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Harris v. Burge

March 25, 2008


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge


Frank Harris ("Petitioner") brings this habeas corpus proceeding, pursuant to 28 U.S.C. § 2254, to challenge his conviction following a jury trial in Supreme Court, New York County, on one count each of Robbery in the First and Third Degrees and Burglary in the First Degree, two counts of Robbery in the Second Degree and three counts each of Burglary in the Second Degree and Grand Larceny in the Fourth Degree.

Petitioner claims that (1) the trial court's refusal to sever the charges and grant him separate trials constituted an improvident exercise of discretion; (2) he was deprived of effective assistance of trial counsel in violation of the Sixth Amendment; and (3) he was deprived of effective assistance of appellate counsel in violation of the Sixth Amendment. On October 29, 2007, Magistrate Judge Frank Maas issued a Report and Recommendation ("R&R"), in which he recommended that the petition be denied in all respects and that, because Petitioner had not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued. Petitioner made timely objections to the R&R ("Objections"). Upon this Court's careful review of all the submissions, the habeas corpus petition is DENIED and the R&R is adopted.


Petitioner's conviction arose from his role in four robberies in Manhattan apartment buildings between May 25 and 29, 1999. The case was tried before Justice William Wetzel of the New York Supreme Court, who on November 24, 1999 sentenced Petitioner as a persistent violent felon to a sentence of 85 years' imprisonment to life. The Appellate Division, First Department, of the State of New York affirmed Petitioner's conviction but determined that he should have been sentenced as a second felony offender, not a persistent violent felony offender. Accordingly, his sentence was reduced to an aggregate indeterminate term of 25 years to life, which Petitioner is serving at the Auburn Correctional Facility in Auburn, New York.

The Four Robberies

Magistrate Judge Maas found that the evidence at trial would have permitted a reasonable juror to find that Petitioner and an accomplice robbed four individuals between May 25 and 29, 1999: Susan Greaves, Paul Schweiger, Caroline Sullivan and Evelyn Sobel. R&R 3. Susan Greaves ("Greaves") was entering her apartment building on May 25, 1999, when a man rushed through the inner door behind her. Trial Tr. 31-32, 35, 54. She rode the building elevator by herself to the eighth floor, and as she reached her apartment door, the man ran toward her from the stairwell. Id. at 39-41, 58-60, 63-64, 68. He pushed her to the ground, "yanked" her purse from her and ran down the stairwell. Id. at 41-42, 63, 65, 69. Greaves immediately called "911" to report the robbery and described the assailant as a 5'7" African American male. Id. at 43, 65, 74-75. She later realized, however, that he was likely taller than 5'7", since she was only 5'4". Id. at 43, 65, 74-75. She went to the police station the night of the robbery to view a photo array but did not recognize anyone. Id. at 46. She identified Petitioner as her attacker during a lineup on June 7, 1999 and at trial. Id. at 51-53.

Paul Schweiger ("Schweiger") was followed by a man into his apartment building on May 28, 1999. Id. at 81-82, 86, 88-89. As Schweiger opened the inner lobby door, the man entered the lobby behind him displaying what appeared to be the blade of a retractable utility knife. The man said words to the effect of, "You know I'll do it man. Give me your wallet." Id. at 92. Schweiger gave the man approximately $40 and his watch, and the man fled. Id. at 93. Schweiger immediately called "911" and described his assailant as an African American male in his 30s, approximately 5'10" with a medium build. Id. at 94, 114-15. Schweiger recognized Petitioner almost immediately during a seated lineup on June 14, 1999. He asked that Petitioner stand up, and after Petitioner and each of the other men walked in front of him, Schweiger identified Petitioner as his assailant. He identified him again at the trial. See R&R 5.

A few hours after the Schweiger robbery on May 28, 1999, an African American male accosted Caroline Sullivan ("Sullivan") as she was leaving her apartment building in Manhattan.

Id. at 123-24, 127-28, 130, 153. The man pushed Sullivan back into the building and onto the floor. Sullivan reported that he was wearing a dull black jacket with yellow markings on the upper sleeves. Id. at 129-31, 155-56. He forcibly took her gold necklace, ripping her blouse in the process. Id. at 131. The man demanded that Sullivan give him her wedding band and diamond engagement ring, threatening to cut off her finger if she failed to do so. Id. at 132-36. The man also took Sullivan's watch, handbag, tote bag and her work cell phone and pager before fleeing. Id. The police showed Sullivan a photo array on June 10, 1999, which did not include a photo of Petitioner. Sullivan selected the photograph of Henry Curtle ("Curtle"), indicating that he might have been the man who attacked her. Id. at 158, 361. When Sullivan subsequently viewed the same lineup as Greaves on June 7, 1999, she did not identify Petitioner as her assailant. Id. at 359. During another lineup on July 16, 1999, which included Curtle but not Petitioner, Sullivan also was unable to identify her attacker. Id. at 337-38.

