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GEORGISON v. DONELLI

June 9, 2005.

STEVEN GEORGISON, Petitioner,
v.
JOHN DONELLI, Superintendent, BARE HILL CORRECTIONAL FACILITY, Respondent.



The opinion of the court was delivered by: DENNY CHIN, District Judge

MEMORANDUM DECISION

Petitioner Steven Georgison brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of assault in the first degree by a jury in the Supreme Court of the State of New York, Bronx County, and is serving a prison sentence of twelve years to life. Petitioner contends that the trial court violated his right to due process and his right against self-incrimination. The Court has reviewed the parties' submissions and the record of the state court proceedings. For the reasons that follow, the petition is denied. BACKGROUND

  I. The Facts

  A. The Assault on Alexander Fernandez

  On the morning of June 22, 1993, Alexander Fernandez drove his truck to the premises of Charles Green Corporation ("Charles Green"), a company for which Fernandez's employer provided waste removal services. (Tr. 569-73).*fn1 As Fernandez was loading waste from containers into his truck, another truck, with "Mongelli Carting Company" ("Mongelli Carting") written on the side, approached. (Id. at 574-75). Petitioner and one other person were in the Mongelli truck and, as Fernandez worked, petitioner got out of the truck and approached him. (Id. at 576-78). Fernandez recognized petitioner from an incident a few days earlier at the same location when petitioner had tried to intimidate him. (Id. at 563-64, 576). Mongelli Carting had been the previous vendor for Charles Green and had been involved in a dispute with Charles Green. (Id. at 62, 69, 71-73, 96; Hr'g Tr. 42-43).*fn2 Petitioner and Fernandez exchanged hostile words and Fernandez then turned around to continue his work. (Tr. 578-81). A few seconds later Fernandez was struck with an object multiple times, including at least once in the head, and suffered multiple injuries. (Id. at 581-84, 586-89). Fernandez claimed that during the attack, before losing consciousness, he looked up and saw petitioner holding a black object "like a pipe." (Id. at 582-83; Hr'g Tr. 240). According to petitioner, two witnesses were present when Fernandez was attacked — Thomas Oddo, a co-worker of petitioner who also worked for Mongelli Carting, and Thomas Toppin, a Charles Green employee. (Pet'r Reply at 33).*fn3

  B. The Assault Investigation

  Fernandez was interviewed by one or more police officers while he was in the hospital. (Tr. 590; Hr'g Tr. 259-60). Fernandez described his attacker and mentioned he had seen the attacker on an earlier date. (Id.). Although Fernandez suffered from some memory loss as a result of the incident, at trial he said that he would never forget the face of the man who had assaulted him. (Tr. 701).

  On August 30, 1993, Fernandez filed a civil lawsuit against Mongelli Carting and two unidentified employees of the company for the assault. (Hearing Decision at 6).*fn4 On September 16, 1993, Fernandez was visited by Detective Joseph Lentini from the Organized Crime Investigation Division (the "O.C.I.D.") of the New York City Police Department and an investigator from the New York County District Attorney's Office. (Tr. 738-39; Hr'g Tr. 99). Fernandez was shown six photo arrays of six photographs each that were created using surveillance photos taken at the location where the assault occurred. (Tr. 739-40, 754-55, 758-59). The photographs depicted men from the shoulders up, about nine or ten of whom had features similar to petitioner. (Id. at 759; Hr'g Tr. 100, 244, 286-88). Fernandez picked petitioner's photo out of one of the arrays. (Tr. 761). By the time of trial, the photo arrays had been lost. (Id. at 755, 762-63).

  On December 14, 1993 Fernandez amended the complaint in his civil suit and named petitioner and Oddo as individuals who assaulted him in June 1993. (Id. at 9).*fn5

  Beginning in the early 1990s the City of New York had begun an investigation into the waste carting industry. (Hr'g Tr. 39). In June 1995, indictments were filed in New York County against seventeen individuals, including Louis Mongelli and Paul Mongelli, owners of Mongelli Carting; twenty-three companies; and four trade associations. (Id. at 39, 50). In addition to attempted murder in the second degree, coercion in the first degree, and numerous other crimes, the Mongellis were charged with the assault on Fernandez. (Hearing Decision at 9-11). Petitioner was not included in any of these indictments. (Id.). Assistant District Attorney ("ADA") Patrick Dugan later testified that "[t]he Manhattan District Attorney's Office did not have jurisdiction to present the case against Georgison. The Bronx District Attorney's Office could not have presented the case to a Grand Jury because they were unaware of the evidence because it was protected from disclosure." (Hr'g Tr. 56).

