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Martinez v. Phillips

April 24, 2009

CESAR MARTINEZ, PETITIONER,
v.
WILLIAM PHILLIPS, SUPERINTENDENT OF GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.

OPINION & ORDER

Pro Se Petitioner Cesar Martinez ("Petitioner"), an inmate at Greenhaven Correctional Facility, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his October 29, 1998 conviction after trial, in New York State Supreme Court, Bronx County, of two counts of Murder in the Second Degree (N.Y. Penal Law §§ 125.25 (1) and (3)), one count of Robbery in the First Degree (N.Y. Penal Law § 160.15(2)), one count of Robbery in the Second Degree (N.Y. Penal Law § 160.10 (1)), and one count of Kidnapping in the Second Degree (N.Y. Penal Law § 160.1(1)). Petitioner's conviction stemmed from the kidnapping and killing of Damian Blanding, who had stolen drug proceeds due Petitioner. On November 30, 1998, Petitioner was sentenced to a prison term of from twenty-five years to life, that was to run consecutively to a prison term of from eight and one-third years to life that Petitioner had already been serving for attempted murder.

Petitioner argues that: 1) his conviction was against the weight of the evidence presented at trial; 2) there was legally insufficient evidence to convict him; 3) his federal due process rights were violated by the prosecutor's deliberate decision to elicit false testimony and her failure to correct testimony that she knew to be false; 4) the prosecutor did not turn over all Brady/Rosario material prior to trial, and; 5) he was denied the effective assistance of counsel.*fn1

For the reasons stated below, the petition is denied.

1. The Facts

A. The Indictment

By Bronx County indictment number 603/1996, a grand jury charged Petitioner, Theodore Simpson, and Hector Chebere (Petitioner's half-brother), while acting in concert with each other and others, with two counts each of Murder in the Second Degree, Robbery in the First Degree, and Criminal Use of a Firearm in the First Degree, and one count each of Manslaughter in the First Degree, Robbery in the Second Degree, Kidnapping in the Second Degree, Criminal Possession of a Weapon in the Second Degree, Criminal Possession of a Weapon in the Third Degree, Conspiracy in the Second Degree, Criminal Solicitation in the Second Degree, Criminal Facilitation in the Second Degree, Hindering Prosecution in the First Degree, and Unlawful Imprisonment in the First Degree. From October 6-29, 1998, a joint trial consisting of Simpson, Chebere, and Petitioner was held before the Honorable Daniel FitzGerald and a jury.*fn2

B. The Evidence at Trial

i. The People's Case

In 1993, when he was staying with his mother, witness Jose Caban lived at 975 East 181st Street in The Bronx, and he lived at 900 Bronx Park South when he was staying with his girlfriend. (Caban Tr. 700, 894.)*fn3 Caban had known Petitioner and his half-brother Hector Chebere, as well as Theodore Simpson, for eighteen years. (Caban Tr. 712-18.) He also knew that all three lived at 900 Bronx Park South. (Caban Tr. 712-18). In April 1993, Caban received a page on his beeper from a friend Darryl; Darryl told him to come to his house so that he could give Caban drugs. (Caban Tr. 723-25, 932, 1007, 1016, 1022.) Caban, along with his friend Rafael Ortiz, drove to Darryl's home. (Caban Tr. 719-21, 725.) There, Darryl gave Caban heroin and told him to sell the drugs; Caban would then give Darryl back $15,000 and keep the remainder of the proceeds for himself. (Caban Tr. 725-29, 1089-90.) Caban and Ortiz then went to 181st Street and Bryant Avenue to speak to Lenny, co-defendant Chebere's brother-in-law, about having Chebere "cut" the heroin for them (Caban Tr. 730-33.) Lenny took Caban to Chebere, who said he would "cut" the heroin; Caban and Cherebe then made a deal to split the proceeds from the heroin sales. (Caban Tr. 731-34.)

