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BROWN v. COSTELLO

January 13, 2003

EDDIE BROWN, PETITIONER
v.
JOSEPH J. COSTELLO, ET AT., RESPONDENT.



The opinion of the court was delivered by: Harold Baer, Jr., United States District Judge

OPINION & ORDER

Eddie Brown ("petitioner"), an inmate at Mid-State Correctional Facility, brings this habeas proceeding pursuant to 28 U.S.C. § 2254 to challenge the lawfulness of his incarceration. Petitioner alleges that the judgment of the Supreme Court, New York county, entered by Judge A.K. Bradley on May 16, 1984, following a jury trial, convicting him of robbery in the first degree (penal law section 160.15) and robbery in the second degree (penal law section 160.10), was unlawful. Although Brown's petition was referred to Magistrate Judge Ellis on October 18, 2000 and the petition became sub judice on February 27, 2001, I withdrew the referral on April 29, 2002.

Specifically, petitioner maintains that (1) he was denied due process rights to a fair trial and confrontation because the court refused to allow counsel to introduce the sentencing minutes to impeach complainant Darrell Blake's false testimony, even though the defense was that he was untruthful; (2) the verdict was inconsistent because petitioner was found guilty of robbery in the first degree and not guilty of criminal possession of a weapon; (3) the adverse inference charge was insufficient to cure the prejudicial effects caused by the destruction of evidence, thereby denying petitioner due process of law; and (4) he was denied the right to effective assistance of appellate counsel on his direct appeal because counsel failed to argue a Rosario/Brady error; the sentence was obtained in violation of petitioner's constitutional rights; and appellate counsel filed an inadequate and improper application to the New York State Court of Appeals.

For the reasons detailed in full below, petitioner's section 2254 habeas petition is denied in its entirety.

I. FACTUAL BACKGROUND

On August 12, 1993, Darrell Blake ("Blake") was selling merchandise on St. in Manhattan across the street from a gas station. (Id. 25). Blake was being assisted by two homeless men, one of whom he knew as Tony. (Id. 27). At or about 9:30 PM, Tony called Blake over towards a car and asked him if he had change for a $100 bill because somebody wanted to purchase merchandise. (Id.).

Blake walked towards Tony's apparent customers, who were in a small white car parked in the gas station, with some of his items and $200. Petitioner, the driver of the car, engaged Blake in a conversation about a large purchase. While conversing with Blake, Warren Johnson ("Johnson"), a passenger in the car, got out of the car and approached Blake. (Id. 31). Johnson tugged at Blake's shirt and pointed a .357 magnum at his side and cocked the hammer. Petitioner began to put Blake's merchandise into the car and demanded that Blake, as well as Tony, also put the merchandise into the car. Petitioner also took Blake's $200 and a pouch that Blake was wearing. (Id. 35-36).

Blake contacted the police after petitioner drove away and provided them with a license plate number. Police Officer Thomas Pryor ("Pryor") and his partner, Eric Hendricks, were in civilian clothes at the time and patrolling in unmarked vehicles. Pryor ran a search of the license plate number and was informed that the registered address for the plate was 1515 McCombs Road in Bronx County. (Id. 77-78). Pryor also received a description of the robbers as two Jamaican males. (Id.). However, these tapes from the police containing the description of the robbers were erased prior to trial and the Police Department was unable to locate the Sprint report. (Id. 204-05).

The officers went to the address and waited for an hour before the vehicle meeting the broadcast description stopped nearby at approximately 11:00 PM. (Id.). Three individuals were in the vehicle, two males that met the description and one female. Pryor ordered the individuals out of the car and found a loaded .357 in the backseat along with a variety of inflatable toys and a small pouch. (Id. 80-81). Pryor took petitioner and Johnson to the precinct. At the precinct, Pryor spoke with Blake and showed him the revolver, which Blake recognized as the weapon used by the robbers. In addition, Blake also recognized the car driven by petitioner during the robbery. Further, while walking to the car, Blake recognized his merchandise and his pouch, which were still in the car. (Id. 45). Petitioner and Johnson were charged with first-degree robbery, second-degree robbery, and related offenses. On April 22, 1994, petitioner proceeded to jury trial presided over by Justice Bradley.

Prior to trial, a Wade & Mapp hearing was conducted. Petitioner moved to suppress the use of evidence against him, certain physical evidence and identification evidence. (Wade/Mapp 69). The judge found that the police had probable cause for arresting petitioner and Johnson and that the line-up was properly conducted. (Id. at 72). Also prior to trial, the prosecutor had informed the defense of Blake's criminal history, including a prior Staten Island conviction for selling narcotics, and had given the defense the sentencing transcript in that case. (Wade/Mapp 6). The Staten Island transcript showed that when Blake was sentenced, Blake's attorney advised the Staten Island judge that Blake had sold drugs to "raise money." (Prieto Aff. Ex. B). Neither Blake nor his attorney had told the judge what Blake had done with the money, nor did they state whether or not Blake had a drug habit. Id. The Staten Island judge observed that according to the pre-sentence report Blake "denies that he doesn't [sic] use crack for about 6 months," and that the proceeds from the drug sales had been used "to buy some things that he needed for the house which also includes food," and the Staten Island prosecutor had observed that Blake never claimed to be a drug addict. Id.

During his testimony at petitioner's trial, Blake admitted the conviction and the underlying criminal conduct, stating that he had sold drugs to support his drug habit. On cross-examination, counsel asked Blake if he told the Staten Island judge that he sold drugs because he needed the money and if he had specifically claimed that he "did not have a drug problem." (Tr. 61-62). Blake responded that he did not remember. (Id. 62). Defense counsel requested the judge to exercise his discretion and admit the Staten Island transcript into evidence. However, Justice Bradley denied this request. (Colloquy 133-37).

On summation and without objection, the prosecutor, in responding to a defense argument that Blake should not be believed because he was a "convicted drug dealer," asked the jury to credit Blake by stating the following:

I submit to you he was up front with you about his past. About his sale conviction and about the time he spent in prison. And in telling you about that past, Ladies and Gentlemen, I submit to you he didn't paint himself as someone who was innocent of the charges. These things evidence [sic] about what he did tell you and about himself and I suggest to you that gives him credibility here and believability as to what he tells you happened. (Summation 175).
On appeal, petitioner claimed that (1) his due process rights to a fair trial and confrontation were violated because the prosecutor failed to correct knowingly false testimony by Blake and argued in summation that Blake had testified honestly; and (2) the court improperly precluded petitioner's counsel from impeaching Blake about the false testimony with a prior inconsistent statement.

On February 5, 1998 the Appellate Division, First Department, unanimously affirmed petitioner's conviction. People v. Brown, 247 A.D.2d 221 (1st Dep't 1998). Specifically, the Appellate Division held that the trial court had properly precluded petitioner from introducing extrinsic evidence of an alleged prior inconsistent statement made by Blake with respect to a purely collateral matter. The court noted that Blake's alleged inconsistent statement was disclosed to petitioner in a timely fashion and that there was no prosecutorial misconduct. Petitioner's remaining claims were unpreserved and the court declined to review them. However, the court indicated that the remaining claims, if reviewed, ...


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