Dey v. Scully
| Decision Date | 08 January 1997 |
| Docket Number | No. 93 CV 2614 (FB).,93 CV 2614 (FB). |
| Citation | 952 F.Supp. 957 |
| Parties | Robert DEY a/k/a Robert Connyer, Petitioner, v. Charles J. SCULLY, Superintendent, Green Haven Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Vivian Shevitz, Mount Kisco, NY, for Petitioner.
Richard A. Brown, Queens County District Attorney by Kevin G. Dumbach, Assistant District Attorney, Kew Gardens, NY, for Respondent.
Petitioner Robert Dey, a/k/a Robert Connyer ("Dey"), brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1989 convictions on one count of criminal sale of a controlled substance in the third degree (crack cocaine) and one count of criminal possession of a controlled substance in the seventh degree (heroin), following a jury trial in New York State Supreme Court, Queens County.1 Dey argues (1) that the exclusion of his arrest photograph deprived him of a fair trial and due process with respect to his conviction for sale of crack cocaine, and (2) that the evidence was insufficient to support his conviction for possession of heroin. Dey's petition is granted with respect to his conviction for sale of crack cocaine and denied with respect to his conviction for possession of heroin.
On the evening of January 6, 1988, members of the New York City Police Department's ("NYPD") Queens Special Anti-Crack Unit conducted a "buy and bust" operation in the vicinity of 170th Street and Liberty Avenue in Queens, New York. In a buy and bust operation, an undercover police officer ("undercover") is given pre-recorded "buy money" to purchase narcotics from a drug seller at a particular location. Once a purchase is completed, the undercover radios a physical description of the seller to a nearby backup team, which then locates and arrests the seller.
Sometime shortly after 8 p.m., one of the two undercovers involved in the buy and bust operation that evening (shield number 22602) approached an individual, who later introduced himself as Robert, and asked him if "he was working." (Tr. at 183.)2 Although Robert answered "no," he added that he "could show [the undercover] where to get something." (Id.) The undercover and Robert then walked south on 170th Street toward Liberty Avenue and engaged in a brief conversation about the cost and color of the caps of the vials of crack cocaine to be purchased. After about a minute and a half, they arrived at a residential house located at 170-06 Liberty Avenue and Robert went inside. When he returned to the street he handed the undercover two "red cap" vials of crack cocaine. In exchange, the undercover handed Robert a ten-dollar bill from the pre-recorded buy money. The undercover then left the area and headed to his car.
Approximately one minute after making the exchange, the undercover reached his car and radioed the backup team, reported these events, and gave a physical description of Robert. No contemporaneous notes of the description radioed by the undercover exist; however, the undercover did prepare a report upon returning to the precinct. In that report, apparently created between 10:00 p.m. and 12:30 a.m., the undercover recorded the description of the second individual who sold to him that night as "J[ohn] D[oe]-Robert-m[ale]/b[lack]/burgundy jacket, blue jeans, black/white sneakers, dark-skinned[,] mustache/goatee."3 (Ex. A to Decl. of Carol Gette in Support of Pet.) Another report, called a DD5, prepared on January 10, states that the description was "M[ale]/B[lack], Red Jacket, bl jeans, blk & wt sneakers, darked skined (sic)." (Ex. C to Decl. of Carol Gette in Support of Pet.)
Upon receiving this information, the backup team proceeded to the location where the sale had occurred, but did not see anyone matching the description. After a search of the surrounding area, which lasted approximately two minutes, two members of the backup team, Police Officer Steven Curasi ("Curasi") and Sergeant James McCool ("McCool"), observed an individual who they believed matched the description at the corner of 170th Street and 93rd Avenue, approximately two blocks from the site of the sale. The individual the officers observed was Dey.
The officers placed Dey under arrest at approximately 8:10 p.m. and conducted a quick pat and frisk search before handcuffing him. During the course of this search, Curasi recovered one glass crack pipe, but nothing else — no pre-recorded buy money and no drugs. A police van was then summoned to the arrest location and Dey was placed, with his hands handcuffed behind his back, on the floor of the rear left side in the back of the van. Because Dey was not the first individual arrested during the course of the buy and bust operation, there was at least one other person in the van at that time. However, there was nothing on the floor where Dey was placed. In addition, the van was searched before the evening's operation began and was found to be empty.
