The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge
REPORT AND RECOMMENDATION
To the Honorable Loretta A. Preska, United States District Judge:
Pro se petitioner Charles Nelson seeks a writ of habeas corpus from his April 10, 2003 conviction in Supreme Court, New York County, of third degree robbery, fourth degree grand larceny, and first degree reckless endangerment and sentence as a second felony offender to sentences totaling five and half to eleven years imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-5.) See People v. Nelson, 17 A.D.3d 276, 276-77, 794 N.Y.S.2d 24, 25 (1st Dep't), appeal denied, 5 N.Y.3d 792, 801 N.Y.S.2d 813 (2005).
Nelson's federal habeas petition raises two claims that his due process rights were violated: (1) because his conviction of reckless endangerment was against the weight of the evidence (Pet. ¶ 13(1)), and (2) because his convictions of third degree robbery and the non-inclusory concurrent count of fourth degree grand larceny violate double jeopardy (Pet. ¶ 13(2)).
For the reasons set forth below, Nelson's habeas petition should be DENIED.
On October 3, 2002 at 11:30 a.m., seventy-one year old Maria Del Los Santos was coming home to 60 West 109th Street in Manhattan. (Dkt. No. 9: De Los Santos: Trial Transcript ["Tr."] 246-47, 252.) She had purchased two money orders for her rent, and had them in her pocketbook. (De Los Santos: Tr. 247, 252.) A man in a white shirt grabbed her bag from behind, and she screamed "'thief, a thief.'" (De Los Santos: Tr. 247-48, 267, 278.) The man ran past the superintendent of De Los Santos' apartment building, Thadius Quarless, who gave chase. (De Los Santos: Tr. 248-49, 266-67, 278; Quarless: Tr. 284-85.) De Los Santos did not see the face of the person who snatched her bag and was not able to identify him. (De Los Santos: Tr. 247, 251, 274, 277-78.)
Quarless, who was sitting outside 60 West 109th Street, heard De Los Santos yelling in Spanish, "'thief, thief; my money, my money. They just robbed my money.'" (Quarless: Tr. 285, 297-98, 307.) Quarless saw a man -- later identified as Nelson -- running with a black purse, so by "instinct" he chased him. (Quarless: Tr. 285-86, 290, 306.) Quarless tackled Nelson, they struggled (Nelson trying to get away and Quarless trying to hold him), and as Quarless tired, Quarless hit Nelson with his cell phone. (Quarless: Tr. 286-87, 289-90, 308-09.) The struggle lasted five to ten minutes, during which time Quarless clearly saw Nelson's face. (Quarless: Tr. 293, 308.) Nelson dropped the purse and ran toward the subway station. (Quarless: Tr. 287, 289, 309, 315.) Nelson's white T-shirt was torn in the struggle, and he ran off without it. (Quarless: Tr. 287-88.)
Quarless identified Nelson at trial as the man he struggled with. (Quarless: Tr. 290, 292-93.)
De Los Santos came up to Quarless and he picked her pocketbook up from where Nelson had dropped it, and had her verify that her money orders were still in the purse. (De Los Santos: Tr. 249-51, 267-69; Quarless: Tr. 288-89, 291, 306-07, 309-10.)
