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Desmarat v. Artus

September 3, 2009

JEAN MARC DESMARAT, PETITIONER,
v.
DALE ARTUS, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: John Gleeson, United States District Judge

MEMORANDUM AND ORDER

Jean Marc Desmarat, a prisoner incarcerated in the Clinton Correctional Facility pursuant to a judgment of the New York Supreme Court, Kings County, petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Desmarat challenges his conviction following a jury trial of murder in the second degree. Appearing pro se, Desmarat seeks habeas relief on the grounds discussed below. Oral argument was held on July 10, 2009, at which Desmarat appeared by videoconference from the facility in which he is serving his sentence. For the reasons set forth below, the petition is denied.

BACKGROUND

A. The Offense Conduct

The state's evidence at trial established that on the morning of June 27, 2002, in a motel room at the Windjammer Motor Inn, at 3206 Emmons Avenue in Brooklyn, Desmarat struck Frantz St. Lot's face and body, slashed his face and leg with a sharp object, and strangled him with his bare hands. St. Lot died as a result of being strangled. At approximately 5:30 a.m., St. Lot's body was found in an alley near the motel with his hands and feet bound with torn bed linens, a black garbage bag over his head, and a black garbage bag over his legs. Desmarat was arrested on July 1, 2002, after he surrendered to the police with his attorney.

B. The Procedural History

1. The Evidence at Trial

On June 26, 2002, at approximately 11:00 p.m., Marie Yveline St. Lot ("Marie") received a phone call for her brother, Frantz St. Lot ("St. Lot") from Marvin Brown, whom she did not know, at her home in Brooklyn. St. Lot spoke briefly with Brown and then left to meet him at Brown's house. Desmarat, whom Brown knew as "Jean," had asked Brown to call St. Lot and ask him to come over. St. Lot arrived at Brown's house and left with Desmarat in a gold-colored car driven by Desmarat.

The same evening, Imnier Pasquier and Aiyub Patel were working the night shift at the Windjammer Motor Inn. At approximately 1:00 a.m. on June 27, 2002, Pasquier, who was fluent in Creole, heard someone inside room 210 screaming in Creole, "Please Daddy, don't kill me. Don't kill me. Don't kill me." T. 365, 384, 398-400. Pasquier knew Desmarat as a frequent guest of the motel and knew that he was staying in room 210 that evening. Frightened, Pasquier ran to Shabehram Irani, who was working the motel front desk and told him what he overheard, urging him to listen for himself. When Irani stood outside the door to room 210 he heard arguing but could not understand Creole. Irani also knew Desmarat as a frequent guest and knew that Desmarat had rented room 210 that evening.

At about 1:30 a.m., Desmarat called Pasquier and asked him for plastic bags, towels, and cleaning supplies, which Pasquier gave him. Patel supplied Desmarat with plastic bags. At approximately 2:00 a.m., Desmarat called Pasquier again and told him that he wanted to tell him something that he was "not supposed to tell." T. 370.

Desmarat, "edgy" and "sweating," told Pasquier that he had choked someone to death. T. 370-71. Desmarat claimed that the victim owed him money and showed Pasquier the body. Pasquier saw the torso of a dark-skinned man on the floor of Desmarat's room but was unable to see the victim's face because it was covered by a brown blanket. Desmarat told Pasquier that his life was in his hands, which Pasquier interpreted as a warning to keep quiet about the murder. Pasquier, who was frightened and in shock, told Desmarat that he did not want to get involved. Pasquier knew that Desmarat drove a gold Mitsubishi, which Patel helped Desmarat jump start later that night.

On June 27, 2002, at approximately 5:45 a.m., Ceciele Bryce arrived at work at the Palm Beach Adult Nursing Home, located at 2900 Bragg Street, across the street from the Windjammer Motor Inn. She saw a body on the ground behind the motel and called 911.

Police Officer Carolann Liguori was on routine patrol duty with her partner, Officer Dave Mason, when they received a call to respond to 2900 Bragg Street. When they arrived at the nursing home, they found the body of a black male with his head in a plastic trash bag. His arms and legs were hogtied. He had marks on his back and torn pieces of money on top of him.

The officers secured the crime scene and Liguori remained on the scene until 10:30 a.m. Among the other officers who arrived at the scene was Detective Peter McMahon. McMahon observed drag marks and blood on the ground leading from the victim's body to room 210 on the second floor of the Windjammer Motor Inn. Detective McMahon was assisted by Detective Kluberdanz, who conducted a canvass of the rooms on the second floor of the motel and gained entry to room 210. McMahon observed ripped dollar bills on the floor inside the room and outside of the window. Detectives Daniel Austin and Wayne Quashie documented the crime scene through photographs and sketches and recovered physical evidence, such as blood around the victim's body and torn dollar bills. They recovered blood from the path to room 210, a ripped dollar bill from the first floor hallway, and inside room 210, more torn and bloody dollar bills, as well as blood on the walls and furniture, fingerprints, laundry detergent, ripped bed sheets and newspapers. McMahon learned during the investigation that Desmarat had rented room 210 the night before.

A match could not be made from fingerprints recovered from the car that was parked near the victim's body. However, a fingerprint from the wine chiller in Desmarat's motel room matched his left thumb print. The victim was ultimately identified as Frantz St. Lot. It was determined that he died due to strangulation between midnight and 5:00 a.m. on June 27, 2002. The medical examiner noted that St. Lot had abrasions and contusions on his face and body and lacerations on his face and leg inflicted by a sharp object prior to death. St. Lot had consumed alcohol and cocaine before his death.

