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McLean v. Conway

August 21, 2006


The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge


Pro se petitioner Dennis McLean seeks a writ of habeas corpus from three convictions in Supreme Court, New York County: (1) his October 8, 1996 conviction after a jury trial for the February 26, 1996 burglary of Janoff's Stationery Store, and sentence as a mandatory persistent violent felony offender to twenty-five years to life imprisonment; (2) his July 8, 1997 conviction after a guilty plea for the January 16, 1996 robbery of his niece Ebony McCoy, and sentence of an aggregate of twenty years to life to run concurrent to the sentence on the October 8, 1996 conviction; and (3) his April 6, 1998 conviction after a guilty plea for the January 17, 1996 robbery of Vinnie Kakkar, and sentence of twenty-five years to life to run concurrent to the sentences imposed under the two prior judgments. (Dkt. No. 5: Am. Pet. ¶¶ 1-6.) See People v. McLean, 309 A.D.2d 639, 639, 765 N.Y.S.2d 626, 626 (1st Dep't 2003).

McLean's amended habeas petition raises the following claims: (1) he "was deprived of his Due Process right to a fair trial under Indictment Number 1599/96" (i.e., his October 8, 1996 conviction) because (a) the prosecutor's repeated references to his statement that he would not "go 'back' to jail" were improper particularly when "juxtaposed to [the prosecutor's] attestations that the police officers in this case were honest and credible witnesses as well as superhuman protectors of our neighborhoods"; and (b) the trial court "infringed on the defense's right to make an effective summation" by instructing the jury during defense counsel's summation on the lawful duty of police officers, after defense counsel had argued that the police had no lawful duty to arrest McLean, thereby "both t[aking] an element from the jury and reinforc[ing] the prosecutor's suggestion that [McLean] was a dangerous individual with a criminal propensity " (Am. Pet. ¶ 12(a)); (2) Theodore Quintana's lineup identification of McLean should have been suppressed (id. ¶ 12(b)); (3) McLean's two guilty pleas should be vacated because they were "improperly induced by the courts' explicit threats that if [McLean] insisted on going to trial and was convicted, [the court] would run the sentences consecutively to the 25 years to life sentences he was already serving" (id. ¶ 12(c)); (4) he "was deprived of his Due Process right to undelayed arraignment . . . for the purpose of depriving [McLean] of his right to counsel and [McLean's] right to testify before the grand jury" and thus his "inculpatory statements, and confessions should have been suppressed and the indictment should [have] been dismissed" (id. ¶ 12(d)(I)); (5) his written confession and the lineup identification should have been suppressed because both were conducted without counsel even though his right to counsel had attached (id. ¶ 12(d)(II)); and (6) ineffective assistance of trial counsel (id. ¶ 12(d)(III)).

The parties have consented to decision of McLean's petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 17.)

For the reasons set forth below, McLean's petition is DENIED and a certificate of appealability is not issued.


The Indictments

Indictment No. 1599/96 was filed on March 8, 1996, charging McLean with the February 26, 1996 burglary of Janoff's Stationery Store. (Dkt. No. 8: Chaffee Aff. Ex. A: Ind. No. 1599/96.)

On the same day, Indictment No. 1620/96 was filed, charging McLean in the first three counts with the January 16, 1996 robbery of his niece, Ebony McCoy; the fourth through sixth counts charged McLean with the January 17, 1996 robbery of Vinnie Kakkar; and counts seven through nine charged McLean with the February 14, 1996 robbery of Theodoro Quintana. (Chaffee Ex. B: Ind. No. 1620/96.)

Indictment Number 1599/96: Robbery at Janoff's Stationery Store

The Prosecution Case at Trial

On February 26, 1996 at approximately 6:30 p.m., Andrew Tun was working in Janoff's Stationery Store on Broadway between 111th and 112th Streets when he heard movement in the employees-only office. (Dkt. Nos. 15 & 16: Tun: Trial Transcript ["Tr."] 312, 313, 317.)*fn1 The office is located above the back of the store and is accessible by a small, steep staircase. (Tun: Tr. 315, 317; Surjadi: Tr. 418-21; Sdrougias: Tr. 539-42; Ma: Tr. 788.) A sign, "Private, No Entry," was posted next to the stairway. (Tun: Tr. 316, 350-51, 370, 380; Surjadi: Tr. 417, 423, 476-77, 485-86; Sdrougias: Tr. 539; Nicholson: Tr. 587.) The office contains employee files, the store's cash, and the store's safe which holds cancelled checks and invoices. (Tun: Tr. 315-16; Ma: Tr. 788, 790- 92.)

