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Gaines v. Senkowski

November 3, 2006

ROBERT GAINES, PETITIONER,
v.
DANIEL SENKOWSKI, SUPERINTENDENT, CLINTON CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Hurley, District Judge

MEMORANDUM AND ORDER

Robert Gaines ("Petitioner") petitions for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, from his November 1, 2001 and June 2, 1999 convictions. For the reasons stated below, the petitions are denied.

UNDERLYING FACTS AND PROCEDURAL BACKGROUND

I. The Convictions

Petitioner was suspected of committing four rapes in Brooklyn, New York ("Kings County") in September and October of 1998. On November 12, 1998, Petitioner was arrested on unrelated charges in Nassau County. The next day, each of the victims of the attacks in Brooklyn identified Petitioner in a lineup in Nassau County as her assailant. The New York City Police Department did not arrest Petitioner at that time and he remained in the custody of Nassau County authorities.

On November 14, 1998, the Kings County District Attorney's Office filed a felony complaint against Petitioner in the Criminal Court of the City of New York, Kings County, charging Petitioner with crimes related to the four Brooklyn victims. The District Attorney's Office then obtained a warrant for Petitioner's arrest.

On November 17, 1998, the Kings County District Attorney's Office began presenting evidence to a grand jury concerning the rapes in Brooklyn. On November 19, 1998, the grand jury voted to indict Petitioner, under the name Bart Roman, on all counts submitted to it. On December 2, 1998, the Criminal Court of the City of New York, Kings County, transferred the case to the Supreme Court, Kings County.

On or after December 7, 1998, the Supreme Court, Kings County issued an order directing the Nassau County Correctional Facility to transfer Petitioner to the custody of the Commissioner of Correction of the City of New York and to produce Petitioner on December 21, 1998, in the Supreme Court building in Brooklyn. Pursuant to that order, Petitioner was so produced and was arrested for the rapes in Brooklyn. On December 24, 1998, the Supreme Court, Kings County arraigned Petitioner on the indictment.

By motion dated February 3, 1999, Petitioner moved to dismiss the indictment on two grounds: (1) the People erred by failing to arrange Petitioner's arraignment on the felony complaint; and (2) the People violated Criminal Procedure Law § 190.50(5)(a) by failing to serve notice on Petitioner of the grand jury proceeding. On February 19, 1999, the Supreme Court, Kings County, denied Petitioner's motion.

Thereafter, Petitioner moved to sever the counts of the indictment. On May 3, 1999, the Supreme Court, Kings County granted Petitioner's motion, ruling that the trials pertaining to each of the four victims would be tried separately.

At the conclusion of the first jury trial, Petitioner was convicted of one count each of sodomy in the first degree (N.Y. Penal Law § 130.50[1]), attempted rape in the first degree (N.Y Penal Law §§ 110.00/130.35[1]), sexual abuse in the first degree (N.Y. Penal Law § 130.65[1]), and robbery in the third degree (N.Y. Penal Law § 160.05). On June 2, 1999, Petitioner was sentenced, as a persistent felony offender, to consecutive sentences of twenty-five years to life on the sodomy and attempted rape counts and twelve years to life on the sexual abuse count. Petitioner was sentenced, as a second felony offender, to a consecutive sentence of three and one-half to seven years on the robbery count.

At the conclusion of the second jury trial, Petitioner was convicted of two counts of rape in the first degree (N.Y. Penal Law § 130.35[1]), one count of sodomy in the first degree (N.Y. Penal Law § 130.50[1]), and four counts of sexual abuse in the first degree (N.Y. Penal Law § 130.65[1]). On November 1, 1999, Petitioner was sentenced, as a persistent violent felony offender, to consecutive sentences of twenty-five years to life on the rape and sodomy counts. Petitioner was sentenced, as a persistent violent felony offender, to prison terms of twelve years to life on the sexual abuse counts, which were ordered to run concurrently with each other and with the sentence on the first rape count. The court ordered all of these sentences to run consecutively to Petitioner's sentences imposed on June 2, 1999.

After these two trials, the counts concerning the other two Brooklyn victims were dismissed.

II. Petitioner's Direct Appeals

Petitioner appealed both his June 2, 1999 and November 1, 1999 judgments of conviction to the Appellate Division, Second Department. In his brief concerning the June 2nd ...


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