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Yara v. Ercole

March 26, 2008

ZABDIEL YARA, PRO SE, PETITIONER,
v.
ROBERT ERCOLE, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM AND ORDER

On October 16, 2002, Zabdiel Yara ("petitioner") was convicted in New York State Supreme Court, Kings County, of murder in the first degree and arson in the fourth degree and sentenced to consecutive prison terms of twenty-five-years-to-life for the murder and one-and-one-third-to-four-years for the arson. The Appellate Division, Second Department, affirmed petitioner's conviction in a decision dated November 22, 2004, People v. Yara, 12 A.D.3d 626 (2d Dep't 2004), and the New York Court of Appeals denied petitioner leave to appeal on February 22, 2005, People v. Yara, 4 N.Y.3d 804 (2005). Petitioner did not seek a writ of certiorari from the Supreme Court of the United States. Petitioner challenges his conviction through the instant petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on the grounds that the prosecution failed to prove his guilt beyond a reasonable doubt at trial and that the jury's verdict was against the weight of the evidence. For the reasons set forth below, the petition is denied.

Summary of Facts

A. Petitioner's Trial, Conviction, and Sentence

Between 8:30 and 9:30 a.m. on January 13, 2000, nineteen-year-old Erica Alvarez and her two young children, Demaurys and Yafresy, were murdered inside their basement apartment on 164 Atkins Avenue in Brooklyn. The perpetrator entered the apartment without using force, stabbed Erica and both children multiple times, bound and gagged them, placed their bodies on a bed in Erica's room, set the bed on fire, and left the apartment. (Tr. at 182-88, 247-50.)*fn1 A ten-month-long police investigation culminated in the arrest of petitioner, Erica's upstairs neighbor and former boyfriend, on November 13, 2000. (Id. at 870-71.) On January 19, 2001, petitioner was indicted on three counts of murder in the first degree, six counts of murder in the second degree, and one count of arson in the fourth degree. (Resp. Ex. B at 1); see People v. Yara, Ind. No. 9479/00, 2002 WL 31627019 (N.Y. Sup. Ct. Nov. 6, 2000).

At the trial, a number of witnesses testified about the relationship between petitioner and Erica Alvarez. Jose Rodriguez Jr., Erica's brother, testified that petitioner confronted Erica on the street in December of 1999 and asked if he was the father of Erica's youngest child, Yafresy, to which Erica responded, "I don't want to talk to you" and "No, that's not your baby." (Tr. at 743-48.) A man named Tomas Rondon ("Rondon") testified that after meeting Erica on December 24, 1999, he began seeing her regularly in the weeks preceding the murder. (Tr. at 778-81.) Erica's mother, Ana Rodriguez, testified that petitioner spoke to her approximately a week before the murders about his desire to "go back with" Erica. (Id. at 669-70.)

Manuel Villot ("Villot"), a friend of petitioner's, testified that on the morning of January 11, 2000, two days before the murders, he and petitioner were in front of the building at 164 Atkins Avenue when petitioner observed Rondon's car parked across the street. (Tr. at 627-30; 782-83.) After noticing the car, petitioner knocked loudly on the door of Erica's apartment and demanded to be let in. (Id. at 630-36.) Petitioner continued knocking on the door and yelling for approximately fifteen minutes until the door opened. (Id. at 632.) According to Rondon, who was inside Erica's apartment, the knocking stopped momentarily when someone entered petitioner's apartment and Erica's phone rang but quickly resumed after no one answered Erica's phone. (Id. at 783-86.) Villot testified that Rondon eventually opened the door and blocked the entranceway but that petitioner, demanding to see the mother of his baby, stepped past Rondon and entered the apartment. (Id. at 633.) Rondon claimed petitioner was extremely angry, screaming at Erica, and asking her what Rondon was doing there. (Id. at 786-88.) Erica responded by telling petitioner to leave. (Id. at 788.) After petitioner left the apartment, Rondon telephoned his brother, drove to pick him up, then returned to the apartment to take Erica to work. (Id.)

Gerard Connell of Verizon Communications testified that petitioner's phone records showed, over the next two days, nineteen outgoing calls to Erica's home number, her pager, and the phone number of the "El Caridad" restaurant where Erica worked. (Id. at 505-08.) Neither petitioner's phone records, nor Erica's, indicated any incoming calls to petitioner's account from a number associated with Erica. (Id. at 503, 508, 510-11.) Mr. Connell also testified that Erica received a page from the El Caridad restaurant at 12:27 a.m on January 13, 2000, and that three minutes later, at 12:30 a.m., someone placed a call to that same number from the phone within petitioner's apartment and had a brief conversation. (Id. at 512-13).