Then, with Chebere driving a black van that he borrowed from Anthony Roman, Chebere and Caban purchased the materials Chebere needed to cut the heroin, and they drove to Chebere's girlfriend Rosegalia's apartment at 2134 Vyse Avenue, where Chebere "cut" the heroin. (Caban Tr. 734-39, 743-44; Roman Tr. 1254-57.) After cutting the heroin, Caban and Chebere tried to sell the drugs for two or three days in two separate locations, and then they continued to try to sell it for an additional three weeks; however, there were few buyers of the heron. (Caban Tr. 744-46.) At that point, Chebere told Caban that a person who lived at 800 East 180th Street in the Bronx was going to travel to Columbus, Ohio, and sell the heroin there. (Caban Tr. 744-46, 748-51, 758-64, 1123.) They did not speak again for six weeks (Caban Tr. 766).

Meanwhile, witness James Venson and Simpson had been trying to sell Chebere and Caban's heroin for two or three days at 900 Bronx Park South and at 181st Street and Daly Avenue. (Venson Tr. 572, 578, 581, 585-87, 598-600, 603, 676, 694.)*fn4 Simpson, Venson, Petitioner and Chebere spoke about the drug sales, and Simpson said that the heroin was not selling well; Petitioner said that they should sell the heroin in Ohio, and Simpson and Chebere agreed. (Venson Tr. 601-02.) About a week or two later, Venson, Petitioner, Simpson and Chebere had a conversation in Simpson's apartment. (Venson Tr. 604-05, 681.) Petitioner asked who they were going to send to Ohio to sell the heroin, and Venson said that he and Simpson would go. (Venson Tr. 605.) Simpson said that they needed Venson to manage the "drug spot" at 900 Bronx Park South, and Petitioner said that they would send "Juggy." (Venson Tr. 605-06.) Venson knew that Petitioner was referring to Damian Blanding, since Venson had been acquainted with him for a couple of years, and he knew that "Juggy" was Blanding's nickname. (Venson Tr. 575, 605-06.) Simpson told Petitioner not to send Blanding because he did not trust him, and he thought that Blanding might steal their drugs and money. (Venson Tr. 606.) Chebere disagreed, and wanted to send Blanding. (Venson Tr. 607.) Six weeks later, Caban went to Chebere's apartment and asked him what was "up with the kid from Ohio," referring to Blanding who had been sent to Ohio to sell the remaining heroin. (Caban Tr. 768.) Chebere responded that he could not reach Blanding. (Id.)

On the morning of June 9, 1993, witness Vincent Abbey, the Greyhound ticket agent in charge of the Greyhound bus station in Springfield, Ohio, sold a bus ticket to a young male black in his late teens or early twenties. (Abbey Tr. 524-28.) The ticket was for the bus scheduled to depart Columbus at 7:15 a.m. and arrive in New York City at approximately 12:45 a.m. on June 10, 1993. (Abbey Tr. 528-30.) At about 7:15 a.m., the man boarded the bus and left the station. (Abbey Tr. 531.) About fifteen to thirty minutes later, two black men arrived at the bus station and asked Mr. Abbey whether he had sold a ticket to a black man going to New York City. (Abbey Tr. 531-32.) Abbey responded only that he had sold a ticket to New York City. (Abbey Tr. 531-32.)

Later that afternoon, witness Fred Brown, Damian Blanding's best friend, was in the courtyard of 800 East 180th Street, talking to his friends, Diane Nunn and Malcolm Ross. (Brown Tr. 448-49, 450-52, 453, 474, 479.) Chebere, whom Brown had known since the mid-1980s, arrived and joined their conversation. (Brown Tr. 453-56.) Chebere told Nunn that he received a call from "Rider," who told him that Damian Blanding had stolen $2,000 from Rider's bag. (Brown Tr. 453-56, 461, 478-79).*fn5 Brown knew Rider but did not know his real name; Brown knew that Rider lived at 181st Street and Vyse Avenue in the Bronx. (Brown Tr. 459.) Nunn asked Chebere if he was sure that Blanding had stolen the money, and Chebere said that he was sure. (Id.)

Chebere asked Nunn if she had heard from Blanding. (Brown Tr. 454, 456-67.) Nunn told him that if Blanding had left Ohio by bus, he would be arriving in New York, and she told Chebere his expected time of arrival. (Brown Tr. 454-55, 457.) Chebere walked away with Malcolm Ross, toward a black van parked on the corner of 180th Street and Southern Boulevard; Chebere was upset, and he said that he wanted to talk to Blanding to see if he was lying. (Brown Tr. 455, 458, 460-61.) Although Brown did not see Chebere actually get into the vehicle, when Chebere left the area the van was no longer parked on the corner (Brown Tr. 461, 484.)

