Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Maisonet v. Conway

July 10, 2007


The opinion of the court was delivered by: Sifton, Senior Judge


Petitioner Jose Maisonet was convicted on June 29, 1999 on one count of first degree robbery and one count of second degree robbery in New York Supreme Court, Queens County*fn1 and is currently incarcerated in the Clinton correctional facility in New York as a result of that conviction. Petitioner brings this petition for habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he received ineffective assistance of counsel at his trial and on appeal, and that he was denied due process of law when his trial proceeded in his absence. For the reasons stated below, Petitioner's application is denied.


The following facts are taken from the parties' submissions, including the record of Petitioner's state court proceedings.

In December, 1998, Petitioner was charged in Queens County, New York with robbery in the first degree, robbery in the second degree, burglary in the first degree, attempted robbery in the first degree, attempted robbery in the second degree, and two counts of unlawful imprisonment in the first degree. The prosecution alleged that in November, 1998, Petitioner, along with another man (who was never apprehended and whose identity is unknown), approached two men, Elvis Suero (an acquaintance of Petitioner) and Robert Marrero, and asked them for money.*fn2 When they refused, Petitioner and the other perpetrator took the victims to a nearby apartment building where Petitioner's sister lived, where Petitioner proceeded to pull a gun and steal money and a cell phone from Suero, while the other perpetrator attempted (and failed) to steal a neck chain from Marrero. Petitioner then ordered Suero into a taxi, rode with him to Suero's house, took $100 from him, and fled. Meanwhile, the other perpetrator took Marrero into Petitioner's sister's apartment, threatened him with a knife, and then left to find Petitioner.

Petitioner was released pending trial. On December 11, 1998, the trial court conducted pretrial hearings, at the conclusion of which the trial court warned Petitioner that, should he fail to appear for trial, the trial would proceed in his absence.*fn3 Between that appearance and June 17, 1999, Petitioner made six or more court appearances on matters relating to his trial. On Thursday, June 17, 1999, the parties, including Petitioner, appeared in court and counsel informed the judge that they were ready for trial. The judge then told the parties that the case was "on the wheel" and that it would not get a "trial part for about a week."*fn4 The judge told Petitioner he did not need to appear in court every day, so long as he told his attorney where he could be reached and could appear within an hour and a half of being called. Petitioner replied "It's not a problem." Parker warnings were then again administered to Petitioner. In order to allow Petitioner to go to work, his counsel arranged for him to be on "one hour standby," reachable by beeper.

On Monday, June 21, 1999, Petitioner's counsel was notified that the trial would commence that day. Petitioner, however, failed to appear after being paged by his counsel. According to Petitioner's girlfriend at the time, Lisa Horton,*fn5 Petitioner's counsel also called her and asked her to let Petitioner know that the case had been called for trail. Horton responded that she was estranged from Petitioner and did not know where he was and she would not pass along a message to him.*fn6 Horton Affidavit, §§ 5-6. On the following day, June 22, the trial court conducted a hearing to determine whether to proceed in Petitioner's absence. Petitioner's counsel informed the court that "all I have is [Petitioner's] beeper number" and that he had again paged Petitioner but Petitioner had not responded. Detective Joseph Destio of the Queens District Attorney's Office testified that he had attempted to execut a bench warrant for Petitioner on the evening of June 21 and that he had gone to four locations appearing in Petitioner's rap sheet, three in Brooklyn and one in Queens, in an attempt to locate him without success. At one of the locations, 300A Jefferson Avenue in Brooklyn, Destio spoke with Petitioner's mother and Horton. They told Destio that Petitioner lived with them at that address, that they did not know his whereabouts, and that he had been awaiting a page to let him know when to return to court. Horton also told Destio that she would try and find Petitioner and bring him to court as soon as possible. Susan Aiman, a paralegal for the Queens District Attorney's Office, testified that she had contacted seven area hospitals on the morning of June 22 but was unable to locate Petitioner under the name Jose Maisonet or Jose Blumny, an alias. She also contacted the Nassau Corrections Department, but located no one under those names. She also called the New York City Department of Corrections and the Queens House of Detention but found no one under Petitioner's NYSID number.*fn7 After considering this information, none of which was disputed, the trial judge determined that the search, although "less than . . . absolutely stellar . . . in terms of exhaustive searches," was sufficient and since Petitioner had been told that the case was ready for trial and had been given his Parker warnings, concluded that Petitioner had voluntarily absented himself. The judge also denied Petitioner's counsel's request for a delay in the start of the trial to allow him time to mail a letter to Petitioner's home.

