black clothing and a rubber hat. Dualsky told Meehan that he was in pain but he was not on any pain medications.
At approximately 2:15 a.m., at the 105th Precinct, Meehan met with Tinesha Maragh, an eyewitness to the robbery and shooting. Using a force field computer,*fn1 Meehan showed Maragh arrest photos of males fitting the description given by Dualsky. After viewing over 1,000 photographs, Maragh selected a four-year-old photograph of petitioner at age 17, and told Meehan, "that's him, that's the guy who did it." H: 9*fn2. Meehan then printed the photograph and memorialized it by having Maragh sign the back. Because of a computer malfunction, Meehan was unable to preserve the photographs that appeared on the computer screen alongside petitioner's photograph.
At approximately 3:00 p.m., Meehan returned to Winthrop Hospital and interviewed Dualsky who further described the perpetrator as being approximately 5'9" tall and 140 pounds, having a "baby face," and wearing a silver chain and black cap. He never described his attacker as having facial hair. Meehan then showed Dualsky a photo array containing five fillers and a copy of the photograph of petitioner picked by Maragh, all of which had the height, weight, and age of the individuals printed next to their photographs. The filler photos in the array included an 18-year-old, a 20-year-old, a 21-year-old, a 22-year-old, and a 23-year-old. The array listed the 18-year-old's height as 5'1". After viewing the array, Dualsky selected the picture of petitioner stating, "I believe this is the person who robbed me at gunpoint. I need to see him in person to be sure." H: 14, 36.
On June 13, 2002, at the 105th Precinct, Dualsky viewed "several" photos from the force field computer, none of which depicted petitioner; he did not select any photos from the computer. Meehan then showed Dualsky the same photo array he had viewed at the hospital. Dualsky again chose the defendant's picture and said, "that's the guy," and indicated he would like to see him in person. H: 17.
On June 18, 2002, based on the photo identifications by Maragh and Dualsky, Meehan arrested petitioner in the driveway of his home at 94-36 236th Street and transported him in handcuffs to the 105th Precinct. At the precinct, Meehan informed petitioner of the charges against him but did not give petitioner Miranda warnings. When asked where he was on the date and time in question, petitioner stated he didn't know where he was or what he was doing on that date.
On June 19, 2002, at 12:10 a.m., Meehan prepared and conducted a sitting lineup that included petitioner and five fillers. At that time, Meehan knew petitioner was 21-years-old, 5'8" tall, and 120 pounds. Petitioner chose to be number six in the lineup. The second person in the lineup was 6'0" and 230 pounds and the fifth person in the lineup told Meehan he was 5'10" and 185 pounds. Although the prosecution was present at the lineup, defense counsel was not.
Dualsky and Maragh entered the precinct separately, viewed the lineup separately, and had no contact between viewings. Although Maragh asked for petitioner to face the lineup window, she ultimately concluded she did not recognize anyone. Dualsky then viewed the lineup and immediately picked out petitioner stating, "number six, that's the guy that shot me." H: 21. Meehan then took a picture of the lineup.
Following Meehan's testimony at the hearing, defense counsel argued that petitioner's statement and the identification evidence should be suppressed. He argued that the identification evidence should be suppressed because both the pretrial photo array and the lineup were impermissibly suggestive, and the lineup was further tainted by the suggestive photo array. He argued that the photo array shown to Dualsky was suggestive because defendant was the only individual in the array fitting Dualsky's description of the assailant as a tall, thin, Indian, teenaged male, and because it included printed identification information that could have easily been removed. He argued that the fillers in their twenties were inappropriate because they appeared "much, much older than the seventeen year old defendant" and three of them had mustaches and goatees, which the victim never described. H: 51. In addition, he argued the filler in his teens was inappropriate because he was only 5'1" tall. Defendant further argued the lineup was suggestive and tainted by the suggestive photo array. Although defense counsel admitted one individual in the lineup was a perfect filler, he argued the other four appeared to be the wrong age, height, bulk, or ethnicity.
On December 12, 2002, in a written decision, the state court granted petitioner's motion to suppress the pretrial statement but held that, if petitioner elected to testify in his own behalf, the statement could be used on cross-examination. The court suppressed petitioner's statement because Meehan had not given petitioner Miranda warnings before questioning him. However, the court held that the statement was not the product of coercive conduct and could thus be used by the People on cross-examination if petitioner chose to testify.