That same afternoon, witness Edwin Diaz was in front of his residence, located at 2134 Vyse Street, and he was on his way to visit a friend, Mark Anthony; he saw Chebere, whom Diaz had known for five or six years, exit the building and tell him that Damian Blanding had left Rider without any money. (Diaz Tr. 76-78.)*fn6 Chebere told Diaz that he was going to kill Blanding, and he asked Diaz to go with him to the Port Authority Terminal. (Diaz Tr. 80, 82.) Diaz said no, and Chebere walked away; Diaz then saw Chebere drive away in a black van. (Diaz Tr. 84.)

Diaz then walked to East 181st Street, where he met Mark Anthony, and they smoked marijuana. (Diaz Tr. 84-85.) Chebere drove the van up to that location, and again asked Diaz if he wanted to go with him; again Diaz said no (Diaz Tr. 85, 89.) Diaz saw Chebere's brother, Petitioner, whom he had also known from seeing him around the neighborhood for five or six years, sitting in the van next to Chebere. (Diaz Tr. 68-69.) Diaz saw a third person in the back of the van, but he could not "make out" that individual. (Diaz Tr. 86, 133-34.)

Shortly before 8:00 p.m. that evening, witness Caban, who was accompanied by Rafael Ortiz and Lyndon Roland, saw Chebere as he drove the van to 975 East 181st Street. Chebere told Caban that Damian Blanding was returning from Columbus, Ohio. (Caban Tr. 772, 774, 784.) Chebere said that "[t]he kid from Columbus, Ohio he's on his way over here," and that Blanding would have their money. (Caban Tr. 775.) Chebere said that Rider had telephoned and that Blanding was on his way back to the Port Authority bus terminal in Manhattan, having left Rider asleep in Ohio. (Caban Tr. 778, 810, 1122.) Ortiz, who was owed money, told Chebere that he, Caban and Roland would accompany Chebere to the Port Authority. (Caban Tr. 777.) Roland and Ortiz each carried a gun. (Caban Tr. 777-80.) Caban, Ortiz and Roland followed Chebere back to the van, and as Chebere got into the driver's seat, Caban saw Petitioner in the front passenger seat and Simpson in the back. Chebere then drove the van to the Port Authority Bus Terminal on 42nd Street and 8th Avenue in Manhattan; Caban, Ortiz, and Roland got into the Buick and followed the van. (Caban Tr. 782-83, 817.) They arrived at about 9:00 p.m., parked their vehicles, and Caban, Chebere and Ortiz went into the bus terminal; Petitioner and Simpson remained in the van while Roland remained in the Buick. (Caban Tr. 784, 818, 823.)

Inside, they waited for Blanding's bus, which arrived shortly after midnight (Caban Tr. 822-23.) Damian Blanding was the last passenger to exit the bus; he was carrying a bag. (Caban Tr. 824, 836.) Caban, Chebere and Ortiz approached Blanding, and Blanding said that he had the money and a gun in his pocket, and he suggested that they leave the terminal. (Caban Tr. 825-26.) They went to their vehicles, where Blanding said that he had $2,000 or $2,500, which he handed to Caban. (Caban Tr. 832-33, 838, 973, 1023.) Chebere and Caban asked Blanding what he had done with the rest of the money, and Blanding said he spent it, but was willing to work it off. (Caban Tr. 833-34.) Chebere told him to get into the van. (Caban Tr. 834, 1030.)

