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John v. Griffen

United States District Court, S.D. New York

February 28, 2014

RANDALL JOHN, Petitioner,

SOUTHPORT CORRECTIONAL FACILITY, Pine City, New York, Randall John, Pro Se, Petitioner RANDALL JOHN, Pro Se.



ROBERT W. SWEET, District Judge.

Petitioner Randall John ("John" or "Petitioner") has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his federal constitutional rights by respondent Superintendent Green ("Green" or the "Respondent"). For the reasons set forth below, Petitioner's motion is denied.

In this application for a writ of habeas corpus, Petitioner alleges (1) that he was denied due process of law because of an unduly suggestive show-up identification; (2) that the trial court improperly permitted a lay witness to provide expert testimony regarding cell phone site data; (3) that Petitioner was deprived of due process when the trial court allowed the jury to view a video of his co-defendant's arrest; and (4) that his sentence was excessive.

I. Prior Proceedings

Petitioner's state custody arises from a judgment of conviction entered on July 9, 2009, in the New York County Supreme Court following a jury trial of Robbery in the First Degree (New York Penal Law "Penal Law" § 160.15(2)), Robbery in the Second Degree (Penal Law § 160.10(1)), two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03(2)), and Criminal Possession of Marijuana in the Fifth Degree (Penal Law § 221.10). The court sentenced Petitioner to an aggregate term of imprisonment of fifteen years, to be followed by five years of post-release supervision.

On November 17, 2011, the Appellate Division, First Department, affirmed Petitioner's conviction, see People v. John, 89 A.D.3d 552 (2011), and leave to appeal to the New York Court of Appeals was denied on February 2, 2012, see People v. John, 18 N.Y.3d 925 (2012).

On February 5, 2013, Petitioner submitted a writ of habeas corpus. On July 8, 2013, Petitioner requested an extension until September 11, 2013 to file his brief, which was granted. The Petitioner's motion was heard on submission and marked fully submitted on October 23, 2013.

II. Facts

Petitioner's underlying conviction arises out of a robbery committed on July 25, 2008.

A. The July 25, 2008 Underlying Robberies and Subsequent Arrests of Petitioner and Co-Defendant Levon Pratt

On July 25, 2008, at about 8:50 p.m., Police Officer Asim Sheikh ("Sheikh") was on patrol in the vicinity of Dyckman Street and Tenth Avenue in Manhattan. (Pre-Trial Hearing Transcript, "H."; 14-18, 24-25, 35.) As he turned onto Tenth Avenue, Sheikh saw Levon Pratt ("Pratt") urinating while standing by a tan Yukon sports utility vehicle. (H. 18-20, 32, 35-36, 45-46.) The Yukon had a vanity license plate "BRYAN" and, displayed in the rear window, a temporary license plate issued by either Virginia or Tennessee. (Trial Transcript, "T."; 35-37, 40-41, 47-51, 58-59, 64, 70, 72-73, 75.) Sheikh pulled over and asked Pratt what he was doing there, and Pratt replied that he was waiting for his aunt, who lived in a housing development across the street. (H. 18-21, 36-37, 54.) Sheik approached the vehicle and saw Petitioner sitting in the front passenger seat. He asked Petitioner to lower the car's stereo, which was playing loudly. (H. 21-22, 33, 37, 54-55.) Sheikh then issued Pratt summonses for public urination and excessive noise. (H. 21-24, 36-39, 46-56.)

At roughly the same time, Kental Shillingford ("Shillingford") was leaving the Harlem apartment he shared with his parents and grandmother, and took a livery cab to the vicinity of Academy Street and Sherman Avenue in Washington Heights to buy marijuana.[1] (T. 77-85, 89-90, 149-50, 154-55, 180-85, 216-17, 220-22.) Shillingford smoked marijuana about every other day, but had not done so that day. Typically, he bought marijuana in his neighborhood but, "once or twice every couple of weeks, " he went to Washington Heights to purchase a "high grade" marijuana known as "Haze." (T. 85-88, 113, 159.) Although Shillingford intended to buy only $40 to $50 worth of marijuana, he took about $520 or $530 in cash because, later that night, he intended to go out to celebrate his brother's birthday. (T. 90, 152, 155, 159, 217-19, 222-23.)

At around 9:20 p.m., Shillingford arrived on Sherman Avenue near Academy Street, and looked for a dealer from whom he had previously purchased marijuana, but could not find him. (T. 91-92, 179-80, 204.) He then walked to Academy Street, between Sherman and Post Avenues. Although he had not bought marijuana there before, Shillingford had seen people gathered outside a building on the street, and suspected that they were purchasing drugs. (T. 91-93, 152-54.) Shillingford entered the lobby of 584 Academy Street, which was about 10 by 15 feet in size. (T. 93-94, 113, 185-86, 190-93.)

