Roldan v. Artuz, 97CIV.2562(DAB)(AJP).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtBatts
Citation78 F.Supp.2d 260
PartiesJuan ROLDAN, Petitioner, v. Christopher ARTUZ, Superintendent, Respondent.
Docket NumberNo. 97CIV.2562(DAB)(AJP).,97CIV.2562(DAB)(AJP).
Decision Date06 January 2000
78 F.Supp.2d 260
Juan ROLDAN, Petitioner,
Christopher ARTUZ, Superintendent, Respondent.
No. 97CIV.2562(DAB)(AJP).
United States District Court, S.D. New York.
January 6, 2000.

Page 261


Page 262

Juan Roldan, Stormville, NY, pro se.

Jennifer Correale, Asst. District Attorneys, Bronx County, Bronx, NY, for Respondent.


BATTS, District Judge.

On July 22, 1999, Magistrate Judge Andrew J. Peck issued a Report and Recommendation. The Petitioner filed an objection on July 29, 1999. Magistrate Judge Peck denied Petitioner's habeas corpus petition on the merits.

The Court has reviewed the Plaintiff's objection, which disputes no specific proposed finding or recommendation. The Court finds Petitioner's objection to be without merit. Having reviewed the Report and Recommendation and finding no clear error on the face of the record, the recommendations of Magistrate Judge Peck are hereby accepted and the Report and Recommendation dated July 22, 1999, is hereby adopted in its entirety. See Local Civil Rule 72, 28 U.S.C. § 636.

Pursuant to 28 U.S.C. § 1915(a), any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962)



PECK, United States Magistrate Judge.

Petitioner Juan Roldan was convicted of second degree murder in connection with the shooting of cab driver Roscoe Cummings. Roldan's habeas petition asserts three grounds for relief: (1) his guilt was not proven beyond a reasonable doubt (Pet.¶ 12(A)), (2) his line-up identification was impermissibly suggestive (Pet. ¶ 12(B)), and (3) the trial court improperly admitted uncharged crimes evidence (Pet. ¶ 12(C)).

For the reasons set forth below, I recommend that Roldan's habeas petition be denied on the merits.


Trial Evidence: Prosecution Case

On the morning of July 6, 1985, cab driver Roscoe Cummings was shot and killed in the Bronx during a robbery.

At approximately 7:30 p.m. on July 5, 1985, David Gonzalez Rodriguez told George Rivera that he was going to have cab drivers pick him up in Manhattan and take him to the Bronx, or vice versa, and rob them. (Trial Transcript [ "Tr."] 171-72.) Rodriguez told Rivera to leave the door to 626 Cypress Avenue in the Bronx open so that Rodriguez could enter the building quickly after the robberies. (Tr. 171-72.) Rodriguez showed Rivera a small black handgun that he planned to use in the robberies. (Tr. 172-73; People's Ex. 8.)

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At approximately 12:45 a.m. on July 6, 1985, Sean Bruce and Marilyn Rivera (George Rivera's sister) witnessed three men run from a yellow medallion cab that stopped near 140th Street and Cypress Avenue in the Bronx into a vacant lot adjacent to the apartment building at 626 Cypress Avenue. (Tr. 98-99, 103-04, 138-39, 141-48.) When the cab stopped, Bruce heard two to three gunshots and saw three people run from the cab. (Tr. 141-42.) Ms. Rivera heard two of the men yell "David, hurry up," then heard a door slam and saw a light go on in Rodriguez's apartment. (Tr. 104-07.)

The yellow cab crashed into a fence at 142nd Street and Jackson Avenue, approximately three blocks from David Rodriguez's building. (Tr. 72, 76-77, 90-93.) The driver, Roscoe Cummings, told the police that he had been robbed and shot at 140th Street and Cypress Avenue by three male Hispanics in their twenties. (Tr. 78-80, 91.) Cummings told the police that one of the men, wearing a yellow T-shirt and tan pants, was carrying a small, black, automatic gun. (Tr. 80.) Cummings told the police that he had picked up his assailants in Manhattan and driven them to the Bronx. (Tr. 80.) The police took Cummings to the hospital, where he died from a single gunshot wound to his back. (Tr. 81, 92, 193-95.)

Police officers recovered a .25 caliber automatic bullet from the back seat of the cab and an additional .25 caliber round of ammunition on the ground below the cab. (Tr. 81-83, 93-94.)

At 3:45 a.m., approximately two hours after Cummings was shot and robbed, a cab driver, Danyo Syoum, observed Roldan with a small Beretta handgun, People's Exhibit 8. (Tr. 152, 162.) Approximately one hour after Cummings was shot and robbed, Sergo Abelard saw Roldan with a small, black, automatic pistol. (Tr. 226-32.)

The police arrested Roldan at approximately 3:45 a.m. and upon searching him, recovered a gun, People's Exhibit 8. (Tr. 114-15, 119-20.) At the time of his arrest, Roldan was with David Rodriguez. (Tr. 116-17.)

Trial Evidence: Defense Case

Roldan's wife, Irma Roldan, testified that her husband regularly carried the gun, People's Exhibit 8, and that on the afternoon before Cummings was killed, she witnessed Roldan give the gun to Rodriguez. (Tr. 352-54, 357-58, 385-86, 389-91, 393-94.)