When Tun went up to the office to check, he found McLean standing by a table in the office. (Tun: Tr. 317-21.) McLean was sweating and appeared nervous. (Tun: Tr. 320.) Tun told McLean that he was not supposed to be in the office; McLean responded that he was not stealing anything, he was a "working person" and he was looking for someone. (Tun: Tr. 320-21, 324, 387.) Tun noticed that the cabinet door where the safe was kept was open. (Tun: Tr. 322, 354-55, 372-73.) Tun called out to another employee, Oscar Surjadi, who was downstairs, and in a nervous voice told him that there was a stranger in the office. (Tun: Tr. 324; Surjadi: Tr. 411-15, 446, 475.) Surjadi got nervous, thought it might be a robbery, and called 911. (Surjadi: Tr. 415, 425-26, 446, 474.) Tun and McLean went downstairs. (Tun: Tr. 324; Surjadi: Tr. 427.) Surjadi told McLean that he could not leave, but rather had to wait for the police. (Tun: Tr. 324; Surjadi: Tr. 428-29.)*fn2 McLean repeated that he had only been looking for someone and tried to get past Surjadi to leave. (Tun: Tr. 324; Surjadi: Tr. 429-31; Nicholson: Tr. 555.)

At that point, Sergeant Nicholson entered the store with his gun drawn.*fn3 (Tun: Tr. 324; Surjadi: Tr. 431; Nicholson: Tr. 553.) Tun told Sgt. Nicholson that there was "a robbery going on." (Nicholson: Tr. 552, 637.) Tun pointed out McLean in the back of the store; Sgt. Nicholson told McLean to get on the ground, and McLean did so, repeating that he was in the store looking for someone. (Tun: Tr. 325; Nicholson: Tr. 552-56.) When Sgt. Nicholson tried to handcuff McLean, McLean tried to grab Sgt. Nicholson (Tun: Tr. 325-28, 389-93; Nicholson: Tr. 556-57, 641), pushed Sgt. Nicholson off of him and ran toward the door, but Tun blocked his exit and a fight ensued between Sgt. Nicholson and McLean (Tun: Tr. 389-92, 399; Nicholson: Tr. 557-62, 567, 643-45, 647).

Sgt. Nicholson testified that during the fight, McLean was screaming: "you're not taking me to jail"; "you're going to have to kill me"; "I'm not going back to jail." (Nicholson: Tr. 557, 560-61.) Defense counsel did not object to this testimony. (Id.)

During the fight, Sgt. Nicholson saw a folding knife in McLean's hand that McLean was trying to "flick" open. (Nicholson: Tr. 558-59, 561, 647-48, 650.) As they continued wrestling, the knife disappeared from sight. (Nicholson: Tr. 560.) McLean grasped at Sgt. Nicholson's gun, but never go it out of Sgt. Nicholson's holster. (Nicholson: Tr. 560, 562-64, 567.) Throughout the fight, Sgt. Nicholson was hitting McLean with his radio, his "fists and basically anything else [he] could have gotten [his] hands on." (Nicholson: Tr. 567.)

Once Sgt. Nicholson's partner arrived, the two were able to handcuff McLean. (Tun: Tr. 329; Surjadi: Tr. 437; Sdrougias: Tr. 509-11; Nicholson: Tr. 568; Judge: Tr. 715.) The police found a knife and a crack pipe on McLean. (Nicholson: Tr. 576-79, 660; Judge: Tr. 716-17, 736.) McLean had a cut on the top of his head that was bleeding. (Judge: Tr. 724-25; Felipe: Tr. 881.) Two other police officers arrived and drove McLean to the 32nd Precinct. (Tun: Tr. 330-31; Judge: Tr. 722; Felipe: Tr. 882.)

