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Peterson v. Greene

June 18, 2008

DAVID PETERSON, PETITIONER,
v.
GARY GREENE, RESPONDENT.



The opinion of the court was delivered by: Gerard E. Lynch, District Judge

OPINION AND ORDER

David Peterson, a New York State prisoner, seeks habeas corpus to challenge his convictions, at two separate jury trials in the Supreme Court of New York for Bronx County, on various charges of rape, forcible sodomy, sexual abuse, and robbery stemming from three separate sexual assaults, and his resulting sentences to numerous consecutive sentences totaling 147 years in prison. Because none of Peterson's many claims of error has merit, the petition will be denied.

BACKGROUND

On July 6, 1999, a Bronx grand jury indicted petitioner Peterson, alleging numerous crimes in connection with separate sexual assaults on three victims: EW, ML, and NS. The charges relating to EW were severed and tried separately from those relating to the other two victims.

I. Pre-Trial Proceedings

Before either case was tried, the trial court conducted an evidentiary hearing with respect to a motion brought by defendant challenging the legality of his arrest, and seeking to suppress resulting identifications of the defendant and various items seized in attendant searches. At the conclusion of the hearing, the trial court denied the motion, and adhered to that ruling after the hearing was reopened to admit additional evidence. In another pre-trial ruling, the court ruled that if Peterson testified at trial, the prosecution could cross-examine him about his 1982 conviction on six felony counts including rape, sodomy, and robbery, but could not question him about the factual details underlying those charges, or about an earlier adjudication of juvenile delinquency in connection with yet another rape.

II. The First Trial

At the first of Peterson's trials, the victim ML, who was 20 years old, testified that at about 4:30 a.m. on June 16, 1999, she was ringing her mother's doorbell at a Bronx address when Peterson, whom she did not know, approached her, "acting like he's all nice," and asked for directions. He then produced a knife and threatened to hurt her if she screamed. She offered to give him money, and eventually gave him her earrings, but defendant forced her to walk to a nearby alley, put the knife to her face, and began touching her intimately. At knife point, Peterson forced her to take his penis in her mouth, ejaculated on her face, and penetrated both her anus and vagina with his penis. Peterson took ML's New York State identification card and warned her that if she reported the attack to the police he would have "his people" kill her or her family. ML went to a friend's house and called the police.

NS, a second rape victim, who was 19 years old, testified that she left her house, also in the Bronx, between 3:30 and 4:00 a.m. on June 21, 1999, five days after the attack on ML, to smoke a cigarette. She noticed Peterson following her back into the building. Peterson first made an innocuous remark to explain his presence in the building, then produced a knife and forced NS to leave the building to a small enclosed area nearby, where he demanded that she either perform oral sex or submit to intercourse. Still at knife-point, she fellated Peterson, who demanded that she swallow his ejaculate. She gagged, however, spilling semen on her clothing. Peterson then threatened to rape NS as well, turned her around, and pulled down her pants, but as he approached her from behind with his penis exposed, a neighbor's dog appeared, interrupting the assault. After the dog's owner retrieved the dog, Peterson warned NS that he knew where she lived, and that if anything happened to him, his "boys" would "come after you and whoever else is in your house." She returned to her apartment and called the police.

On June 22, 1999, both ML and NS identified Peterson as their attacker at separate lineups. A DNA expert matched Peterson's DNA with semen recovered from both victims. A search of Peterson's residence produced a folding knife, among other items.

Peterson did not testify, and called only a crime scene detective who testified that he had not recovered fingerprints or other evidence at the scenes. The jury found him guilty of one count of rape, two of sodomy, and two of sexual abuse in the attack on ML, and of one count of sodomy and two of sexual abuse in the attack on NS. He was acquitted of robbery and attempted robbery.

III. The Second Trial

At Peterson's second trial, EW, an 18-year old high school student, testified that she was walking to her Bronx home in the early morning hours of June 20, 1999 (the day before the attack on NS), when she noticed Peterson, a man she had never seen before, approaching. He followed her into the elevator of her building, and physically prevented her from getting off the elevator. He then produced a knife and demanded her money, threatening that he would cut her if she yelled. Peterson then forced her to the roof at knife point.

Peterson pulled down EW's pants, forced her to kneel on all fours, and threatened her with oral or vaginal intercourse. He then pulled down her underwear and placed his finger, and then the tip of his penis, on her anus. However, he stopped without ejaculating, and told EW to get dressed. After grabbing a piece of mail from EW's bag, Peterson threatened "to get you and your family" if anything happened to him. EW carefully observed Peterson, noting his facial features, clothing, and jewelry. Peterson then left the roof, ordering EW to remain, but she ran down a different stairway, awakened her brother, and contacted the police.

Like the other victims, EW identified Peterson in a lineup. The warranted search of Peterson's residence produced, in addition to the knife referred to above, items of clothing, including a Yankee jacket, and a distinctive ring with the initial "P" that matched the clothing and jewelry EW had reported to the police on the morning of the attack.

Again, Peterson did not testify, but called a different crime scene investigator to testify to his inability to recover fingerprints at the crime scene. The jury found Peterson guilty of sodomy and attempted robbery.

IV. Appellate and Post Conviction Proceedings

Peterson appealed both convictions to the Appellate Division, which affirmed both judgments in a single opinion. People v. Peterson, 777 N.Y.S.2d 48 (1st Dept. 2004). Leave to appeal to the Court of Appeals was denied. 3 N.Y.3d 710 (2004).

In 2006, Peterson sought a writ of error coram nobis in the Appellate Division, arguing that his appellate counsel was ineffective. The writ was denied, in an unpublished opinion, on October 26, 2006. (Levin Aff. Ex. 8.) Leave to appeal was again denied. 8 N.Y.3d 848 (2007).

Meanwhile, Peterson filed separate petitions for habeas corpus challenging each conviction, and subsequently sought and was granted permission to amend his petitions to include the claims raised in his state coram nobis petition.

DISCUSSION

Peterson raises a number of claims of constitutional error with respect to each of his separate convictions. Since his claims with respect to the pre-trial and appellate proceedings affect both cases, and his claims of trial error apply only to each particular trial, the claims are most conveniently ...


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