There Shillington saw two Hispanic men talking to Petitioner, a tall African-American man with "dark brown" skin who wore a black t-shirt. (T. 94-95, 168, 204-05.) The lobby was "decent[ly]" lit and Shillingford had no difficulty seeing the mens' faces. (T. 99.) Petitioner was holding a "big" bag of marijuana that would have cost between $400 and $500. (T. 96, 157-59.)

For about two or three minutes, Shillingford waited on the far side of the lobby. He was not paying close attention to the conversation, although he overheard one of the men say something to the effect of "that's the same thing from yesterday." (T. 95-99.) Eventually, the "tone" of the conversation turned "mean" and Petitioner began to raise his voice. (T. 99-100, 189-90.) Shillingford saw that Petitioner had a black pistol in his hand. (T. 100.) Petitioner pointed the gun at Shillingford and ordered him to come across the lobby. (T. 100-01, 187-89, 216.)

When Shillingford complied, Petitioner told him and the other men to "empty [their] pockets" and "get down the floor." Shillingford handed Petitioner his cell phone and about $520 or $525 in cash; the two men also handed Petitioner their cell phones. (T. 101-02, 178-79, 196-98, 213.) Shillingford got down on the floor and heard people coming down a stairwell that emptied in the lobby. Petitioner then ordered the victims to stand up. (T. 102, 107, 190, 196-201.)

When Shillingford stood up, he saw Pratt standing directly in front of him; he was wearing a red t-shirt and was a "little lighter skinned" and "stockier" than Petitioner. (T. 103-04, 107-08, 168.) Shillingford had an unobstructed view of Pratt's face. (T. 104.) Pratt told Shillingford, "[G]ive me everything you got, " and tapped Shillingford's pockets[2]. (T. 104, 168-69, 209.) Pratt pulled his hand halfway out of his right pants pocket and was holding "something shiny [and] silver." Shillingford was "99 percent sure" that Pratt was displaying the top of a gun[3]. (T. 104-05, 173, 207.) Petitioner held his gun behind his back as three or four people came down the stairs and passed through the lobby, and then walked out of the building with Pratt. (T. 107-09, 213-14.)

The victims followed Petitioner and Pratt outside as they got into a "light-colored" Yukon with a black license plate with white lettering that spelled out "BRYAN."[4] (T. 110-20, 134-35, 159-65, 214.) Shillingford and the other men chased the SUV as it drove onto Academy Street and then onto Post Avenue. A video camera mounted on Academy Street recorded the Yukon driving by and Shillingford and two men running in pursuit. (T. 116-17, 130-33, 208-09; People's Exh. 5 [video].) At Post Avenue, the other victims gave up the chase, but Shillingford continued to run to Dyckman Street, where he flagged down a livery cab. (T. 117, 120-22, 130.)

The Yukon was still in sight, and Shillingford asked the driver to follow the Yukon and to call the police. (T. 121, 135, 173-75.) In the cab, Shillingford followed the Yukon toward the FDR Drive. He lost sight of the Yukon for "about two seconds" as it had turned onto Post Avenue and for "three or four" seconds as it had turned onto Dyckman Street, but otherwise had the Yukon in view from the time he saw the SUV outside 584 Academy Street. (T. 116-17, 122, 125-26, 130-31, 179, 214-15, 245-46.)

At about 9:40 p.m., Passarella was conducting a traffic stop on Harlem River Drive near Dyckman Street when Kental Shillingford ran up to him and said that he was "just robbed" at gunpoint by two black men. (H. 64-66, 90-94, 100, 105-09.) Shillingford pointed to a light-colored SUV about 45 feet away that was turning south onto Harlem River Drive. (H. 65-68, 93-94, 117-18, 122-27.) Passarella got in his marked police car and began to pursue the Yukon, while radioing for additional units. (H. 67-70, 95-96, 110.)

Officer Passarella never lost sight of the Yukon as he followed it south. He began his pursuit 100 to 200 hundred yards behind the Yukon, and closed to within six or seven car lengths. (T. 246-48, 279-80, 291, 309-10, 330-31.) The Yukon had a vanity license plate "BRYAN" in white lettering on a black background. (T. 279-80.) Between "the 60s" and "the forties, " two more police cars joined the pursuit. While still "in the forties, " the officers turned on the emergency lights and sirens of their cars and, over his car's "PA system, " Passarella ordered the suspects at least three times to exit the highway at the 34th Street off-ramp. (T. 249-52, 291-92, 303, 330, 343-45.) Instead, the suspects continued south with Passarella continuing to direct them to exit the highway. The Yukon exited at the "23rd Street" off-ramp and pulled over on East 25th Street. (T. 252-53, 291, 304, 332.) A video of the pursuit, which was captured by the camera in Passarella's car, was played for the jury. (T. 283-90; People's Exh. 14 [video].) Petitioner did not object to the video being entered into evidence. (T. 285.)

