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Vanness v. Rock

June 29, 2009

ROBERT CURTIS VANNESS, PETITIONER,
v.
DAVID ROCK, RESPONDENT.



The opinion of the court was delivered by: Gary L. Sharpe United States District Judge

MEMORANDUM-DECISION AND ORDER

I. Background

According to the testimony adduced at trial, S.C. was born on August 22, 1991 and was 14 years old at the time of the trial. See Transcript of Trial of Robert Curtis VanNess (1/17/06) ("Trial Tr.") at pp. 299-300.*fn1 On November 30, 2004, she was living in Ballston Spa, New York, with her younger brother and sister, her mother Melissa T., and her mother's boyfriend, petitioner, pro se Robert Curtis VanNess. Trial Tr. at pp. 300-01. On that day, S.C. missed the bus she was to take to school so she returned home. Id. at p. 301.*fn2 After S.C. brought her younger siblings to their school bus, she returned home and started making breakfast and watching television. Id. at p. 302. Around that time, VanNess directed S.C. to bring him a glass. Id. at p. 303. He then poured beer in the glass and told S.C. to drink the beverage. Id. at pp. 303-04. S.C. complied because VanNess was yelling at her. Id. at p. 304. She then went into her room and refused to allow VanNess access to her bedroom. Id. The beer made S.C. feel sick, however, and, as a result, she vomited. Id. She then decided to take a bath, and, while she was in the tub, VanNess pulled her out of the bathtub and removed his pants. Id. at p. 305. He then threw her on her mother's bed and raped her. Id. at pp. 305-06. During that assault, S.C. kicked, screamed, tried to hit VanNess and bit him on his arm. Id. at p. 306. VanNess then informed S.C. that if she performed oral sex on him he would stop his sexual assault. Id. at p. 307. Although S.C. complied with his demand, VanNess thereafter raped S.C. a second time.

Id. Around that time, VanNess threatened to tie S.C. up if she did not stop screaming, and advised her that he might make use of knives that were located in the kitchen. Id. He also threatened to kill S.C. if she did not do as she was told. Id. at pp. 307-08. When VanNess tried to kiss S.C., she bit him, causing him to strike her on her face, which in turn caused her to fall off the bed. Id. at p. 308. He then picked S.C. up, threw her back on the bed and "continued to rape" S.C. and orally sodomize her. Id.

After the attack, S.C. went to the home of her neighbor, Kelly Fake. Id. at pp. 309-10, 445. At the time, Fake noticed that S.C. was in her pajamas, barefoot, her hair was unkempt and she seemed upset and scared. Id. at p. 446. When S.C. told Fake that she had been raped, Fake called S.C.'s mother, who in turn contacted the Saratoga County Sheriff's Department ("Sheriff's Department"). Id. at pp. 338-39. After the police arrested VanNess, Melissa returned home with her daughter. Id. at pp. 340-41. At that time, S.C. spoke with Saratoga County Deputy Sheriff Tim Brown, id. at pp. 463-64, while another officer secured beer bottles which S.C. stated VanNess had disposed of in a wooded area outside her home. Id. at pp. 464, 483. Soon thereafter, S.C. went to a local hospital to be examined. Id. at p. 392. Medical personnel examined her at the time and noticed bruising on S.C.'s upper torso, left upper arm, and the area around her shoulders. Id. at pp. 570-71. At S.C.'s request, however, she was not subjected to an internal examination with a speculum, id. at p. 602, and, as a result, no definitive conclusion could be reached as to whether she had been sexually assaulted.*fn3 Id. at p. 613.

