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Newland v. Lape

June 19, 2008


The opinion of the court was delivered by: John F. Keenan, United States District Judge


Petitioner Wayne Newland ("Petitioner" or "Newland") brings this pro se application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his state court conviction of one count of burglary in the second degree (N.Y. Penal Law § 140.25(1)(c)), on the following grounds: first, that admission of out-of-court testimonial evidence at his trial violated his Sixth Amendment right to confrontation under Crawford v. Washington, 541 U.S. 36 (2004); second, that he received ineffective assistance of counsel; and third, that the evidence at his trial was legally insufficient to support his conviction. For the reasons set forth below, the petition is denied in its entirety.


On June 18, 2000, Newland, a 43-year-old Brooklyn resident, broke into the Village Cigar Store on the corner of Christopher Street and Seventh Avenue in Manhattan by smashing the glass door with a metal pipe. On November 20, 2000, Newland was charged by Indictment Number 7606/00 with two counts of burglary in the second degree. After a jury trial in New York State Supreme Court, New York County (Beal, J.), Newland was convicted of one count of burglary in the second degree and sentenced to a term of imprisonment of ten years.

The following facts, relevant to the instant petition, were established at trial.

On the morning of June 18, 2000, Newland paced outside the Village Cigar Store for about ten minutes. He then took a metal pipe out of his waistband and threw it through the store's glass door. This was witnessed by Melody Jones ("Jones"), who was standing at a nearby bus stop. After the glass shattered, Newland entered the store. Shortly afterwards, Vicente Hernandez ("Hernandez"), an employee of a neighboring deli that was under the same ownership as the Village Cigar Store, received a call from a nearby newsstand alerting him that someone had broken the Village Cigar Store's glass door. Hernandez investigated the scene and saw that the lights were off in the store and the door was shattered. When he saw Newland leaving the store with two plastic bags, Hernandez asked what Newland was doing. Newland cursed in response and cut Hernandez on the left forearm with a box cutter. A struggle ensued that moved from the storefront to the middle of Seventh Avenue and lasted between three and five minutes. Newland then ran into the Christopher Street subway station, jumped onto the tracks, and escaped a pursuing Hernandez.

At approximately the same time, Sergeant James Crescitelli ("Crescitelli") and his partner responded to a report of a robbery at the Village Cigar Store. Upon arrival, Crescitelli was informed that the perpetrator had fled into the subway station. Crescitelli attempted to pursue the suspect but could not find him. He then returned to the scene of the crime and entered the store to dust for fingerprints. After taking the prints, Crescitelli canvassed the area for witnesses. Crescitelli subsequently searched a metal shopping cart that was in front of the cigar store and recovered a small clear plastic bag containing several pieces of paper with Newland's name on them. On November 9, 2000, following an investigation, Newland was arrested in connection with the burglary.

At trial, two eyewitnesses identified Newland as the perpetrator of the crime. Jones, who was approximately fifteen feet away from the Village Cigar Store at the time of the break-in, identified Newland as the perpetrator and also testified that she had seen Newland panhandling in the vicinity, about a month before the robbery. Hernandez, who engaged in a prolonged physical struggle with the perpetrator, also identified Newland as the individual who broke into the Village Cigar Store.

The Out-of-Court Statement

Prior to trial, Newland's counsel moved to preclude as "double hearsay" the testimony of Crescitelli relating to comments made to him by an employee of the newsstand (the "first newsstand employee") located on Seventh Avenue across the street from the Village Cigar Store. (Tr. 19.)*fn1 A second employee of the newsstand (the "second employee"), who purportedly witnessed the break-in, told the first newsstand employee that a shopping cart that had been abandoned ten feet from the Village Cigar Store door belonged to the person responsible for the burglary. (Tr. 19-20.) The first newsstand employee relayed this information to Crescitelli, which in turn led to Crescitelli's discovery and search of the shopping cart. The police never interviewed the second employee. (Tr. 22.) Neither the first newsstand employee nor the second employee testified at trial.

The prosecution argued that Crescitelli's testimony about the out-of-court statements was admissible to explain why Crescitelli searched the shopping cart. While the court agreed that the clear implication of the testimony would be that the officer went to the cart "because somebody told him that the perpetrators had it," (Tr. 22), it also noted that a certain amount of hearsay was admissible to allow the jury to understand the narrative. (Tr. 23-24.) The court compared the evidence to an officer testifying that he received a radio transmission and as a result went to a certain address. (Tr. 26.) The court expressed concern that, without the information in question, the jury would wonder why the officer searched a cart located outside the store. Id.

After taking the matter under advisement, (Tr. 23-24), the court ultimately ruled that Crescitelli was permitted to testify that he received some information and that he took certain actions as a result of that information. (Tr. 166-67.) The court acknowledged that it was allowing in a small amount of hearsay but was doing so to avoid jury speculation about the officer's subsequent actions. (Tr. 169.) Crescitelli testified as follows:

Q: And who did you speak to if anyone?

A: I spoke to a gentleman across the street at a newsstand. Q: Was he standing in the newsstand ...

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