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JONES v. DUNCAN

April 3, 2001

MICHAEL JONES, PETITIONER,
V.
GEORGE B. DUNCAN, SUPERINTENDENT, GREAT MEADOW CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Peck, United States Magistrate Judge.

  OPINION & ORDER

Pro se petitioner Michael Jones seeks a writ of habeas corpus from his January 19, 1996 conviction in Supreme Court, New York County, of first degree robbery and three counts of weapons possession, and sentence to five to fifteen years imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-6.)

Jones' petition alleges that his due process rights were violated because: (1) there was insufficient evidence that he forcibly stole property, had the intent to forcibly steal property, or used a weapon (Dkt. No. 1: Pet. ¶ 12(A)); (2) the trial court did not hold an evidentiary hearing on his post-trial newly discovered evidence motions (Pet. ¶ 12(B)); and (3) the indictment's fourth count, charging him with second degree weapon possession, was duplicative. (Pet. ¶ 12(C)).

The parties have consented to decision of Jones' habeas corpus petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 13.)

For the reasons set forth below, Jones' petition is DENIED.

FACTS

On April 21, 1995, Jones was indicted for two counts of first degree robbery under N.Y. Penal Law § 160.15(2) & (4), two counts of second degree criminal possession of a weapon (a 9 mm. pistol and a .380 caliber pistol, respectively) under P.L. § 265.03, and two counts of third degree criminal possession of a weapon under P.L. § 265.02(4). (10/25/95 Indictment No. 2979/95.)

The Trial Evidence

Three police officers — Sergeant Mulcahy, Sergeant DeEntremont, and Officer D'Alessandro — testified that at 8:10 that evening, they were patrolling together in plain clothes in an unmarked car. (D'Alessandro: Tr. 13-15, 36-38, 80; Mulcahy: Tr. 118-20, 172-73; DeEntremont: Tr. 442-44, 516-517.) The officers testified that they heard a shot and saw Jones and Scott running towards a van. (D'Alessandro: Tr. 15-16, 38-40, 80-82, 113; Mulcahy: Tr. 120, 130-31, 173; DeEntremont: Tr. 444-46, 467-68.) Jones, Scott and Primo, who was driving the van, sped off in the van, hitting parked cars along the way. (D'Alessandro: Tr. 17-23, 41, 47-53, 56, 86; Mulcahy: Tr. 120, 131-33, 251-52; DeEntremont: Tr. 445-47, 467-68, 478, 497-98, 520-22.) All three officers testified that when they caught up with the van at Broadway and 157th Street, shots were fired at them from the van and Scott fled from the van and shot a silver .380 semiautomatic pistol at Officer D'Alessandro, who returned fire and fatally shot Scott. (D'Alessandro: Tr. 19-20, 23-25, 29, 36-37, 57-58, 63-68, 87, 92-100; Mulcahy: Tr. 123-24, 134-37, 253-54, 259-64, 308-09; DeEntremont: Tr. 448-51, 482-85, 491, 509-10.)

Jones also fled from the stopped van and threw a loaded nine-millimeter black gun to the ground. (Mulcahy: Tr. 124, 137-39, 174-79, 238-39, 264-65; DeEntremont: Tr. 453, 542.) Sergeant Mulcahy identified Jones at trial as the man who left the van and discarded a black gun. (Mulcahy: Tr. 124, 127, 178-79, 238-39, 328-29.) Sergeant Mulcahy told Sergeant DeEntremont where the gun was, and Sergeant DeEntremont testified that he retrieved the black gun from under a car parked near the van. (DeEntremont: Tr. 453-54, 459-60, 463-64, 542-48, 558*fn1; see also Mulcahy: Tr. 125-28, 238-39, 242-43, 266, 273-79, 329-30.) Jones and Primo were subdued and placed under arrest. (Mulcahy: Tr. 140-41, 235-36, 240-41, 269-71; Rosario: Tr. 162-64, 173-75, 220-21; Connolly: Tr. 592-95; Legron: 11/6/95 Tr. 8-9.)

Both Primo and Jones rested without calling any witnesses. (11/6/95 Tr. 36.)

Verdict and Sentence

On November 7, 1995, the jury found Jones guilty of first degree robbery, second degree criminal possession of a weapon, and two counts of third degree criminal possession of a weapon. (11/7/95 Tr. 317-321.)*fn2

On January 19, 1996, Jones was sentenced to concurrent terms of five to fifteen years imprisonment for the first degree robbery and second degree weapons convictions, and two to seven years imprisonment for the two third degree weapons convictions. (1/19/96 Sentencing Tr. 18.) Jones' CPL §§ 330.30 and 440.10 Motions

On December 6, 1995, represented by counsel, Jones filed a CPL § 330.30 motion claiming the discovery of new evidence: that Jones' cousin's neighbor would testify that there was no robbery, and that Jones did not have a gun. (12/95 Jones § 330.30 Motion Papers.) On January 19, 1996, before sentencing Jones, the trial court denied Jones' CPL § 330.30 motion. (1/19/96 Decision.) The court denied the motion because it was not "supported by sworn allegations of fact," and Jones had not shown that the exercise of due diligence could not have uncovered the witness's evidence before trial. (Id. at 1-2.) Finally, the court held that even if the new witness's information was sworn, it "does not contradict the trial evidence which was that the co-defendant Scott (now deceased) used the gun," not that Jones used a gun. (Id. at 2.)

On January 26, 1996, represented by counsel, Jones moved to vacate his conviction pursuant to CPL § 440.10, based on Jones' claims that material evidence — Rosario's testimony about a "robbery" — was know to be false prior to the entry of judgment, and that the judgment was obtained in violation of Jones' right to call his newly discovered witness. (1/26/96 Jones CPL § 440.10 motion papers.) On April 30, 1996, the trial court denied Jones' CPL § 440.10 motion, for the same reasons as it denied his CPL § 330.30 motion. (4/30/96 Decision.)

Jones' Direct State Court Appeals

Represented by counsel, Jones appealed to the First Department, contending that his due process rights were violated because: (1) there was insufficient evidence that Jones forcibly stole property, had the intent to forcibly steal property, or used a weapon or knew Scott was going to use a weapon (Jones 1st Dep't Br. at 14-21); (2) the trial court did not hold an evidentiary hearing on Jones' post-trial newly discovered evidence motions (id. at 21-25); and (3) the indictment's fourth count, charging him with second degree weapon possession, was duplicative (id. at 25-29).

On April 20, 1999, the First Department affirmed Jones' conviction stating:

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. With the exception of [Jones'] challenge to the evidence supporting the element of intent in the second-degree weapon possession count, defendant failed to preserve his current sufficiency claims, and we decline to review them in the interest of justice. Were we to review these claims, we would find that the evidence, viewed as a whole, provided ample basis for the jury to infer that a robbery occurred, that defendant participated therein, and that defendant was in continuous joint possession of his companion's [Scott's] weapon with intent to use it unlawfully against others. Defendant's related claim that the second-degree weapon possession count was duplicitous is likewise unpreserved and we likewise decline to review it in the interest of justice. Were we to review this claim, we would reject it.
The court properly denied defendant's motions made pursuant to CPL 330.30(3) and 440.10(1)(g) on the ground of newly discovered evidence.

People v. Jones, 260 A.D.2d 247, 248, 686 N.Y.S.2d 706, 706 (1st Dep't 1999) (citations omitted).

The New York Court of Appeals denied leave to appeal on June 15, 1999. People v. Jones, 93 N.Y.2d 973 & 979, 695 N.Y.S.2d 58 & ...


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