Blanding got into the back of the van, bringing his bag with him. Petitioner ordered him to "strip"; Blanding complied. (Caban Tr. 835, 837, 840-41, 1030.) Simpson searched his pockets looking for more money, but Blanding did not have any more. (Caban Tr. 835.) When Simpson asked Blanding what he had done with the rest of the money, he repeated that he had spent it, but would work to repay his debt. (Caban Tr. 835-36, 843.) At that point, Blanding was naked. Simpson and Petitioner began to hit him. Blanding covered his head with his hands, and said "Please, stop. Let me work it off." (Caban Tr. 836, 842-44.) While Petitioner hit and kicked Blanding, Simpson searched his bag. (Caban Tr. 836, 840, 844-45.) Blanding was screaming and crying, saying, "Please, let me work it off," but Petitioner told him, "I'm going to kill you. You better find that money." (Caban Tr. 844.) Caban told the others that they had to stop what they were doing, because there were too many people in the area, including police officers. Chebere said he was going to drive to a place under the West Side Highway, and that the others should follow (Caban Tr. 844-45, 849.) Caban and Ortiz returned to the Buick and drove behind the black van.

With Chebere driving, the van drove up the West Side Highway to the 125th Street exit. (Caban Tr. 845, 847-50.) There, Petitioner told Chebere that they had to kill Blanding because he could not return to his "block" beat up. Petitioner also said that they did not want a "problem" to arise between the residents of 900 Bronx Park South (where Petitioner and Chebere lived) and 800 East 180th Street (where Blanding lived). (Caban Tr. 851-52.) Petitioner said they should kill him where they were, but Chebere said that they could kill him by throwing him out of the moving van; Petitioner said he had a better place -- the Whitestone Bridge. (Caban Tr. 852-53, 856-57, 966-68.) As Petitioner and Chebere spoke, Blanding remained in the van, naked, and continued to ask them, "Please, let me work it off." (Caban Tr. 853, 855.) Simpson was in the van, sitting on one of the rear chairs, blocking Blanding from running out of the van. (Caban Tr. 851, 855-56.) Chebere told him to get dressed, and Blanding did as he was told. (Caban Tr. 853, 855-56.)

Chebere then got back into the van's drivers seat, Petitioner got into the passenger's seat, and Caban returned to his car. (Caban Tr. 857.) They drove to the Whitestone Bridge (Caban Tr. 857-58), where they took a side road to a park under the bridge. (Caban Tr. 858-60.) It was 2:30 or 3:00 a.m. on the morning of June 10, 1993. (Caban Tr. 879.) There, after the men got out of the van, Ortiz handed Chebere a gun and Chebere walked back to the van; minutes later, Caban heard five back-to-back shots. (Caban Tr. 871-72.) Shortly thereafter, Chebere walked toward them and said that his brother, Petitioner, had just killed Blanding; Chebere was nervous and pale. (Caban Tr. 872-73; 878-80.) Chebere gave the gun back to Ortiz, who wrapped it in a rag and handed it to Roland, who stored it in the Buick. (Caban Tr. 872-73.) Both cars then drove to a car wash on East Tremont Avenue (Caban Tr. 874-75); the van pulled up next to the Buick, and Petitioner told Caban that he had shot "that nigger," referring to Blanding. (Caban Tr. 874.)

At the carwash, Chebere told Caban that he was going to get rid of Blanding's bag. Petitioner again told Caban, "I shot that nigger. I killed him." (Caban Tr. 875-76, 885-86.) Caban, Oritz and Roland then left Petitioner, Simpson and Chebere at the car wash, and they drove back to 975 East 181st Street. (Caban Tr. 875, 885, 888-90.) At the apartment, Caban cleaned the gun used to kill Blanding, wiped off any fingerprints, and threw the remaining bullets into a nearby sewer. (Caban Tr. 890-91, 918.) Caban split Blanding's money between himself, Ortiz and Roland. (Caban Tr. 893, 1023.) Following the murder, Chebere returned the van to its owner, Anthony Roman. (Roman Tr. 1268-69.)