  On February 27, 1996, while petitioner was incarcerated at Riverview Correctional Facility on unrelated charges, he was questioned by two detectives. (Tr. 514-16; Hr'g Tr. 135-36; Hearing Decision at 10). Miranda warnings were not given, petitioner was not given the opportunity — nor did he request the opportunity — to make a phone call, and his attorney was not contacted. (Hr'g Tr. 9, 13, 140-41, 158). Petitioner was not forced to speak with the detectives but agreed to do so. (Id. at 6-9, 10; Tr. 515-16). The interview was conducted in the visitor's room of the prison and petitioner was not handcuffed. (Hr'g Tr. 6-7). The detectives asserted that petitioner had assaulted someone in June of 1993. (Id. at 137-138). Petitioner responded, "I didn't pipe no one." (Id. at 138; Tr. 517). Apparently no one had mentioned anything about a pipe being used in the assault. (Id.; Hr'g Tr. 138). The participants, including an ADA who had entered the room, then discussed petitioner's employers, the Mongellis, and petitioner's possible cooperation in the waste carting investigation. (Id. at 139-40). According to the detectives, petitioner stated "I am not going to rat on a person who gave me the best job I had, the only job." (Id. at 139-40; see also Tr. 518). Petitioner was not questioned about the crime for which he was incarcerated. (Hr'g Tr. 140). Petitioner ended the interview by saying, "I can't talk no more, I got to leave." (Id. at 141). He then walked out of the room and was taken back to his housing unit. (Id. at 7, 141). There were no threats made to petitioner when he refused to provide information about the Mongellis. (Id. at 7, 139-41; Tr. 518).

  On November 25, 1996, a New York County ADA and a detective interviewed Fernandez and showed him six photographs. (Id. at 680-82; Hr'g Tr. 20-22). Fernandez again identified petitioner as his assailant. (Id. at 22; Tr. 681). Subsequently, Fernandez identified a photograph of petitioner during the criminal trial of the Mongellis. (Hr'g Tr. 24-27). Finally, on February 18, 1998, Fernandez identified petitioner during a lineup at the Criminal Court in Bronx County. (Tr. 590-91; Hr'g Tr. 145-148). II. Procedural History

  A. The Pre-Trial Huntley, Wade, and Singer Hearings

  On April 6, 1998, petitioner was indicted for two counts of assault in the first degree, coercion in the first degree, and criminal possession of a weapon in the third degree. (Hearing Decision at 1). At the combined Singer, Huntley, and Wade hearing from July 21 to 23, 1999, five witnesses testified for the prosecution before Justice Bamberger. (Id.). An additional session was held on October 14, 1999, during which Fernandez testified. (Id. at 2). The court denied petitioner's motion to dismiss the indictment for excessive pre-indictment delay and also denied his motions to suppress identification testimony and statements made to the police at the February 27, 1996 interview. (Id. at 18, 20, 28). See also People v. Georgison, 750 N.Y.S.2d 18, 19 (App.Div. 2002).

  In regard to the Singer issues, prosecutors called ADA Patrick Dugan, who testified that the fifty-six month delay in the indictment of petitioner was due to the ongoing investigation of the waste carting industry. (Hr'g Tr. 39, 47-48, 56). Dugan said the undercover aspect of the investigation had begun in May, 1992 and lasted for two and a half years. (Id. at 39-40). Protective orders were issued on September 28, 1995, March 15, 1996, December 13, 1996, and April 28, 1997, to protect the identity of witnesses. (Hearing Decision at 10). Dugan explained that the orders were necessary because of the history of violence in the waste industry. (Hr'g Tr. 44). Dugan also testified that information regarding the assault was not turned over to the Bronx County District Attorney until shortly after June 30, 1997. (Id. at 47, 56). Although the first protective order was not issued until September 28, 1995, Dugan explained that petitioner was not indicted prior to ...


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