On July 1, 2002, Desmarat surrendered with his attorney at the 61st Precinct. Later that day, Irani identified Desmarat in a lineup as the individual who rented room 210 at the Windjammer the night of June 26, 2002. Pasquier separately identified Desmarat from the lineup as the person who had told him that he had choked a man to death in his room on June 27, 2002.

Marie St. Lot identified her brother's body on July 12, 2002. Marie knew Desmarat because in 2000 her brother asked her to bail Desmarat out of jail in Boston, Massachusetts. At that time, Desmarat had accused St. Lot of kidnapping him. However, the kidnapping case against St. Lot was ultimately dismissed.

2. The Verdict, Sentence and Post-Verdict Motion

On September 19, 2003, Desmarat was convicted of intentional murder in the second degree.

By pro se papers dated October 22, 2003, Desmarat moved, in the Supreme Court, Kings County, to set aside the verdict pursuant to N.Y. Crim. Proc. Law § 330.30. Desmarat claimed, inter alia, that (1) the prosecutor had violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), and People v. Rosario, 173 N.E.2d 881, 213 N.Y.S.2d 448 (1961), by allegedly failing to turn over the criminal record of the deceased victim and statements of police officer witnesses who did not testify at trial; (2) the prosecutor and the police failed to test the decedent's blood and fingerprints allegedly found near the decedent's body; and (3) the trial court committed reversible error by upholding the legality of the search of Desmarat's motel room and the seizure of evidence therefrom.

The trial court orally denied Desmarat's motion to set aside the verdict on November 6, 2003 and sentenced Desmarat to a prison term of 25 years to life.

3. The Appeal and Collateral Proceedings

a. The § 440 Motion

By pro se papers dated June 18, 2004, Desmarat moved in the Supreme Court, Kings County, to vacate his judgment of conviction pursuant to N.Y. Crim. Proc. Law § 440.10, asserting the same claims he had raised in his post-verdict motion in the trial court as well as claims that (1) the prosecutor improperly elicited hearsay testimony from Detective McMahon at trial; (2) the prosecutor improperly prevented the defense from cross-examining Detective Kluberdanz by failing to call him as a witness at trial; and (3) Desmarat's trial counsel was ineffective for, inter alia, failing to object to the hearsay elicited from Detective McMahon, failing to obtain the deceased victim's criminal record and 2000 Massachusetts kidnapping files, and failing to disclose to the court Desmarat's mental health record and to move for an examination pursuant to N.Y. Crim. Proc. Law § 730.

Desmarat's § 440 motion was summarily denied in a written decision and order dated April 1, 2005. The Supreme Court, Kings County, held that Desmarat's claims were either procedurally barred or meritless.

By pro se papers dated July 11, 2006, Desmarat moved, in the Supreme Court, Kings County, to renew and reargue the motion. In that motion, Desmarat argued for the first time that his trial counsel was ineffective for failing to investigate and present a defense of justification. On January 5, 2007, the Supreme Court, Kings County, denied Desmarat's motion to renew and reargue. On April 11, 2007, the Appellate Division denied Desmarat's motion for leave to appeal the January 5, 2007 decision. By certificate dated May 29, 2007, the New York Court of Appeals denied Desmarat's application for leave to appeal from the Appellate Division's April 11, 2007 decision and order.

b. The Direct Appeal

In November 2005, Desmarat's assigned appellate counsel filed a brief in the Appellate Division, claiming that the People had failed to prove that an emergency justified the warrantless entry and search of Desmarat's motel room and that the trial court's refusal to suppress the evidence recovered from Desmarat's hotel room was not harmless error.

By pro se papers dated November 9, 2005, Desmarat moved for permission to file a pro se supplemental brief. Desmarat also moved pro se on several occasions for an enlargement of the record to include St. Lot's out-of-state criminal record and for an enlargement of time in which to file his pro se supplemental brief. The Appellate Division denied the requests to enlarge the record, but granted the requests for an extension of time in which to file his pro se supplemental brief. The last extension was granted by decision and order dated June 20, 2006 and required Desmarat to file his pro se supplemental brief by August 23, 2006. Moving pro se in papers dated August 23, 2006, Desmarat again requested an enlargement of time to file his pro se supplemental brief and to have his assigned appellate counsel relieved and new counsel assigned. On October 24, 2006, the Appellate Division denied his motion and recalled and vacated its January 4, 2006 decision and order granting Desmarat permission to file a pro se supplemental brief. Desmarat's pro se motion to reargue was denied on January 19, 2007.

On March 27, 2007, the Appellate Division affirmed Desmarat's judgment of conviction. People v. Desmarat, 38 A.D.3d 913 (2d Dep't 2007). It held that the trial court properly denied Desmarat's motion to suppress the physical evidence. Id. at 916. It found that, "under the circumstances, the police were presented with an emergency situation" that permitted their warrantless entry and search of Desmarat's room and held that "the crime scene unit's subsequent recovery of evidence from the motel room did not exceed the scope and duration of the emergency." Id. at 915.

By certificate dated June 26, 2007, Desmarat's application for leave to appeal to the New York Court of Appeals was denied. People v. ...


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