The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
REPORT AND RECOMMENDATION
Warren Smith brings this petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, challenging his conviction in New York State
Supreme Court, New York County, for robbery and burglary. Mr. Smith
contends that: (1) he was denied the right to counsel when the court
agreed to replace his appointed attorney but declined to do so before he
was scheduled to testify before the Grand Jury; (2) he was denied his
right to be convicted only upon a unanimous verdict, as well as his right
to effective representation of counsel when his trial attorney failed to
raise this issue; (3) there was insufficient evidence to support
the robbery conviction; and (4) he was denied adequate assistance
of appellate counsel. The respondent acknowledges that the petition is
timely and that all of the claims have been exhausted.
For the reasons set forth below, I recommend that the petition be
On May 15, 1999, Cheuk Gin, David Gin, and their parents were staying
at the Quality Inn Hotel and Suites in Manhattan. (Tr. at 96, 128-29).*fn1 At approximately 7:15 a.m., the petitioner
knocked on the door of their room, identified himself as a
maintenance worker, and said that he had to check a leak in the bathroom.
(Tr.at 97, 129-30, 145). Although Mr. Smith was not wearing a uniform and
did not display identification, Cheuk let him into the room.(Tr. at 98).
After pretending to examine the bathroom, the petitioner closed the door
to the room and ordered Cheuk to lie on the floor or he would "blow [his]
fucking head off." (Tr. at 102-04, 120-23, 131). Cheuk complied, and Mr.
Smith took $700 from his wallet, which was on the dresser. (Tr. at 104,
121, 132). The petitioner then asked David where the rest of the money
was, and David replied that it was in the dresser. (Tr. at 105, 122,
134-35). Mr. Smith found David's pants in the dresser drawer and removed
$200 from the pocket. (Tr. at 105-06, 135, 147). When Cheuk stood up
despite Mr. Smith's order to stay down, the petitioner punched him in the
side of the head, knocking him to his knees. (Tr. at 106-07, 135). Mr.
Smith then ran out the door and down the stairs. (Tr. at 107, 135). David
and his father gave chase but failed to catch up with him. (Tr. 108,
Cheuk sustained a "bump and a little bruise" on his head from being
punched. (Tr. at 107). These symptoms lasted about a week, during which
time, Cheuk said, "it hurt just chewing." (Tr. at107). Cheuk did not,
however, seek medical attention. (Tr. at123-24).
A security camera caught Mr. Smith entering the hotel at 7:01 a.m. on May 15, 1999, and going up the stairs to the guest
rooms. The tape also showed him in the lobby at 7:20 a.m. (Tr. at 229,
231, 243-44, 251).
On May 26, 1999, Kevin Ferguson and his wife were staying at the
Milford Plaza Hotel in Manhattan. (Tr. at 68-69). At about8:20 or 8:25
p.m., the petitioner knocked on their door, said he was a maintenance
man, and asked to check the bathroom. (Tr. at69-71, 78-81). Mr. Ferguson
saw through the peephole in the door that Mr. Smith was not wearing a
uniform and told him to "get lost." (Tr. 69-71, 80-81). Mr. Ferguson then
went to the hotel desk and informed security about the incident. (Tr. at
Michael McNulty was also staying at the Milford Plaza that night. (Tr.
at 35). At about 8:30 p.m., the petitioner knocked on his door and said
he was from maintenance and needed to check a leak in the bathroom. (Tr.
at 35-36, 54). Mr. McNulty let him in, and after the petitioner looked in
the bathroom, he said he needed to use the phone. (Tr. at 37-38, 57). Mr.