After Dey was placed in the van, the buy and bust operation continued at several other locations. By the time it ended and the van, the undercovers, and the backup team returned to the 113th precinct ("precinct") at 10:00 p.m., seven individuals, including Dey, had been arrested and placed in the van.4 Although the arrestees could move around in the back of the van, when they arrived at the precinct Dey was seated in the same area in which he was initially placed. As Curasi lifted him in order to help remove him from the van he noticed seven glassine envelopes directly under Dey. It was later discovered that these glassine envelopes contained heroin.
Upon entering the precinct, Dey and the other arrestees were placed in a holding pen. At 12:30 a.m., Dey was removed from the holding pen for a confirmatory identification by the undercover. Confirmatory identifications proceeded in the following way: the undercover officer stood with the arresting officer on one side of a doorway that contained a viewing glass; the individuals who were arrested as a result of that undercover's buys were then brought before the viewing glass, individually, in the order of their arrest; the undercover then simply confirmed or denied whether the individual was the person from whom he had bought drugs at a particular place and time. Accordingly, undercover 22602, whose buys led to two arrests that evening, stood with Curasi on one side of the doorway while each of the arrestees who had allegedly sold the undercover drugs were placed before him for identification. As the second person arrested as a result of the undercover's buys, Dey was the second person placed before him for identification. The undercover identified him as the individual who had sold him crack cocaine in front of 170-06 Liberty Avenue.
At a "Mapp-Wade" hearing held on September 28, 1988, Curasi, the only witness called, testified about the circumstances leading to Dey's arrest and the manner in which the glassine envelopes of heroin were discovered. He testified that the description radioed by the undercover was "a male black with a goatee, approximately 5'10, 5'11, red jacket, blue jeans and black and white sneakers." (M-W Hr'g at 4.)5 He stated that the individual he and McCool arrested matched "the exact description that was radioed to us," and identified Dey, in-court, as the individual they had arrested. (Id.) He added that at the confirmatory identification, the undercover pointed to Dey and said "that's him, you know, wearing whatever," and he explained what transpired at the location. (M-W Hr'g at 24.)
The court concluded that Curasi's testimony did not "indicate any departure from good or accepted police procedure or any violation of the defendant's Constitutional rights," and that the "identification procedure and testimony were legal and valid." (M-W Hr'g at 28.) The court also denied a motion to suppress the seized evidence.
At trial, the primary issue was the identification of Dey — specifically, whether the backup team had arrested the right individual based on the physical description radioed by the undercover. The undercover made an in-court identification of Dey as the "Robert" who had sold him drugs in front of 170-06 Liberty Avenue,6 and testified that the description he had radioed was a "male black, dark skin, he had a mustache and goatee, he had on a burg[u]ndy jacket, blue jeans and black and white sneakers." (Tr. at 188, 209.) He testified that at the confirmatory identification Dey "looked the same way." (Tr. at 190.) On redirect, he elaborated that he based his identification at the precinct on the individual's "appearance," meaning, (Tr. at 217-218.) However, he admitted that he did not write down the description of the individual from whom he bought drugs until after he returned to the precinct that night, and thus, the recorded description was based on his memory.
Curasi's testimony at trial mirrored his testimony at the Mapp/Wade hearing. He stated that the description was a "male black, approximately five-ten, red jacket, blue jeans, black and white sneakers, beard, mustache," and that the individual he and McCool arrested "was, in fact, wearing those articles of clothing and did match the general physical description given by the undercover officer." (Tr. at 87-88.) He identified Dey, in court, as that individual. He also stated that Dey at the confirmatory identification "was dressed in the same article of clothing that he was arrested in," a "red burgundy type jacket." (Tr. at 137.)
McCool testified that the description was: "Male black, dark skinned, mustache and goatee with a burg[u]ndy jacket, and, I believe, jeans." (Tr....
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