Massillon v. Conway

• Decision Date: 05 August 2008
• Docket Number: No. 03 Civ. 3445(SHS)(THK).,03 Civ. 3445(SHS)(THK).
• Citation: 574 F.Supp.2d 381
• Parties: Luders MASSILLON, Petitioner, v. James CONWAY, Acting Superintendent of Attica Correctional Facility, and Andrew M. Cuomo, Attorney General of New York,<SMALL><SUP>1</SUP></SMALL> Respondents.
• Court: U.S. District Court — Southern District of New York

574 F.Supp.2d 381

Luders MASSILLON, Petitioner, v. James CONWAY, Acting Superintendent of Attica Correctional Facility, and Andrew M. Cuomo, Attorney General of New York,¹ Respondents.

No. 03 Civ. 3445(SHS)(THK).

United States District Court, S.D. New York.

August 5, 2008.

COPYRIGHT MATERIAL OMITTED

Nancy E. Little, Esq., The Legal Aid Society, Criminal Appeals Bureau, Kew Gardens, NY.

Luke Martland, Esq., Attorney General of the State of New York, New York, NY.

ORDER

SIDNEY H. STEIN, District Judge.

In a Report and Recommendation, Magistrate Judge Theodore H. Katz has recommended that the petition of Luders Massillon for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be granted. After a de novo review of that Report and consideration of defendants' objections, the Court adopts the Report and Recommendation with the following modification.

In assessing whether petitioner was prejudiced by the ineffective assistance of his trial counsel, see Strickland v. Washington, 466 U.S. 668, 691-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Magistrate Judge Katz applied the factors set forth in Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), in order to determine whether Detective Trigueno's and Officer Williams's in-court identifications were independent of petitioner's unlawful arrest. This Court finds it more likely that New York courts would apply the analysis set forth in United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980), because the question presented in that case, as in this one, was whether a witness's in-court identification was independent of an out-ofcourt identification that had been excluded as the fruit of an arrest without probable cause. 445 U.S. at 467-68, 100 S.Ct. 1244; see People v. Gethers, 86 N.Y.2d 159, 163, 654 N.E.2d 102, 630 N.Y.S.2d 281 (1995) (citing Crews as providing the standard for determining the admissibility of an incourt identification where an out-of-court identification has been suppressed as the fruit of an arrest without probable cause); People v. Brnja, 50 N.Y.2d 366, 406 N.E.2d 1066, 429 N.Y.S.2d 173 (1980) (same).

In Crews, 445 U.S. at 473 n. 18, 100 S.Ct. 1244, the U.S. Supreme Court applied the factors set forth in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), in determining whether an in-court identification had an independent source:

[1] the prior opportunity to observe the alleged criminal act, [2] the existence of any discrepancy between any prelineup description and the defendant's actual description, [3] any identification prior to lineup of another person, [4] the identification by picture of the defendant prior to the lineup, [5] failure to identify the defendant on a prior occasion, and [6] the lapse of time between the alleged act and the lineup identification.

388 U.S. at 241, 87 S.Ct. 1926. Although these factors are not identical to those in Biggers, there is clearly substantial overlap between them.² Moreover, the Supreme Court in Crews also cited Biggers, which suggests that the two analyses are indeed closely related.³ See 445 U.S. at 473 n. 18, 100 S.Ct. 1244. The distinction is somewhat academic because this Court finds that an analysis pursuant to Crews leads to the same conclusion that Magistrate Judge Katz reached pursuant to Biggers; namely, that "if the in-court identifications had been challenged by defense counsel, it is probable that the prosecution would not have been able to meet its burden of proving admissibility by clear and convincing evidence." (Report and Recommendation at 405.)

Moreover, even if the in-court identifications had been admitted as independent of the out-of-court confirmatory identifications, there is still a reasonable probability that the outcome of petitioner's trial would have been different without testimony regarding the out-of-court identifications. Without that testimony, defense counsel would have had significantly greater opportunity to cross examine Detective Trigueno and Officer Williams regarding their recollections of petitioner, given that the trial occurred almost one full year after petitioner's arrest and both officers testified that they had engaged in over one hundred similar "buy-and-bust" operations since that time. (Trigueno Tr. 61-62; Williams Tr. 99.) With or without the incourt identifications, the evidence of petitioner's guilt, absent the out-of-court confirmatory identifications, is extremely thin. This Court finds that there is a reasonable probability that the outcome of the trial would have been different if the out-ofcourt confirmatory identifications had not been admitted but the in-court identifications had been.

