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AL JONES A/K/A CHARLES ORR v. ALBAUGH

March 17, 2004.

AL JONES A/K/A CHARLES ORR, Petitioner, -against- H. ALBAUGH, SUPERINTENDENT OF CAPE VINCENT CORR. FACILITY, Respondent


The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT AND RECOMMENDATION

I. INTRODUCTION

Al Jones ("Jones") pro se, has made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Jones contends that he is entitled to habeas corpus relief from a 1993 conviction for attempted grand larceny in the third degree because: (1) the trial court deprived him of his constitutional rights to confront witnesses and to due process, as well as statutory rights, by permitting a videotape of the complaining witness` conditional examination to be used at Jones` trial, without preliminarily requiring the prosecution to explain why the witness could not testify in person and, furthermore, by denying the jurors` request to view the videotape while they were deliberating; 2) the trial court deprived him of his due process right to a fair trial by determining, after a Sandoval *fn1 hearing, to permit the prosecutor to inquire into (a) seven of Page 2 petitioner`s prior convictions, and (b) his use of 43 aliases on different occasions should Jones elect to testify at his trial; and 3) the trial court deprived him of his due process and statutory rights by shifting the burden of proof at the trial when it directed Jones` trial counsel, during the presentation of his opening statement, to limit his comments to "any proof that you intend to produce here in the courtroom, any evidence that you intend to produce."

  Respondent opposes petitioner`s application. He contends that petitioner`s claims lack merit and provide no basis for the court to grant him habeas corpus relief.

  II. BACKGROUND

  Petitioner is a grifter. On the evening of April 3, 1999, in midtown Manhattan, petitioner and another attempted to execute a swindle through a confidence game commonly called the "handkerchief switch." Through this scam, a confidence man, either acting alone or with an accomplice(s), induces the mark, through false representations and the display of a "Mich" or "Michigan Roll," *fn2 to commingle his money with the grifter`s. The combined funds are then placed in a handkerchief, paper bag or other receptacle by the grifter and given to the mark for safekeeping. Unbeknownst to the mark, the grifter carries an identical receptacle, oftentimes containing strips of newspaper that have been cut to the size of dollar bills. At a convenient time, the grifter switches the receptacles, gives the mark the one that does not contain any money and absconds with the mark`s money.

  In the instant case, while affecting a foreign accent, Jones approached Jorge Monteil ("Monteil") and engaged him in a conversation. After ascertaining that Monteil was an alien Page 3 who spoke and read English, Jones displayed a card to him that contained the name of a hotel. Jones told Monteil that he had come to New York City, at the request of an attorney, to retrieve a substantial inheritance. He explained that he had $10,000 of the inheritance with him, but had left the lion`s share of it in a locker at the Port Authority bus terminal. To establish the bona fides of this tale, petitioner showed Monteil what appeared to be a wad of money. In reality, it was a Michigan Roll.

  Jones offered to pay Monteil if he would assist petitioner by taking him to the hotel listed on the card petitioner carried. Monteil advised Jones to put his money away. He explained that to display it openly on the streets of New York City was not safe.

  While Monteil and Jones were engaged in conversation, Jones' accomplice approached. He was stopped by Jones, but neither man gave any indication that he was acquainted with the other. Jones asked his accomplice if he could assist him in locating the hotel identified on the card he had previously shown to Monteil. Jones also showed his accomplice the Michigan Roll. The accomplice advised Jones not to display his wad of "money" openly on the street. He directed petitioner to return it to the bag from which it had been retrieved. Monteil recalled that Jones offered the accomplice $400 to assist in finding the hotel noted on the card that petitioner had shown him. Monteil also recalled Jones recounted the story of having been summoned to New York City to retrieve an inheritance. In support of this claim, Jones produced a letter, purportedly from an attorney, directing him to travel to New York City to receive his inheritance.

  The three men began to walk in the vicinity of West 54th Street and Sixth Avenue. As they did so, petitioner`s accomplice suggested that Jones deposit his money in a bank and obtain an automatic teller machine card so that he might have ready access to his funds. The Page 4 accomplice told petitioner that by obtaining this card, he would eliminate the need to carry the large sum of money on his person as he ambulated through the city streets. Jones rejected this suggestion. He claimed that, in his country, withdrawing money from an automatic teller machine was considered magic.

  Monteil suggested that petitioner place his money in a hotel safe. However, Jones stated that he did not have adequate identification documents with him in order to secure a hotel room. He maintained that his passport and other belongings remained in a bus terminal locker. Jones then asked Monteil if he could be trusted to hold Jones` money while he returned to the bus terminal to gather his belongings. Monteil responded affirmatively, and indicated that he kept his own money and traveler`s checks at the hotel where he was staying on West 57th Street.

  The trio agreed that Monteil would hold Jones` money while he returned to the bus terminal and they set off for Monteil`s hotel. On the way to that hotel, petitioner`s accomplice produced a paper bag. He told Jones to place his money inside the bag. Petitioner removed the Michigan Roll from a black leather bag he was carrying and placed it inside the paper bag that his accomplice supplied. Jones then placed the paper bag inside his black leather bag. When the three men reached Monteil`s hotel, petitioner`s accomplice remained downstairs while Jones and Monteil went to Monteil`s hotel room. Once they reached the hotel room, petitioner asked where Monteil kept his money. Monteil opened a night table drawer and showed Jones two checkbooks containing traveler`s checks and $300 in cash. Jones announced that he was going to combine Monteil`s money with his own and removed the travelers checks and the cash from the night table. He placed those items in the paper bag With the Michigan Roll. He then sealed the bag with a rubber band. Jones advised Monteil that if anyone tried to steal the paper bag he should Page 5 secrete it inside his shirt. Petitioner then demonstrated for Monteil how he should accomplish this. At this point, Jones switched the paper bag with Monteil`s money with another paper bag that was hidden in his shirt. Petitioner then removed the substitute paper bag from the inside of his shirt and placed it in the night table drawer.

  Monteil was suspicious. He tried to open the night table drawer to confirm that his money, as well as petitioner`s, was actually inside the paper bag. As Monteil went to open the night table drawer, petitioner blocked his way, and retrieved the paper bag himself. Petitioner then demonstrated again how the paper bag should be placed within Monteil`s shirt if anyone should try to steal it. Thereafter, Jones switched the paper bags again. He removed the original paper bag from the inside of his shirt, opened it and showed Monteil that the traveler`s checks and his money were still inside the bag along with the Michigan Roll.

  Next, Jones approached the hotel room window, which was near a radiator. He took the paper bag that did not contain Monteil`s money, crouched down and placed it underneath the radiator in a hole in the floorboard. He advised Monteil that if someone should attempt to rob him, Monteil should place the bag under the radiator, as petitioner had done, and run from the hotel room. Monteil was again concerned that ...


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