The court denied petitioner's motion to suppress the identification evidence. In finding the identification evidence admissible, the court held that, considering the totality of the circumstances, the three identification procedures, the computer identification, the photo array, and the lineup, were proper. The procedures were neither unnecessarily suggestive nor conducive to a substantial likelihood of irreparable misidentification. First, the court found Maragh's identification of petitioner after viewing 1,000 photographs was not unduly suggestive because "the large number of photographs and'the nature of the photographs viewed and the scope of the procedure involved militate against the presence of suggestiveness.'" Exhibit M: 8-9*fn3 (quoting People v. Almo, 157 A.D. 2d 608 (1st Dept. 1990), app. den. 75 N.Y. 2d 963).
The court also found there was no police impropriety with regard to the photo array. The court held that "the other photographs in the array strongly resembled the [petitioner] and there were no characteristic or visual clues which would have oriented the viewer towards selecting the [petitioner] as a participant in the crime." Exhibit M: 9. In addition, the court held "that the heights, weights, hairstyles, facial hair, and facial features of the other persons in the array resembled the [petitioner] so closely that the [petitioner's] photo, even with the written information on it, did not stand out in any respect from the others." Exhibit M: 10. The court found the markings indicating the age and physical descriptions of the fillers were "very close" to that of the petitioner. Exhibit M: 10. The court held that the written information next to the photographs would not have "caused the viewer to single out the [petitioner's] photograph for identification." Exhibit M: 10. Thus, considering the totality of the circumstances, the court held the procedures employed regarding the photographic array were not unduly suggestive such that there was a likelihood that defendant would be singled out for identification and were not likely to taint a subsequent in-court identification.
Finally, the court found the lineup was conducted in a fair and impartial manner since the fillers "sufficiently resembled the defendant with respect to their skin tones, age, height, facial and body features" and "they all wore baseball caps in a backwards fashion and looked sufficiently similar." Exhibit M: 11. In addition, petitioner was allowed to select his position for the lineup, and the witnesses were segregated prior to viewing the lineup. Thus, the court found "there was no suggestive behavior on the part of the police that led to the identification of the defendant at the lineup." Exhibit M: 11.
At trial in New York Supreme Court, Queens County, Dualsky, Maragh, Meehan, and Dualsky's doctor testified for the prosecution. The People's evidence showed that on June 7, 2004, at approximately 10:30 p.m., as Dualsky walked home from a Bowling Alley with his girlfriend, Maragh, an armed man approached them demanding Dualsky turn over his valuables. Dualsky initially resisted, telling the assailant he was "making a mistake" and to "forget the whole thing" and "[g]o home " T: 239, 343.*fn4 However, after being shot in the groin, Dualsky handed his wallet containing approximately $200 to the assailant. Dualsky complied with a further demand for the gold chain around his neck. The assailant then shot Dualsky in the right hip and fled. As a result of his injuries, Dualsky spent five days in the hospital and underwent two surgeries.
The only issue at trial was whether petitioner was the assailant. The defense argued that petitioner was misidentified. However, in court, Dualsky identified petitioner as the assailant and testified about his pretrial identifications of petitioner. Dualsky described the scene of the crime as well-lit and said the assailant was facing the street light. During the encounter, Dualsky looked directly at the assailant and could see his face clearly. While he was in the hospital, Dualsky identified petitioner from a photo array but stated that, to be sure, he needed to see the man in person. After his release from the hospital Dualsky went to the precinct to view photographs. Dualsky asked Meehan to see the photo array he was shown in the hospital, and Dualsky again identified petitioner as his assailant. Dualsky subsequently identified petitioner in a lineup.
Maragh testified that, despite recognizing petitioner, she did not identify him during the lineup because she "wasn't sure" it was him and she "didn't want to jeopardize someone [sic] life if [she] wasn't sure." T: 352. In addition, Maragh identified petitioner in court as someone who "looks like" the assailant. T: 352.
The defense called no witnesses.
On February 10, 2004, petitioner was convicted by a jury of two counts of robbery in the first degree, N.Y. Penal Law §160.15(1), assault in the first degree, N.Y. Penal Law § 120.10(1), and criminal possession of a weapon in the second degree, N.Y. Penal Law §265.03. The court sentenced petitioner to concurrent determinate prison terms of 15 ...