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DUNNIGAN v. KEANE

July 23, 1997

RICHARD W. DUNNIGAN, Petitioner,
v.
JOHN P. KEANE, SUPERINTENDENT, SING SING CORRECTIONAL FACILITY, Respondent.



The opinion of the court was delivered by: LARIMER

 INTRODUCTION

 Following a jury trial in Ontario County Court, petitioner Richard W. Dunnigan ("Dunnigan") was convicted of Robbery, 2nd degree and Assault, 2nd degree and related offenses arising out of the robbery and assault of Jennifer Zielinski and Robert Nuchereno. He was sentenced to a term of imprisonment for a period of twelve to twenty-four years and is now in custody at the Sing Sing Correctional Facility.

 The Appellate Division, Fourth Department, affirmed Dunnigan's conviction, People v. Dunnigan, 188 A.D.2d 1052, 592 N.Y.S.2d 207 (4th Dept., 1992), and the Court of Appeals denied leave to appeal.

 Dunnigan's motion for collateral relief, pursuant to C.P.L. § 440.10, was also denied and the Appellate Division, Fourth Department denied Dunnigan permission to appeal on March 4, 1993 and the Court of Appeals dismissed Dunnigan's application for permission to appeal on April 22, 1993.

 Dunnigan filed a petition for a writ of habeas corpus in this Court on August 10, 1994. Respondent filed a motion to dismiss the petition on November 28, 1994, on the ground that the petition contained unexhausted claims. By Order dated May 31, 1995, this Court found that the petition was a mixed petition containing both exhausted and unexhausted claims. The Court gave Dunnigan leave to withdraw the unexhausted claims and he did so. On June 10, 1996, this Court appointed counsel for Dunnigan.

 FACTS

 On September 3, 1989, an intruder entered the hotel room of Jennifer Zielinski ("Zielinski") and Robert Nuchereno ("Nuchereno") at the Sheraton Inn in Canandaigua, New York. The intruder assaulted Zielinski and robbed her of her purse's contents.

 As the robber left the room he confronted Zielinski's boyfriend, Nuchereno. Nuchereno chased the intruder outside the building and they struggled inside an automobile that the intruder attempted to enter to effect his escape. During the struggle, the intruder repeatedly struck Nuchereno over the head with a hard object. Eventually, the robber was able to flee from the scene in the automobile.

 Within hours of the robbery, an individual went to various Key Bank ATM locations and depleted Zielinski's bank account with a debit card found in her purse. This individual was videotaped by the bank's surveillance equipment during several of those transactions. From these tapes, approximately thirty-three photographs of the individual were made by one of Key Bank's security officers (Scime).

 By its verdict, the jury found that it was Dunnigan who assaulted Jennifer Zielinski, robbed her of her purse's contents and assaulted Nuchereno.

 DISCUSSION

 I. Standard of Review

 There are at least two different types of constitutional error that may be claimed in a habeas corpus petition, each of which requires a different standard of review. There are "structural defects," such as deprivation of the right to counsel, that require automatic reversal because they infect the entire trial process. Brecht v. Abrahamson, 507 U.S. 619, 629, 123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993). There are also trial errors, such as the type presented here, that do not require automatic reversal. "Trial error 'occurs during the presentation of the case to the jury,' and is amenable to harmless-error analysis because it 'may ... be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial].'" Id., quoting Arizona v. Ful m i n ante, 499 U.S. 279, 280, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991).

 The standard of review for federal courts in reviewing a petition for habeas corpus challenging a state court conviction based on trial error is "whether the ... error 'had substantial and injurious effect or influence in determining the jury's verdict.'" Brecht, supra at 623, quoting Kotteakos v. United States, 328 U.S. 750, 776, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946). "A number of factors ... are relevant in determining whether a particular error is harmless. Of these factors ... the weight of the prosecution's case against the defendant is the most significant." Samuels v. Mann, 13 F.3d 522, 526 (2d Cir.), cert. denied, 513 U.S. 849, 130 L. Ed. 2d 85, 115 S. Ct. 145 (1994).

 Furthermore, "when a federal judge in a habeas proceeding is in grave doubt *fn1" about whether a trial error of federal law had 'substantial and injurious effect or influence in determining the jury's verdict,' that error is not harmless. And, the petitioner must win." O'Neal v. McAninch, 513 U.S. 432, 115 S. Ct. 992, 994, 130 L. Ed. 2d 947 (1995); California v. Roy, 136 L. Ed. 2d 266, 117 S. Ct. 337, 338 (1996).

 In this case, I believe that the several errors that occurred during Dunnigan's trial had a substantial and injurious effect on the jury's verdict. I cannot find these errors to be harmless. I believe that Dunnigan's constitutional rights were violated, and he was denied a fair trial. Therefore, Dunnigan's habeas corpus petition must be granted.

 II. Petitioner's Claims

 In his petition, Dunnigan advances the following grounds for relief: (1) he was denied a fair trial and due process of law because of tainted eyewitness testimony and testimony concerning his prior criminal history; (2) he was denied a fair trial and due process of law due to prosecutorial misconduct; and (3) he was ...


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