Cisse v. James
| Decision Date | 02 July 2021 |
| Docket Number | 20-CV-3869 (LGS) (RWL) |
| Parties | ALI CISSE, Petitioner, v. LETITIA JAMES, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION TO HON. LORNA G. SCHOFIELD HABEAS CORPUS
Ali Cisse, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction by a jury of robbery and related offenses in the Supreme Court of the State of New York, New York County. Cisse argues that his petition should be granted because (1) the evidence seized from him should have been suppressed under the Fourth Amendment as the fruit of an unlawful arrest; (2) recordings of his phone conversations from Rikers Island were inadmissible at trial because they violated state and federal wiretapping statutes; (3) the identification of Cisse in a mixed visual-and-voice lineup was unduly suggestive and should have been suppressed; and (4) the trial court unduly interfered with jury deliberations by soliciting a partial verdict. For the reasons that follow, I recommend that Cisse's petition be DENIED.
At approximately 4:00 a.m. on December 1, 2012, Julia Burke Harvey Robinson, Jason Everett, and Christina Ali left a nightclub in Manhattan. As they walked east on 28th Street they were approached by two men. ) One of the men, wearing a white bubble coat with “USA” emblazoned on the back, tapped Robinson in the chest with a black gun and asked him, “[y]ou good, you good, you good?” (Robinson: Tr. 165-67, 183; Everett: Tr. 200, 217-18, 222.) The other man approached Robinson and tried to pull a silver chain off his neck. Robinson attempted to grab it back and the chain broke into two pieces. (Burke: Tr. 74, 76-77, 83, 124; Robinson: Tr. 167-68, 184-87; Everett: Tr. 202, 219-20.)
Meanwhile, the man in the bubble coat approached Everett and demanded his chain. Everett refused and the man pulled the gun from his pocket, aimed at the ground, and fired several rounds, causing the group to scatter. (Burke: Tr. 74-77, 118-23, 269; Everett: Tr. 202-04, 221-24; Robinson: Tr. 168-70.) Burke ran to Seventh Avenue, turning back more than once to look at the shooter, who was a few feet behind her. The avenue was well lit, and Burke stated that she had a good view of the man's face. Burke stopped and the man walked past her and out of sight. (Burke: Tr. 77-80, 122-27, 139, 274-75.)
Burke called 911, after which she and the rest of the group met in front of the club. Ali had blood streaming down her leg from an abrasion to the upper thigh and was brought to the hospital. (Burke: Tr. 80-84, 270-71; Robinson: Tr. 170-71, 193-94; Everett: Tr. 204-05.) The other victims went to the 10th Precinct with detectives. (Burke: Tr. 142-46; Everett: Tr. 227-28.) There, Burke described the shooter's white “USA” coat. (Burke: Tr. 142-46.)
On December 5, 2012, Officers Paul Pastorini, Frank Soler, and Stephen Krosky were driving in a marked police car down Lexington Avenue approaching 116th Street. Officer Pastorini observed Cisse, the Petitioner in this case, wearing a white bubble coat with “USA” printed on the back, walking with three other men. After the group observed the approaching police car, they stopped talking, and Cisse slowed to walk in the middle of the group, toward a wall. (Pastorini: Tr. 234-36.)
When the group reached Lexington Avenue, Cisse turned and began walking south while the rest of the group continued walking on 116th Street. Suspicious of Cisse's behavior, Officer Pastorini got out of the vehicle and asked Cisse to stop. Cisse was “obviously nervous” and looked down to the left side of his chest, where Officer Pastorini observed an “L-shaped bulge.” ) Pastorini frisked Cisse and recovered a silver, unloaded, operable .380 caliber pistol from Cisse's inner coat pocket. The serial number on the gun had been defaced. (Pastorini: Tr. 236-40, 245-46; Soler: Tr. 249; Duryea: Tr. 376, 384-92.) The state conceded that it was a different gun than the one used during the robbery. (Tr. 39.)
Cisse was arrested and taken first to the 25th Precinct and thereafter to the 10th Precinct. At the 10th Precinct, Detective Frank Geosits recovered and photographed Cisse's white “USA” coat. (Pastorini: Tr. 243-44; Geosits: Tr. 341-45.) Detective Geosits read Cisse his Miranda rights, and Cisse made a statement. Cisse stated that he was at the same club as the victims, but was unable to get in. He also stated that his gun went off accidentally as he was going down the street, though he refused to reveal the current location of the firearm. (8/5/13 Tr. 7-15; SR. 90.[3])
The detectives recovered multiple MetroCards from Cisse's pants pocket. (Pastorini: 7/8/13 Tr. 18, 45-47.) One of these cards had been used at 4:24 a.m. on December 1, 2012, at the 34th Street Pennsylvania Station subway stop. (Tr. 53, 62-64, 395-97.) That was shortly after the crime took place. Surveillance footage from the 34th Street station at that time showed two men, one in a white bubble coat with “USA” printed on the back, entering the subway station. The other man appeared to be holding a silver chain. (Tr. 40-41, [4] 96, 255-56.)
