Collins v. Scully

Citation878 F. Supp. 452
Decision Date14 March 1995
Docket NumberCiv. A. No. 90-CV-0883 (DGT).
PartiesWoodrow COLLINS, Petitioner, v. Charles SCULLY, Superintendent Greenhaven Correctional Facility; Richard Brown, District Attorney, County of Queens; Dennis Vacco, Attorney General of the State of New York, Respondents.
CourtU.S. District Court — Eastern District of New York


Woodrow Collins, pro se.

Tyrone Mark Powell, Asst. Atty. Gen., New York City, for respondents.

TRAGER, District Judge:

On January 26, 1995, Magistrate Judge Michael L. Orenstein issued a Report and Recommendation (Report) in connection with the above-captioned matter in which he determined that the petition for a writ of habeas corpus should be denied in all respects.

Petitioner, Woodrow Collins, filed a "Response to the Report and Recommendation" (Response) on February 6, 1995, in which he raised several objections to the Report. Respondents have not filed any response to the Report or petitioner's Response.

After a de novo review of the record, this Court adopts the recommendation contained in Magistrate Judge Orenstein's Report. See 28 U.S.C. § 636(b)(1). Accordingly, the petition for a writ of habeas corpus is dismissed. Further, as the petition presents no questions of substance for appellate review, a certificate of probable cause is denied. See Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990) (per curiam).


In September 1983, the New York City Police Department was investigating a string of burglaries in the Kew Gardens Hills section of Queens, New York.1 All of the burglaries were committed by a team of two men, who had come to be called the "Mutt and Jeff" bandits. In connection with the investigation, the Neighborhood Stabilization Unit was patrolling the area in the early-morning of September 15, 1983. At approximately 12:01 a.m., petitioner and a co-defendant, both of whom fit the description of "Mutt and Jeff", were observed fleeing from a driveway on 72nd Avenue. A short time later, petitioner and the co-defendant were again observed in the same general area. Police attempted to stop petitioner and a chase ensued (T.3344/83 at 194).2 Petitioner subsequently was caught and taken into custody (T.3304/83 at 58). After being taken to central booking, petitioner and his co-defendant confessed to attempting to burglarize a house that night. Petitioner was arrested for criminal trespass and attempted burglary and charged with these crimes in indictment number 3315/83. See Aff.Supp.Pet.'s 1989 Mot.Vac. at 7-8, 9.3 Following his arrest, petitioner was placed in a lineup in connection with the investigation of the string of burglaries in Kew Gardens Hills. Petitioner was identified by three victims as one of the men who robbed them and burglarized their homes (W.3304/83 at 95; W.3344/83 at 9). Thereafter, petitioner was charged with burglary and robbery in indictment numbers 3304/83 and 3344/83.

Subsequent to his arrest, petitioner was convicted under indictment numbers 3304/83 and 3344/83 in Supreme Court, Queens County on four counts of burglary in the first degree and robbery in the first degree, and one count of assault in the second degree. Petitioner was sentenced to two consecutive terms of eight and one-third to twenty-five years for the burglary and robbery counts and a concurrent term of two and one-third to seven years for the assault count. Following his convictions, petitioner filed three motions to vacate the judgments pursuant to New York Criminal Procedure Law § 440.10, all of which were denied. Petitioner also appealed his convictions to the Appellate Division, Second Department, and the New York Court of Appeals, both of which were denied. See People v. Collins, 136 A.D.2d 720, 523 N.Y.S.2d 1018, lv. denied, 71 N.Y.2d 894, 527 N.Y.S.2d 1003, 523 N.E.2d 310 (1988); People v. Collins, 136 A.D.2d 722, 523 N.Y.S.2d 1020, lv. denied, 71 N.Y.2d 894, 527 N.Y.S.2d 1003, 523 N.E.2d 310 (1988).

Petitioner filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that his convictions were obtained in violation of his rights under the Fourth, Sixth and Fourteenth Amendments to the United States Constitution. Specifically, petitioner argues: (1) his due process rights were violated by the lineup when he was viewed by victims of crimes other than the one for which he was initially arrested; (2) his Fourth Amendment rights were violated as the police lacked probable cause to arrest him because he was "not arrested for a crime that formed the basis for pursuit, but one that was a result of the pursuit"; (3) he was denied the right to a fair trial based on a host of alleged errors at trial; (4) he was denied the right to a speedy trial; (5) he was denied the right to counsel at the lineup; and (6) the Appellate Division erred in holding the issue of probable cause unpreserved for appellate review. See Pet. at 4-6.