At about 8:00 a.m. on the morning of the murder, June 10, 1993, witness Police Officer Christopher Andreacchi, answering a radio call, went to Ferry Point Park. (Andreacchi Tr. 256, 259-60, 262-63.) There, Officer Andreachhi and witness Detective Francis Harten examined Damian Blanding's body. (Harten Tr. 181, 183-85; Andreacchi Tr. 262.) Blanding was lying on the ground, on his left side, wearing a Chicago Bulls jersey, black T-shirt and blue jeans, sneakers, and boxer shorts. (Andreacchi Tr. 262, 264-65.) Officer Andreacchi and Detective Harten saw that Blanding had been shot in the face, at least two times, and that there was a lot of blood directly under his head, which indicated to the detective that Blanding was shot at the scene. (Andreacchi Tr. 165; Harten Tr. 209, 214, 216-18.) Officer Andreacchi found $1.90 in Blanding's pocket, a receipt for the Greyhound bus ticket purchased on June 9, 1993 in Springfield, Ohio, a ticket envelope, two Greyhound baggage claim checks, and a driver's license belonging to a white female. (Andreacchi Tr. 297-98, 302.) A deformed aluminum-jacketed lead bullet was found under Blanding's body. (Harten Tr. 208, 210-211; Andreacchi Tr. 292-93.)

That same morning, James Venson learned from his girlfriend that Blanding had been killed. (Venson Tr. 587, 598, 608, 676, 694.) Venson then went to 181st Street and Daly Avenue to sell drugs, where he saw Simpson (Venson: T. 607-08). Simpson told him that he met Blanding at the Port Authority Bus Terminal when Blanding returned from Ohio. (Venson Tr. 608.) Simpson said that he put Blanding in a black van, asked him for the money, took $2,500 and his gun from him, and beat him up. (Venson Tr. 608.) Simpson also told Venson that he took Blanding to the Whitestone Bridge, and there watched as Blanding was shot in the head at point-blank range until the gun was empty. (Venson Tr. 608-09.) Simpson said, "Nobody, you know, [will] be able to recognize him. It will be a closed casket." (Venson Tr. 608-09.)

About two or three weeks later, Venson and Simpson had another conversation, this time in the home of Mable Norman, the mother of Venson's child. Simpson told Venson that he was "tired of running" from Blanding's murder, and hoped "they" did not catch him or find out about the murder. (Venson Tr. 610-13.) Simpson told Venson that someone in Ohio had called either him, Petitioner, or Chebere, and that was how they learned that Blanding had stolen the drugs and money. Simpson repeated that he met Blanding at the Port Authority Bus Terminal, put him in a black van, took $2,500 and a gun, stripped him, and beat him, and then took Blanding to the Whitestone Bridge, where Simpson witnessed him being shot in the head. (Venson Tr. 613-14.)

On July 28, 1995, a little more than two years after the murder, Venson was in the C-95 section of the Rikers Island jail, awaiting a visit from his uncle. (Venson Tr. 614.) When he entered the visiting room to change into the required jumpsuit, he saw Petitioner. (Venson Tr. 616.) Venson told Petitioner that he had "come down on another case." They discussed everyone on "the block," and then Venson asked Petitioner, "Well, why you here?" Petitioner said, "For that Juggy [Damian Blanding] shit." (Venson Tr. 615.) Venson asked Petitioner, "What do you mean," and Petitioner replied, "For the murder of Juggy," "For killing that kid." (Venson Tr. 615-16.) Venson asked Petitioner, "What kid?," and defendant said, "That Juggy shit." (Venson Tr. 616.)

About three years after the murder, during the first week of February 1996, witness Nick Quinones was in the Bronx House of Detention following a drug arrest.*fn7

While he was on the third floor, awaiting transfer to the sixth floor, he saw Chebere. (Quinones Tr. 1324, 1330-31, 1353-54, 1370, 1373, 1385.) He had known Chebere and Petitioner for about four years from the 900 Bronx Park South neighborhood, and he had known Simpson for about five years. Quinones also knew that Petitioner and Simpson were friends. (Quinones Tr. 1336-40.) Chebere asked him why he was in jail, and Quinones told him that he had been arrested on a drug charge, and might be held on a murder charge. (Quinones Tr. 1331-32.) Chebere then said "they just brought me down from Schenectady" for "that 1993 Juggy [Damian Blanding] Whitestone body." He also said, "I think my man, Jose [Caban], snitched on me," and that he had seen "Jose" in jail. (Quinones Tr. 1332.) Chebere told Quinones that Blanding "owed me money, so I picked him up in my van in the Port Authority and then he was stripped, beaten in the van." Chebere also said that they took Blanding's money, and then drove him to the Whitestone Bridge, where they shot him five times in the head, emptying the gun. (Quinones Tr. 1332.) Chebere said that if Quinones would provide an alibi for him, he would provide one for Quinones. (Quinones Tr. 1332-33.) Chebere also said that he was going to "pin it" on Jose, and told him to give Jose a message. (Quinones Tr. 1333-35.)