Following his arrest, VanNess was brought to the Sheriff's Department for questioning. At that time, Investigator David R. Towne informed VanNess of his Miranda rights.*fn4 Trial Tr. at p. 359. VanNess waived those rights and thereafter admitted to the investigator that on the morning of November 30, 2004, he had been drinking beer with S.C., he had slapped her, he had sexual intercourse with her, and that she performed oral sex on him. Id. at pp. 374-375. He explained, however, that the sexual contact between the two was entirely consensual. Id. at p. 376.*fn5

Nicole Shear of the New York State Police Forensic Investigation Center ("N.Y. Forensic Center") tested the vaginal swab samples taken from S.C., as well as a cutting that had been taken from the crotch area of the underwear S.C. was wearing on the day she was attacked. Id. at pp. 502-04. The swabs and the victim's underwear both tested positive for the presence of seminal fluid. Id. at pp. 505-06. Nicole Zevotek, a forensic scientist with the N.Y. Forensic Center, id. at p. 526, performed deoxyribonucleic acid ("DNA") profiling analysis on the vaginal swabs, the underwear cutting, and a sample that had been taken of VanNess' blood. Id. at pp. 528-29. Zevotek ultimately concluded that the fluids contained on the swabs and underwear cutting matched VanNess' DNA profile, and that the likelihood of another male matching that same DNA profile was approximately 1 in 300 billion. Id. at pp. 545-46.

As a result of the foregoing, a Saratoga County grand jury returned a multi-count indictment against VanNess, charging him with Rape in the First Degree, contrary to New York Penal Law ("Penal Law") § 130.35(1); Criminal Sexual Act in the First Degree, in violation of Penal Law § 130.50(1); Rape in the Second Degree, contrary to Penal Law § 130.30(1); Criminal Sexual Act in the Second Degree, in violation of Penal Law § 130.45(1); Sexual Abuse in the First Degree, contrary to Penal Law § 130.65(1); Endangering the Welfare of a Child, in violation of Penal Law § 260.10(1); and Unlawfully Dealing with a Child, contrary to Penal Law § 260.20(2). See Indictment No. M-027-2005V ("Indictment").

On January 17, 2006, VanNess' jury trial on the foregoing charges commenced in Saratoga County Court with County Court Judge Jerry J. Scarano presiding. At the conclusion of that trial, the jury convicted VanNess of all charges. See Trial Tr. at pp. 750-54. On March 27, 2006, VanNess was sentenced by Judge Scarano to an aggregate term of thirty-six years in prison. See Transcript of Sentencing of Robert C. VanNess (3/27/06) at pp. 15-17.

VanNess' appellate attorney filed a brief on behalf of VanNess in the New York State Supreme Court, Appellate Division, Third Department. In that brief, counsel argued that: i) VanNess was entitled to dismissal of certain counts of the Indictment because such charges were duplicitous in light of the victim's testimony; ii) trial counsel rendered ineffective assistance; and iii) the County Court erred in permitting the Saratoga County District Attorney ("District Attorney") to bolster the victim's credibility with evidence of her prior consistent statements. See Appellate Brief on Appeal. VanNess thereafter filed a pro se supplemental brief. In that filing, VanNess alleged, inter alia, that Nurse D. Worth committed perjury at VanNess' trial, and that such nurse, together with the Sheriff's Department and District Attorney's Office, fabricated the forensic evidence used against VanNess at trial. See Dkt. No. 15, Exh. D. On May 9, 2007, the District Attorney filed a memorandum of law in opposition to VanNess' appeal with the Appellate Division. See Dkt. No. 15, Exh. C.

