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October 31, 2001


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


Edward F. Gonzalez petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the lawfulness of his state conviction. On February 22, 1995, Petitioner was convicted of grand larceny in the second degree. On April 4, 1995, he was sentenced to a term of imprisonment of three and one-third to ten years and ordered to make restitution of $257,203.10 to the victim. Petitioner, proceeding pro se, then filed a motion to vacate the judgment of conviction, pursuant to N.Y.Crim. Proc.Law 440, raising ineffective assistance of counsel and Brady violations among other claims. The trial court denied the 440 motion without a hearing. The Appellate Division, Second Department, affirmed both the conviction and the trial court's denial of the 440 motion. People v. Gonzalez, 246 A.D.2d 667, 666 N.Y.S.2d 950 (2d Dep't 1998). The New York Court of Appeals denied Petitioner leave to appeal. People v. Gonzalez, 91 N.Y.2d 973, 672 N.Y.S.2d 852, 695 N.E.2d 721 (1998).

In this petition, Gonzales, proceeding pro se, urged that his conviction should be overturned on the following grounds: (1) the prosecution withheld evidence that would have helped his case; (2) he received ineffective assistance of counsel; (3) the trial was fundamentally unfair because of a 14th Amendment violation by the prosecutor and the court; and (4) the trial record did not support a finding of guilty beyond a reasonable doubt; and (5) the sentence levied by the trial judge was harsh and excessive.

On October 12, 2000, Magistrate Judge Yanthis issued the attached Report and Recommendation to Judge Parker, recommending that the habeas petition be denied on procedural and substantive grounds. On November 8, 2000, Petitioner filed an objection to the Report and Recommendation, raising four grounds for relief: (1) withheld evidence; (2) ineffective assistance of counsel; (3) denial of a fair trial; and (4) insufficient evidence. After the petition was re-assigned to me, I appointed counsel to file a memorandum of law with respect to whether trial counsel rendered ineffective assistance in failing to locate and call at trial a witness who would have provided exculpatory testimony for the defendant. After de novo review and the benefit of an excellent memorandum of appointed counsel, I accept the Magistrate Judge's recommendation and deny the habeas petition for the reasons that follow.


Gonzalez, a financial planner by profession, had been Cary Amoruso's tax preparer for five years. He was also the owner of ATG Travel Services Inc., a separate business concern which he operated with his now estranged wife and business partner, Ana T. Gonzales. Gonzales was indicted in 1994 for grand larceny in the second degree, for stealing $257,203.10 from Cary Amoruso, money that had been entrusted to Gonzales by Amoruso for investment in the "Franklin Fund," a taxfree municipal bond fund.

At the bench trial, Gonzales' client, Cary Amoruso, testified that he had, at Petitioner's direction, filled in a "Franklin Fund" application drawn up by Petitioner, and withdrawn his previous investment of $257,203.10 from the Calvert Group, with the aim of investing the money in the "Franklin Fund." Upon receiving a check for $257,203.10 from the Calvert Group, Amoruso endorsed the check and delivered it, along with the "Franklin Fund" application, to Petitioner's office. Petitioner was not at the office at that time, and Amoruso admitted at trial that he might have handed the application and check to Ana T. Gonzales. Amoruso specifically testified that he believed that his money had been invested in the "Franklin Fund," and that he did not authorize anyone to deposit the check into Petitioner's ATG Travel Services Account.

