Vasquez v. Poole

• Decision Date: 20 August 2004
• Docket Number: No. 03-CV-4935(ERK)(MDG).,03-CV-4935(ERK)(MDG).
• Citation: 331 F.Supp.2d 145
• Parties: Absalon VASQUEZ, Petitioner, v. Thomas POOLE, Superintendent, Five Points: Correctional Facility, & The Attorney General of the State of New York, Respondents.
• Court: U.S. District Court — Eastern District of New York

Page 145

331 F.Supp.2d 145

Absalon VASQUEZ, Petitioner, v. Thomas POOLE, Superintendent, Five Points: Correctional Facility, & The Attorney General of the State of New York, Respondents.

No. 03-CV-4935(ERK)(MDG).

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

August 20, 2004.

COPYRIGHT MATERIAL OMITTED

Robert Alexander Osuna, New York City, for Plaintiff.

New York State Attorney Generals Office-Generic, Queens County District Attorneys Office-Generic, Emil Bricker, Kew Gardens, NY, for Defendants.

MEMORANDUM & ORDER

KORMAN, Chief Judge.

Petitioner Absalon Vasquez seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 from his 1999 conviction for burglary in the first degree, attempted rape in the first degree, assault in the third degree, and endangering the welfare of a child. After a jury trial, petitioner was sentenced to concurrent indeterminate prison terms of ten to twenty years and five to ten years, and two separate concurrent prison terms of one year. The Appellate Division affirmed the conviction, People v. Vasquez, 297 A.D.2d 297, 745 N.Y.S.2d 920 (2d Dep't 2002), and petitioner's application for leave to appeal to the Court of Appeals was denied. People v. Vasquez, 98 N.Y.2d 732, 749 N.Y.S.2d 482, 779 N.E.2d 193 (2002).

While Mr. Vasquez raises four issues in his petition for habeas corpus, I focus primarily on his claim that the state court unreasonably applied Supreme Court law in affirming the trial court's decision to allow the victim to testify about her pre-trial identification of Mr. Vasquez. The identification was a show-up at the police station. It took place one-and-a-half hours after the crime occurred when Mr. Vasquez freely entered the police station, asked for the police officer who had been investigating the case, and claimed to have dropped some papers that had been found at the scene of the crime. The identification was made under suggestive circumstances. It was nevertheless admissible. I write at some length not because the issue is a particularly close one, but because it raises an important question about how federal courts should review state court decisions regarding the admissibility of eyewitness identifications on habeas corpus.

Background

In the middle of the day on August 15, 1997, petitioner assaulted and attempted to rape Aracelis Madera, a sixteen-year-old girl. Aracelis lived with her mother, sister, brother, and her mother's boyfriend, Shahzad Haq in the second and third floor of a two-family house in Queens, New York. Tr. 385-86. The door to the house was in the back atop an external stairway that led into a driveway and garage area. Tr. 387-88. Also in the back of the house was an unprotected window that looked from the living room onto the stairs. Tr. 389. Just before noon on August 15, 1997, Aracelis Madera left her house to use a payphone across the street. Tr. 387. After making a call, she walked back through the driveway and up the stairs, entered her apartment, and locked the door. Tr. 388-89. Leaving the window open, she then went upstairs to her third-floor bedroom. Her room had three large windows, making it "very light inside" at noon. Tr. 389-90. After spending several minutes in her room, Aracelis walked back toward the stairs to go to the bathroom. Tr. 390. Before she reached the bathroom, however, she saw a man she had never seen before — later identified as Mr. Vasquez — coming to the top of the stairs. Id.

Mr. Vasquez immediately grabbed Aracelis and put his hand over her mouth. Tr. 391. He told her to "shut up" and began forcing Aracelis backward until they were in her bedroom. Tr. 392-94, 458-59. During this time, Aracelis and Vasquez "weren't really far apart from each other" and she was looking directly at his face. Tr. 392-93. After Vasquez pushed Aracelis into her bedroom, he pushed her onto the bed and got on top of her. Tr. 394. Aracelis described it as follows: "He was on top of me and he was kissing my neck and trying to pull down my shorts." Id. She thought he was going to rape her, and she struggled to pull him off of her. Id. The entire time, however, Vasquez kept one hand pushing down on Aracelis's mouth. Id. After a few minutes of struggling with Vasquez on top of her, Aracelis managed to lift his hand from her mouth so that she could scream. Tr. 395. When she screamed, Vasquez hit her in the mouth — cutting her mouth on the front and side against her metal braces. Tr. 395-96. After being hit, Aracelis managed to scream for a second time, but then Vasquez re-covered her mouth. Tr. 396.

