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GILLETTE v. GREINER

October 29, 1999

TIMOTHY GILLETTE, PETITIONER,
v.
CHARLES GREINER, SUPERINTENDENT OF SING SING CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Stein, District Judge.

ORDER

In a Report and Recommendation dated October 4, 1999, Magistrate Judge Andrew J. Peck recommended that petitioner's petition for a writ of habeas corpus be denied.

After a de novo review of Magistrate Judge Peck's Report and Recommendation dated October 4, 1999, and petitioner's objections dated October 23, 1999,

IT IS HEREBY ORDERED that that Report and Recommendation is adopted by this Court, and petitioner's petition for a writ of habeas corpus is denied on the merits.

As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253, as amended by the AEDPA; see also Rodriquez v. Scully, 905 F.2d 24 (2d Cir. 1990) (per curiam) (discussing issuance of a certificate of probable cause under standard prior to amendment of 28 U.S.C. § 2253); Alexander v. Harris, 595 F.2d 87, 90-91 (2d Cir. 1979).

Pursuant to 28 U.S.C. § 1915(a) the Court certifies that any appeal from this Order would not be taken in good faith. See Coppedge v. U.S., 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

SO ORDERED.

REPORT AND RECOMMENDATION

Petitioner Timothy Gillette seeks a writ of habeas corpus from his June 1995 conviction of first degree assault, for which he was sentenced to seven and a half to fifteen years imprisonment. Gillette's petition alleges that: (1) the trial court's jury instructions deprived him of a fair trial under the Sixth and Fourteenth Amendments because of the order in which the trial court gave the charge as to a lesser included offense (Pet. ¶ 12(I); Gillette Br. at 16-20), and (2) the trial court's refusal to permit the defense to call a detective on surrebuttal to testify to a witness's prior inconsistent statement deprived Gillette of his right to due process by interfering with his justification defense (Pet. ¶ 12(II); Gillette Br. at 20-25).*fn1

For the reasons discussed below, Gillette's petition should be denied as without merit.

FACTS

On October 21, 1994, at approximately 1:00 a.m., an altercation took place between Gillette and two off-duty New York City police officers, Christopher Coppola and Dennis Sheehan. Gillette was charged with attempted second degree murder, three counts of first degree assault, and third degree criminal possession of a weapon. (Aff. of Asst. Atty. General Keith Brown, Ex. A: Indictment No. 10841/94; see Gov't Br. at 2.)

Officers Sheehan's and Coppola's Testimony

Officers Sheehan and Coppola were assigned to the 19th Precinct, located on East 67th Street between Lexington and Third Avenues. (Tr. 240, 278, 392-93, 421.)*fn2 Sheehan was 6'3" and weighed 250 pounds, while Coppola weighed the same but was 5'10". (Tr. 276-77, 447-48.) Gillette was 5'9" and weighed approximately 170 pounds. (Tr. 304, 448.) On the night of the incident, October 20-21, 1994, Sheehan and Coppola were off-duty and went to a benefit, where they had a couple of beers. (Tr. 240-41, 249-50, 318-21, 394-97.) After the benefit, Sheehan and Coppola went to two other bars. (Tr. 251-54, 324-25, 397-99, 426-27.) Sheehan testified that he had four beers over the course of the evening. (Tr. 250-54, 321, 324-25.) Coppola testified to drinking five or six beers. (Tr. 431-32.) Both testified that they were not drunk and felt "fine." (Tr. 325, 431-33; see also Tr2. 26, 86.) At around 1:00 a.m. on October 21, 1994, they took a taxicab to go back to the 19th Precinct to pick up Sheehan's car to drive home to Long Island. (Tr. 254, 399-400.)

At Second Avenue and 87th Street, the cab stopped for a red light. (Tr. 241, 257, 289, 400, 405-06, 434, 436.) Gillette walked in front of the cab and stayed there when the light turned green. (Tr. 400, 406, 436.) The cab driver blew his horn, Gillette got mad and banged on the cab's hood, and the driver and Gillette began yelling at each other. (Tr. 241, 257-58, 287, 293, 400, 405, 436-38.)

Coppola got out of the cab and told Gillette to "`get the fuck out of here'" so he could get home. (Tr. 241-42, 258, 294-95, 400, 407, 438.) Gillette started approaching Coppola and said "`who the fuck are you?'" (Tr. 242, 296, 401, 408, 439, 442.) Coppola responded "`I'm a police officer. Now get the hell out of here.'" (Tr. 242, 259, 296-97, 401, 408, 439, 442.)

When Coppola identified himself as a police officer, Sheehan got out of the cab because he "didn't want anything else to happen." (Tr. 242, 258, 298-99, 302-03, 329.) Gillette walked toward Coppola, still yelling, and Coppola saw him take a "boxcutter-type blade" out of his pocket. (Tr. 300, 401, 408-09, 442-43.) Coppola had left his gun at the precinct because he was going out drinking (Tr. 305, 380, 395-96, 445-46), so he tried to grab Gillette to protect himself. (Tr. 243, 260-61, 306-07, 353, 401, 408-09, 442, 444, 449.) In an instant, Coppola "felt the heat and saw the blood spurting out of [his] face" from a bad cut that went straight through his cheek. (Tr. 402; see also Tr. 243, 261, 450.) Coppola heard a woman scream after he was cut. (Tr. 448.)