Quarless called the police. (Quarless: Tr. 291.) An hour to an hour and a half later, the police asked him to come to the subway station at 110th Street and Central Park West. (Quarless: Tr. 291-92, 301; Efthimiou: Tr. 334.) The police took him to the lower level, where they had a suspect. (Quarless: Tr. 292, 313, 335-36.) As soon as he saw the person, he said "'that's the mother-f---er.'" (Quarless: Tr. 292, 313-14.) That person was Nelson. (Quarless: Tr. 292-93.) Nelson's Arrest In The Subway
Officers Steven Sanchez and Jesus Rodriguez were in plain clothes and had gotten off a northbound train at 110th Street when they saw a black man with "no shirt, dirty looking" coming down the platform. (Sanchez: Tr. 382-83, 391; Rodriguez: Tr. 402-03, 415.) Officer Rodriguez identified that man at trial as Nelson. (Rodriguez: Tr. 411-12; see Sanchez: Tr. 388-89, 393.) As the officers were coming upstairs they heard a "commotion," "people were yelling," to the effect that "'the guy with no shirt just went downstairs, just robbed a lady.'" (Sanchez: Tr. 384-85, 392; Rodriguez: Tr. 404, 419.) Officer Sanchez returned to the platform but did not see the man. (Sanchez: Tr. 385-87.) Officer Rodriguez was driven to the next northbound station, 116th Street, and did a "drive through" on the next southbound train. (Rodriguez: Tr. 407-08, 414.) A "drive through" is when an officer rides in the first car of a train and tells the conductor to drive slowly through the tunnel to look for the person that they are searching for. (Rodriguez: Tr. 409; see Efthimiou: Tr. 360-61.) Officer Rodriguez did the drive through down to the 103rd Street station, where he met up with Officer Sanchez and they returned to the 110th Street station. (Rodriguez: Tr. 408-10; Efthimiou: Tr. 360-61.)
Sergeant Peter Efthimiou, who was on plainclothes transit duty, heard a radio report and got out of a northbound train at the 110th Street station. (Efthimiou: Tr. 321-22, 337.) Sgt. Efthimiou saw Quarless running. (Efthimiou: Tr. 321-22, 338.) After Sgt. Efthimiou learned that Quarless was a witness to the purse-snatching, he tried to locate the perpetrator in the station and made radio calls to seal off possible escape routes. (Efthimiou: Tr. 321-22, 325, 339-40.) Sgt. Efthimiou escorted Quarless out of the station, then returned and ordered officers who were certified for track work to conduct a track search for Nelson, going south from 110th Street to 103rd Street. (Efthimiou: Tr. 325-30, 340, 343-44, 359, 376-77; Mosher: Tr. 438-39.)
Officer Don Mosher and five other track-certified officers searched the tunnel south from 110th Street to 103rd Street, on both the uptown and downtown local tracks. (Mosher: Tr. 421-25, 442.) When they started the search, the power was on on all tracks, with uniformed officers stationed at either end of each tunnel to flag down any local trains (while the express trains would not be able to be flagged). (Mosher: Tr. 425-26, 441-43.) After they started the search, the power was turned off on the local tracks but was still on on the express tracks. (Efthimiou: Tr. 327, 365, 368, 375-76; Mosher: Tr. 441, 443.)
About a quarter of the way into the tunnel, the police spotted Nelson, shirtless, "wedged in between some piping and a wall that kind of divided the uptown express train from the downtown express train." (Mosher: Tr. 426-27, 443-44.) Officer Mosher ordered Nelson to come out. (Mosher: Tr. 429, 444.) Nelson began to come out but then "kind of froze up." (Mosher: Tr. 429, 444.) The officers "proceeded to cross over two sets of third rails and physically brought him out and [the officers] tried to get him down to the floor, which [they] were able to do, got him in a prone position and cuffed him." (Mosher: Tr. 429, 444-45.)
They were in the center of the express tracks when they saw a downtown express train entering the 110th Street station and coming toward them "at a fairly rapid rate of speed." (Mosher: Tr. 430.) That area of the tracks is marked a "no clearance area, which means, basically, if a train comes through that area, there's zero clearance for a human being. So, if you're standing there, you're going to die, basically." (Mosher: Tr. 433; id. at 434-35.)
Officer Mosher "grabbed [his] radio" to have police notify the Transit Authority to "have the power shut off forthwith." (Mosher: Tr. 430; see Efthimiou: Tr. 328-29.) Sgt. Efthimiou heard that transmission, saw the train, and jumped onto the tracks and signaled with his flashlight for an emergency stop. (Efthimiou: Tr. 329-30.) Another officer pulled the emergency power switch in the tunnel, shutting off the power and stopping the train. (Mosher: Tr. 431, 450; Efthimiou: Tr. 332-33.) The train stopped "nine subway cars-length" away from Officer Mosher, the other officers and Nelson. (Mosher: Tr. 432.)