When Quinones was sent to the sixth floor, he saw Jose Caban. (Quinones Tr. 1334-35). Although Quinones had not known who Chebere had been referring to, when he saw Caban, he recognized him from 900 Bronx Park South; he had seen Caban, on more than one occasion, stand outside of the building and call up to Chebere, and had seen Chebere stick his head out of this third-floor window and say that he would come downstairs. (Caban Tr. 913-15; Quinones Tr. 1335-36.) Caban did not know Quinones, but they spoke to one another. (Caban: T. 913-15.)

Two days later, still in the Bronx House of Detention, Caban saw Chebere (Caban Tr. 915-16.) Chebere told him to keep his head up and not to say anything about the Whitestone Bridge matter; Caban said he would not say anything. (Caban Tr. 917.)

ii. Petitioner's Case

Co-defendant Simpson called witness Detective John Reillo, who testified that he was assigned the homicide case on June 10, 1993. (Reillo Tr. 1397-98.) Detective Reillo stated that in Ohio, on Sepetember 23, 1994, he and Detective Miraglia interviewed Caban; however, the detective further stated that he had no independent recollection of the interview and had to refer to his notes in order to testify. (Reillo Tr. 1397-98, 1400-02, 1405-06, 1414-16.) The detective testified that he made his notes as Caban spoke, and said that Caban indicated that three individuals, one an unknown black, drove in an old, beat-up, black van to the bus terminal. (Reillo Tr. 1404-06, 1408, 1410-11.) Detective Reillo further testified that according to his notes, on December 23, 1993, Caban also referred to an unknown black, and that to him, "unknown" could mean either that Caban knew the individual by sight but not by name, or that Caban had not known the individual. (Reillo Tr. 1411-12, 1415.)

Co-defendant Hector Chebere presented alibi evidence via himself (Chebere Tr. 1520-1585), and witness Helene DiMatteo. (DiMatteo Tr. 1432-91). They both asserted that Chebere lived in DiMatteo's home, in Schenectady, New York, from Spring 1993 to Spring 1994, and that he was in her home on June 9-10, 1993. DiMatteo remembered the dates because, although that had been a busy week, on June 8, Chebere told her that his birthday was June 9, and that night, she served dinner and a cake for him (DiMatteo Tr. 1435-36, 1441-44, 1452; Chebere Tr. 1523, 1534, 1552, 1561.) They both also contended that DiMatteo drove Chebere to New York, for the day, three to five times during that time period, and that she drove him to the Bronx on June 16, 1993, when his baby was born. (DiMatteo Tr. 1435-37, 1461-62, 1474; Chebere Tr. 1534-35.)

iii. The People's Rebuttal

The People rebutted Chebere's alibi defense through witness Rochelle Fralin, Damian Blanding's girlfriend. Each day during the approximately two weeks preceding Blanding was murdered, she saw Chebere in Anthony Roman's black van, on 180th Street and Southern Boulevard in the Bronx. (Fralin Tr. 1587-89, 1591.) On June 9, 1993, at about 8:00 p.m., she went to the C-Town store at 180th and Southern Boulevard, and saw Chebere sitting in the black van across the street from the store. (Fralin Tr. 1591-92, 1594-95.)

II. Procedural History

A. State Court Appeals

Petitioner was convicted on October 29, 1998, and sentenced on November 30, 1998. On direct appeal to New York State Supreme Court, Appellate Division, First Department, Petitioner challenged his conviction on three grounds: 1) that his conviction was based on insufficient evidence because the testimony of the accomplice, Jose Caban, was not corroborated by truly independent evidence tending to connect Petitioner with the crime; 2) that his conviction was against the weight of the evidence, and; 3) that Petitioner's federal and state constitutional rights were violated when the prosecutor deliberately elicited false testimony from witness James Venson, and then failed to correct what she knew to be false.

