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Dalcin v. State

July 13, 2006

SHAD DALCIN, PETITIONER,
v.
THE STATE OF NEW YORK, RESPONDENT.



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

DECISION AND ORDER

INTRODUCTION

Petitioner, Shad Dalcin ("Dalcin"), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Livingston County Court on charges of burglary and larceny. 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

The conviction here at issue stems from an incident that occurred between 10:00 p.m. on December 13 and 4:00 a.m. on December 14, 2000, in which Dalcin allegedly entered the home of his former girlfriend, Amy Browne ("Browne"), and took fifty dollars from her purse and the keys to a car she had rented. Dalcin then allegedly stole the rental car. The indictment charged Dalcin with second degree burglary (N.Y. Penal Law § 140.25(2)); fourth degree grand larceny (N.Y. Penal Law § 155.30(8)), and petit larceny (N.Y. Penal Law § 155.25).

At trial, Connie Watkins ("Watkins"), Browne's mother, testified that she knew Dalcin as her daughter's ex-boyfriend and the father of their two children with Browne. Watkins had taken her daughter to rent a car on December 13, 2000. T.223-24.*fn1

The following morning, at approximately 4:00 a.m.,Watkins drove her car to her daughter's house so that Browne could drop off Watkins' son at work. T.225. When she arrived at the Browne residence, Watkins observed that the rental car was not in the driveway and that there was a bicycle off to the side of the driveway. Id. Watkins proceeded to wake up Browne and advise her that the rental car was missing. T.226.

Watkins then went to look for the police. T.227. Upon encountering a state trooper, Watkins advised him that someone had taken her daughter's rental car. T.228-29. Later, on her way to work, as she was driving down Oak Street, Watkins observed Dalcin standing by the rental car, which was parked by the side of the road. T.230-32. Dalcin was the only person in the area. T.230. Watkins exited her car and started swearing at Dalcin and asking him what he was doing. T.233-34. Dalcin asked Watkins if he was going to be arrested, to which she responded "probably." T.234. Watkins had Dalcin get into her car and they returned to Browne's residence.

T.235. During this encounter, Watkins asked Dalcin where the keys to Browne's car were, to which Dalcin responded that the keys were in the car. Id.

Watkins testified that she had known the petitioner for thirteen years and had seen him in various states of intoxication. She stated that she did not believe that he was intoxicated at the time she observed him on December 14, 2000. T.236-38.

Avon Police Officer Michael Miller ("Miller") testified that he was working from 10:00 p.m. on December 13 to 6:00 a.m. on December 14, 2000. At approximately 4:00 a.m. on December 14, Miller was contacted by the state police and notified that they had been flagged down by a citizen (i.e., Watkins) who had reported a stolen vehicle. T.260-61. Upon arriving at Browne's residence, Miller observed a bicycle lying in the snow just west of the house. T.261. Miller subsequently saw Dalcin exiting Watkins' car, at which time Miller asked him to have a seat in the back of his patrol car. T.263. When asked about Dalcin's physical condition, Miller testified that he observed vomit on Dalcin's pants and that, in his opinion, Dalcin was intoxicated. T.264-65.

Browne testified that she had a relationship with Dalcin for ten years, between 1988 and 1998. Dalcin, who was the father of Browne's two children, also lived at her house between the summer of 1997 and December, 1998. T.271. Browne testified to a number of crimes committed by Dalcin against her: On September 19, 1996, Dalcin came home drunk and assaulted Browne.

T.272-73. In July, 1998, Dalcin broke into Browne's home, a crime for which he was convicted.

T.275. Browne also testified with respect to an incident on December 24, 1998, when the petitioner stole Watkins' car, another crime for which he was convicted. Id. On July 3, 1999, Dalcin again broke into Browne's residence. T.277-79. On January ...


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