The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Jose Ferreiras, currently an inmate at Coxsackie Correctional Facility, brings this petition for habeas corpus pursuant to 28 U.S.C. §2254, alleging that he is being held in violation of his constitutional rights. On June 27, 2000, petitioner was convicted in the Westchester County Court (Lange, J.) of Burglary in the Second Degree (N.Y. PENAL LAW § 140.25(2) (McKinney 1998)), and Criminal Mischief in the Third Degree (N.Y. PENAL LAW § 140.25 (McKinney 1998). On August 24, 2000, he was sentenced as a persistent violent felony offender (N.Y. PENAL LAW § 70.08(1)(a) (McKinney 2008)), to an indeterminate term of 20 years to life, to run concurrently with a term of two to four years, and was directed to pay restitution of $978.00. Petitioner asserts a violation of his right to a fair trial, arguing: (1) the People altered their theory of the case in mid-trial, thus lowering their burden of proof, and (2) the People did not provide sufficient evidence to support a conviction. Petitioner also claims he was denied effective assistance of counsel in violation of his Sixth Amendment rights. The petition is denied.
Petitioner's arrest grew out of a burglary that occurred on November 10, 1999, at 148 Daisy Farms Drive in New Rochelle, New York.
At approximately 6:20 p.m., Mr. Walter Stiller unlocked the front door of his home at 148 Daisy Farms Drive, and heard a loud noise coming from inside the house. After yelling out "who's there?" and receiving no reply, he heard footsteps running inside the house. Suspecting an intruder, Stiller went to his neighbor to call the police.
At the same time, Anthony Bouchard, one of Stiller's neighbors, observed petitioner running through the neighborhood, and slowing down to a fast walk when he approached Bouchard. He later provided a detailed description of petitioner to the police once they arrived on the scene.
Police arrived on the scene and discovered that the basement window was open and its screen had been removed. The door connecting the basement to the upstairs of the house had been broken, and a vice and metal bar had been discarded nearby. No items had been taken from the house. Police also noticed a car that was unfamiliar to Mr. Stiller parked in front of the house with the keys still in the ignition, although the engine was not running. Police determined that the car was registered to petitioner.
Officers Jackson and D'Onofrio began surveillance of the vehicle by parking their unmarked police car nearby. At about 9:45 p.m., they observed a person, matching the description of petitioner given to them by Bouchard, approach the car and attempt to open the locked door. The officers stopped petitioner, questioned him, and proceeded to search him for weapons. During the pat-down, two latex glove fell out of petitioner's sweat pants. Petitioner was then arrested and advised of his Miranda rights.
At the police station, petitioner was again read his Miranda rights, and subsequently admitted his involvement in the burglary.*fn1 Petitioner asserted that he did not take anything from the home and he did not hear anyone yell while he was in the house. When petitioner was asked why he had broken into the house, he replied "because I was confused." He urged the detective to charge him only with trespass and not another felony.
The Indictment and Prior Proceedings
On February 1, 2000, a Grand Jury indicted petitioner on one count of Burglary in the Second Degree (N.Y. PENAL LAW § 140.25(2) (McKinney 1998)), one count of Criminal Mischief in the Third Degree (N.Y. PENAL LAW § 140.25 (McKinney 1998)), and one count of Possession of Burglar's Tools (N.Y. PENAL LAW § 140.35 (McKinney 1998)). The allegation of Burglary in the Second Degree stated as follows:*fn2 "The defendant . . . knowingly entered unlawfully in a dwelling with intent to commit a crime therein." The allegation of Possession of Burglar's Tools stated as follows:*fn3
The defendant . . . did possess a tool an instrument and an article adapted, designed and commonly used for committing and facilitating offenses involving forcible entry into premises and larceny by a physical taking under circumstances evincing an intent to use the same in the commission of an offense of such character.
On June 22, 2000, petitioner waived his right to a jury trial and requested a non-jury trial. At trial, the People presented testimony from Walter Stiller and his brother with whom he shared the home, Mathew Stiller, as well as from the arresting officers Jackson and D'Onofrio, and the lead detective, Detective Castro. Defense counsel called Donald Towsend, a friend of petitioner's parents who resided at petitioner's home, to testify that petitioner had a drug problem and was under the influence of narcotics on the day of the crime.
During the trial, the People withdrew the charge of Possession of Burglar's Tools (N.Y. ...