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CANCELA v. BENNETT

January 23, 2004.

WILFRED CANCELA, Petitioner, -v.- FLOYD G. BENNETT, Superintendent, Elmira Correctional Facility, Respondent


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.

I. BACKGROUND

  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, Page 2 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. Id.

  A. Trial

  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 Cruz Page 3 nor LeBron called the police. (Cruz: Tr. 378; LeBron: Tr. 494, 514-15).

  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 Page 4 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. Page 5 723-24).*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 ...


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