Sanford v. Burge

• Decision Date: 02 September 2004
• Docket Number: No. CV 02-2930(NG)(MDG).,CV 02-2930(NG)(MDG).
• Citation: 334 F.Supp.2d 289
• Parties: Joseph SANFORD, Petitioner, v. John BURGE, Superintendent, Auburn Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

334 F.Supp.2d 289

Joseph SANFORD, Petitioner, v. John BURGE, Superintendent, Auburn Correctional Facility, Respondent.

No. CV 02-2930(NG)(MDG).

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

September 2, 2004.

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Joseph Sanford, pro se.

Queens County District Attorney's Office, by Donna Aldea, John M. Castellano, and Johnette Traill, for respondent.

ORDER

GERSHON, District Judge.

Petitioner's objections, dated June 8, 2004, to the February 27, 2004 Report and Recommendation of the Honorable Marilyn D. Go, magistrate judge, have been reviewed under the de novo standard of review. See Fed.R.Civ.P. 72(b). The objections are without merit. Judge Go's thorough and thoughtful analysis of the issues before the court is hereby adopted by the court in its entirety. For the reasons stated by Judge Go, the petition for a writ of habeas corpus is denied.

Since petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability is denied pursuant to 28 U.S.C. § 2253(c).

SO ORDERED.

REPORT AND RECOMMENDATION

GO, United States Magistrate Judge.

Petitioner pro se Joseph Sanford seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition in this matter was referred to me by the Honorable Nina Gershon to report and recommend. For the following reasons, I recommend that the petition be denied.

PROCEDURAL BACKGROUND

Joseph Sanford was charged with two counts of attempted murder in the first degree, N.Y. Penal Law §§ 110.00, 125.27[1]; two counts of attempted murder in the second degree, id. §§ 110.00, 125.25[1]; one count of criminal possession of a weapon in the second degree, id. § 265.03; and one count of criminal possession of a weapon in the third degree, id. § 265.02[4]. After a jury trial before the Honorable Randall Eng, petitioner was convicted of two counts of attempted murder in the first degree and criminal possession of a weapon in the second and third degrees. On September 4, 1996, Justice Eng sentenced petitioner to two consecutive indeterminate prison terms of fifteen years to life on the attempted murder convictions to run concurrently with two terms of imprisonment of five to fifteen years and two and 1/3 to seven years on the second and third degree weapon possession convictions, for a total term of imprisonment of thirty years to life.

Wade Hearing

Prior to trial, petitioner moved to suppress identification evidence. In his motion papers, petitioner specifically requested that "all persons who identified the defendant, or who were present at the procedure, but did not identify the defendant, be present at the hearing, so that they may be called as witnesses." Motion to Suppress Identification Evidence at 24 (attached as Exh. C to July 17, 2001 Application for Leave to Appeal to Court of Appeals).

The sole witness at the hearing was Detective Michael Solomeno, who was assigned to the 101st precinct and investigated a shooting in the vicinity of 443 Beach 54th Street, in Far Rockaway, Queens. Transcript of January 3, 5, 1996 Hearing ("H.") at 4-6. Arriving at the scene at about 12:15 a.m. on May 9, 1995, Solomeno learned from Sergeant Bonifati of the Queens Robbery Task Force that two of Bonifati's officers, Edward Wilkowski and Mark DiPierro, were involved in a shootout with two black males. Id. at 7. Shortly after the shooting incident, the officers told Bonifati that they were sitting in an unmarked car when two black men walked toward them, one of whom was carrying a gun. Id. Once the men passed the unmarked car, the officers exited the car, identified themselves as police officers and ordered the men to stop. In response, the armed man shot at the officers and the officers returned fire. Id. at 7-8. On cross-examination, Solomeno could not give the distance between the officers and the perpetrators when ordered to stop. Id. at 35-36, 38.

During the investigation of the shooting, Housing Unit officers canvassing the area interviewed a woman who knew petitioner and had seen him, while wearing a bandana, shooting into a housing project building at 5430 Beach Channel Drive on May 8. Id. at 12. Because petitioner fit the officers' description of the gunman, Solomeno prepared a photo array containing petitioner's photo. Id. Solomeno obtained the photographs for the photo array from "file cabinets full of" photos of people arrested at the 101st precinct. Id. at 41-42.

