Farrell v. Ercole, 07 Civ. 8073 (LAP) (HBP)
| Decision Date | 10 July 2012 |
| Docket Number | 07 Civ. 8073 (LAP) (HBP) |
| Parties | DENNIS FARRELL, Petitionerl, v. ROBERT ERCOLE, Superintendent, Respondent. |
| Court | U.S. District Court — Southern District of New York |
ORDER ADOPTING REPORT & RECOMMENDATION ON HABEAS DENIAL
Petitioner filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 10, 2007 and filed an Amended Petition on October 16, 2008. On December 8, 2011, Magistrate Judge Pitman issued an exhaustive Report and Recommendation, concluding that Petitioner is not entitled to habeas relief and that the action should be dismissed with prejudice. By Order dated January 11, 2011, Petitioner received an extension of time to February 29, 2012 to submit objections. Petitioner's objections and supplemental objections were received on January 2 0 and February 27, 2012, respectively.
Upon review of Petitioner's objections, attached, and finding Judge Pitman's decisions on timeliness, procedural bars, and the merits to be correct and appropriate upon de novo review, see Fed. R. Civ. P. 72(b), the Report andRecommendation is hereby adopted. Because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability shall not issue pursuant to 28 U.S.C. § 2553. Nor shall any certification pursuant to 28 U.S.C. § 1915(a)(3) be issued as any appeal from this decision would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 445 (1962).
The Clerk of the Court shall mark this action closed and all pending motions denied as moot.
v.
ROBERT ERCOLE, SUPERINTENDENT RESPONDENT,
DENNIS FARRELL, PETITIONER,
v.
ROBERT ERCOLE, SUPERINTENDENT Green Haven Corr. Fac.
PETITIONER'S OBJECTIONS TO MAGISTRATE
1. INTRODUCTION
On December 8th, 2011, Magistrate Judge Henry Pitman filed a Report ft Recommendation ("RR") recommending that all of the claims in the Petitioners application for a writ of Habeas Corpus be denied. The petitioner hereby objects to each and every recommendation contained in said "RRn.
Identification is the core issue of this case.
During trial, Mr. Virani victim/witness told the jury. He knew that the suspect was in custody, that he was mindful that the person was "over six feet tall" and "the defendant was the only person over six fee tall. (See Trial Transcripts, page 233, line 7; page 23, line 21 to page 234, line 6; and page 237, line 25 to page 240, line 7.)
Mr. Virani claimed that he had defendant come forward two times, (Trial Transcripts, page 242 line 24). That he was not given instructions to not speak with the other viewers of the lineup, (Trial Transcripts page 247, line 12); and counsel did not move for a re-opening of the suppression hearing upon this crucial tesatimony being unveiled in open court.
When Mr. Rani testified he said the perpetrator was in shape --a body builder; the man was light brown; the perpetrator was carrying a garbage bag and his pants was hanging down; and when asked does he see the person who did this to him in the courtroom he said no.(Trial Transcripts page 258, line 17-20; page 259, line 13-15; page 261 line 2-5; and page 265 line 19.)
When asked about the people in the lineup room, he stated that everyone was his height except one person, "that's why he picked him because of his height", (Trial Transcripts page 287, line 12 to page 288, line 5).
Learning this information defense counsel should have made a timely motion to reargue, (See People v. Ireland, 217 A.D.). 2d 971, 630 NYS 2d 177), Counsel should have known that the ruling on a suppression motion is not final, and may he changed or revised at any time prior to final judgment. (See People v. James, 111 AD2d 254, 489 NYS 2d 527.)
After the holiday on January 21, 2003, Mr. Rao testified that the man that robbed him was fat, (Trial Transcripts page 372 line 12); age 35 plus or 40, (Trial Transcripts page 372 line 7) and that he told the police at the lineup: it looks like the guy although I have doubts. (Trial Transcripts page 378 line 19 to page 379 line 3).
