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Brown v. Gouverneur Correctional Facility

January 12, 2006

DENNIS BROWN, PETITIONER,
v.
GOUVERNEUR CORRECTIONAL FACILITY, DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

INTRODUCTION

Petitioner, Dennis Brown ("Brown"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in New York State Supreme Court (Monroe County) on charges of grand larceny, petit larceny, and engaging in a scheme to defraud. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

By indictment #731/97, a Monroe County grand jury charged Brown charged with two counts of third degree grand larceny, two counts of fourth degree grand larceny, and four counts of petit larceny. The ninth count of the indictment charged Brown with a scheme to defraud in the first degree. Each of the larceny counts alleged a separate act of stealing from a different complainant. This indictment was the culmination of a 1997 investigation into Brown's business practices undertaken jointly by the Rochester Police Department and the New York State Police. Apparently, a number of individuals had contacted the authorities to complain about Brown, who had been representing himself to individuals as a licensed mortgage broker.

At Brown's jury trial held before Justice Mark in New York State Supreme Court (Monroe County), the prosecution elected to prove the larceny charges under a theory of stealing by false pretenses. In part this was accomplished by introducing proof that Brown affirmatively told some of these individuals that he was a licensed mortgage broker (T.285, 351, 532, 583, 681);*fn1 he also held himself out as doing business under the d/b/a of "Chris Jaminson & Company" (T.662) and placed advertisements in the phonebook promoting his services as a licensed mortgage broker (T.406, 433-35, 560, 581). However, the New York State Banking Department had no record of Brown being licensed as a mortgage broker. Brown's victims testified that he would promise them that he could assist them in stopping foreclosure proceedings (T.282, 433, 560, 582-83) or obtaining loans (T.3176, 384, 532). The client would then provide an initial payment as a retainer to secure Brown's services. In either situation, the most that any victim received for his or her money was a telephone call requesting that the foreclosure be discontinued (T.264), a refund check drawn upon an account which previously had been closed (T.327, 388, 541, 543), or a refund check that was otherwise of no value (T.521). The victims would make additional payments after receiving reassurances from Brown that he was actively pursuing their interests, by allegedly stopping the foreclosure or obtaining the requested loan (T.415, 565, 583-84, 588, 599). Brown would be in frequent contact with his victims, asking them for more money to process necessary paperwork, but tellingly absent from these conversations with his clients was any request for relevant information or documentation regarding the client's finances or property (T.417, 448, 599).

When Investigator Cerretto of the Rochester Police Department contacted Brown regarding the police investigation into Brown's business affairs and informed Brown that he was going to be arrested, Brown claimed that he was going to his attorney's office and would thereafter turn himself in (T.751-52). Brown then fled to Atlanta and had to be extradited to New York.

Brown did not testify in his behalf. He called one witness, Stephen Rogoff ("Rogoff"), a local attorney who testified that Brown had asked him to act as counsel to the lender in some real estate deals in which Brown was involved. However, they never finalized a retainer agreement and Rogoff never performed any closings for Brown. Rogoff testified that Brown had told him that he was going to be traveling out of state somewhere, but he could not remember if the destination was Atlanta or whether Brown ever called to ask him advice about whether or not he should go. When asked whether Brown had mentioned something about an investigation pending with him, Rogoff stated that Brown told him "he [Brown] might be on a television program like an Al White type thing, who was investigating real estate matters, that type of an investigation." See T.774-78.

The jury returned a verdict convicting Brown of all counts in the indictment. Prior to sentencing, assigned counsel Alexander R. Renzi, Esq. ("Renzi"), moved on December 10, 1998, for permission to withdraw as Brown's counsel. Renzi noted on the record that Brown had filed a grievance against him for allegedly failing to provide effective assistance of counsel. In addition, Brown had made accusations concerning Renzi during a mental health examination ordered sua sponte by the court prior to trial. Renzi told the court that under these circumstances he did not feel that it would be proper to continue representing Brown. The court granted counsel's motion and assigned Donald M. Thompson, Esq. ("Thompson"), as new counsel. At Thompson's request, the court ordered another mental competency evaluation. The outcome of the second competency hearing was the same as the first--that Brown was competent to stand trial.

On April 21, 1999, Brown appeared for sentencing. The prosecution indicated that if Brown was sentenced to a term of six to twelve years in state prison, it would not prosecute a pending fourth degree grand larceny charge. Defense counsel agreed with the imposition of that sentence and, accordingly, the court sentenced Brown as a second felony offender to an indeterminate term of incarceration of six to twelve years.

Represented by new counsel on direct appeal, Brown asserted the following arguments:

(1) statements made by petitioner while he was represented by an attorney were admitted at trial in violation of his New York State constitutional right to counsel; (2) the verdicts for the third, fifth, sixth and ninth counts were against the weight of the evidence; (3) if the verdicts were reversed, the corresponding restitution orders also had to be vacated; and (4) the sentence was unduly severe. The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed the conviction on September 28, 2001. People v. Brown, 286 A.D.2d 960, 730 N.Y.S.2d 921 (App. Div. 4th Dept. 2001). The Court of Appeals denied leave to appeal on December 27, 2001. People v. Brown, 97 N.Y.2d 679, 738 N.Y.S.2d 294, 764 N.E.2d 398 (N.Y. 2001).

Thereafter, Brown filed a series of motions to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 in the trial court. He also brought a petition for state habeas corpus. Respondent has indicated that it has not been able to obtain all of Brown's motions to vacate, so the Court will rely on Justice Mark's recounting of the substance of petitioner's motions as set forth in his March 21, 2002 order. See Appendix W, attached to Respondent's Answer (Docket #8). According to Justice Mark, Brown raised claims of malicious prosecution; ineffective assistance of counsel based on counsel's alleged failure to address the malicious prosecution issue; that he was illegally sentenced as a second felony offender; that $15,000 allegedly collected from him at the time of booking was never returned to him; and that appellate counsel failed to cite certain cases in her brief on appeal to the Fourth Department. See id. All of Brown's applications, which Justice Mark described as "virtually indecipherable," were denied in written opinions. See id.

This federal habeas petition was filed on or about March 27, 2002. Brown's habeas petition is nearly impossible to understand. For his first ground for habeas relief, Brown states, "unlawful arrest evidence obtained by channel #8 news reporter, Brad Davidson." Petition at 7 (Docket #1). The Court interprets this to mean that Brown is challenging the legality of his arrest in Atlanta, Georgia and subsequent extradition to New York. In other words, Brown appears to be asserting a claim premised upon the Fourth Amendment right to be free from unreasonable searches and seizures.

As his second ground for relief, Brown writes, "self crimination [sic] by useing [sic] public media as tool to convict crimination [sic]." Petition at 8 (Docket #1). He appears to be complaining about the same newscast referenced in his first ground for habeas relief. The Court is wholly perplexed as to what Brown means by this. For its part, respondent has interpreted this as meaning that Brown is complaining that his conviction was somehow secured through self-incrimination via the television news reports broadcast on Channel 8 news. As Brown has not submitted a memorandum of law expanding on this ...


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