Following his arrest, police placed Cisse in a lineup alongside five fillers. (8/5/13 Tr. 15, 17-23, 35-38, 42, 44, 60-61.) All of the participants wore identical shirts and were seated to mask height differences. (8/5/13 Tr. 22-23, 35-38.) Cisse weighed 175 pounds, and the other participants weighed 125, 175, 180, 185, and 210 pounds, respectively. (8/5/13 Tr. 36-37.) Cisse was 17 years old, and the other participants were 18, 21, 22, 29, and 33 years old, respectively. (8/5/13 Tr. 37-38.)
Two witnesses of the crime viewed the lineup separately. (8/5/13 Tr. 19-21.) Neither witness had contact with the participants prior to the lineup. (8/5/13 Tr. 21.) After each witness had completed viewing the lineup, Detective Geosits asked each of them three questions: whether they recognized anyone from the lineup, who they recognized; and from where. (8/5/13 Tr. 28-29, 31, 57-59, 62.)
Julia Burke viewed the lineup first and, after initially narrowing down the participants to Cisse and one of the fillers, asked if the participants could speak. (8/5/13 Tr. 50.) Cisse and the filler were asked to say, “[a]re you good homie.” (8/5/13 Tr. 50-52.) Burke then identified Cisse as the gunman from the robbery. (8/5/13 Tr. 50-58.) No recording was made of Cisse and the fillers speaking. (8/5/13 Tr. 51.) The second witness, a bouncer at the club the victims left before the robbery, identified a filler as the perpetrator without asking for spoken confirmation. (8/5/13 Tr. 62.)
Following the identification procedure, Cisse was incarcerated at Rikers Island. Upon arrival, Cisse was informed in his welcome booklet that all calls from the jail were randomly monitored and recorded. From December 7, 2012, to February 19, 2013, Cisse made numerous calls using his unique booking case and pin number on the Rikers Island phone system. (McLean: Tr. 285-86, 290, 295-97.) Each time an incarcerated person at Rikers made a call, the person would hear a pre-recorded message stating that the call may be recorded. (McLean: Tr. 285-306.) There was also a sign placed on the wall next to the telephone bank stating in black all-capital letters: (McLean: Tr. 290; SR. 1181.)
In recorded phone calls that Cisse made from Rikers, he stated that he “bought that coat, ” referring to the white “USA” coat worn during the robbery. (SR. 386-87, 392.) Cisse also referred to instructions he had given to dispose of “Shalom, ” and asked where it was. The other individual on the line responded that it was “gone.” (SR. 388-91.) At trial, Gang Unit Detective Julio LaSalle testified that the words “Shalom” and “the hammer” mean firearms. (LaSalle: Tr. 313.) Cisse further suggested in the calls that the police had him on camera, but that, (Tr. 390-93.)
Prior to trial, Cisse moved to suppress physical evidence recovered during his arrest, identification evidence derived from the police lineup, and his statement to the police. (See SR. 364-65.) On March 13, 2013, the Honorable Richard D. Carruthers ordered, inter alia, a combined Huntley/Wade/Dunaway hearing.[5] (SR. 363.) Judicial Hearing Officer Herbert J. Adlerberg (the “JHO”) was assigned to the suppression hearing, and Justice Carruthers provided the ruling. The parties appeared before the JHO for the hearing on July 8, 2013, and August 5, 2013. (7/8/13 Tr. 1-58; 8/5/13 Tr. 1-81.)
The JHO found that there was probable cause to arrest Cisse and that Cisse's coat was admissible as a result. The JHO found credible the two police officers the People presented as witnesses and made factual findings consistent with their testimony. (8/5/13 Tr. 72.) The JHO further found that Cisse's behavior gave Officer Pastorini a “particularly credible reason to make a common law inquiry.” (8/5/13 Tr. 73, 78-79.) Specifically, the JHO found that Officer Pastorini possessed a reasonable suspicion that Cisse was armed after observing the L-shaped object in his coat. The JHO found that Officer...
To continue reading
Request your trial