When Aracelis screamed the second time, she heard the door to her mother's bedroom open. Tr. 397. Her mother's boyfriend, Shahzad Haq, had been sleeping in the bedroom and had heard the screams. Tr. 770. When the door opened, Vasquez jumped off of Aracelis and ran down the stairs. Tr. 397. Haq saw his face as he turned to go down the stairs. Tr. 772. Haq then ran down the stairs after Vasquez (who fled through the window) and Aracelis herself ran outside and across the street to the payphone to call 911. Tr. 399-401, 463-66; 775. Meanwhile, she could see Haq chasing Vasquez toward Northern Boulevard. Tr. 400.

Aracelis was crying as she telephoned the police, but managed to describe what had happened to the 911 operator. Tr. 401. A few minutes later, at approximately 12:06 p.m., a police car appeared on the scene with two female officers, Lorie Robinson and Ivette Torres. Tr. 308, 401-02, 584. When the officers found her, Aracelis was hysterical and bleeding from the mouth. Tr. 549. After explaining what had happened, she went with the officers to search for Haq and Vasquez. Tr. 308-09, 402. They found Haq, but despite patrolling the area for somewhere between ten and thirty minutes, they were unable to find Vasquez. Tr. 336, 402-03; 640. Eventually, Aracelis, Haq, and the police officers returned to Aracelis's home. Tr. 403.

When arrived back at the house, Haq told the officers that Vasquez had dropped some papers while he was running through the driveway. Tr. 780. He pointed out the papers, which were folded and lying on the ground. Tr. 310, 551, 579. Specifically, they were on the house side of an open gate that separated the driveway from the street, some distance back from the sidewalk. Tr. 352-54, 405. One of the police officers picked them up. Tr. 406, 553. The papers were an employment application filled out by Vasquez that stated his name, address, and telephone number.

After spending approximately ten minutes in Aracelis's apartment, the officers, along with Aracelis and Haq, went to the address listed on the job application. Tr. 315. When they arrived, Officers Robinson and Torres went upstairs to the listed apartment while Haq and Aracelis waited in the car. Tr. 316, 581. At the apartment, the officers had a conversation with Vasquez's wife, Lucy Vergara, whose name had been provided as a contact on Vasquez's employment application. Tr. 317, 581. No one else appeared to be present, but Ms. Vergara provided the officers with a photograph of Vasquez. Officer Robinson left her name and the address of the precinct with Ms. Vergara, and then, at approximately 1:20 p.m., the officers returned to the precinct with Haq and Aracelis. Tr. 317-18, 582, 586, 692.

When she was at the precinct, Aracelis first went upstairs and spoke to Detective Falciano. Tr. 414. She gave the detective a description of the man who had attacked her and then began to look at three different books of photographs in an effort to identify the individual. Tr. 414, 513. She was unable to identify anyone from the pictures. Tr. 415. Meanwhile, at approximately 1:40 p.m., twenty minutes after Officers Robinson and Torres had returned to the precinct with Haq and Aracelis, Absalon Vasquez had walked into the precinct with Ms. Vergara. Tr. 586. They asked for Officer Robinson. Tr. 587. When Officer Robinson introduced herself, Vasquez stated that "he was looking for some papers that he had dropped when he was chasing someone." Tr. 588. Officer Robinson then walked Vasquez upstairs and led him to a small room. Tr. 415. At Officer Robinson's direction, Aracelis looked into the small room where Vasquez was standing alone. Id. She immediately recognized him as the man who had attacked her. Tr. 517. Vasquez had changed his clothes, but she recognized him nevertheless. Id.

At 1:59 p.m., after Aracelis had identified Vasquez as the perpetrator, Officer Robinson placed Vasquez under arrest. Tr. 591. She also had a conversation with Ms. Vergara. Tr. 593. Pursuant to that conversation, Officer Robinson asked Officer Torres to return with Ms. Vergara to her apartment and "retrieve the shirt that the defendant was wearing that morning." Tr. 594. Officer Torres returned with Ms. Vergara to Vasquez's home, where Ms. Vergara handed her a beige shirt. Tr. 320. At trial, both Haq and Aracelis would testify that the shirt looked like the one they had seen Vasquez wearing during the attack. Tr. 415-17, 773-74.

Petitioner was ultimately indicted for Burglary in the First Degree (New York Penal Law § 140.30[2]), Burglary in the Second Degree (New York Penal Law § 140.24[2]), Attempted Rape in the First Degree (New York Penal Law §§ 110/130.35[1]), Assault in the Third Degree (New York Penal Law § 120.00 [1]), and Endangering the Welfare of a Child (New York Penal Law § 260.10 [1]). After two mistrials — one for the admission of unduly prejudicial testimony and one for a hung jury — petitioner was convicted on all counts. A judgment was entered on March 26, 1999 and petitioner was sentenced to concurrent prison terms of ten to twenty years for the first-degree burglary conviction, five to ten years for the first-degree rape and second-degree burglary convictions, and one year each for his third-degree assault and endangering the welfare of a child convictions. On August 5, 2002, the Appellate Division modified petitioner's conviction by dismissing the second-degree burglary...