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Cherry v. Walsh

August 25, 2009


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



Gamel A. Cherry, a prisoner incarcerated in the Sullivan Correctional Center, petitions for a writ of habeas corpus under 28 U.S.C. § 2254, seeking relief from a judgment of the New York State Supreme Court, Kings County. After a jury trial, Cherry was convicted of first degree felony assault for opening fire on two undercover police detectives. Appearing pro se, Cherry contends primarily that his conviction was based on an impermissibly suggestive lineup. He also challenges the sufficiency of the evidence that any assault was committed "in furtherance of" criminal possession of a weapon, as required for the jury to convict him of felony assault. Oral argument, at which Cherry appeared by teleconference, was held on August 21, 2009. For the reasons set forth below, the petition is denied.


A. The Offense Conduct

Cherry's conviction resulted from a gun buy-and-bust that went wrong. Detective John Robert, an officer assigned to the NYPD's Firearms Investigation Unit, was introduced by a confidential informant to Edward Moultrie. Posing as a buyer from Manhattan, Robert agreed with Moultrie by telephone to purchase four semi-automatic guns for $3,000. The two agreed to meet on the evening of May 22, 2002 outside Junior's Restaurant in Downtown Brooklyn, at the corner of Flatbush Avenue and DeKalb Avenue.

Neither arrived at the appointed meeting place alone; Robert was accompanied by his partner, Detective Arthur Marquez, while Moultrie brought Kevin Langston. Neither Moultrie nor Langston had the guns, but Langston said they were nearby. Langston and Moultrie got into the detectives' car, and Robert drove the four men further into Brooklyn at Langston's direction. On the way, the four discussed, among other things, Junior's famous cheesecake. Tr. 690.*fn1

After fifteen minutes or so, Langston told Robert to stop the car opposite the entrance to a residential building at 301 Sutter Avenue in Brownsville. Tr. 552. Langston then said: "Okay, give me the money, I'll be right back." Id. Robert replied: "Go get the guns, bring them down here, and after we look at them, I'll give you the money." Tr. 553. Langston, unhappy with this answer, again proposed that he take the money and return with the guns. Id. Again, hoping to make a firearms case, Robert refused to part with any money before seeing the weapons. Langston then entered the building, leaving the other three men outside.

Langston, it appears, had no intention of consummating a bilateral commercial transaction. On home turf deep in the heart of Brooklyn, he and his associates apparently thought they could get something for nothing from these putative buyers from Manhattan. After emerging from the building, Langston again demanded the money up front, claiming that he would soon return with the guns. This, he said, was the way things worked in Brooklyn. For the third time, Robert refused to hand over any cash without seeing the weapons.

Langston then proposed that the exchange take place inside the building. Tr. 559. Along with Moultrie, he took the undercover detectives indoors, and brought them up to the sixth floor hallway. Despite his prior assurances, Langston refused to produce the merchandise without cash in hand. And yet again, the detectives declined to part with the money in those circumstances. Tr. 562. Frustrated, Langston left the hallway ostensibly to discuss the matter with others, only to return with the same stale proposal.

At this point, Cherry appeared from the stairwell. He sang a familiar tune: "This is how we do business here, just give us the money, we're going to go right downstairs and come right back with the guns." Tr. 567. True to form, the detectives demurred. Cherry then asked the detectives for identification; Marquez produced a fake driver's license. After inspecting the license, Cherry said: "Okay, we're going to do this, you are going to get what you came here for." Tr. 571. Cherry went back into the stairwell.

About five minutes later, three men emerged from the stairwell. The detectives later identified these three men as Cherry, Ralph Wyman and Skyler Brownlee. All three were armed, and each opened fire on the undercover detectives. The supposed sellers, it appears, had decided give up the pretense, and tried to rob the buyers in a more forthright fashion. The detectives, however, returned fire, and fled the building when the shooting stopped. Marquez was shot in his left hand, and ultimately retired from the NYPD as a result of the injury. Langston, Wyman, Moultrie, and Leonard Barber also sustained gunshot wounds. Moultrie's injuries left him paralyzed from the waist down.

B. The Investigation and Lineup

Detective Leonard Cocco of the 73rd Precinct Detective Squad was assigned to investigate the case. Cherry became a suspect early in the investigation when Brownlee named "Mel-Mel" as one of the people involved in the shooting and identified Cherry as "Mel-Mel" from a photograph. H. 36-37, 54-56.Cocco disseminated "wanted" posters of Cherry to police precincts throughout north Brooklyn and Queens. H. 96. Additionally, at Cocco's behest, Cherry's picture was published in a newspaper in late May or early June. H. 104-05.

On June 28, thirty-seven days after the shooting, Cherry was arrested by Cocco at a hotel in Queens and taken to the 73rd Precinct. Tr. 875-76. There, Robert and Marquez each picked Cherry from a lineup as one of the men who had opened fire on May 22. Tr. 582, 729.

C. Procedural History

1. The Trial Proceedings

Cherry was charged in New York Supreme Court, Kings County, with attempted murder (two counts), assault in the first degree (two counts), criminal possession of a weapon in the second and third degrees, and criminal sale of a firearm in the third degree. Cherry entered a plea of not guilty to all the charges. Cherry and Langston were tried jointly with separate juries.

Before the trial, Cherry moved to suppress the undercover detectives' identification testimony, contending that the detectives must have seen Cherry's picture before the lineup, and that the lineup was therefore unduly suggestive and violated his right to due process. The trial judge, Justice Gerges, conducted a Wade hearing before ruling on the motion to suppress. See Wade v. United States, 388 U.S. 218 (1967). On cross-examination, Detective Cocco testified that the poster of Cherry was distributed widely in the period between the shooting and the lineups, and conceded that he had seen Detectives Robert and Marquez during the course of the investigation. H. 96, 99. Cocco denied, however, that he had ever shown either of the undercover detectives a picture of Cherry. H. 104. He also stated that, before the lineup, he ensured that no posters of Cherry were on display in the 73rd Precinct. H. 105.

In light of Cocco's testimony, Cherry's counsel asked the court for permission to call Detectives Robert and Marquez to inquire whether either saw a photograph of Cherry before the lineup. H. 147. New York law grants defendants only a limited right to call witness at a Wade hearing. See People v. Chipp, 75 N.Y.2d 327, 337 (1990) ("any right of compulsory process at a hearing may be outweighed by countervailing policy concerns, properly within the discretion and control of the hearing Judge"). When considering the request, the trial judge therefore asked for specific evidence that the undercover detectives had seen photographs of Cherry, to which Cherry's counsel responded: "[C]ommon sense tells me that if those photographs were out, that they were involved in this particular case, nobody told them not to look at those photographs, that being human beings that they probably looked at the photographs." H. 156. The trial judge deemed this line of inquiry "speculative," and denied Cherry's counsel the opportunity to call the detectives on that basis. H. 148.

The hearing court then denied Cherry's motion to suppress the identification testimony, concluding that "[t]he identification procedures conducted here were in accordance with constitutional mandates." H. 215-16.

At trial, Cherry's counsel admitted that Cherry was present at 301 Sutter Avenue, and had participated in the failed attempts to trick Robert and Marquez into handing over the money, but claimed that Cherry left the scene before the shooting started. Tr. 1162-63. The undercover detectives, however, testified that Cherry was one of the shooters, and that they had each picked him out of a lineup.

On July 29, 2003, the jury acquitted Cherry of the attempted murder charges and found him guilty of felony assault in the first degree.*fn2 The trial court adjudicated Cherry a second violent felony ...

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