By the time the Yukon pulled over, about eight to ten minutes had passed since Shillingford had first approached Passarella. (H. 82.) Several police officers got out of their cars and ordered the occupants to exit the Yukon. (H. 71-72, 76-78, 110-11.) Passarella and another officer removed Pratt from the driver's seat; Pratt was wearing a red shirt and khaki shorts. (T. 253-54; People's Exhs. 8 [photograph of Pratt] and 14.) Two other officers removed Petitioner from the front passenger seat; Petitioner was wearing a black shirt and blue jeans. (T. 254-55; People's Exh. 9 [photograph of Petitioner].)

Officers handcuffed and frisked the suspects for weapons. (H. 78-80, 101, 111-12.) After searching Petitioner, Passarella recovered $446 in cash from Petitioner's right jeans pocket, and a wallet containing $106 in Petitioner's left jeans pocket. (T. 259-61, 265-66, 305-08, 379-81, 470-72, 653-56, 668-70; People's Exh. 19 [currency].) Passarella then radioed the Highway division's dispatcher, reported that the officers had "stopped the vehicle, " and asked that the 34th Precinct be advised to bring Shillingford to East 25th Street. (H. 80-82, 116.)

During this time in Washington Heights, Shillingford had found a "call box" on Tenth Avenue and called 911. (T. 126-27, 137-39; People's Exh. 6 [911 tape].) About five minutes later, police officers Franny Nunez ("Nunez"), Nerys Ramirez ("Ramirez"), and Anthony Pinzone ("Pizone"), arrived. (T. 139-40, 358-61, 382-85, 445-48, 508, 648, 662-65.) Shillingford told the officers that, about 15 to 20 minutes earlier, two black men had robbed him at gunpoint, and taken his cell phone and about $500 in cash. (H. 136-37.) He told the officers that one of the robbers had a black handgun and that one wore a red shirt, (H. 138), and that the men fled in a tan truck with a "unique" black license plate. (T. 390, 448-49, 509, 515, 531-32, 648.)

Nunez radioed his dispatcher to determine what unit was in pursuit and provided the information from Shillingford, including that one of the suspects wore a red shirt and the type of vehicle in which the suspects fled. (H. 138-39, 210-15.) About three or four minutes later, Nunez received a report that suspects had been stopped on East 25th Street and Riverside Drive, and was directed to bring Shillingford there. (H. 139-40, 184-85, 196-98, 211, 214-15.) Nunez told Shillingford that a vehicle had been stopped at East 25th Street and asked if Shillingford would accompany them to see if he could identify the occupants[5]. (H. 140, 184-86, 199-200, 216-21.)

Shillingford got in the back of the patrol car, and Nunez and Ramirez drove him to East 25th Street, arriving about 10 minutes later. (H. 140-41.) During the drive, the police radio was on, but Nunez received no further reports about the incident and did not recall any conversation with Shillingford. (H. 141-42, 178, 201-03, 210-11.)

As they drove down the off ramp where the Yukon was parked, Shillingford spontaneously said, "[O]h that's the car, that's the car." (H. 142, 187-88.) At this point, it had been about ten minutes since the officers had pulled over the Yukon and 18 to 20 minutes since Shillingford had first approached Officer Passarella. (H. 82-83, 103, 113.) Nunez pulled up about 15 to 20 feet away from where Petitioner and Pratt were standing. (H. 145). Passarella and "[p]ossibly one other officer" stood with the suspects. No one was holding onto the suspects, and none of the officers in the area had a gun drawn. (H. 83-85, 101, 114-15, 143-45, 188.)

Petitioner and Pratt were facing the patrol car "head on" and there were no obstructions between them and the patrol car. The area was "well lit" by streetlights and headlights, and Officer Nunez could clearly see their faces. (H. 84-85, 146, 193.) At about 9:50 p.m., either Nunez or Ramirez asked Shillingford if those were the men who had robbed him. Shillingford "duck[ed] down" behind the seat in front of him and said, "[Y]es.. those are [the] guys that robbed me."[6] (H. 147-50, 177-78, 188-89.)

Passarella and Ramirez searched the Yukon and noticed that an odor of marijuana permeated the vehicle. From the top of center console between the front seats, Ramirez removed a plastic cup holder. Inside the console were two bags of marijuana. (T. 265-79, 306-07, 325-28, 369-76, 385-87, 392, 397-98, ...

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