The trial thereafter proceeded and both sides rested on Thursday, June 24, 1999. Summations were given, and the jury charged, on June 28. On June 29, 1999, the second day of jury deliberations, Petitioner's counsel alerted the court that Petitioner's mother had called him and let him know that Petitioner had been arrested and detained in Brooklyn on June 25, 1999 for selling a controlled substance.*fn8 Petitioner's counsel then moved for a mistrial, which the court denied on the grounds that Petitioner was not arrested until the third day of the trial. The court however agreed to have the jury postpone further deliberations while the Petitioner was brought to the court from Brooklyn by police officers pursuant to the bench warrant. After Petitioner appeared in court that same day, Petitioner's counsel again moved for a mistrial due to the fact that Petitioner wanted to testify and, had he not been arrested, he could have been present on June 25 or June 28, before closing arguments. The court denied the motion, noting that Petitioner was arrested on Friday, after the parties had rested, and that, through his "behavior" he had "forfeited his right to testify." Later that day, the jury found Petitioner guilty of robbery in the first degree, burglary in the first degree, and robbery in the second degree, with respect to Suero. The jury acquitted Petitioner of robbery charges with respect to Marrero and of unlawful imprisonment of the two victims. Petitioner was sentenced on November 12, 1999.

State Court Procedural History

In January 2002, with the assistance of new counsel, Petitioner appealed his convictions, arguing that the trial court erred in refusing the request for a mistrial so that Petitioner could testify on his own behalf.*fn9 On April 14, 2003 the Appellete Division vacated Petitioner's conviction for first-degree burglary but otherwise affirmed the trial court's judgment, holding that the trial court had not abused its discretion in denying the motion for a mistrial. People v. Maisonet, 760 N.Y.S.2d 58, 59 (N.Y. App. Div. 2003). In so deciding, the court noted that "defendant does not challenge the Supreme Court's determination that he voluntarily and willfully failed to appear in court at the commencement of trial and that the matter could proceed in his absence" but rather only "contends that the Supreme Court erred in denying his motion for a mistrial to afford him an opportunity to testify, when he appeared in court for the first time during jury deliberations." Id. The Court of Appeals denied Petitioner leave to appeal on July 14, 2003.*fn10

In November 2004, Petitioner, with assistance of new counsel, filed a motion in state court, pursuant to Criminal Procedure Law (CPL) § 440.10.*fn11 In that motion, Petitioner argued that trial counsel provided ineffective assistance by failing to "investigate the whereabouts of the defendant in order to secure his presence during trial."*fn12 On January 21, 2005, the Supreme Court, Queens County denied the motion, ruling that Petitioner's ineffective assistance claim was procedurally barred since he was essentially repeating an argument previously rejected in his 2002 appeal and, to the degree to which the argument was novel, he had failed to raise it on direct appeal despite the fact that there was sufficient information contained in the record, as required by the procedural "default rule" of CPL § 440.10(2)(c).*fn13 On April 15, 2005, the Appellate Division denied Petitioner leave to appeal.

In April 2006, Petitioner, proceeding pro-se, filed a second § 440.10 motion, alleging that he had been denied his right to be present at trial when he was tried in absentia and that he had not waived his right to be present.*fn14 On June 13, 2006 the Supreme Court, Queens County denied this motion as well, concluding that it was also subject to the default rule. Petitioner failed to seek review of this decision by the Appellate Division.

In May 2006, Petitioner filed an application in state court for a writ of error coram nobis, alleging ineffective assistance of appellate counsel. In his application, he alleged that appellate counsel had failed to raise in a coherent fashion the issue of Petitioner's right to be present at trial in the 2002 direct appeal of Petitioner's conviction. On October 10, 2006, the Appellate Division denied the petition, holding that Petitioner failed to establish denial of his right to effective assistance of appellate counsel. On November 26, 2006, Petitioner filed for leave to appeal to the Court of Appeals, which the Court of Appeals denied.

Federal Court Procedural History

Petitioner originally filed this petition on July 9, 2004, asserting ineffective assistance of trial and appellate counsel and denial of due process. On October 7, 2004, I dismissed the petition without prejudice to allow Petitioner time to exhaust his claims in state court. Following Petitioner's efforts in state court in November, 2004, and April and May, 2006, to overturn ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.