The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
James Thomas ("Petitioner") was convicted after a jury trial in Erie County Court, of Attempted Murder in the Second Degree, Assault in the First Degree, and Criminal Possession of a Weapon in the Fourth Degree. Petitioner now seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, vacating those convictions. For the reasons that follow, the application is denied and this action is dismissed.
The female victim in this case, S.L., was attacked in her home in the City of Buffalo on the evening of May 23, 1996. The attacker stabbed S.L. in the throat and multiple times in the chest, leaving her in a pool of blood and clothed only in a nightshirt pushed up around her neck. S.L. survived the attack and, after regaining consciousness, was able to make three telephone calls before police and ambulance crews arrived, including two calls to Emergency 911 and one call to her sister. In one of the 911 calls and in the call to her sister, S.L. identified petitioner James Thomas, her brother-in-law, as the attacker. According to S.L., petitioner, who had been walking to work, stopped by her home and asked if he could rest a few minutes and use the bathroom. S.L. stated that some time later, petitioner attacked her with a knife and forcibly raped her. A short time later petitioner was arrested at the bakery where he was employed in the City of Buffalo. At that time police officers seized items of clothing from petitioner's work locker, including pants, a shirt, and a hooded sweatshirt.
Following a police investigation, an Erie County Grand Jury returned a five-count indictment against petitioner on July 18, 1996, charging him with Attempted Murder in the Second Degree in violation of New York Penal Law ("PL") § 110/125.25-1, Assault in the First Degree in violation of PL § 120.10-1, Assault in the First Degree in violation of PL § 120.10-4, Rape in the First Degree in violation of PL § 130.35-1, and Criminal Possession of a Weapon in the Fourth Degree in violation of PL § 265.01-2. The case was assigned to the Honorable Michael D'Amico ("Judge D'Amico"), Erie County Court Judge.
Petitioner's trial counsel moved to suppress the seizure of clothing from plaintiff's work locker. The prosecution opposed the application, and maintained that the seizure of the clothing was lawful. Following a hearing, Judge D'Amico denied the suppression motion. (See, Transcript of December 2, 1996 Suppression Hearing)
Petitioner also sought to suppress an oral statement that he made to police at police headquarters a few hours after his arrest. Petitioner told police that he had been at S.L.'s house on the evening of the attack, and had left there to go to work at approximately 8:40 p.m. He told police that he walked to the bakery where he worked, and he described the route that he walked to get there. Petitioner also stated that along the way, he stopped and called the bakery from a pay phone at the intersection of Amherst and Bailey Streets, and said that he would be late in arriving. Judge D'Amico denied the suppression motion. (See, Transcript of April 7, 1997 Huntley Hearing)
Prior to trial, petitioner's counsel requested a tape recording of S.L.'s Emergency 911 calls. The prosecution informed defense counsel, based upon representations from the police, that the 911 tape had inadvertently been erased. Immediately prior to the start of the trial, however, the prosecution discovered that the tape had not been erased, and provided it to the defense. However, the prosecutor agreed not to use the tape at trial.
The trial ended in a mistrial after the jury could not reach a verdict. A second trial was held beginning on June 2, 1997, at which the prosecution indicated that it intended to introduced the 911 call tape as evidence. Defense counsel objected to the tape, stating, based only upon his memory of having heard the tape months earlier, that it had been altered since the first trial. Defense counsel also objected to the tape on the grounds that the prosecution had erroneously indicated, prior to the first trial, that the tape had been erased. The prosecutor stated that the tape had not been altered, and that the defense had notice of the tape from the first trial.(44-45) Judge D'Amico overruled the objection, finding no evidence that the tape had been altered, and also finding that the defense had adequate notice of the tape. (43-49)*fn1
At trial, S.L. testified that she had known petitioner, her brother in law, about 28 years. She testified that on May 23, 1996, petitioner came to her home at about 9:00 p.m.. S.L. testified that petitioner told her that he had to be at work at 10:00 p.m., and that he used her telephone to call his employer to say that he would be late arriving at work. S.L. stated that she was seated on a couch watching television, when petitioner charged at her with a knife in his hand, saying, "You're going to give me some." (56, 76) She stated that petitioner punched her repeatedly, pulled down her pants, and had forcible sexual intercourse with her while continuing to punch her. S.L. stated that she lost consciousness, and when she awoke she was on the floor and bleeding from a stab wound to her neck and multiple stab wounds to her abdomen. (59) She called and spoke to a 911 operator, then called and spoke to her sister, then called 911 again.
S.L. told her sister and the police that "Jamsieboy" had raped her, "Jamsieboy" being petitioner's nickname. (63)
A police forensic chemist then testified that a button found stuck to a bloody pillow at the crime scene appeared to match the buttons on the shirt taken from petitioner's work locker, which was missing a button from the left cuff. (146-47, 150).
The forensic chemist also found blood on petitioner's shirt and hooded sweatshirt, as well as a "bright red chip of potentially polymeric material," presumably fingernail polish, on petitioner's shirt, that matched similar material found under the victim's fingernails. (147-49) There was also blood on a key and a lighter in the pocket of petitioner's pants. Chemical testing established that the blood on petitioner's shirt matched S.L.'s blood. (335-36)
The shift supervisor at petitioner's workplace testified that petitioner had called work on the evening of the attack and asked if he could come in late, that the request was granted, and that petitioner arrived at work shortly after 10:30 p.m..
The emergency room physician who treated S.L. testified that S.L. was brought into the hospital with "very serious" injuries, including a slash to the neck and multiple stab wounds, from which she would have likely died if she did not receive medical treatment. (213-16)*fn2
Petitioner, who was previously convicted of Incest in violation of P.L. § 255.25, a Class E felony, did not testify. Nor did the defense present any other witnesses. (352) The defense moved to dismiss, arguing that the People had not proven a prima facie case, however Judge D'Amico denied the application. (353)
The jury convicted petitioner of Attempted Murder in the Second Degree (Count 1), Assault in the First Degree (Count 2), and Criminal Possession of a Weapon in the Fourth Degree (Count 5), and acquitted him of Assault in the First Degree (Count 3) and Rape (Count 4). Judge D'Amico sentenced petitioner, as a second felony offender, to 25 years for the attempted murder conviction, fifteen years for the assault conviction, and one year for criminal possession of a weapon, to be served concurrently.
Petitioner, represented by assigned counsel, appealed his conviction to the Supreme Court, Appellate Division, Fourth Department. On appeal, petitioner raised the following arguments: 1) the clothing stained with the victim's blood was improperly seized from his work locker; 2) the convictions were against the weight of the evidence, in violation of People v. Bleakley, 69 N.Y.2d 490, due to inconsistencies in the victim's testimony; and 3) the sentence was harsh and excessive. By Memorandum Order filed on ...