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Vasquez v. Laclair

United States District Court, E.D. New York

June 28, 2018



          Ann M. Donnelly, Judge

         The petitioner, Daniel Vasquez, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted in New York Supreme Court, Queens County, of Attempted Robbery in the First Degree, Criminal Possession of a Weapon in the Third Degree, and Menacing in the Second Degree, and was sentenced to concurrent prison sentences totaling ten years, and five years' post-release supervision. The petitioner challenges his conviction under the Fifth, Sixth, and Fourteenth Amendments. Specifically, he asserts that the prosecutor failed to disclose favorable evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that he was denied the effective assistance of counsel. In addition, the petitioner claims that certain identification testimony violated New York Criminal Procedure Law § 60.25, that the prosecutor's comments in summation were unfairly prejudicial, and that the prosecutor failed to provide sufficient notice of identification testimony under CPL § 710.30. For the reasons that follow, the petition is denied.


         1. Overview

         The petitioner's conviction arose out of the attempted knifepoint robbery of Gabriel Garcia. On July 4, 2007, at around 9:30 p.m., Garcia, was walking on Madison Street in Queens when the petitioner approached him, pointed an eight-inch knife at him, and demanded money. Garcia ran into the furniture store where he worked and called 911; when the police arrived about ten minutes later, the petitioner was still outside the store, waiting for Garcia to come out. As soon as the officers arrived, the petitioner walked up the block to the corner of Madison Street and Cypress Avenue. Garcia, who came out, saw the petitioner pull the knife out of his waistband and throw it near a tree. He pointed at the petitioner and told the officers that the petitioner tried to rob him. The officers apprehended the petitioner, and Officer Brian Herbert brought the petitioner back to where Garcia was standing, and asked Garcia if he was sure whether the petitioner was the perpetrator. Garcia confirmed that the petitioner was the man who tried to rob him, and showed them where the petitioner had thrown the knife. The officers arrested the petitioner, and one of the officers recovered the knife. When Officer Herbert told the petitioner that he was under arrest for robbery, the petitioner responded that he did not rob the victim and that he was just asking for money.

         The petitioner was charged with Attempted Robbery in the First Degree, Menacing in the Second Degree, and Criminal Possession of a Weapon in the Third and Fourth Degrees. The petitioner testified before the grand jury and denied threatening Garcia with a knife. He testified that he asked "a gentleman" for money to buy a slice of pizza, and that the man interpreted his request as a threat.

         2. Pre-Trial Suppression Hearing

         The prosecutor served the petitioner a notice of intent to offer identification testimony pursuant to CPL section 710.30(1)(b). The notice provided: "The People intend to offer at trial testimony of a witness [the victim, Gabriel Garcia], who identified the defendant in a Pointout, on July 4, 2007, at approximately 10:08 p.m., at Cypress Avenue and Madison Street." People v. Vasquez, 20 N.Y.3d 461, 464 (2013). The notice did not say anything about a confirmatory identification once the petitioner was in police custody. (Id.)

         The petitioner moved to suppress evidence of the victim's identification, as well as the petitioner's post-arrest statements to the police; the petitioner argued that the pretrial identification procedure was unduly suggestive and the product of an unlawful arrest, and that his statements were taken in violation of his constitutional rights. (ECF No. 17-4, at 110-15.) On September 25, 2007, Judicial Hearing Officer Joan O'Dwyer conducted a suppression hearing, at which one of the arresting officers, Officer Herbert, testified.[2]

         Officer Herbert testified that on July 4, 2007, at approximately 10:00 p.m., he received a radio call of a knifepoint robbery at the corner of Madison Street and Cypress Avenue in Queens, and that the male Hispanic perpetrator was still at the location. (H. 4:14-20; 9:5-14.) When Officer Herbert and his partner, Officer Witherspoon, arrived at the scene, Officer Herbert radioed the dispatcher to have the complainant come outside. (H. 10:10-11:9.) Garcia came "running out" of the furniture store at 790 Cypress Avenue, and waved the officer down. (H. 4:23-5:5.) Garcia waved his hands, and pointed at the petitioner, yelling "That's him, that's him." (H. 4:23-5:17; 12:12-19.) There was no one else on the street. (H. 5:21-23.) Officers Herbert and Witherspoon stopped the petitioner at the corner of Cypress Avenue and Madison Street, and patted him down for weapons.[3] (H. 6:1-6; 15:2-5; 21:1-3.) Other officers eventually arrived at the scene, and Officer Herbert went back to speak to Garcia. (H. 6:3-10.)

         Garcia told Officer Herbert that he was leaving the store to visit a friend when the petitioner threatened him with a long knife and demanded money. (H. 18:7-19:20.) Garcia ran back into the store, locked the door behind him, and called 911. (Id.) After his conversation with Garcia, Officer Herbert arrested the defendant.[4] (H. 19:21-24.)

         After the suppression hearing, Judicial Hearing Officer O'Dwyer recommended that the petitioner's suppression motion be denied. (ECF No. 17-4, at 110-15.) Judge Richard Buchter adopted the report on October 18, 2007, and denied the motion in its entirety. (ECF No. 17-4, at 109.)

