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Jones v. Conway

August 1, 2006

TONY JONES, PETITIONER,
v.
JAMES CONWAY, ACTING SUPERINTENDENT: OF ATTICA CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Denny Chin, U.S.D.J.

OPINION

Pro se petitioner Tony Jones brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted on December 16, 1998, of one count of Burglary in the Second Degree (New York Penal Law ("P.L.") § 140.25(2)), two counts of Criminal Possession of Stolen Property in the Fifth Degree (P.L. § 165.40), one count of Criminal Trespass in the Second Degree (P.L. § 140.15), and one count of Criminal Possession of a Controlled Substance in the Seventh Degree (P.L. §220.03). Petitioner was sentenced as a persistent violent felony offender to an indeterminate prison term of sixteen years to life on the burglary count and concurrent sentences of one year on each of the four remaining counts.

Petitioner challenges his state-court conviction on the following grounds: (1) ineffective assistance of counsel, (2) improper withholding of discovery related to fingerprint evidence, (3) the trial court's refusal to grant a three-hour adjournment, which he contends violated his rights under the Sixth and Fourteenth Amendments, and (4) improper admission of non-probative and prejudicial evidence in the form of uncharged crimes testimony. For the reasons that follow, the petition is denied.

BACKGROUND

I. The Facts

This case arises from three break-ins that occurred over a two-and-a-half week period in March and April 1998. The following is a summary of the facts adduced at trial.

A. Burglary at 605 West 112th Street

In March 1998, Jennifer Baldwin resided in a duplex apartment located on the first floor and basement level of 605 West 112th Street with her roommates Emily Gunzburger and Moira Meenagham. (Tr. 369).*fn1 Gunzburger's boyfriend, Darren Irving, and Meenagham's boyfriend, Erick Bakko, also frequented the apartment. (Tr. 397, 412-13). The kitchen, living room, bathroom, and Gunzburger's bedroom were on the apartment's main floor. (Tr. 369, 397). From the main floor, a spiral staircase led to the apartment's lower level where the bedrooms were located. (Tr. 369). To access Baldwin's bedroom from the apartment's interior, one had to walk through Meenagham's bedroom. (Tr. 413). Baldwin's bedroom also had a door leading into the building's basement, through which Baldwin occasionally would enter and exit her apartment. (Tr. 369, 373).

In the early morning hours of March 18, 1998, Meenagham heard a sound from Baldwin's bedroom. (Tr. 414). Bakko investigated, but did not see anything, except that Baldwin had not yet returned home. (Tr. 414). Later, at about 3:15 a.m., the phone rang. (Tr. 398, 415). When no one answered, the caller left the following message:

Yes, this is a message for Jennifer Baldwin. Your whole life is scattered across Central Park . . . [I] found your wallet, driver's license, photos, other ID's, and contents of a wallet somewhere in the northwest corner of Central Park around a subway station. (Tr. 398-99, 415).

The phone rang again about ten minutes later. (Tr. 400, 415). This time Irving answered the phone. (Tr. 400, 415). The person on the other end identified himself as "Tony," a homeless man living in Central Park. (Tr. 400). Tony stated that he had found the contents of Baldwin's wallet, which he wanted to return because officers might search him, find the wallet, and suspect that he had taken it. (Tr. 400-01). Irving agreed to meet Tony. (Tr. 402). Five minutes later, Tony telephoned the apartment a third time. (Tr. 403). Irving answered the phone, and Tony stated, "I'm waiting for you. Hurry up because I want to get the stuff off of me so I don't have any problems." (Tr. 403). Testimony at trial established that the calls were placed from a payphone on Central Park West using Baldwin's MCI phone card. (Tr. 440-41; Ex. B at 10).*fn2

Before leaving, Irving and Gunzburger entered Baldwin's room and noticed that the door leading from Baldwin's bedroom to the basement hallway was ajar. (Tr. 403). Gunzburger also observed that Baldwin's radio and jewelry were missing. (Tr. 404).

Bakko accompanied Irving to the arranged location, where they waited for the caller. (Tr. 404, 416). A man approached, introduced himself as "Tony," and showed them Baldwin's wallet. (Tr. 404, 416). Tony assured the two men that he had not taken any of its contents. (Tr. 404, 416-17). Additionally, Tony told them that he had used Baldwin's MCI Phone card to call the apartment because he did not have any money on him. (Tr. 404). Tony then handed the wallet to Irving in exchange for ten dollars. (Tr. 404). Tony also handed several pieces of mismatched jewelry to the men, stating that it was dark outside and the poor lighting prevented him from finding more. (Tr. 406). Irving and Bakko took the jewelry but did not give any more money to the man. (Tr. 406, 417).

