U.S. v. Yanishefsky

Citation500 F.2d 1327
Decision Date30 July 1974
Docket NumberNo. 1145,D,1145
PartiesUNITED STATES of America, Appellee, v. Robin YANISHEFSKY, Defendant-Appellant. ocket 74-1117.
CourtU.S. Court of Appeals — Second Circuit

Michael A. Young, New York City (The Legal Aid Society, William J. Gallagher, New York City, on the brief), for defendant-appellant.

Steven A. Schatten, Asst. U.S. Atty. (Paul J. Curran, U.S. Atty. S.D.N.Y., John D. Gordan III, Asst. U.S. Atty., on the brief), for appellee.

Before MOORE and FEINBERG, Circuit Judges, and PALMIERI, District judge. *

PALMIERI, District Judge:

Robin Yanishefsky was convicted of the unlawful possession of heroin and cocaine and of introducing and attempting to introduce these narcotic substances into the Federal Detention Headquarters at West Street, Manhattan, in violation of 21 U.S.C. 812, 841(a)(1), 841(b)(1)(A), and 18 U.S.C. 1791. After a finding of guilt on both counts, Judge Wyatt suspended imposition of sentence and placed appellant on probation for two years.

The facts established at the trial were substantially the following. The appellant visited the jail in the afternoon of October 31, 1973, to visit Roosevelt Bell, an inmate incarcerated for violations of the Mann Act, listing herself as his wife, although not married to him. The appellant, herself a smoker of Kool cigarettes, was observed by Michael Garone, a correction officer, and Arthur Gantt, an inmate, to toss a package of Kool cigarettes through a hole in the plexiglass wall of the bulletin board room. Bell had been previously observed peeking into this room. The package was immediately retrieved by Officer Garone and later found to contain five cigarettes, five glassine envelopes filled with heroin and four tinfoil packets of cocaine. She was followed out of the prison by Officer Garone and another prison official and was seen departing by taxicab. She was arrested two days later.

Upon this appeal it is claimed that Robin Yanishefsky had inadequate legal representation and that her conviction should be set aside on this ground.

We are constrained to reject this contention. This allegation is based on six grounds: (1) that her attorney should have requested a suppression hearing with respect to the identification testimony of Garone and Gantt which allegedly 'was indisputably the product of an impermissibly suggestive' pre-trial photographic display; (2) that her attorney should have sought a suppression hearing with respect to appellant's post-arrest statements allegedly taken in violation of her Fifth and Sixth Amendment rights; (3) that her attorney (a) failed to call as a witness one Lucy Wilson, Bell's sister with whom appellant was living, who accompanied the appellant on her visit to West Street on October 31 1973, and who allegedly would have given testimony exonerating appellant, and (b) that her attorney should have located and interviewed all one hundred of the visitors to West Street on that day, and that he should have requested a postponement once he received the visitors list at trial; (4) that he should have requested a court order directing the West Street officials to allow him to inspect the scene of the crime; (5) that he conceded controvertible facts, and (6) that he made incomprehensive arguments 'which served only to confuse the Court' and which seemed to 'concede her guilt.'

We deal with these seriatim:

(1) Garone and Gantt each were shown a spread of six photographs. Garone picked Yanishefsky's picture and we deal here only with his identification since it served as the primary basis for Judge Wyatt's decision. Appellant suggests that the spread was impermissibly suggestive in that two were of women with black or dark brown hair, two (but not Yanishefsky's) had names written on the front and the others had names on the back, only two were of blond women, and only one (Yanishefsky's) portrayed 'someone with the Slavic features implicit in the name Yanishefsky.' Notably, on cross-examination Garone repeatedly denied seeing any names or height scales on the photographs. Moreover, there is no implication in the record that his selection resulted from suggestion; indeed, he testified that 'all I was looking for was the face that I remembered . . ..'