Witnesses at trial presented conflicting evidence about petitioner's whereabouts on the morning of January 13, 2000, the day of the murders. Detective Anthony Viggiani testified that petitioner spoke with him for approximately three to four hours at the 75th precinct in Brooklyn on January 13. (Id. at 402.) During the interview, petitioner stated that between 11:00 p.m. on January 12 and 12:00 a.m. on January 13, he paged Erica from his apartment, she returned his call, and they had a conversation, each in their own apartment in the building at 164 Atkins Avenue. (Id. at 410.) Petitioner stated he then went with his friend Jerry Rivera ("Rivera") to eat at White Castle before spending the night at Rivera's house. (Id. at 412.) Petitioner told the detective he had planned on going with another friend to Connecticut on the morning of January 13 but returned to Atkins Avenue instead when his sister informed him that their building was on fire. (Id.) In statements given to Detective Daniel Powers on November 13 and 14, 2000, petitioner again claimed that he paged Erica the night before the murders, but stated that instead of returning his call, she came up to his apartment to speak with him in person and that while they were together in petitioner's apartment, Erica received a page, which she returned using petitioner's phone. (Id. at 277, 280-81.)

Petitioner's neighbor, Annette Thomas, testified that she saw petitioner standing outside 164 Atkins Avenue between 7:00 and 7:30 a.m on January 13, 2000, the morning of the murders. (Id. at 698-703.) Rivera was unavailable to testify at the trial but his mother, Marie Luiz Rivera testified that while she was in her bed, she saw her son return home at approximately 2:30 a.m. on January 13, 2000 and retire to his room. (Id. at 606-09.) She did not see or hear anyone else enter the house that night. (Id. at 606-09.) Mrs. Rivera woke the next morning around ten minutes before nine, spoke on the telephone, took a shower, dressed herself in her room, then went into her son's room at approximately 10:00 a.m., at least half an hour after the murders occurred, and saw petitioner lying on the floor of the bedroom. (Id. at 612-22.) She testified that although she had not seen petitioner in the previous six to eight hours, she had not heard anyone enter the house that morning. (Id. at 613, 621.)

The prosecution also presented evidence about a watch Erica frequently wore. Erica's mother Ana Rodriguez testified that although the watch belonged to her, her daughter "loved it" and "liked to wear it all the time." (Id. at 672.) She remembered seeing her daughter wearing the watch at around 9:30 p.m. on January 12, 2000, the night before the murders. (Id.) Jose Rodriguez Sr., Erica's father, testified that in June of 2000, he and his wife were visiting the cemetery where Erica, Demaurys, and Yafresy were buried when they encountered petitioner, his aunt, and Rivera. (Id. at 762-64.) During this encounter, petitioner gave Erica's watch to Mr. Rodriguez and stated that he found the watch on the floor of the Rodriguez's apartment at 164 Atkins Avenue the day after Erica had been murdered. (Id. at 764-67.) Ana Rodriguez testified that the police did not allow the family to re-enter their apartment until two days after the murders. (Id. at 679.) Both Jose and Ana Rodriguez stated that the watch looked clean, showed no signs of any burn marks, and was in good working condition. (Id. at 683, 767.)

Iluminado Colon ("Colon"), an inmate at the Brooklyn House of Detention where petitioner was held after his arrest, also testified at the trial. Colon claimed to have befriended petitioner while they were in custody together and testified that petitioner confessed to him and described in detail how and why he killed Erica and her children. (Tr. at 926-33.) In the course of his testimony, Colon also admitted his extensive criminal record. (Id. at 905-13, 951-55, 960-73.) The prosecution presented no forensic evidence linking petitioner to the crimes with which he was charged although Detective Edwin LaTorres did testify that fire and water damage at the crime scene made such evidence difficult to obtain. (Ex. A-13 at 574-77.)

At the close of evidence, petitioner moved to dismiss all of the charges against him "on the grounds that the People have failed to prove each and every count beyond a reasonable doubt, as a matter of law." (Tr. at 1298.) The court denied the motion, finding that the evidence was sufficient to submit the counts to the jury. (Id. at 1299.) On October 16, 2002, the jury convicted petitioner of one count of murder in the first degree and one count of arson in the fourth degree. (Id. at 1559.) Petitioner was sentenced on November 15, 2002. (Sent. at 1-28.)*fn2 At the sentencing hearing, petitioner's counsel moved orally "to set aside the verdict on the grounds that it was against the weight of the evidence." (Id. at 5.) The court noted that such a motion needed to be in writing, but nevertheless held that "on the basis of the grounds that the counsel now asserts, that motion is denied." (Id. at 7.) The court sentenced petitioner to ...


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