McNulty, who had become suspicious, objected. (Tr. at 38). Then Mr. Smith
pushed Mr. McNulty and said, "Just give me your money. Get down on the
floor." (Tr. at 40, 52-53). Mr. McNulty told the petitioner to get out,
but Mr. Smith put his hand in his pocket and said, "You know what this is
. . . I've got a gun." He told Mr. Smith to lie on the floor "or you're
going to get hurt." (Tr. at 40-42, 47-48, 52-53, 62-63). When Mr. McNulty
complied, the petitioner took $17 or $19 from the victim's hand and an
envelope containing $50 from his pocket. (Tr. at 42-44, 53). Mr. Smith
then left, and Mr. McNulty called the hotel desk and reported the robbery. (Tr.
at44-45, 64, 66).
In the meantime, Mr. Ferguson had told Robert Noonan, a hotel security
officer, about his encounter with the petitioner. (Tr. at72, 81, 83,
159-61). While Mr. Ferguson and Mr. Noonan were in the lobby, the
petitioner exited from the elevator and Mr. Ferguson identified him as
the man who was posing as a maintenance worker.(Tr. at 72-73, 83-84,
161-62). When Mr. Noonan attempted to detain Mr. Smith, the petitioner
fled. (Tr. at 73-74, 85-86, 162-65).Mr. Noonan and Mr. Ferguson gave
chase, and Mr. Smith was ultimately apprehended in a nearby subway
station by a plain clothes police officer. (Tr. at 75-76, 87-88, 166-67,
199-200). When the petitioner was searched at the station house, he had
$69 in cash, apparently the same money that had been stolen from Mr.
McNulty.(Tr. at 181, 183-85, 217-18). Officers did not find a gun.
On June 14, 1999, the grand jury charged Mr. Smith with one count each
of Burglary in the First Degree (N.Y. Penal Law § 140.30(4)) and
Robbery in the Second Degree (N.Y. Penal Law § 160.10(2)(b)) for
the robbery of Mr. McNulty. Thereafter, on October 13, 1999, the
petitioner was placed in a lineup and viewed by Cheuk and David Gin. (Tr.
at 108, 136-37, 263-65). Cheuk positively identified Mr. Smith as the man
who had robbed them, while David, who narrowed his selection to Mr. Smith
and one other man, ultimately chose the other man. (Tr. at 108-10, 137,
The prosecution presented evidence concerning the Gin robbery to the grand jury on October 14 and 19. (Affirmation of Gregory Rofman
dated Dec. 1, 1999 ("Rofman Aff."), attached as third document in Exh. N
to Declaration of Willa J. Bernstein dated Sept.29, 2003 ("Bernstein
Decl."), ¶ 4.) At the end of the second day, the grand jury voted to
indict, but the indictment was not immediately filed. (Rofman Aff., ¶
5). On October 25, the prosecution received a pro se document
from the petitioner dated October 19 indicating that he wished to testify
before the grand jury. (Rofman Aff., ¶ 7). The Assistant District
Attorney then advised Mr. Smith's attorney, Charles Castellon, of this
communication, and they agreed that the case would be reopened and the
petitioner would be given the opportunity to testify on October 28.
(Rofman Aff., ¶ 8).
On that day, however, Mr. Smith refused to speak with his attorney and
said he wanted a new one. (Rofman Aff., ¶ 9). Accordingly, the
Assistant District Attorney rescheduled Mr. Smith's grand jury appearance
for November 1, and Mr. Castell on arranged to move for substitution of
counsel on October 29.(Rofman Aff., ¶ 10).
Mr. Castellon made his motion before Justice Carol Berkman. She agreed
to relieve him and to assign substitute counsel at a later date, but
because of the petitioner's imminent appearance before the grand jury,
she directed Mr. Castellon to continue as counsel throughout that
process. (Rofman Aff., ¶ 11; Order dated Dec. 16, 1999 ("Order"),
attached as fourth document in Exh. N to Bernstein Decl., third
unnumbered page & n.3). On November 1, Mr. Smith was brought to the grand jury area to testify.
However, when Mr. Castellon approached to advise him, the petitioner
became angry, said Mr. Castellon was no longer his attorney, and refused
to testify. (Rofman Aff., ¶ 12). Later that day, the indictment
previously voted by the grand ...