         3. Trial

         The trial commenced on January 7, 2008 before Judge Buchter and a jury.

         a. The Prosecution's Case

         i. Gabriel Garcia[5]

         On July 4, 2007, Gabriel Garcia worked at a furniture store on 790 Cypress Avenue until closing, between 7:00 and 8:00 p.m. (T. 275:6-23.) He stayed at the store, and watched a soccer game on television with friends until 9:30 p.m., when he walked his daughter to her mother's house at Wyckoff Avenue and Bleecker Street. (T. 275:7-276:16.) As Garcia walked back to the store, he sensed someone following him. (T. 277:15-24.) He turned around, and saw a young man on his right side. (Id.) The man, whose shirt covered his head and cheeks, pointed a knife-approximately eight inches long-at Garcia and told Garcia that he needed money. (T. 278:2-280:8; 292:2-25.) Garcia ran into the furniture store, called 911, and reported that a man had tried to rob him with a knife. (T. 280:20-282:5.) Meanwhile, his assailant paced around in front of the store. (T. 281:19-282:16.) He was still there when the police arrived. (Id.) Garcia came out of the store, and saw the perpetrator take the knife from his waistband, and throw it near a tree about ten to twelve feet away from Garcia. (T. 285:1-286:2.) As the perpetrator walked away around the corner, Garcia told the officers to "get him, catch him." (T. 285:1-4.) Garcia lost sight of the perpetrator after he turned the corner on Madison Street, and did not accompany the officers to find the perpetrator after he lost sight of him. (T. 305:7-14; 308:20-25.)

         The officers apprehended the man who tried to rob him approximately eight to ten minutes after the attempted robbery; Garcia confirmed that the person the officers apprehended was the same person who had threatened him at knifepoint. (T. 287:1-288:2.) He also told the officers that the man had tried to rob him with a knife, and that he threw his knife away near a tree. (T. 286:20-288:11.) At the trial, Garcia was asked if he saw his assailant in the courtroom; Garcia replied that he could not "recognize exactly that's him," and that he was "not sure" because the robbery happened six months earlier. (T. 281:4-9; 287:12-17.) ii. Officer Brian Herbert At about 10:00 pm, on July 4, 2007, Officer Brian Herbert and his partner were in a marked patrol car when they received a radio call reporting a robbery at Madison Avenue and Cypress Street. (T. 244:14-245:7.)[6] They arrived at the location about a minute later. (T. 245:7-23.) The street was well-lit, and the lighting conditions were "bright enough to see all around the street." (T. 246.) Garcia came out of the furniture store at 790 Cypress Avenue, and waved his arms at him. (Tr. 246:23-247:11.) Officer Herbert spoke to Garcia, and saw the petitioner standing at the corner of Cypress Avenue and Madison Street, about 25 to 30 feet away from Garcia. (T. 248:10-249:10; 265:13-19.) Officer Herbert stopped the petitioner, who was wearing black shorts, brown sneakers, and a tank top of "unknown color." (T. 248:10-249:10; 263:7-266:9.)

         After a second conversation with Garcia, Officer Herbert arrested the petitioner. (T. 249:11-250:6.) Garcia pointed to a knife near a tree that was about ten to fifteen feet north of 790 Cypress Avenue; Officer Herbert picked it up and vouchered it. (T. 250:7-252:24; T. 251:9-19.)

         iii. 911 Call

         The prosecutor played the recording of Garcia's call to 911. Because portions of the tape were in Spanish, the jurors were given a translation. (T. 317:17-318:16.)[7] According to the translation, Garcia told the 911 operator that a Hispanic male "tried to rob [him] with a big knife outside," that he had a "big, huge knife," and that the perpetrator was "outside" of the store. (ECF No. 17-3, at 118-19.)

         iv. Recall of Officer Herbert

         Because Garcia could not make an in-court identification, the prosecutor moved pursuant to CPL § 60.25 to recall Officer Herbert to testify about the circumstances of Garcia's on-the-scene identification. (T. 318:19-3.) The petitioner's lawyer objected that the prosecutor had not met the requirements of CPL § 60.25. (Tr. 320:15-321:16.) Judge Buchter overruled the objection, ruling that Garcia's inability to make an in court identification was due to a failure of memory, and that this satisfied CPL § 60.25. (Id.)

         Officer Herbert testified that when he arrived at the scene, Garcia "point[ed] down the block north bound" on Cypress Avenue at the petitioner, and said, "That's the guy, that's the guy, he robbed me." (T. 322:19-323:8.) Officer Herbert also testified that after he apprehended the petitioner, Garcia confirmed that the petitioner was the one who tried to rob him-testimony to which the petitioner's lawyer did not object. (T. 323:14-23.)

         v. The Petitioner's Grand Jury Testimony

         The prosecution introduced an excerpt of the petitioner's grand jury testimony, in which he admitted to having an interaction with a man at the time and location of the attempted robbery; the petitioner described the encounter as a misunderstanding. (T. 338:5-339:19.) According to the petitioner, on the night of July 4, 2007, he needed some change to buy a slice of pizza; he approached a "gentleman" on Madison Street, and asked if he had any change. (T. 338:4-339:9.) The man "nodded his head, yes, [] told [the petitioner] to wait," and went into a restaurant. (Id.) However, when the man came back out of the restaurant, the police arrived and arrested the petitioner. (Id.) The petitioner denied waving a knife and threatening the man for money. (Id.)

         b. Defense Case The petitioner did not call any witnesses.

         c. Th ...

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