Ball v. Stevenson
| Decision Date | 08 January 2021 |
| Docket Number | 19-cv-5310 (ERK) |
| Parties | RAYMOND BALL, Petitioner, v. ANGELENE STEVENSON, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
On July 3, 2012, cab driver Tareek Elturkey left his apartment on 105th Street between Northern Boulevard and 32nd Avenue in Corona, Queens to withdraw cash from a nearby ATM. ECF No. 9-2 at 487. Mr. Elturkey took out $260 in cash in preparation for his shift. Id. at 503. He then walked to a deli that he went to "all the time, maybe ten times a day." Id. at 489. Mr. Elturkey often visited the deli to buy coffee and cigarettes and chat with the owner who, like Mr. Elturkey, immigrated to the United States from the Middle East. Id. at 489. On the way in, Mr. Elturkey passed "a black guy, homeless" whom Mr. Elturkey knew because he was "always begging for [a] dollar" in that spot. Id. at 490-91. Indeed, Mr. Elturkey would "always give him [a] dollar or coffee or something" when he saw the man. Id. at 490.
Mr. Elturkey spent three or four minutes buying cigarettes at the deli, and then went outside to smoke and make a phone call around 8:30 PM. Id. at 492, 505. After lighting his cigarette and dialing his phone, Mr. Elturkey began walking down 105th Street toward 34th Avenue. Id. at 493. Mr. Elturkey soon noticed he was being followed by a man he did not recognize, a "black guy wearing [a] white shirt and dark jeans," whom Mr. Elturkey described as "heavy," perhaps weighing 250-300 pounds. Id. at 495. Mr. Elturkey became nervous and walked between two cars toward the street, intending to loop back and return to the deli on the corner of Northern Boulevard. Id. at 498-99. The heavy man who had been following Mr. Elturkey told someone to "attack him, punch him" and then pushed Mr. Elturkey to the ground. Id. at 509-10. Mr. Elturkey fell into the "homeless guy," who had been around "five feet behind" him. Id. The heavy man punched Mr. Elturkey in the face twice and pushed his head into the sidewalk three times while the homeless man searched his pockets. Id. at 512-14. The heavy man hit Mr. Elturkey hard enough that the following day he had to pull out a tooth that had come loose in the attack. Id. at 515-16. The homeless man then cut Mr. Elturkey's pants pocket open and took his cash and iPhone. Id. at 513. The heavy man threatened Mr. Elturkey before leaving the scene. Id. at 514. Mr. Elturkey did not see in what direction the homeless man departed. Id. at 516. About a minute after his assailants left, Mr. Elturkey got up and returned to the deli. Id. at 517. The deli's owner called the police to report the incident. Id. The heavy man saw Mr. Elturkey from outside the store and again threatened him before walking back down 105th Street. Id.
Mr. Elturkey flagged down what he correctly surmised to be an unmarked police car. Id. at 519-20. The officers in the car, NYPD Sergeant Jeff Rosenberg and Officer Daniel Lanning, were responding to a radio run reporting that a man had been robbed at the corner of 105th Street and Northern Boulevard. ECF No. 9-2 at 584-85. The radio run described "two male blacks, one wearing white shirt and black pants" as the suspects. Id. at 585. When Officer Lanning's car pulled over, he observed that Mr. Elturkey had blood on his face and mouth. Id. at 588. Mr. Elturkey told the officers that he had been robbed and that his assailant had gone south on 105th Street. Id. The officers took Mr. Elturkey into their vehicle and proceeded down 105th Street. Id. About a quarter of the way down the block, Mr. Elturkey pointed to a man and told the officers"that's him." Id. at 589-90. The officers stopped the car and placed the man Mr. Elturkey had identified, Elijah Brooks, in handcuffs. Id. at 591-92.
Officer Angelo Pampena and two other officers were patrolling in a car "approximately three or four blocks" away from the scene when they received the radio run. Id. at 648-49. The officers headed south on 105th Street for approximately thirty seconds. Id. at 649. Just before Officer Pampena's car reached the intersection of 32nd Avenue and 105th Street, he saw "a male black, white T-shirt, black jeans running away from the crime scene." Id. The officers pulled their car over at the intersection and the running man, petitioner, stopped "right in front" of the vehicle. Id. at 651. Petitioner "put his hands up and just said that be bought a phone at 105[th Street] and Northern Boulevard while holding a black iPhone in his right hand." Id. The officers put petitioner in handcuffs and placed him in the patrol vehicle. Id. Officer Pampena recovered the iPhone as well as a $100 bill, seven $20 bills, and a $10 bill from petitioner. Id. at 657.