Meanwhile, Gunzburger and Meenagham called the police. (Tr. 406, 418). Upon Irving and Bakko's return, the group met with police officers and recounted the night's events. (Tr. 406, 418).

When Baldwin returned to her apartment in the morning, she met with her roommates and their boyfriends, and then contacted the police. (Tr. 377-79). Baldwin examined the wallet that Tony had returned and confirmed that nothing was missing. (Tr. 394-95). Baldwin also inspected her room and discovered that approximately fifteen pairs of earrings and her portable compact disc player were gone. (Tr. 377-78). Police officers from the 26th Precinct returned to the apartment around 8:30 a.m. to meet with Baldwin. (Tr. 379).

At approximately 9:30 a.m., Tony telephoned the apartment for the fourth time, again using the calling card, and spoke with Baldwin. (Tr. 379, 390-91; Ex. B at 10). Tony stated that he had found more of Baldwin's jewelry and wanted to return it in exchange for a reward. (Tr. 379-80).

Baldwin and Tony arranged to meet. (Tr. 380, 392). Gunzburger agreed to accompany Baldwin to the meeting. (Tr. 380-81). After the two women waited several minutes at the arranged location, Tony approached Baldwin and removed a brown pouch from his pocket, which contained Baldwin's jewelry. (Tr. 382). Baldwin gave ten dollars to Tony, and he left. (Tr. 382). Baldwin returned to her apartment, inventoried the bag's contents, and found that it contained all of her missing jewelry. (Tr. 382-83).

B. The Unauthorized Use of Baldwin's MCI Calling Card

On March 20, 1998, Officer John Castellano interviewed Baldwin. (Tr. 445, 454-55). During the interview, Baldwin notified Castellano of unusual activity on her MCI calling card. (Tr. 445-46, 454-55). Specifically, on March 18 and 19, 1998, someone had used Baldwin's MCI calling card number to place twenty-nine unauthorized calls from New York City pay phones and private residences. (Tr. 388-89, 440-41). Baldwin's MCI phone bill revealed that thirteen of those unauthorized calls had been made to a business called "Actors and Advertising," and two of the calls had been made to an individual named Joanna Marc who lived on Senator Street in Brooklyn. (Tr. 440-41; Ex. B at 10). David Palmer, a representative of Actors & Advertising, testified that Marc was the company's receptionist and resided on Senator Street. (Tr. 365-66). Palmer also recognized petitioner as an individual who had visited Marc at the office. (Tr. 365).

C. Criminal Trespass at 423 West 118th West Street

At 10:07 a.m. on March 30, 1998, a surveillance camera captured an individual entering a Columbia University-owned apartment building located at 423 West 118th Street through the basement door. (Tr. 330-33, Ex. B at 11). A few moments later, Peg O'Sullivan, the building's superintendent, interrupted the intruder. (Tr. 339, 341, 343-44). O'Sullivan screamed and demanded that he leave the building. (Tr. 341, 343-44). The intruder exited the building through the basement door. (Tr. 341-42). O'Sullivan ran to the building's courtyard and alerted Columbia University officials of the trespass. (Tr. 342).

Shortly thereafter, Dennis O'Sullivan, a Columbia University manager, received the report of the break-in and proceeded to West 118th Street. (Tr. 336).*fn3 On his way to the apartment building, Dennis O'Sullivan observed a man known to him as "Tony Jones" two blocks from 423 West 118th Street. (Tr. 336-37, 448). Dennis O'Sullivan met with Peg O'Sullivan and reviewed the surveillance videotape. (Tr. 333, 335). He recognized the individual on the videotape to be the same man -- "Tony Jones" --he had passed on his way to the building. (Tr. 336). At trial, Dennis O'Sullivan identified petitioner as the individual he had seen on the street and on the videotape. (Tr. 335-36).

Dennis O'Sullivan then went to the 26th Precinct, where he met with Officer Castellano. (Tr. 335-36, 446-47). Dennis O'Sullivan viewed the videotape with Castellano and informed Castellano that the intruder's name was "Tony Jones." (Tr. 335-36, 447-48).

