The opinion of the court was delivered by: Stein, District Judge.
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
REPORT AND RECOMMENDATION
For the reasons discussed below, Gillette's petition should be
denied as without merit.
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.
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.
The second stipulation is to the effect that if
Tariq Asghar were called to testify, he would testify
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
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 ...