It is undisputed that Petitioner did not use Amoruso's money to set up a "Franklin Fund" account in Amoruso's name. In his trial testimony, Petitioner denied recommending the "Franklin Fund" application to Amoruso, claiming instead that he had recommended a mortgage lending program to his client. He testified that Amoruso had endorsed the Calvert Group check and left it with Ana T. Gonzalez, who then gave the check to Petitioner, and that it was clear in his mind that Amoruso had wanted the money to be invested in mortgages with the "Thillet Law Office." Petitioner also testified that he had tried to deposit the check in his ATG Travel Services account, but that the bank manager had turned him away, saying that the check could not be deposited unless he had authorization to do so, or Amoruso was present in person. According to Petitioner's testimony, he then brought the check back to Ana T. Gonzales, and told her to take Amoruso to Citibank to deposit the check. Petitioner later learned that Ana T. Gonzales had somehow managed to deposit the check in his ATG Travel Services account. Petitioner denied that it was he who had endorsed the check he received from Amoruso. He admitted that he had written a check for $40,000 to the "Thillet Law Office," but that unbeknownst to him, Ana T. Gonzales had made large cash withdrawals from his account, and had given $110,000 to the "Thillet Law Office."

Petitioner contended at trial that he had been duped into investing Amoruso's money in the mortgage lending program by several individuals, including Julio Marcial, posing as representatives of the "Thillet Law Office," and that it was these individuals who had absconded with Amoruso's money. He also implicated Ana T. Gonzales in the conspiracy, claiming that she had made large unauthorized withdrawals from his account. Petitioner claimed that he made every effort to recover his client's money, but that these attempts proved futile.


Petitioner raises four objections to Magistrate Judge Yanthis's Report and Recommendation. Pursuant to 28 U.S.C. § 636(b)(1),*fn1 my de novo determination of the portions of the report to which Petitioner objects is set out below.

Withheld Evidence Claim

Petitioner claims that the prosecutor committed Brady violations in withholding exculpatory evidence including the Manuel Thillet report on Marcial's fraudulent dealings and a report made by Ana T. Gonzales to detectives in which she revealed the identity of the people who had stolen Amoruso's money from Petitioner. Petitioner argues that both these reports would have confirmed that it was the members of the "Thillet Law Office," not Petitioner, who had stolen Amoruso's money.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that due process of the law requires that the prosecution disclose to the accused evidence that is "material either to guilt or to punishment." Id. at 87, 83 S.Ct. 1194 (emphasis added). In United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the Court defined "materiality" as used in Brady as follows: "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682, 105 S.Ct. 3375.

The trial judge outlined three sets of facts that were important for her decision that Petitioner was guilty of grand larceny in the second degree. First, Cary Amoruso under oath adamantly denied permitting the endorsement to Petitioner's ATG Travel Services account. Second, the endorsement to ATG Travel Services was signed by Gonzalez — a fact confirmed by the bank teller who was extremely familiar with Gonzalez's signature. Finally, the credible evidence showed that Cary Amoruso did fill out an application for the "Franklin Fund" and did give it to Petitioner.

Petitioner's conviction for grand larceny was based on his conversion of Amoruso's money entrusted to him for investment in the "Franklin Fund," by depositing the money into his own bank account and investing the money in an unauthorized mortgage lending scheme. That Petitioner himself was subsequently duped by the "Thillet Law Office," and therefore was unable to profit from the transaction is not "material" to his guilt, since his unauthorized use of Amoruso's money to invest for his own account in a mortgage lending program was itself larceny. Manuel Thillet's report regarding Marcial and Ana T. Gonzales's report regarding the identity of the people who stole Amoruso's money from Petitioner are not, therefore, "material" to Petitioner's guilt.

Ineffective Assistance of Counsel Claim

Petitioner also claims that his trial attorney's failure to locate and call Manuel Thillet as a witness or to introduce the Thillet and the Ana T. Gonzales reports resulted in serious prejudice and a miscarriage of justice.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court held that "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691, 104 S.Ct. 2052. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.

As noted with respect to the Brady claim, the evidence pertaining to the Manuel Thillet and Ana T. Gonzales reports does not tend to exculpate petitioner of grand larceny in the second degree. Unauthorized use of his client's money as his own was Petitioner's crime. Defense counsel's failure to present evidence that Petitioner was duped by those with whom he wrongfully invested the money does not create a ...

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