Officer Pampena transported petitioner south on 105th Street until they reached the crime scene, where an ambulance was now parked. Id. Mr. Elturkey was in the back of the ambulance and Officer Pampena noted that "[h]e had blood all over [his] face, large lacerations to his head, his eyes were swollen, his ears bleeding, his mouth busted up, and his clothes were ripped and torn up and very disheveled and very messy looking." Id. at 658. Petitioner was standing in front of Officer Pampena's police car, which was parked opposite Mr. Elturkey about two car lengths away. Id. at 659. Officer Pampena asked Mr. Elturkey if he recognized petitioner, and Mr. Elturkey identified him as the person who had taken his iPhone and cash. Id. at 660. Mr. Elturkey identified the iPhone and described the denominations of the bills that had been stolen from his pocket, which matched those recovered from petitioner. Id. at 659. Officer Pampena unlocked the iPhone with a passcode supplied by Mr. Elturkey and discovered photos of Mr. Elturkey and his family on the device. Id. at 660-61. Petitioner later asked Officer Pampena what he was being charged with.Id. at 54. When Officer Pampena responded that he would be charged for robbery because Mr. Elturkey had identified the phone and cash as his stolen property, petitioner responded that if "[h]e says it's his, then it must be his." Id. at 54-55.
Petitioner and co-defendant Brooks were charged by indictment with two counts of robbery in the second degree, one count of assault in the third degree, and one count of criminal possession of stolen property in the fifth degree. Id. at 460-61. Before trial, the court held a Mapp/Huntley/Wade/Dunaway hearing to examine various challenges to evidence the state planned to introduce. Id. at 7-8. Officers Lanning and Pampena testified at the hearing. Id. at 9, 27.
Petitioner was represented by counsel at the hearing. Id. at 2, 7. At the conclusion of the hearing, Petitioner's counsel moved to suppress his arrest and all physical evidence seized from him after the stop by Officer Pampena. Id. at 62. Counsel argued that Officer Pampena lacked probable cause to arrest petitioner because the radio run did not provide "sufficient specific information" about the robbery suspects. Id. Counsel also moved to exclude Mr. Elturkey's identification of petitioner because the circumstances — with petitioner "handcuffed and in the presence of one or two uniformed officers" — were suggestive. Id. In addition, counsel argued that the identification was unreliable because Mr. Elturkey viewed petitioner "at nighttime from three car lengths away" and "never even got out of the ambulance to look closely" at him before making an identification. Id.
The court denied the motions to suppress. The court reasoned that Officer Pampena had probable cause to stop petitioner because he matched the description of suspects from the radio run, was discovered running from the area where officers had reason to believe a crime had beencommitted, and volunteered that he had gotten the phone in his hand from that area. Id. at 66-67. Accordingly, the court found that the money and phone were recovered by a search incident to a lawful arrest. Id. at 68. The court also concluded that the circumstances of identification "lacked suggestiveness" because the identification "happened a very short time after this robbery, a very short distance from this robbery." Id. Finally, the court declined to suppress petitioner's statements to police because they were "voluntarily made" and were "not in response to any question asked of [petitioner] by the officer." Id. at 69.
At the next hearing date, petitioner's counsel informed the court that petitioner had requested a new lawyer. Id. at 79. Petitioner claimed that his counsel had told him that she could not defend him because there was "perjured testimony being used to prosecute" him. Id. The court treated the request as an application to relieve counsel and denied it. Id. at 80. Petitioner then explained that he wanted the court to "consider allowing me to go pro se . . . I prepared my legal defense for myself thus far since I've been arrested." Id. The court declined to change counsel or allow petitioner to begin representing himself while the case was in a hearing posture and denied the application. Id.
The court later re-opened the hearing based on defense counsel's receipt of an EMS report from the paramedic who treated Mr. Elturkey. Id. at 110-11. The re-opened hearing was intended to allow defense counsel to examine issues around the condition of Mr. Elturkey's eyes after the attack and the potential impact any injury had on his ability to identify petitioner and his co-defendant. Id. at 86. As soon as the hearing began, petitioner reminded the court that he had "asked you to allow me to go pro se or have another lawyer represent me" and stated that he did not "feel [counsel] will properly represent me . . . [because] she has been negligent, you know, in her duties in defending me." Id. at 83. Petitioner informed the court that it was "going forwardtoday with this hearing against . . . my wishes" by not relieving or replacing counsel. Id. The court again denied the application to...
To continue reading
Request your trial