Whether the photographs used were 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification,' Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); United States v. Evans, 484 F.2d 1178, 1181-1187 (2d Cir. 1973), so that 'allowing the in-court identification would be a denial of due process' turns on the 'totality of the circumstances.' United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-915 (2d Cir.), cert. denied, 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970); Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Having viewed the display ourselves, we doubt that it was impermissibly suggestive; we nevertheless assume arguendo that it was and turn to its effect on the in-court identification. Appellant contends that there was no independent basis for Garone's in-court identification of Yanishefsky. She argues that Garone had only a 'fleeting glance' of a 'side face as she was going out,' and that he could only describe the woman as 'tall,' 'blond' and 'white.'

In response to the question of why Garone had selected Yanishefsky's photograph, appellant quotes the witness's statement in the record: 'I was looking for a tall blond woman and the nearest or the one was 6-A (the photograph of appellant), sir.' Appellant offers this as evidence that Garone was not making a direct identification of Yanishefsky as the woman that he saw on the day of the crime. But such argumentation is obviated by an examination of the record. The quoted response was not directed to questions purporting to elicit whether the picture selected was 'nearest' to that of the person seen or whether it was actually one of the person heself, but the questions clearly and unequivocally pertained to whether Garone had seen names or height scales on the pictures and his response was that he had not because that was not what he was looking for.

Appellant's 'fleeting' 'side face' view argument also fails to convince us. While it is true that Garone said that he identified appellant 'through a side face as she was going out,' there is no evidence in the record indicating that his view of her was inadequate for him to formulate a clear visual and mental impression of her. United States v. Evans, supra, 484 F.2d 1181-1182. He identified her in court without hesitation as the person who threw the package of Kools into the bulletin board room. On direct examination he said that she was readily distinguishable from the two black women who were with her because she was the only white person of the three, and that 'she was outstanding in height and characteristics, blond.' This statement was a reconfirmation of Garone's response to a preceding question: Judge Wyatt-- 'There was no question as to who had the cigarette package, it was this girl?' Garone-- 'That is right.' In sum, there is no support in the record for appellant's assertion that Garone's in-court identification was not based on his independent recollection of the events.

Upon a careful examination of the record and on the basis of the particular facts of this case, where Garone was within a few feet of the perpetrator at the moment of the crime and he was cross-examined sufficiently to bring the dangers of misidentification resulting from the photographic display to the court's attention, Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. 967, 19 L.Ed.2d 1247, we conclude that Garone's in-court identification of the appellant was based on his independent recollection of the events and that he was not relying on the photograph which he selected at the arguably impermissibly suggestive display. United States ex rel. Gonzalez v. Zelker, 477 F.2d 797, 801 (2d Cir. 1973).

Appellant argues that he attorney should have sought to suppress her post-arrest statements to FBI Agents Brotman and Corliss which included admissions that she had been at West Street on October 31, 1973, that she smoked Kool cigarettes and that she probably had a package of Kool cigarettes with her during the visit to West Street. Upon appellant's arrest by FBI agents, a Kool package was found in her pocketbook. (Although appellant does not press this, she also admitted that she falsely listed herself as Bell's wife on the visitor's form.) The first two of these three admissions were established by independent evidence at the trial: a prison control room visiting card bearing that date and a visitor's card from West Street bearing her signature and the date were introduced, and Agent Brotman testified that during their interview she specifically requested a pack of Kool cigarettes. She alleges here, for the first time, that prior to the trial she had advised her attorney that at the beginning of the interrogation she had requested and was denied counsel.

Thus, all that is presented is appellant's bald assertion that she requested and was denied counsel, as opposed to the uncontradicted sworn testimony of Brotman that she was advised of her rights and that she refused to sign the waiver form but that she orally consented to speak with the agents. In fact, he testified that she had not asked for counsel. It is also noteworthy that she made virtually identical admissions to the United States Attorney's Office after again being advised of her rights.

Since appellant does not deny that the FBI agents advised her of her right to counsel, nor does she allege that her statements to them were in any way involuntary or coerced, there is no basis in the record for concluding that her admissions would have been inadmissible despite her post-trial assertion that she requested counsel. It follows that any ...

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