The opinion of the court was delivered by: Peck, United States Magistrate Judge.
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.
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.
According to the evidence at trial, on March 29, 1995, Jones
and Samuel Scott robbed an unidentified Hispanic man, and then
sped off in a blue van driven by Jones' codefendant, Ivor Primo.
(Rosario: Trial Transcript ["Tr."] 152-161, 175-76;
D'Alessandro; Tr. 14-23, 29, 41, 47-53, 56, 86; Mulcahy: Tr.
DeEntremont: Tr. 444-51.) Eyewitness Victor Nunez Rosario
testified that he saw Jones, and Scott get out of a blue van and
argue loudly with the Hispanic man; Scott had his hand by his
waist (perhaps on a gun) the Hispanic man took something out of
his pocket and handed it to Jones. (Rosario: Tr. 152-57, 160,
184-88, 209, 222.) Rosario saw Scott draw a silver handgun, fire
it at the Hispanic man, and then Scott and Jones ran to the van.
(Rosario: Tr. 15759, 175-76, 188-89, 209-12, 222-23.)
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,
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.)
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 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'
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