At about 8:45 a.m. on May 9, Solomeno spoke with DiPierro in the 101st precinct detective squad lunch room and showed him a photo array containing petitioner's photo and five others. Id. at 8-10, 12-16. Solomeno then escorted DiPierro out and brought Wilkowski into the room to show him the same photo array. Id. at 9-11, 16-17, 42. Both officers' attorneys were present when Solomeno interviewed them. Id. at 32. Solomeno talked to each officer separately and DiPierro and Wilkowski did not talk to each other between the photo viewings. Id. at 16, 30. Both DiPierro and Wilkowski identified petitioner's photo as resembling the man who shot at them. Id. at 15-17. They told Solomeno that "they didn't get a good look" at the second man but described the gunman as a black male wearing a red bandana. Id. at 12, 18-19.

Solomeno neither created reports of his interviews of DiPierro and Wilkowski nor put the officers' description of the perpetrators in a "UF 61" form. Id. at 30-32. Solomeno had no prior contact with the officers and did not know whether they had been within the confines of the 101st precinct before. Id. at 29.

Although Solomeno separated the officers from each other when shown the photographs, Solomeno did not know whether the officers were separated from each other the whole time they were at the precinct. Id. at 42-43. Similarly, Solomeno did not know whether the officers talked to each other after the viewings. Id. at 48.

Petitioner was arrested at about 3:00 p.m. that afternoon in front of his apartment building. Id. at 18. Officers DiPierro and Wilkowski viewed a line-up at about 9:00 p.m. and both identified petitioner as the gunman from the night before. Id. at 19-26. Petitioner's number and position in the line-up were different for each officers' viewing. Id. at 21, 23. The five line-up fillers were men from a veteran's shelter in the 108th precinct who best fit petitioner's description. Id. at 20. Photographs of both line-ups were admitted into evidence. Id. at 21-25. Solomeno admitted in cross-examination that he did not know whether the officers had previously seen the photographs used in the photo array or the men who were in the line-up. Id. at 45-46, 49-50. He also did not know whether the officers had ever previously set up photo arrays or line-ups in the 101st precinct. Id. at 45, 49-50.

At the conclusion of the hearing, defense counsel argued that Solomeno's testimony was insufficient because he did not know "whether these fillers used in the photo array and the lineup were ever used or seen by these two police officers, Wilkowski and DiPierro, before this incident." Id. at 53. Counsel further argued that "it's impossible for me to bring out a taint in this particular situation through this witness because the witness does not possess the knowledge ..." and, accordingly, "one or both of these individual police officers have to be brought in to clear that up." Id. at 54-55.

The court denied the suppression motion, ruling that there was probable cause for petitioner's arrest and that although "all photo ID's and so on are susceptible of suggestibility," in this case "they were properly conducted." Id. The court also found, after examining the line-up photos, that there "was a fair line-up and the procedure ... seemed to be fair." Id.

Evidence at Trial

At midnight on the evening of May 8, 1995, Officers Wilkowski and DiPierro were in their unmarked police car parked on Beach 54th Street facing Beach Channel Drive with Alameda Avenue to the rear and with Wilkowski in the front passenger seat and DiPierro in the driver's seat. Trial Transcript ("Tr.") at 44-46. The car had tinted side and rear windows. Id. at 41, 774. Officer Wilkowski testified that the lighting near the car was "dim," while Officer DiPierro testified it was "pretty well lit." Id. at 198, 780. The officers were conducting surveillance in an unrelated case when they saw petitioner and another man walking down the street towards them. Id. at 39, 48, 777. Wilkowski testified that the men were fifty to sixty feet away when he first saw them, while DiPierro stated that he first saw the men when they were twenty to thirty yards away. Id. at 48-49, 144-45, 777. When the men were about ten yards from the car, DiPierro observed petitioner holding what appeared to be a large silver forty-four caliber gun and alerted his partner.¹ Id. at 51, 779. Petitioner and his companion, who was unarmed, walked directly in front of the unmarked car, about six to eight feet from the officers, and crossed the street. Id. at 52, 780. With their shields exposed and guns drawn, the officers got out of their car and, as they approached the men from behind, DiPierro yelled "Police. Don't move." Id. at 58, 783. Petitioner, who was ten to fifteen feet away from the officers, turned and fired at them. Id. at 61-62, 783-84. Both officers fired back, but no one was injured. Id. at 63-66, 784-85.

In an ensuing chase, petitioner and his companion ran across a dirt and grass field towards the Edgemere housing project. Petitioner continued to shoot at the officers and the officers returned fire. Id. at 66-74, 785-87. During the chase, the perpetrators were twenty-five to sixty feet away from the officers. Id. at 70, 785-86. As petitioner and his companion reached the apartment houses, petitioner ran to the right and the other man continued straight ahead. The officers chased the unarmed man but lost sight of him when he ran into a building. Id. at 72-74.

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