In his Response, petitioner raised several objections to Magistrate Judge Orenstein's Report. For the sake of clarity, petitioner's arguments will be discussed in relation to each part of the Report objected to.4


Petitioner's first objection is that, contrary to the findings in the Report, his convictions were obtained in reliance on an "illegal" lineup identification while he was "unlawfully" in custody on an unrelated crime, and, therefore, the lineup violated his due process rights.5 Specifically, petitioner argued that the arresting officer testified at two separate suppression hearings that petitioner had committed no crimes in his presence, nor had done anything that was illegal at that time of his arrest. Objections at 18. In addition, petitioner argued that the descriptions of the suspects for whom the police were looking on the night of September 15 was a composite of descriptions from several crimes committed in the area, none of which related specifically to the crimes for which petitioner was convicted. Therefore, petitioner argued that the police lacked probable cause to arrest him in the first place, let alone to place him in a lineup for the unrelated crimes. Relying on Santucci v. Andrews, 117 Misc.2d 616, 458 N.Y.S.2d 1007 (Sup.Ct.1983), petitioner argued that the lineup identifications were, therefore, in violation of his due process rights and his convictions should be reversed.

A careful reading of the record belies petitioner's objections. In support of these objections, petitioner cited to the record of two suppression hearings held in connection with indictment numbers 3313/83 and 3315/83. These hearings were not part of the proceedings which gave rise to the convictions underlying the present petition (W.3313/83; W.3315/83). As such, the records cited by petitioner are not properly before this Court.

Nevertheless, even if this Court were to consider the record of suppression hearings for the unrelated indictments, petitioner's arguments are without merit. At these hearings, the arresting officer testified that petitioner did commit a crime in his presence — criminal trespass (W.3315/83 at 66; W.3313/83 at 27). Petitioner, who fit the description of a suspect in a string of burglaries, was seen engaging in suspicious conduct in the area where the burglaries were committed (T.3344/83 at 194). Upon an initial approach by the police, petitioner fled. Accordingly, under federal law the police were justified in making the initial stop and subsequent arrest, and petitioner was, therefore, in lawful custody at the time he was viewed in the lineup. See, e.g., Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972); United States v. Fisher, 702 F.2d 372, 375 (2d Cir.1983); United States v. Harley, 682 F.2d 398, 402 (2d Cir. 1982). In addition, after being taken into custody for criminal trespass, petitioner confessed to the attempted burglary and was arrested. See Aff.Supp.Pet.'s 1989 Mot.Vac. at 19. Further, although the description of the suspects in the string of burglaries and robberies in the area was a composite from a number of crimes, petitioner and his co-defendant fit the descriptions those suspects.6 Therefore, there was probable cause to investigate petitioner's involvement in the other burglaries and robberies committed in the area and include him in the lineup for those crimes.7

As Magistrate Judge Orenstein correctly noted in the Report, a person in lawful custody may be placed in a lineup for unrelated crimes of which he is a suspect, and such a procedure is consistent with due process as long as the lineup itself does not violate due process. See, e.g., United States v. Anderson, 490 F.2d 785, 788-89 (D.C.Cir. 1974). Here, petitioner was placed in a lineup with five other men of similar complexion, varying heights and dress (W.3344/83 at 46-47). Petitioner was given the opportunity to chose his position and number in the lineup (W.3304/83 at 8; T.3304/83 at 69). Due process does not require that a criminal defendant be viewed in a lineup with other individuals nearly identical in appearance to himself. See, e.g., United States v. Reid, 517 F.2d 953, 966 n. 15 (2d Cir.1975).8 As the fill-ins for the lineup were sufficiently similar in appearance to petitioner such that the victims were not oriented toward selecting only him as a participant in the crimes charged, the lineup was not impermissibly suggestive and did not create a substantial likelihood of irreparable misidentification. See, e.g., Jarrett v. Headley, 802 F.2d 34, 40 (2d Cir.1986). Accordingly, the lineup in question did not violate petitioner's due process rights (W.3344/83 at 44; W.3304/83 at 117).

Finally, even if this Court were to find that the lineup was unduly suggestive, the convictions would nevertheless be supported by clearly reliable in-court identifications. See, e.g., Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); Styers v. Smith, 659 F.2d 293, 297 (2d Cir.1981). In affirming petitioner's...

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