After Castellano learned from O'Sullivan that the intruder in his building had the same first name as the man who had ransomed Baldwin's stolen property in the same neighborhood less than two weeks earlier, he arranged for Baldwin, Irving, and Bakko to view a line-up consisting of petitioner and five fillers (Tr. 389-90, 406-07, 419, 448-50). Both Baldwin and Bakko identified petitioner as "Tony," the man who had ransomed Baldwin's stolen property on March 18, 1998. (Tr. 390, 419). Irving was unable to recognize anyone in the line-up. (Tr. 407).

D. Removal of Property at 309 West 99th Street

On April 5, 1998, at about 3:40 p.m., David Gonzalez and his adult son, John Gonzalez, encountered an individual on the stairs leading from the basement of the building at 309 West 99th Street, where David Gonzales was the superintendent. (Tr. 239-40, 250-51, 264-65). The individual was moving boxes from the stairs onto a wheeled chair. (Tr. 250-51, 265-66). John Gonzalez recognized the boxes and chair as belonging to his father. (Tr. 250-51, 258-59, 265-66).

The Gonzalezes confronted the person. (Tr. 252). When John Gonzalez stated that he was going to call the police, the man abandoned the goods and fled towards Riverside Drive. (Tr. 252-53, 266-67). John Gonzalez then called the police and made a report. (Tr. 253).

At about 3:50 p.m., Officer Hugo German and his partner, Officer Carlos Rivera, met with the Gonzalezes. (Tr. 6, 271). The Gonzalezes gave the officers a description of the individual they had just encountered. (Tr. 253-54, 260, 272). John Gonzalez then accompanied the officers in their vehicle to canvass the neighborhood. (Tr. 253-54, 261).

Approximately one minute after transmitting the Gonzalezes' description of the individual, Officer German received a call from an officer stating that he was detaining someone who matched the description. (Tr. 272-73). Officers German and Rivera drove John Gonzalez to where the officer was detaining the individual. (Tr. 272-73). There, John Gonzalez viewed the individual and confirmed that he was the person who he had seen removing property from his father's building. (Tr. 254-55). The officers then brought David Gonzalez to that location, and he too confirmed that the individual who had been detained was the perpetrator. (Tr. 254, 261, 267-68, 274). Officer German arrested the perpetrator and in the process, recovered a crack pipe from the pocket of the individual's jacket. (Tr. 274). At trial, both John and David Gonzales identified petitioner as the man they had seen taking the property from the building. (Tr. 253, 267-68).

II. Proceedings in the Trial Court

Petitioner was indicted in 1998 by a New York County grand jury for three counts of Burglary in the Second Degree, two counts of Criminal Possession of Stolen Property in the Fifth Degree, and one count of Criminal Possession of a Controlled Substance in the Seventh Degree. Petitioner moved to suppress physical evidence and identification testimony, challenging the basis for recovery of the physical evidence and the purported coerciveness of the identifications. On November 19, 1998, following a hearing on the issue, Justice George Daniels denied petitioner's motion, ruling from the bench. After jury selection, trial commenced on December 10, 1998.

At trial, four main issues were presented that now form the basis of petitioner's claims: (1) the prosecution failed to disclose possibly exculpatory discovery related to fingerprint evidence; (2) the trial court's denial of the defense's request for a three-hour adjournment to give defense counsel additional time to prepare petitioner to testify; (3) admission of evidence relating to the use of Baldwin's MCI phone card records; and (4) testimony about uncharged "prior incidents" or crimes from Sergeant Castellano.*fn4 These matters are summarized as follows:

A. Fingerprint Evidence/Testimony

Castellano was assigned to the investigation of the burglary of Baldwin's apartment on March 19, 1998. (Tr. 445, 454). On March 20, he phoned Baldwin and arranged for her to look at photos and possibly do a search of the neighborhood, but took no further action until March 30th. (Tr. 445-46, 454-455). At "some point," however, fingerprints of Baldwin's apartment were taken. (Tr. 383-84, 457).

During a sidebar conference, petitioner's counsel claimed that she had not been informed about any fingerprint investigation and objected to the prosecution's withholding this information, claiming it hindered her defense. (Tr. 384). The prosecution questioned the basis for counsel's objection, stating that the fingerprint results were inconclusive. (Tr. 385). The following day, petitioner's counsel cross-examined Castellano about the fingerprint investigation, effectively establishing that no fingerprint results were recovered. (Tr. 457-58).