While that appeal was still pending, on May 21, 2007, VanNess filed a motion to vacate his judgment of conviction with the County Court pursuant to New York's Criminal Procedure Law ("CPL"), § 440.10. See Dkt. No. 15, Exh. I ("Initial CPL Motion"). In that submission, VanNess listed the following in support of his claim that his judgment of conviction should be vacated: "perjury; no evidence; prosecutorial misconduct; no DNA ... in record [and] no Huntley*fn6 hearing on medical things." See Initial CPL Motion at p. 1. In support of his claim challenging the forensic evidence introduced against him at trial, VanNess argued that the medical examination of S.C. revealed that she had not sustained any external or internal injuries, and that there was no evidence of any penetration. Id., "Statement of Facts" at p. 4. VanNess also referred to a document in which both the New York State Division of Criminal Justice Services ("DCJS") and the New York State Police indicated that the DNA testing it conducted in conjunction with the criminal investigation failed to disclose any match between VanNess and the relevant forensic evidence. Id. The District Attorney opposed that application, and in his Decision and Order dated August 1, 2007, Judge Scarano denied VanNess' motion without a hearing. See Dkt. No. 15, Exh. M. After that decision, VanNess submitted a letter to the court dated April 20, 2007, from John Hicks, the Director of the DCJS' Office of Forensic Services, in which Director Hicks declared that "no record of a specific request [had been] made for a selective comparison with [VanNess'] DNA profile nor a match of [his] profile with other DNA profiles in the [agency's DNA] Databank." See Dkt. No. 15, Exh. O ("April 20th Letter"). Judge Scarano thereafter directed the District Attorney to offer its interpretation of the April 20th Letter, and on August 24, 2007, the District Attorney advised the court that Director Hicks had informed the District Attorney that the April 20th Letter "was not accurate" and that DCJS was in possession of "a record of a match between [VanNess'] DNA profile and a forensic profile entered in the New York State Police Forensic Investigation Center." See Dkt. No. 15, Exh. Q.

That letter further indicated that "[t]he match was reported in a letter to the State Police dated July 21, 2005." Id.*fn7 In his Decision and Order dated September 7, 2007, Judge Scarano indicated that he had reconsidered his August 1, 2007 decision denying VanNess' Initial CPL Motion, and re-affirmed his denial of that application. See Dkt. No. 15, Exh. T. VanNess does not appear to have sought leave to appeal that decision from the Appellate Division.

On August 9, 2007, the Appellate Division unanimously affirmed VanNess' convictions and sentences. People v. VanNess, 43 A.D.3d 553 (3d Dept. 2007). VanNess sought leave to appeal that decision from the New York State Court of Appeals, however that request was denied by that court. People v. VanNess, 9 N.Y.3d 965 (2007).

On October 24, 2007, VanNess filed a second CPL § 440.10 motion with the County Court. See Dkt. No. 15, Exh. U. In that application, he claimed that his conviction should be vacated because of "prosecutorial misconduct, no evidence, perjuried [sic] testimony, new evidence, malicous [sic] prosecution, violation of civil rights and consitional [sic] rights." Id.

By Letter Decision and Order dated December 5, 2007, the County Court denied that motion pursuant to CPL § 440.10(3)(c) because VanNess had "raise[d] the same issues already decided by th[e] Court in its previous decisions" See Dkt. No. 15, Exh. V. On March 12, 2008, the Third Department denied VanNess' application for leave to appeal the County Court's order. See Dkt. No. 15, Exh. Y.

In his final state court challenge to the convictions referenced ante, VanNess filed a petition for a writ of habeas corpus in the New York State Supreme Court, Chemung County on September 24, 2007. See Dkt. No. 15, Exh. Z. In that submission, VanNess appeared to allege that he should be released from custody, and his criminal record expunged, because of misconduct committed by the District Attorney and New York State Police Crime Laboratory, and because medical personnel concluded that the victim did not sustain any bruising to her genital area. See Dkt. No. 15, Exh. Z. That application was denied by New York State Supreme Court Justice Elizabeth Garry in a Letter-Decision and Order dated October 24, 2007. See Dkt. No. 15, Exh. AA.

B. This Action

On March 17, 2008, VanNess filed a pro se petition seeking a writ of habeas corpus with this Court. See Dkt. No. 1 ("Petition"). In his pleading, VanNess contends that his conviction must be overturned because: i) his conviction was obtained by a "Grand or Petit Jury which was unconstitutionally selected and impaneled;" ii) the District Attorney improperly used evidence that was obtained pursuant to an unconstitutional search and seizure to convict VanNess; and iii) the District Attorney wrongfully claimed that VanNess' ...


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