MEDIA

August 19, 2005

Unduly Suggestive Eyewitness Identification

Published in: New York Law Journal | volume 234

In the U.S. District Court for the Eastern District of New York, Judge Arthur D. Spatt, granting a petition for habeas corpus, found the eyewitness identification was unduly suggestive. Judge David G. Trager denied a motion to dismiss a Racketeer Influenced and Corrupt Organizations Act (RICO) claim in connection with the renovation of the Metropolitan Transportation Authority’s (MTA) new headquarters, and Judge Spatt denied a Nassau County hospital’s claim of immunity under the Eleventh Amendment.

Habeas Corpus, Anti-Terror Act

In Brisco v. Phillips, 04 CV 00829 (EDNY, July 16, 2005), Judge Spatt granted petitioner’s application for a writ of habeas corpus, vacating his conviction for second-degree burglary and suppressing "show-up" identification evidence. Judge Spatt applied the Anti-Terrorism and Effective Death Penalty Act (AEDPA) and found that the New York State courts "unreasonably applied Federal law" in admitting the pre-trial identification of petitioner.

Ms. Kemper, a 78-year-old woman, on her phone at 11:30 a.m., reported a burglary. She described the burglar as a white male in his 20s, about 5-feet 10-inches tall and well-built, having brown hair and wearing maroon shorts and no shirt. About 1,000 yards from her premises, the police entered a home under renovation and interviewed Frank Brisco, who was 38 years old. He admitted that a pair of maroon shorts on the floor were his and said he had spent the day at that house, which was his sister’s, renovating it with his friend Brian who was also present. Brian was 5-feet 10-inches tall, brown haired, about 40 years old. Mr. Brisco, who was fully cooperative with the police, accompanied them to the crime scene, wearing only the tan shorts he then had on. He stood in front of three police cars, with the uniformed officer nearby, holding the maroon shorts in front of himself at waist level at the request of the officer. The complainant observed him through her living room window from 15 to 50 feet away. She identified Mr. Brisco as the man she had seen leaving her house, and recognized the maroon shorts Mr. Brisco held as the ones that had been worn by the burglar. Mr. Brisco was arrested three days later and charged with burglary.

Mr. Brisco moved to suppress the identification as unduly suggestive, which motion was denied. He pleaded guilty to attempted burglary, reserving his right to appeal the suppression motion. He was sentenced to 12 years to life as a predicate felon, which conviction was affirmed by the Appellate Division and the Court of Appeals. Both courts held that the show-up identification was done in close temporal and geographical proximity to the crime scene, and that forcing Mr. Brisco to hold the shorts was not unduly suggestive.

Judge Spatt first determined that Mr. Brisco had exhausted his state-court remedies, having presented his claim of unlawful admission of his show-up identification to all available state courts, which decided his claim on the merits. Judge Spatt then turned to the AEDPA, which permits granting habeas corpus relief to state criminal defendants only if the claim had "resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court…or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 USC § 2254(d).

Judge Spatt explained that a state court decision is contrary to clearly established law within the meaning of the first prong of the AEDPA

if the state court applies a rule of law that contradicts a law set forth by the Supreme Court, or if the state court confronts a set of facts that is materially indistinguishable from a decision of the Supreme Court and reaches a different result…. Slip op. at 10-11.

To violate the second prong of the AEDPA by an "unreasonable application" of federal law, the state court must apply Supreme Court precedent in an objectively unreasonable manner, i.e., "somewhere between merely erroneous and erroneous to all reasonable jurists." Slip op. at 12 (citation omitted).

The substantive federal test for admissibility of identification evidence is whether identification procedures unduly and unnecessarily suggested that the defendant was the perpetrator. If the court determines that the procedure was unlawfully suggestive, it will not suppress the evidence if the identification is nonetheless independently reliable. Id., 13-14.

Judge Spatt found that the show-up was impermissibly suggestive. There was no time emergency–there had been ample time (half an hour) for the perpetrator to get away, the defendant was the only suspect at the time and was totally cooperative. There was no reason why a far-less-suggestive lineup could not have been arranged at the police station a short time later. Furthermore, compelling Mr. Brisco to hold up the maroon shorts in front of his waist, while surrounded by the police, seemed designed to insure a positive identification.

In determining the reliability of a show-up, the court must consider the totality of the circumstances as set forth in Neil v. Biggins, 409 US 188, 199-200 (1972). Judge Spatt found that: (1) there was no evidence as to the witness’ opportunity to view the criminal during the crime; (2) the prior description failed to match the defendant in a critical respect–he was 38 and not a man in his 20s; (3) because the victim did not testify, there was no opportunity for the defendant to cross-examine her and test her level of certainty; and (4) the time between the crime and confrontation was acceptably brief, but the police waited three days until they arrested him, strongly suggesting that the identification was tentative. Judge Spatt noted that there was little or no corroborating evidence of guilt, but that consideration of this lack of evidence in analyzing the reliability of the show-up was not permitted by applicable Supreme Court precedent.

In granting the writ, Judge Spatt determined that while the New York courts’ decisions were not contrary to federal law, they erred in not reasonably applying the facts of the case to the two-step "show-up" inquiry. Judge Spatt stated that "considering there was no need to conduct the show-up, [rather than a lineup at the precinct], the mere fact that the show-up was conducted in close temporal and geographical proximity does not cure the suggestiveness of the police action." Slip op. at 30.

