Habeas petition successful because of violation of Brady v Maryland and perjured testimony. Time served but conviction vacated. Allegations of robber with a “Ninja mask” (note, ninja is capitalized):
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
97 CV 3074 (NG)
327 F. Supp. 2d 174
Opinion by Judge Nina Gershon, decided July 21, 2004:
Petitioner brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 1988 conviction, after a jury trial, in the New York Supreme Court, Queens County (Sherman, J.), of Robbery in the First Degree in violation of N. Y. Penal Law § 160.15; Robbery in the Third Degree in violation of N. Y. Penal Law § 160.05; and Grand Larceny in the Fourth Degree in violation of N. Y. Penal Law § 155.30. Petitioner was sentenced as a second felony offender to an indeterminate term of imprisonment of ten to twenty years on the Robbery in the First Degree count, and concurrent terms of two to four years on the Robbery in the Third Degree and Grand Larceny counts. Petitioner has completed his term of imprisonment.
Officer Cardo testified that, at around five a.m. on October 17, 1987, he responded to a radio call of an assault in progress and found four individuals arguing over a Toyota that was parked in front of a Dunkin’ Donuts on College Point Avenue in Brooklyn, NY. Three of the individuals were black males and one was a white male. The white male, Mr. Clarke, told Officer Cardo that, as he was walking to his car, he was approached by four individuals, the three black males who were present and one person who fled after robbing him. The robber was carrying a knife and wearing black pants, a shirt, and had a Ninja mask over his face. He was approximately six feet tall and around thirty years old. Mr.. Clarke gave the individual with the knife his wallet, which contained approximately $1500 in cash. After the man took his wallet, he pulled the Ninja mask off of his head which allowed Mr. Clarke to see his face. The three black males were placed under arrest and were subsequently transported to the 109th precinct.
Mr. Clarke testified that he never told the police or anyone else that petitioner was wearing a Ninja mask. Mr. Clarke did not see petitioner take anything out of his car. Petitioner did not have anything on his head when Mr. Clarke found him in the car or during the chase, and Mr. Clarke never told the police that there was anything on his head at that time.
In summation, defense counsel began by stating that petitioner had admitted his criminal record and did not try to hide from the facts of his life. Defense counsel compared Officer Cardo’s testimony that Mr. Clarke told him that he was robbed near his car by a man wearing a Ninja mask with that of Officer Krien that Mr. Clarke told him that he saw only one individual in his car, he chased him, and the person stole his wallet at knife-point inside one of the project buildings. Defense counsel also pointed to the inconsistencies between Mr. Clarke’s testimony and that of both of the officers and how Mr. Clarke’s story changed over time. Counsel argued that these inconsistencies, petitioner’s knowledge of where Mr. Clarke lived and the car that he drove, and the implausibility of Mr. Clarke’s story, all provided reasonable doubt that a crime had occurred.
[T]his court holds that there has been a violation of due process based upon Brady v. Maryland for failure to turn over material impeachment evidence [related to Clarke’s criminal history]; that holding is sufficient in itself to require relief. In addition, on the facts of this case, there has also been a violation of due process based upon the admission of perjured testimony [by Clarke] which the prosecutor should have known was false.
The petition for a writ of habeas corpus is granted, and the judgment of conviction is vacated.