McLean did not in fact take anything from the store. (Tun: Tr. 386-87; Surjadi: Tr. 474-75, 480; Sdrougias: Tr. 526; Ma: Tr. 820.)

Bench Conference and Further Testimony Regarding McLean's Statement that He Did Not Want to Go "Back" to Jail

In a conference out of the jury's presence, the trial judge, Justice Corriero, sua sponte raised Sgt. Nicholson's testimony that McLean said that he did not want to go back to jail (Tr. 619):

THE COURT: There was testimony from the officer about the conversation that he had with the defendant about him not going back to prison.

Do you want me to give any kind of instruction with regard to that, to that testimony? . . .

There was no objection at the time.

[Defense Attorney] COHEN: Actually, you know what, I would like to have it just lie, have nobody point it out, just let it be.

[ADA] KIM: But I have to be able to point to it because it goes to his intent. The charge is dealing with his intentional act.

THE COURT: Well, I'm not saying that you can't address it in your summation. . . but you have to be cautious.

[ADA] KIM: I'm not going to argue propensity, I'm just going to argue intent.

THE COURT: But if there is no evidence that he actually was in jail other than the statement, you have to be somewhat circumspect about how you do it.

[ADA] KIM: I'm going to confine myself to the statement . . . .

(Tr. 619-20.)

On cross-examination, defense counsel brought out that in Sgt. Nicholson's memo book, in which he recorded the events surrounding McLean's arrest approximately 24 hours after the incident occurred, Sgt. Nicholson had written down only that McLean had said that Sgt. Nicholson would not be able to take him alive. (Nicholson: Tr. 653-55.) Sgt. Nicholson had not recorded that McLean had made a statement referring to being taken back to jail, nor had he related such a statement when he testified before the grand jury. (Nicholson: Tr. 655-56.)

On re-direct examination, the ADA asked Sgt. Nicholson why he had not told the grand jury about McLean's statement that he was "not going back to jail," to which Sgt. Nicholson replied that he just "didn't think to say it." (Nicholson: Tr. 687-88.)

Defense Counsel Summation

During summation, defense counsel questioned Sgt. Nicholson's credibility, arguing that Sgt. Nicholson had "enhanced" the events in Janoff's to explain why he hit McLean on the head with his radio. (Defense Summation: Tr. 920-21, 923-28.)

Defense counsel further discussed Sgt. Nicholson's actions when he first entered Janoff's:

[W]as [it] his lawful duty, to walk into a store not knowing what's going on and take a gun, point it at the first person he sees, order him on the floor and try and arrest him?

Is that what we want our police officers to do?

Or is his lawful duty, especially once Mr. McLean is lying on the ground to find out what happened.

Is it so unreasonable that someone placed in Mr. McLean's situation on the ground with a gun resists an unlawful arrest.

Because if you find that Sergeant Nicholson had no lawful duty to arrest him, you must acquit him.

THE COURT: Ladies and gentlemen, look, you're getting into areas of law, [defense counsel] Cohen, and they may not conform to my instructions with respect to the areas of law.

Now, lawful duty is a matter that I will define for the jury.

And it seems to me that my understanding of the law is that if the officer had reasonable cause to place the defendant under arrest, then that would have been the compliance with his lawful duty.

[Defense Counsel] COHEN: That's correct.

THE COURT: And if, further, he was told that a robbery was taking place by a civilian, he would seem to have a lawful duty to place the person responsible under arrest.

So confine your remarks within that context.

(Defense Summation: Tr. 928-30.) Defense counsel made no objection and continued with her summation. (Defense Summation: Tr. 930-31.)

Prosecution Summation

In summation, the prosecutor argued that Sgt. Nicholson was truthful in his recounting the fight with McLean. (Prosecution Summation: Tr. 954-55.) The prosecutor discussed the nature of police officers:

And, you know, with police officers it's different from us in this one respect, when we see trouble, you know, of course we're going to want to get away, you know, people, human reaction when they see trouble is to try to run from it.

Police officers, on the other hand, have to overcome that human reaction by training, by occupation, they are trained to run to trouble when everyone else is running from it.