Judge Spatt also found the state courts’ application of federal law to be "objectively unreasonable," i.e., to fall "somewhere between ‘merely erroneous and unreasonable to all reasonable jurists."’ The "additional increments of incorrectness" cited by Judge Spatt included failure to consider the disparity between the age of the perpetrator described by the victim (20) and the defendant (38), the opportunity to see the perpetrator, and the lack of an opportunity to cross-examine the victim.

RICO Pleading

In Metropolitan Transportation Authority v. Contini, No. 04 CV 0104 (EDNY, July 6, 2005), Judge Trager denied the motion of defendant 144 Enterprises LLC d/b/a "City Check Cashing" (City Check) to dismiss the claims based on RICO violations and aiding and abetting a breach of fiduciary duty asserted against City Check.

The Metropolitan Transportation Authority (MTA) alleges in the complaint that City Check participated in a conspiracy to defraud the MTA out of millions of dollars by submitting false invoices that inflated fees for services performed by elevator operators during a renovation project at the MTA headquarters at 2 Broadway in New York. The invoices inflated the rates charged for the work done and in addition charged the MTA for work never done. According to the MTA, a shell company submitted invoices to the MTA from March 1999 through February 2000. Then, the MTA issued checks to the shell company in the total amount of $13,381,337.54, which were then distributed to six different shell companies.

City Check, a licensed check-cashing facility located in Jersey City, N.J., laundered the ill-gotten gains of the conspiracy by converting the checks to cash or bank checks payable to one of the shell companies. The contact at City Check was the manager, defendant Robert Santoro, an alleged member of the Genovese crime family who was formerly convicted of money laundering. Mr. Santoro received a percentage of each check’s value for his services. In May 2000, grand juries began to investigate the 2 Broadway project and issued several subpoenas for witnesses and documents. From May 2000 until at least January 2002, various defendants engaged in a cover-up by creating false documentation, tampering with a material witness and giving false testimony.

Judge Trager found that the MTA had adequately pleaded a pattern of racketeering activity, noting initially that even though there was only one project it was clear that "many acts of fraud were committed and that the fraud threatened to continue into the foreseeable future." Similarly, the court found the presence of only one victim irrelevant, because the fraudulent acts and money laundering were systematic and part of a well-planned and defined scheme. Finally, Judge Trager concluded that: "City Check’s money-laundering acts undertaken in pursuit of embezzling money from the MTA show a threat of future criminal conduct sufficient to establish open-ended continuity even though those acts spanned less than one year." Slip op. 9.

Next, Judge Trager determined that City Check had participated in the operation and management of the enterprise, because Mr. Santoro had "participated" in the overall scheme by directing at least part of the money-laundering scheme. Further, Mr. Santoro was a sufficiently high-level employee as owner-operator in charge of day-to-day operations of City Check to impute knowledge of the wrongdoing to the corporation.

Finally, the court concluded that City Check’s conduct was the factual and proximate cause of the MTA’s injury in that City Check played an essential role in the scheme to embezzle millions of dollars from the MTA by converting the proceeds to cash and distributing them to participants. Thus, City Check was a "substantial factor" in the MTA’s loss.

Eleventh Amendment

In Blumberg v. Nassau Health Care Corp., No. 04 CV 4063 (EDNY, July 8, 2005), Judge Spatt denied defendant’s motion to dismiss the plaintiff’s Americans with Disabilities Act (ADA) claim based on its claimed immunity under the Eleventh Amendment.

Plaintiff was hired by the Nassau University Medical Center (NUMC) as a pediatric endocrinologist in February 1991 and promoted to director of pediatric endocrinology in February 1993. In September 2003, plaintiff was diagnosed with breast cancer and requested sick leave to undergo surgery and chemotherapy. On Oct. 24, 2003, three days before she was scheduled to return after sick leave, she was terminated without being given a reason. NUMC claims that it is a public entity and state actor and therefore entitled to invoke the state’s immunity under the Eleventh Amendment.

The ADA prohibits discrimination against persons with disabilities in employment (Title I), public services, programs and activities (Title II) and public accommodations (Title III). Employment discrimination claims are covered by both Title I and Title II.

The Eleventh Amendment provides immunity to states from suits in federal court. Although a state is immune from a suit brought under Title I, Judge Spatt concluded that a claim under Title II may be maintained against a state if a plaintiff can establish that the Title II violation was motivated by "either discriminatory animus or ill will due to disability." Here, the court pointed to allegations that plaintiff’s termination was willful and motivated by discriminatory animus related to plaintiff’s disability. The court found those allegations sufficient to state a claim under Title II whether or not NUMC is deemed the "state" for Eleventh Amendment purposes.

Since plaintiff also asserted a Title I claim, the court addressed NUMC’s immunity under the Eleventh Amendment. The court concluded that, as a public benefit corporation created by New York State, NUMC was not entitled to Eleventh Amendment immunity. The primary concern under the Eleventh Amendment is whether the state treasury is obligated to fund the entity so that it will be impacted by a judgment in the lawsuit. The NUMC is a public benefit corporation created by the New York State Legislature primarily to provide health care services and facilities for the residents of Nassau County. As a public benefit corporation NUMC may acquire property by condemnation and is exempt from taxes and certain fees. Eight of its 15 directors are appointed by the governor. NUMC may issue municipal bonds, but it, not the state or county, is responsible for repayment of those bonds. Also, the NUMC may sue or be sued. Based on NUMC’s self-funding and loose association with the state, Judge Spatt concluded that it was not a state actor, immune from suit under the Eleventh Amendment.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the August 19, 2005, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]