Officer Mosher brought Nelson back to the 110th Street station and handed him over to Officers Sanchez and Rodriguez. (Mosher: Tr. 432; Sanchez: Tr. 388-89, 393; Rodriguez: Tr. 411; Efthimiou: Tr. 333.) Officers Sanchez and Rodriguez identified that person as the shirtless person they had seen, and they and Sgt. Efthimiou identified Nelson at trial. (Efthimiou: Tr. 333; Sanchez: Tr. 388-89, 393; Rodriguez: Tr. 411-12.)
Defense Motion at the Close of the Case
At the close of the prosecution's case, the defense moved for a trial order of dismissal. (Tr. 453-54.) With respect to the reckless endangerment count, the prosecution responded that by entering the subway tracks and going into a "no clearance" zone, Nelson set forth a chain of events that could have led to the death of a police officer. (Tr. 455-56.) Defense counsel responded that there was no evidence that when Nelson entered the subway tunnel, he was aware that he was being chased by the police. (Tr. 456.) Nor, according to the defense, was there any way for Nelson to know the police would not shut off the power to stop all the trains. (Tr. 458-60.) The trial judge said she would be "blunt," stating that "[a]ny human being with a-half a pea brain would know if you put yourself in a situation like that, it's extremely dangerous to yourself and others." (Tr. 457-58.) The judge found that it was a jury question, and denied the defense motion. (Tr. 460-61; see also Tr. 472-73, 479-81.)
The defense rested without calling any witnesses. (See Tr. 477-78, 481, 484.) Closing Argument
In closing argument, defense counsel made the same pitch to the jury:
Even if you believe every word from every witness who was here yesterday, there is not one bit of evidence that Charles Nelson knew, when he was down on those tracks, that the police were coming after him.
You got to remember, the police officers saw him. He was not being chased. He walked right by them and onto those tracks.
And there's absolutely no evidence that Charles Nelson was aware that the police officers were going to come and search for him, and not only do that, but that they would do it with the power on and the express trains running. (Defense Closing: Tr. 509-10.)
The prosecution responded that it is reasonably foreseeable that if you commit a crime and then go into a subway tunnel, someone is going to follow you and try to get you out, because the tracks are dangerous. (Prosecution Closing: Tr. 527-32.) The prosecution also told the jury that it did not matter if the police could have done things more safely, such as by shutting off all power; it was the defendant who, by going into the subway tunnel, knew he would be pursued by the police, putting them at grave danger, and that constitutes first degree reckless endangerment. (Tr. 531-32.) The Judge's Jury Charge
The trail judge instructed the jury as to the elements of the crimes with which Nelson was charged. As to robbery, the judge charged that the prosecution had to prove that Nelson wrongfully took another person's property intending to permanently deprive them of the property, and that he used force in the commission of the crime. (Charge: Tr. 554-55.) As to grand larceny, the prosecution had to prove that same first element -- stealing property -- and a different second element, "that the property wrongfully taken by the defendant was taken from the person of the owner; that is, it was in some manner actually on the body or held by the person of the victim." (Charge: Tr. 555-56.) The judge charged that reckless endangerment requires "conduct which creates a substantial, unjustifiable and grave risk of death to another and when he is . . . aware of and consciously disregards that risk." (Charge: Tr. 558; see id. at 559-60.)
There were no objections to the charge. (Tr. 566-67.)
The jury found Nelson guilty on all three counts: third degree robbery, fourth degree grand larceny and first degree reckless endangerment. (Tr. 578-81.)
On April 10, 2003, the trial judge sentenced Nelson. (Dkt. No. 9: 4/10/03 Sentencing Tr. ["S."].) The judge denied the prosecution's motion to consider Nelson a discretionary persistent felony offender (S. 3), but did find him to be a predicate felon (S. 8-9). The judge sentenced Nelson to two to four years for the grand larceny concurrent with three and a half to seven years for the robbery, and consecutive to two to four years for ...