Mr. Rao, just like the other victims stated, the police told him the guy was caught and he had to come identify him, (Trial Transcripts page 379 line 21 to page 380 line 2). Once again defense counsel refused to move to have the hearing reopened. It could have easily been argued that the due process clauses of the State and Federal Constitutions forbid the use of unduly suggestive procedures during pre-trial identification, (U.S. v. Wade 388 U.S. 718); the eponym of the hearing is to determine the validity of pretrial identification, (See People v. Mams, 53 NY 2d 241 , 440 NYS ?d 902; stoyall v. Denno 388 n.s. 293; Gilbert v. California, 388 n.s. 363; see also People V. Collins, 60 NY2d 214, 469 NYS 65.)
The courts have stated that a major factor contributing to the high incidents of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to a witness pretrial identification, Id. (quoting U.S. wade, 388 U.S. 218, 288, 87 S.CT. 1926). The "scholarly concern" and the "judicial remedies" that have been developed are fueled by the notorious inaccuracy of eyewitness identifications of suspects, (See, Johnson v. Ross, 955 F.2d 178, 180-181). The Supreme Court has held that an identification procedure is suggestive where it "in effect says to the witness 'this is the man'"; (See Foster v. California, 394 U.S. 440, 88 S.Ct. 1127, and Biggers v. Tennessee, 390 U.S. 404, 407, 88 S.Ct. 979.)
The court has stated that identification evidence should be suppressed if the display was so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of law. (See, U.S. v Jakobetz, 955 F2d 786, 803).
On many occasions during this trial the police officers continuously lied about the lineup and the people refused to correct their testimony even after hearing "their witnesses testify to what is actually a tainted lineup".
Here, the defense attorney could have easily showns that the police were lying when they testified at the pre-trial hearing about not telling the witnesses that they caught the person. Defense counsel also never informed the court thatthe Private Investigator he hired never finished his investigation.
The People were so obsessed with convicting defendant with this multi count indictment. When they called their next witness they proceded to allow him to perjure himself to discredit the previous three witnesses testimony about the lineup that don't know each other, (See, Trial Transcripts page 402, line 9) The court (mind you) on cross examination took over questioning the witness by asking did any person in the lineup stand or approach the window, and he answered no, (Trial Transcripts page 403 line 17-21). The "court" then took the lineup report and marked it People's #45 during cross examination without "anyone" requesting it, (Trial transcripts page 410 line 18-20). Once again while trial counsel was cross-examining the next witness (Det. Alfonso), the court once again took upon itself and marked the detectives notes as Peoples Exhibit #49, (Trial Transcripts page 433 line 15-23.) When police officer Fuchs was on cross examination the court once again interrupted trial counsel and marked his notes #53 for the People without anyone reguesting.
How much latitude is granted to the trial judge? Because I felt violated based on the intervention. Trial Counsel once again showed how ineffective he really was when he didn't object to the intervention on the part of the judge. A trial judge eliciting of critical incriminating evidence posed grave risk that he conveyed to the jury an opinion that defendant was culpable and violated defendants Constitutional right to a fair trial, which was not subject to harmless error analysis. (SeeU.S.C.A. Constitutional Amendment 6; see also People v. Buckheit, 463 NYS2d 536.)
Identification was a facade. Petitioner first and foremost was denied and deprived of showing the one distinguishing trait he had (his bald head) when he was told that everyone would be wearing painters hats. Then on top of all that, Petitioner was bald, 611, and weighed 225 lbs. And was placed in lineup with (4) fillers who were conveniently all 516. (Not even the minimum height of the complaints which was 519). The fillers all weighed between 140 to 160 lbs. A far cry from petitioners 225 lbs. (Please see Hearing transcripts 17-18).
As the courts know: A due process violation occurs when the identification procedures were so impermissably suggestive as to give rise to a very substantial liklihood of irreparable misidentification. (Simmons v United States, 390 U.S. 377, at 384) Thus the central question before the courts is whether under the totality of the circumstances the identification of Defendant/Petitioner as the robber is reliable even though the confrontation was suggestive. (Neil v. Biggers 409 U.S. 188, 199 (1972); Foster v. California, 394 U.S. 440, 442, 443 (1969); see also People v. Burts, 78 NY 20 (1991). Before the courts is the issue of the discrepancy of the fillers at barrel1's (Petitioner) lineup was a major factor. To the extent that all participants were made to sit down, except when everyone was asked to walk to the...
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