Accordingly, after a de novo review of Magistrate Judge Theodore H. Katz's Report and Recommendation dated May 1, 2006, and defendants' objections dated June 15, 2006, IT IS HEREBY ODERED THAT

1. Magistrate Judge Katz's Report and Recommendation, as modified, is adopted; and

2. The petition pursuant to 28 U.S.C. § 2254 is granted.

SO ORDERED:

REPORT AND RECOMMENDATION

THEODORE H. KATZ, United States Magistrate Judge.

This habeas corpus proceeding was referred to this Court for a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and Local Civil Rule 72.1(d) of the Southern District of New York.

Petitioner, a New York State prisoner incarcerated at Attica Correctional Facility, was convicted of Criminal Sale of a Controlled Substance in the Third Degree, N.Y. Penal Law § 220.39(1). He seeks habeas relief pursuant to 28 U.S.C. § 2254, claiming that he was denied effective assistance of counsel when, after a pretrial determination that Petitioner had been arrested without probable cause, defense counsel failed to move to suppress the subsequent confirmatory identifications. Respondents contend that the Petition should be dismissed because Petitioner received effective assistance of counsel that was well within constitutional standards. For the reasons set forth below, the Court respectfully recommends that the Petition be granted.

BACKGROUND

Petitioner's conviction stems from a November 2, 1996 police "buy and bust" operation in Manhattan, targeting crack cocaine. During the operation, undercover officers transmitted the seller's description to the operation's arrest team. Based upon that description, a member of the team stopped, arrested, and searched Petitioner. The officer recovered crack cocaine and $44 in cash, but failed to recover any of the pre-recorded buy money that had been used by the undercover officer to make the drug buy. After Petitioner was arrested, two undercover officers confirmed that Petitioner was the man who had sold the crack cocaine.

I. The Suppression Hearing

Prior to trial, defense counsel moved for suppression of the physical evidence obtained from Petitioner, asserting that it was the fruit of an unlawful arrest. Defense counsel also requested a hearing on the voluntariness of a statement Petitioner made to the police as he was stopped on the street. Counsel did not move to suppress the confirmatory identifications made by the two officers or any potential in-court identifications.

On October 8, 1997, a suppression hearing was held in New York State Supreme Court, New York County (Shea, J.). At the hearing, Detective Marvin Hernandez ("Hernandez") testified that he was the arresting officer for that day's "buy and bust" operation. (See Suppression Hearing Transcript, Oct. 8, 1997 ("Suppression Tr."), at 7.) Hernandez testified that Officers 5543 and 4359 were the undercover officers for the operation, and other members of the operation included a sergeant and field team. (See id. at 6-9.)

At approximately 11:05 A.M. on November 2, 1996, Hernandez, driving down Broadway in Manhattan, received a transmission from undercover Officer 5543. (See id. at 11.) The undercover officer stated that there had been a "positive buy," gave descriptions of a seller as well as a buyer, and indicated a location of 90th Street and Amsterdam Avenue and the direction in which both men were walking. (See id. at 11, 13, 15, 28.) The description of the seller was of a male wearing a green coat and black pants. (See id. at 12-13, 30-31.) Hernandez did not remember if the description included the seller's race. (See id. at 12.) Hernandez testified that the description given of the buyer was of a black male, also wearing a green coat and black pants. (See id. at 12-13, 30-31.)

Hernandez said that he responded to the vicinity of 90th Street and Amsterdam Avenue, and about five minutes after the transmissions he arrested the person he believed to be the buyer, on 88th Street near Broadway. (See id. at 13, 32.) When the court asked how Hernandez knew it was the buyer, Hernandez explained that he fit the description. (See id. at 14.) Noting that Hernandez gave the same description for the buyer and seller, the court questioned how he could distinguish them. (See id.) Hernandez then altered his testimony and stated that the seller was wearing blue jeans and the buyer was wearing black jeans. (See id. at 14-15.) Hernandez explained that the radio transmission had also indicated that the buyer was walking in a southerly direction from 90th Street. (See id. at 16.)

A few minutes later, after arresting and searching the buyer, Hernandez testified that he received a second transmission from undercover Officer 4359, who was acting as a "ghost" for the "buy and bust" operation. (See id. at 17, 42.) She radioed that she saw the seller at West End Avenue and 90th Street. (See id. at 17.) After driving down West End Avenue and turning west onto 90th Street, Hernandez testified that he saw Petitioner, wearing a green coat and blue jeans, walking on the south side of 90th Street. (See id. at 17-19.) No one else was on that residential street. (See id. at 18.) Without asking Petitioner any questions, Hernandez and another member of the arrest team approached Petitioner,...