On October 18, 2001, the Appellate Division unanimously affirmed Petitioner's judgment of conviction, ruling that:

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Defendant's arguments are similar to arguments previously rejected by this Court on a codefendant's appeal (People v Simpson, 284 AD2d 238) and there is no reason to reach a different result here. Defendant's claim that the testimony of an accomplice was insufficiently corroborated is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that there was extensive corroborating evidence supplied by two non-accomplice witnesses (see People v Daniels, 37 NY2d 624, 629). Defendant's challenges to the corroborating evidence raise credibility issues that were properly for the jury to resolve.

Defendant's claim that the People deliberately elicited "false" testimony is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find it to be without merit. Defendant complains that at the instant trial a fellow inmate testified to a conversation with defendant in which defendant made admissions concerning the murder in question, whereas at defendant's prior trial for attempted murder and related crimes, the inmate testified about the same conversation, but testified only as to defendant's admissions concerning those crimes, omitting any mention of the murder.

At each of the two trials, all parties were careful to avoid eliciting uncharged crimes, so at each trial the inmate witness was only questioned about the pertinent portion of defendant's jailhouse admissions. This was known to defendant, and defendant was free to explore this at the instant trial. It had nothing to do with the People's obligations concerning "false" testimony (People v Smith, 248 AD2d 148; People v Fisher, 244 AD2d 191, lv denied 91 NY2d 891).

People v. Martinez, 287 A.D.2d 353 (N.Y. App. Div. 1st Dept. 2001). In a letter dated October 30, 2001, and supplemented by a letter dated November 21, 2001, Petitioner applied to the New York Court of Appeals for a certificate granting leave to appeal the Appellate Division's decision on each of the claims raised below. On December 29, 2001, the Court of Appeals denied Petitioner's leave application. See People v. Martinez, 97 N.Y.2d 685 (2001).

B. Petitioner's 440 Motion and His Petitions for a Writ of Habeas Corpus

By letter dated July 7, 1999, Petitioner's co-defendant at trial, Hector Chebere, made a FOIL request to Respondent, which included a request for any interview notes of Nick Quinones, one of the People's witnesses at trial, as well as requests for other documents pertaining to the prosecution's witnesses. (Third Response ¶4; Petitioner's Motion to Renew or Reargue his NYCPL § 440.10 motion ("Motion to Renew"), dated April 28, 2006, Ex. O [Decision of Justice Norma Ruiz, dated November 29, 2004] p. 2.)*fn8

In response, the People provided 481 pages of documents which referenced Quinones, including plea, sentence, and trial transcripts, and appellate briefs; the People withheld some interview notes of Quinones, stating that they were witness statements made in confidence. (Third Response ¶4.) Chebere was advised that he could appeal the withholding of these documents, which he did, and when his appeal was denied, he sought review in the Bronx Supreme Court, pursuant to NYCPLR Article 78. (Id.)

On November 21, 2000, after Petitioner was sentenced, but before he perfected his direct appeal, Petitioner submitted a FOIL request to the People. (Third Response ¶5; Third Response, Ex. 1 [FOIL Request].) Petitioner requested: copies of cooperation agreements between the Bronx County District Attorney's Office and witnesses James Venson, Nelson Camacho, and Quinones, police memo book entries regarding statements they may have made, notes and reports of any statements they may have made, records of their criminal histories, any additional cooperation agreements with the prosecutor's office, any records concerning identification procedures, and any documents evidencing that a reward was offered by the victim's family. (Third Response, Ex. 1.)

On August 9, 2001, the People provided Petitioner with 205 pages of documents pursuant to his FOIL request. (Third Response, Ex. 2 [FOIL disclosure].) Respondent produced a number of documents related to witnesses at Petitioner's trial, and as pertinent here, produced a copy of the cooperation agreement between Respondent and Quinones, a plea transcript in the matter of Respondent against Quinones, and a sentencing transcript in the matter of Respondent against Quinones. (Id.) Petitioner did not appeal the People's disclosure. On August 26, 2002, pursuant to Chebere's application under NYCPLR Article 78, Bronx Supreme Court Justice Ruiz conducted a "careful review of the records before it," and upheld the "District Attorney's choice to reveal 481 documents turned over ...


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