Irma Roldan also testified that she and Roldan were at his mother's house on the lower east side of Manhattan from 1:00 p.m. in the afternoon of July 5, 1985, until approximately 1:00 a.m. on July 6, 1985, fifteen minutes after Roscoe Cummings was shot. (Tr. 358-60, 364, 367, 369-70, 373-74, 395, 400.) Digna Arteaga, Roldan's mother, testified that at "[a]bout one o'clock" in the morning, Roldan woke her up to tell her that he was leaving her home. (Tr. 262, 264, 292-93, 295-96.) Willis Cruz testified that he left Arteaga's house with Roldan at 1:00 a.m. (Tr. 306-07, 326, 334, 337-39.) Arteaga, Cruz and Irma Roldan testified that Roldan was wearing a light blue shirt on July 5, 1985; Arteaga testified that Roldan did not own a yellow shirt. (Tr. 290, 339, 393, 397.)

The Pretrial Wade Hearing

On May 19, 1986, a pretrial Wade hearing was conducted to determine whether the pretrial identification procedures were impermissibly suggestive. (See generally 5/19/86 Wade Tr.)1

Page 264

At approximately 8:00 a.m. on Saturday July 6, 1985, some four hours after Roldan's arrest, Officer Thomas Wray contacted cab driver Sergo Abelard and asked him to come to the station house to view a lineup. (Wade Tr. 4-5, 7.) After he saw what Roldan and Rodriguez looked like, Officer Wray went "on a canvass of the neighborhood, attempting to get ten fillers for these ... line-ups." (Wade Tr. 8, 15.) Officer Wray testified that it was very difficult to find fillers on a Saturday morning and that he spent "quite a bit of time in the street." (Wade Tr. 8, 24-26.) Officer Wray selected the fillers on the basis of "necessity." (Wade Tr. 15.)

Roldan was in a separate lineup with four fillers. (Wade Tr. 8, 12, 15-16.) The men were seated during the lineup. (Wade Tr. 8, 16; see also 6/30/97 Affidavit of ADA Jennifer Correale, Ex. 13: Lineup Sheet.) Two of the fillers were 34 and 35 years old, while Roldan was 22; two other fillers were 22 and 25. (Wade Tr. 15-16; Correale Aff. Ex. 13.) Two of the fillers were 5'4" and 5'2", while Roldan is 6 feet tall, but Officer Wray considered them proper fillers under the circumstances since the lineup was conducted in a seated position; also, the other two fillers were 5'10" and 5'11". (Wade Tr. 16; Correale Aff. Ex. 13.) Roldan's skin color was lighter than three of the four other fillers, and he had a different hair style than two of the others. (Wade Tr. 59; Correale Aff. Ex. 13.) Roldan weighed 200 pounds, while two of the fillers weighed 150 and 154 pounds, and two other fillers weighed 180 and 192 pounds. (Correale Aff. Ex. 13.)

Abelard identified Roldan in the lineup. (Wade Tr. 10, 16.)

At the Wade hearing, the defense alleged that the lineup was "unduly suggestive and that any in-court identification would therefore be tainted by the alleged prejudicial identification." (See 7/11/86 Opinion of Justice Fried on the Wade issues, at 1.) The trial court held that the lineup was not suggestive:

Here, viewing the totality of the circumstances, it is clear that the police did not act in an impermissibly prejudicial manner....

With regard to the actual composition of the lineup, Roldan's physical appearance was not so distinguishable from that of the others in the lineup as to make the lineup unduly suggestive.... Although the heights of the five men varied, this was not discernible from the sitting position in which they were viewed. The weights of two of the fillers were close to that of Roldan. In addition to Roldan, two of the fillers had short, dark hair, while all the men had dark hair. Everybody in the lineup had a moustache. Roldan was not the only [H]ispanic in the lineup, nor was he the only one with a light complexion. Nobody was required to don any particular clothing, nor was anybody asked to speak during the lineup identification. While the physical appearance of the fillers could have been closer, they were not so dissimilar as to be unduly suggestive.

Accordingly, the motion to suppress the subway platform identification of both defendants and the pre-arraignment lineup identification of defendant Roldan are denied.2 Also denied is the

Page 265

motion to suppress any in-court identifications.

(7/11/86 Wade Opinion of Justice Fried, at 6-8, emphasis added.)

The Molineux Hearing

On September 2, 1986, a pretrial Molineux hearing was held to determine the admissibility of evidence concerning Roldan's robberies of cab drivers Abelard and Syoum. The State sought to introduce evidence of the robberies on two separate theories: to establish Roldan's identity, and to show a common scheme or plan. (9/3/86 Molineux Tr. 9-10, 12-13.)3

The trial court held that the prior robberies were not admissible under Molineux unless the defense opened the door, but that Abelard and Syoum could testify that they saw Roldan with the murder weapon:

[T]he Court finds there is no common scheme or plan within the acception [sic] to the judicially created rule, [which] does not permit evidence of uncharged crimes to be admitted unless it fits within one of the so-called exceptions enunciated in People v. Molineux, 168 N.Y. 264, 61 N.E. 286 and progeny, such as ...

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