Finally, Evelyn Sobel ("Sobel") was about to enter her apartment building on May 29, 1999, when a man approximately 6 feet tall pushed in front of her into the building. Id. at 205, 229. After waiting outside for approximately ten minutes, Sobel entered the building, where she encountered the same man, who knocked her down and pulled her "fanny pack" from her waist before fleeing. Id. at 212, 218, 236-38. Sobel pursued him, screaming that she had been robbed. Id. at 212-13. Outside the building, Wilfredo Castro ("Castro") heard Sobel's call for help and followed the robber, whom he described as an African American male in his early 40s with short hair, about 5'11" tall. Id. at 163, 167-69, 181, 188. Castro saw the man flee in a small maroon car, which Castro reported to the police bore license plate number 2305YN. Id. at 169-73. Petitioner's Arrest and Post-Identification Admissions

On June 7, 1999, Petitioner was apprehended in Queens, New York, while sitting in a red Volkswagen Jetta bearing license plate number Z305YW, which was registered to Petitioner's mother. Id. at 297-98, 383-84, 399. After arresting Petitioner, the police recovered from the vehicle Sobel's fanny pack and the black jacket with yellow markings on the upper sleeves, which Sullivan identified as the jacket worn by her assailant. Id. at 149-51, 222, 324-26, 438. Prior to Petitioner's arrest, the police had tracked Sullivan's cell phone to Petitioner's son, who also had Sullivan's pager in his possession when he was located. Id. at 144-46, 261-64, 268.

After Greaves identified Petitioner in a lineup on the date of his arrest, Petitioner waived his Miranda rights and spoke with detectives. He admitted his involvement in the Sobel robbery to Detective Flanagan, stating that "when he came out, []he knew [a] guy was following him," and that he "got into his car . . . and took off." Id. at 432-33. Detective Flanagan reduced Petitioner's statement to a writing, which Petitioner then signed. Id. at 435-36. Later that night, Petitioner told the police that he had given Sullivan's cell phone to his son. Id. at 321-22. When the police asked about the black jacket with yellow markings recovered from his mother's car, Petitioner explained that it belonged to Curtle. Id. at 326, 361. He further admitted that he and Curtle had driven to Manhattan "to rob people." Id. at 327. Petitioner stated that Curtle instructed him to park on the FDR Drive service road, then got out of the car and returned a short time later with money, a cell phone and a pager. Thereafter, the two men drove to Brooklyn where they purchased drugs. Petitioner added that he "didn't know [Curtle] was going to rob some . . . old lady." Id. at 326-27.

Pretrial Proceedings

Prior to trial Petitioner moved to suppress his post-arrest statements to the police, the pretrial identifications of him and the property recovered from his mother's car. These motions were denied. Pretrial Hearing Tr. 182-97. Petitioner also moved prior to trial to sever the charges relating to each of the robberies pursuant to Section 220.20(3) of the New York Criminal Procedure Law ("CPL"). Decl. of Thomas B. Litsky in Opp. to Pet. for Writ of Habeas Corpus (Sept. 29, 2006) ("Litsky Decl.") Ex. A. In his motion papers, Petitioner argued that the jury would find it difficult to differentiate between a positive identification in one robbery and a confession or admission in another and to separate the evidence among robberies. Id. at 3. Through the affirmation of his counsel, Petitioner also contended that he "may wish to testify concerning some counts" and "to remain silent . . . on others," although neither he nor his counsel furnished any explanation for his selective invocation of his Fifth Amendment rights.

By order dated September 8, 1999, Justice Micki A. Scherer denied Petitioner's motion to sever the counts and grant him separate trials. Litsky Decl. Ex. C. In her decision, the Justice noted that "good cause may be shown where there is 'substantially more proof on one . . . offense than on others" or the defendant has made "a convincing showing that [he] has both important testimony to give on one count and a genuine need to refrain from testifying on the other." Id. at 1 (brackets in original). Reviewing the relevant facts, Justice Scherer found that "although the type of proof the People intend to offer with respect to each incident may vary, the amount of proof as to each incident is not disproportionate." Id. at 1-2 (emphasis in original).

The Justice further noted that Petitioner's "conclusory allegations" with respect to his possible desire to testify failed to show that he had "important testimony to give" concerning statements he allegedly made and "a genuine need to refrain from testifying" regarding incidents for which he had not made incriminating statements." Id. at 2.

Petitioner did not testify or present any other evidence as part of a defense case. See Trial Tr. 482.

Jury Charge and Deliberations

Justice Wetzel's jury charge generally set forth the elements that the jury would have to find beyond a reasonable doubt to find Petitioner guilty as a principal for the Greaves, Schweiger and Sobel robberies. With respect to the Sullivan robbery, the Justice instructed the jury as to the findings it would need to make to hold Petitioner liable as an accomplice. Trial Tr. 595-602. Petitioner's counsel did not object to this or any other aspect of the jury charge. See id. at 607. During its deliberations, the jury sent Justice Wetzel several notes requesting the court to clarify the date of each robbery, to read back a police officer's testimony concerning Petitioner's post-arrest admissions regarding the Sullivan robbery and to provide clarification concerning the elements of accomplice liability. Id. at 617-20.

Verdict and Sentence

After trial on October 27-28 and November 1, 1999, the jury deliberated and convicted Petitioner on all eleven counts presented for its consideration on November 3, 1999. See id. 621-22. On November 24, 1999, Justice Wetzel determined that Petitioner's prior convictions classified him as a persistent violent felon under Sections 70.04 and 70.08 of the New York Penal Law and sentenced ...

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