B. Petitioner's Request for an Adjournment

At the end of the People's case, the court asked whether petitioner was going to testify. (Tr. 462). It was 11:07 a.m. (Tr. 465). Counsel replied that petitioner was probably going to testify but requested an adjournment until 2:00 p.m. to consult with petitioner about this possibility and prepare petitioner to testify. (Tr. 462-65). Counsel promised that at 2:00 p.m. either petitioner would testify or she would be prepared to sum up. (Tr. 465). Counsel explained that she had not had sufficient time to talk to petitioner despite trying to talk with him for the last three days. (Tr. 462-63). She stated that petitioner was taken back to Riker's Island at 5:30 or 6:00 p.m. each evening, and she was not allowed to visit Riker's Island at night. (Tr. 462). Every morning petitioner's counsel and co-counsel had arrived at the court early based on the advice of corrections that sometimes the clients are produced at 8 or 8:30 in the morning. (Tr. 462). Petitioner, however, was never brought in early. (Tr. 462). Counsel even claimed to have skipped lunches in an effort to discuss fully this decision with petitioner. (Tr. 463).

The court denied the request for an adjournment until 2:00 p.m., allowing instead a break of thirty minutes so that counsel could quickly confer with her client. (Tr. 465). Counsel protested that it was going to take at least ten or fifteen minutes to bring petitioner up and they would have only fifteen minutes to talk. (Tr. 465).

The court explained that since the case had been assigned to counsel in April (eight months earlier) and the trial had already been going on for a week, it was not reasonable for counsel at this late stage to make the application for an adjournment based on lack of time to confer with her client. (Tr. 464-65). The court stated, "I think it's fairly reasonable for me to give you a half hour to figure out if he is going to testify, and get him ready to testify, if you have not taken the opportunity since up until this point." (Tr. 466). Counsel protested, saying, "Judge, that's unfair. We have taken the opportunity. That's not the issue." (Tr. 466). Ignoring counsel's protests, the court moved on, stating, "We have got this jury waiting. We have like three hours of testimony over a week's period. I have given plenty of time to this case. As a matter of fact, we adjourned early every day . . . . Don't tell me you didn't have an opportunity to speak with your client." (Tr. 466-67). The court held firm to its ruling of a thirty-minute adjournment, and informed counsel that any further protest was simply wasting her thirty minutes. (Tr. 467).

C. The MCI Phone Card

Prior to opening statements, defense counsel sought to preclude testimony regarding petitioner's unauthorized use of Baldwin's MCI calling card, arguing that the use of the card was an uncharged crime and therefore not admissible as evidence. (Tr. 184-85). The court acknowledged that evidence of use of the phone card was indeed evidence of an uncharged crime, but allowed the People to introduce the evidence because it served to establish the elements of other crimes petitioner was charged with committing. (Tr. 303-04). Judge Daniels stated, "clearly in this case the People have to prove that the defendant possessed the card with the intent to benefit himself. The strongest evidence of his intent to benefit himself when he had the card is the fact that he recorded the number and used it twenty-nine times for his own benefit as opposed to the person who owns the card." (Tr. 303-04). Petitioner's counsel repeated her objection. (Tr. 305).

The judge gave the following limiting instruction to the jury on its use of the evidence relating to the phone card:

I've allowed the People to offer testimony that Jennifer Baldwin's phone card number was used to make phone calls after the card was returned. Now, the reference to the making of these calls is no proof whatsoever that the defendant possessed the propensity or disposition to commit the crimes charged in this indictment or any other crime. It is not offered for such a purpose, and must not be considered by you for that purpose.

Instead, I've allowed such testimony solely for the limited purpose of allowing the People to offer such evidence with regard to the defendant's intent to commit the crimes for which he is charged. I charge you that such evidence may be considered by you only for such limited purpose and none other. The fact that I allowed you to hear such evidence should not be considered by you that I have any opinion as to its value to prove that purpose. The sufficiency of such evidence to prove the purpose for which it is offered is solely a question for the jury.

If you find it insufficient and of no value, disregard it, forget it. If you find it sufficient, probative of that purpose, you may give it such weight as you deem you believe it deserves. It will then be your duty to consider such evidence with all the other evidence in the case in deciding whether the People have proved the ...


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