Coppola hit Gillette twice and tried to hold him, but Gillette wrestled free. (Tr. 243, 402, 409-10, 450.) Coppola and Sheehan both tried to hold Gillette, but Gillette wrestled out of his shirt and out of their hold, and started running away. (Tr. 243-44, 262-64, 358, 402-03, 410.) Coppola and Sheehan gave chase, and caught Gillette at Second Avenue and 88th Street. (Tr. 244, 264, 360, 403, 411, 456.) "There was blood everywhere." (Tr. 245; see also Tr. 264-67, 361.) Sheehan called 911 for backup and for an ambulance. (Tr. 244-45, 265, 403.) Gillette got free again, but was captured on First Avenue between 87th and 88th Streets by the backup officers. (Tr. 245-48, 266-67, 269, 403-04, 516-18, 520-21, 525, 546-47; Tr2. 39-40.) The police recovered the boxcutter from the corner of Second Avenue and 87th Street. (Tr2. 20, 56-58, 60-61, 66-67, 75-77.) The police took Coppola to the hospital, where he had surgery. (Tr. 405, 411-12, 552, 556-57.) Coppola has a permanent scar on his face. (Tr2. 89-90.)

Testimony of Other Witnesses to the Incident

The prosecution called one civilian witness to the incident, Peter Friedrich. (Tr. 463.) Friedrich was walking down Second Avenue and noticed Gillette standing in front of a cab after the light turned green. (Tr. 465, 470.) Friedrich saw Coppola get out of the cab and tell Gillette to get out of the way. (Tr. 466, 474.) Gillette "became very angry, and there was some yelling back and forth." (Tr. 466, 471, 497.) According to Friedrich, Gillette was the aggressor. (Tr. 499, 511.) Friedrich saw Gillette reach into his back pocket but could not see if he had anything in his hand. (Tr. 466, 475, 480, 497, 501-03.) Then Sheehan and a woman (Martha Cabrera) who earlier had been talking to Gillette tried to separate Gillette and Coppola. (Tr. 466, 478.) There was a "wrestling match" and Friedrich saw Coppola with blood on his face, looking shocked. (Tr. 467-68, 481-82, 509-10.) Gillette's shirt came off and he ran away; the woman was screaming. (Tr. 468, 482.)

The defense called a different witness to the incident, Martha Cabrera, who testified that she and a friend, Marcy Fingerhet, met Gillette for the first time at a pool hall earlier that evening. (Tr2. 113-14, 123, 133.) Cabrera consumed one twenty-two ounce bottle of St. Ives Malt liquor, Gillette drank a forty ounce bottle of Budweiser, and they shared another forty ounce bottle of Budweiser. (Tr2. 134-36.) Cabrera testified that Gillette was not drunk. (Tr2. 138.) Cabrera, Fingerhet and Gillette left the pool hall, went to a local park, and decided to go to a restaurant on 90th Street and First Avenue. (Tr2. 115-16, 136-37.) They crossed Second Avenue at 87th Street, with the light. (Tr2. 116.)

Cabrera testified that Gillette neither said nor did anything to the occupants of the taxicab before Coppola got out. (Tr2. 139-40, 142.) Cabrera never heard Coppola or Sheehan identify themselves as police officers. (Tr2. 127.) Cabrera never saw anything in Gillette's hands during the altercation. (Tr2. 122-23, 144.) According to Cabrera, Coppola got out of the cab, grabbed Gillette by the collar and punched him two or three times in the face. (Tr2. 118-19, 121-22, 139, 145, 148.) Coppola dragged Gillette to the nearby curb and continued to hit him "too many times to count." (Tr2. 123, 145, 148, 150-51.) Cabrera tried to separate them and asked Sheehan to intervene. (Tr2. 123-25, 148-49.) Unable to stop the fight, Cabrera called 911. (Tr2. 126-27, 152.) While making the 911 call, Cabrera noticed that her hands and clothing were stained with blood, but did not know where the blood came from. (Tr2. 125-26.) Cabrera was screaming. (Tr2. 128.)

Tariq Asghar drove the taxicab that was behind the cab in which Coppola and Sheehan were riding. Because Asghar was arrested on unrelated charges during the trial, the parties stipulated as to what he would have testified. (See Tr2. 11-19, 70-72, 79-80, 158.) The trial judge read the parties' stipulation concerning Asghar's testimony to the jury:

    The second stipulation is to the effect that if
  Tariq Asghar were called to testify, he would testify
  as follows:
    That at approximately 1:15 in the morning on
  Thursday, October 21, 1994, [Asghar] was driving a
  yellow cab that was stopped short of the northeast
  corner of Second Avenue and East 87th Street in
  Manhattan.
    Stopped at a traffic light directly in front of him
  in the eastern most lane of traffic was another
  yellow cab. A male white was standing in front of the
  first taxicab. Two men seated in the passenger
  compartment of the first taxicab started yelling at
  the man standing in front of the taxicab. The man
  standing in front of the taxicab started yelling to
  two females standing on the northwest corner of 87th
  Street and Second Avenue. The two males in the rear
  passenger compartment of the first taxicab exited the
  taxicab and proceeded towards the ...

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