The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
Wilfred Cancela brings this petition for writ of habeas corpus
pro se pursuant to 28 U.S.C. § 2254. Following a
jury trial in the New York State Supreme Court, New York County, Cancela
was convicted of one count of Robbery in the Second Degree under N.Y.
Penal Law § 160.10(1). He was sentenced as a persistent violent
felony offender to a prison term of 16 years to life. Cancela is
currently incarcerated pursuant to that judgment at the Five Points
Correctional Facility in Romulus, New York. For the reasons stated below,
Cancela's petition should be denied.
Cancela and his wife, Janet Jones, were charged in a single indictment
stemming from two robberies occurring on March 27, 1998 and March 31,
1998. See Brief for Defendant-Appellant, dated January 2000
("Pet. App. Div. Brief) (reproduced in Petition Under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed
November 28, 2001 (Docket #2) ("Petition")), at 2. Both defendants were
charged with Robbery in the First Degree,
Robbery in the Second Degree and Criminal Possession of a Weapon in
the Third Degree. Id. at 3. The charges against Cancela,
however, were based only on the March 31 incident while the charges
against Jones were based on both the March 27 and the March 31 incidents.
Id. at 2.*fn1 Cancela and Jones were tried together.
The following evidence was presented by the People at trial: In March
1998, Harry Diaz managed two grocery stores in Manhattan directly across
the street from each other 148 Food Plaza and Superior Market.
(Cruz: Tr. 375, 379; Diaz: Tr. 449-50). Adalberto Cruz and Marino LeBron
worked for Harry Diaz at both stores as a janitor and security guard,
respectively. (Cruz: Tr. 374-75; LeBron: Tr. 490). On the morning of
March 27, 1998, they were working at 148 Food Plaza. (Cruz: Tr. 375;
LeBron: Tr. 490). At approximately 7:30 a.m., LeBron saw Jones enter the
store, take eight containers of liquid soap, place them in a black
plastic bag that she had removed from her pocket and walk toward the
exit. (LeBron: Tr. 490-93, 501-03, 510-11). LeBron confronted Jones near
the store's exit but Jones said that the soap belonged to her. (LeBron:
Tr. 491, 493, 503). As LeBron took the bag away from Jones, she cut his
right middle finger with what he thought was a razor. (LeBron: Tr.
491-93, 499, 503-04, 522-24). Cruz, who had been mopping the floor, heard
a noise, saw that Jones was running out of the store and grabbed her just
as she was about to leave. (Cruz: Tr. 375-76, 403-04, 427). He released
her when another employee told him that LeBron had already recovered the
merchandise. (Cruz: Tr. 376, 404, 428; LeBron: Tr. 493, 503-04). Neither
nor LeBron called the police. (Cruz: Tr. 378; LeBron: Tr. 494,
On March 31, 1998, Cruz was working at the Superior Market. (Cruz: Tr.
378-79). At about 7:30 a.m., while he was mopping the floor, he saw Jones
enter the store. (Cruz: Tr. 379). Cruz recognized Jones from the incident
on March 27 at 148 Food Plaza and alerted the cashier to her presence.
(Cruz: Tr. 379, 408-10, 444). Cruz watched Jones walk toward the back of
the store and place packages of diapers in a black plastic bag. (Cruz:
Tr. 379-80, 410-12, 433-34). When Cruz confronted her, Jones said that
she had bought the diapers at another store and that she had entered the
Superior Market with them. (Cruz: Tr. 379-81, 412). Cruz informed the
manager, Harry Diaz. (Cruz: Tr. 381; Diaz: Tr. 450-51, 466). Harry Diaz
asked Jones if she had a receipt and she said that she did not. (Cruz:
Tr. 382). Cruz tried to take the diapers away from her but she resisted.
(Cruz: Tr. 381-82, 413).
Cancela then entered the store and demanded to know what was happening.
(Cruz: Tr. 382; Diaz: Tr. 452). Cruz replied that Jones had been
attempting to steal diapers. (Cruz: Tr. 382). Cancela repeated Jones's
earlier statement that the diapers had been purchased at another store.
(Cruz: Tr. 382, 414). When Harry Diaz asked to see a receipt, Cancela
said that they had thrown it away. (Cruz: Tr. 382). Cancela then became
angry and threw a punch at Cruz. (Cruz: Tr. 382, 414-15, 437; Diaz: Tr.
452, 473). Harry Diaz grabbed Cancela while Cruz began to punch him.
(Cruz: Tr. 383-84, 415-17, 437-41; Diaz: Tr. 453, 473-74). Cancela
eventually freed himself and left the store along with Jones. (Cruz: Tr.
384-85; Diaz: Tr. 455, 475). Cruz watched Cancela and Jones as they left
the store and noticed that Jones was holding in her hands the plastic bag
filled with diapers and a box cutter. (Cruz: Tr. 384, 398-99, 418,
420-21, 439, 443, 445-46). Moments later, Cancela attempted to re-enter
the store but was held back by
Jones. (Cruz: Tr. 385; Diaz: Tr. 455). Cruz then called the police.
(Cruz: Tr. 385, 398; Diaz: Tr. 457).
Meanwhile, LeBron and Kinley Diaz, Harry Diaz's brother, were working
across the street at 148 Food Plaza. (Cruz: Tr. 386; Diaz: Tr. 457, 475;
LeBron: Tr. 495, 515, 519-20). They saw that a fight had broken out at
the Superior Market and went there. (Cruz: Tr. 386; Diaz: Tr. 457, 475;
LeBron: Tr. 495, 515, 519-20). By then, Cancela and Jones had begun to
walk down the street away from the Superior Market. (Diaz: Tr. 458,
461-63, 476). Harry Diaz and Cruz told Kinley Diaz what had happened, at
which point Kinley Diaz grabbed a baseball bat and followed Cancela and
Jones. (Cruz: Tr. 386-87; Diaz: Tr. 458, 477). Harry Diaz went with him,
approached Jones and grabbed the diaper bag from her. (Diaz: Tr. 458,
477-78). The police then arrived. (Diaz: Tr. 458, 478).
After speaking with various witnesses, including Cruz, Harry Diaz and
Kinley Diaz, the police arrested Cancela and Jones. (Vega: Tr. 274-75;
Williams: Tr. 320-21; Washington: Tr. 345-46; Vanegas: Tr. 361-62). It
took between six and eight officers to arrest Cancela because he had
backed up against a wall and grabbed onto a gate. (Vega: Tr. 277;
Williams: Tr. 322-24, 337; Washington: Tr. 347-48, 354-55; Vanegas: Tr.
362-63). The officers searched the area for the box cutter or any similar
sharp instrument but were unable to find any. (Vega: Tr. 278-79, 305-06;
Williams: Tr. 326-27, 340; Washington: Tr. 356; Vanegas: Tr. 363-64).
Cancela did not present any evidence at trial.
On February 2, 1999, the jury found Cancela guilty of Robbery in the
Second Degree under N.Y. Penal Law § 160.10(1). (Tr. 724). He was
acquitted of the other two charges. (Tr.
723-24).*fn2 Cancela was sentenced on March 4, 1999 as a
persistent violent felony offender to a prison term of 16 years to life.
(Sentencing Tr. 19, 26).
B. Cancela's Direct Appeal
On appeal to the Appellate Division, First Department, Cancela raised
the following two issues: (1) that the evidence adduced at trial was
legally insufficient to prove beyond a reasonable doubt that Cancela
intended to help Jones steal diapers, see Pet. App. Div. Brief
at 14-16; and (2) that the trial judge erroneously failed to instruct the
jury not to consider ...