(Prosecution Summation: Tr. 955-56.)

When the prosecutor discussed McLean's intent as evidenced by the fact that he was carrying a knife and by his comments to the police upon his arrest, she asked that the jury

[R]emember he was yelling and screaming throughout the fight. I'm not going back to jail. You're going to have to kill me.

And use those statements as to what you think defendant's intent was when he was trying to pull out the sergeant's gun.

I submit to you, based on his own statements, based on his deliberate actions, that there was only one thing on his mind, which was to take that weapon and use it unlawfully, whether it be to shoot the sergeant or anyone else who gets in his way.

(Prosecution Summation: Tr. 958-59.)

The prosecutor returned to Sgt. Nicholson's job as a police officer:

Sergeant Nicholson was doing nothing more than what we pay him, which is to enforce law and order.

I am not going to be doing that job, you shouldn't be expected to do that job. (Prosecution Summation: Tr. 962.) Defense counsel's objection to the last statements was overruled. (Id.) The prosecutor continued that "[t]he police officer is the one who is entrusted with that duty." (Id.)

At the end of her summation, the prosecutor asked the jury to imagine what George Ma, Janoff's owner (Ma: Tr. 784), would say if he were recounting the incident in Janoff's at a cocktail party. (Prosecution Summation: Tr. 969-71.) The prosecutor reiterated all the details of the incident, as Mr. Ma might tell it, including the fact that McLean fought with Sgt. Nicholson and that he said "you're not taking me alive, you're going to have to kill me before you take me in, I am not going back to jail. . . ." (Prosecution Summation: Tr. 970.)

Verdict and Sentence

The jury found McLean guilty of two counts of second degree burglary, and one count each of second degree assault, third degree criminal possession of a weapon, resisting arrest and second degree criminal possession of a controlled substance. (Tr. 1058-63.) The jury acquitted McLean of second degree attempted criminal possession of a weapon and attempted second degree robbery. (Tr. 1059.)

On October 8, 1996, Justice Corriero sentenced McLean as a mandatory persistent violent felon to twenty-five years to life imprisonment. (Dkt. No. 10: 10/8/96 Sentencing at 19, 34- 35.)

Indictment No. 1620/96

The Suppression Hearing

On July 31, 1996, Justice Corriero held a suppression hearing to determine whether McLean's non-Mirandized statements in the police car on his way to the 24th Precinct and his written confession given after Miranda warnings were involuntarily made and whether the lineup identification procedures were unduly suggestive. (7/31/96 Suppression Hearing ["H."].) Justice Corriero continued the suppression hearing on January 27, 1997. (Dkt. No. 9: 1/27/97 Suppression Hearing ["1/27/97 H."].)

At the start of the suppression hearing, speaking on his own behalf, McLean moved to dismiss the indictment, arguing that he was denied the right to testify before the grand jury and that his removal from Central Booking had resulted in the postponement of his arraignment on the Janoff' s burglary, that the police forced him to make inculpatory statements about the Ebony McCoy robbery and that he was denied counsel at the lineup for the Ebony McCoy robbery. (H. 7-17.) McLean explained that he had requested to testify before the grand jury and that his then-attorney had so indicated at a previous hearing. (H. 11-12.) The Assistant District Attorney explained that at that hearing McLean had already been indicted and the hearing was in fact his arraignment on that indictment. (H. 12-13.) The ADA also explained that McLean was charged by "NA" indictments because he had refused to be fingerprinted.*fn4 (H. 13-15.)

Justice Corriero denied McLean's motion and proceeded with the suppression hearing. (H. 15, 17.)

Identification of McLean as a Wanted Robbery Suspect at the 32nd Precinct

McLean was wanted in the 24th Precinct for the three robberies that formed the basis for Indictment No. 1620/96.

Approximately 10 minutes after McLean had been brought into the 32nd Precinct on the Janoff's arrest, Sergeant Cody recognized McLean from a photograph on a police department poster portraying wanted robbery suspects. (Cody: H. 85-87.) Sgt. Cody informed the officers processing McLean's Janoff's arrest and gave them the contact information of ...

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