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Brewster v. People

January 21, 2010


The opinion of the court was delivered by: Joseph F. Bianco, District Judge


Brewster claims his constitutional rights were violated because (1) the trial court Hewlett Brewster (hereinafter "petitioner" improperly instructed the jury regarding or "Brewster") petitions this court for a writ of circumstantial evidence; (2) he was coerced by habeas corpus, pursuant to 28 U.S.C. § 2254, the police into giving consent to blood and challenging his conviction in Suffolk County saliva samples; (3) the evidence was Court (the "trial court") on two counts of third insufficient to convict him; and (4) degree burglary.*fn1 schizophrenia and an "anti-social disorder" rendered him incapable of consenting to give blood and saliva samples.


2. The Marchon Eyewear Burglary and Investigation

The Court has adduced the following facts from the instant petition and underlying record. On July 13, 2002, an alarm company called Constantino Pontecorvo, a supervisor at

A. Factual History

Marchon Eyewear, an eye-wear distributor, and told him that a burglary had occurred at

1. The Kinemotive Corporation Burglary and Marchon's Melville, New York office. (Id. Investigation 226:11-227:8.) Pontecorvo went to the office and found that a window had been broken.

Kinemotive Corporation is a Farmingdale, (Id. 227:12-227:15.) He then proceeded New York company that manufactures parts for inside the office and discovered that a laptop commercial aircraft, missiles, and rockets. (Tr. computer was missing. (Id. 227:20-227:23; 171:9-171:12.) On the morning of October 7, 230:24-231:12.) Suffolk County Police, 2000, a Kinemotive vice president, Kenneth including Detective Patricia Priestly, Moll, arrived at the Company's office and responded to the scene. (Id. 255:16-255:20.) found two broken windows. (See id. 172:4- Priestly went inside the building and observed, 174:8.) Moll later determined that three among other things, broken glass and a blood-computers and one monitor were missing from like substance on top of a computer printer. the office. (Id. 175:6-175:18.) The police were (Id. 256:9-256:17.). Douglas Bose, an officer called. (Id. 176:15-176:19.) with the Suffolk County Police Crime Scene Unit, also responded and met with Detective Suffolk County detectives soon arrived and Priestly. (Id. 268:1-268:6.) Bose took a swab began an investigation. While examining the of the substance on top of the printer, sealed it scene, Detective John McLeer found blood-like in a bag, and forwarded it to the Suffolk stains on eight stones below the broken County Crime lab for testing. (Id. 269:11-windows. (Id. 177:6-177:12.) McLeer 269:18; 271:7-272:25.). Joseph Galdi, a photographed the stones and placed them in a scientist with the Suffolk County Crime Lab, paper bag. (Id. 201:11-202:1.) The stones tested the stain from the printer and confirmed were later sent to the Suffolk County Crime that it was human blood. (Id. 289:11-290:2.) Lab where it was confirmed that the substance Helen Lee Wyss, another scientist with the on two of the stones was human blood. (See id. lab, performed a DNA analysis on this blood, 210:14-211:9.) Suffolk County Police later and the results of the analysis were entered obtained a DNA profile of the blood stain from into the DNA computer database. (Id. 291:14-Fairfax Identity Labs, a private laboratory. (Id. 20; 311:1-312:4) 291:21-292:5; 292:14-292:23.) This DNA profile was then put into a DNA computer 3. Additional DNA Analyses database ("the DNA database"). (Id. 293:14-16.) About a month after the Marchon Eyewear Burglary, on August 11, 2002, Detective Thomas Keteltas of the Nassau County Police obtained a blood sample from petitioner. (Id. 281:16-282:8.)*fn2 This blood sample was the DNA on the buccal swab from petitioner, submitted to the Nassau County Medical the DNA from the Kinemotive scene, and the Examiner for DNA testing. (Id. 282:9-15.) It DNA from the Marchon Eyewear scene. (See can be inferred from the record that this DNA id. 313:25-314:9.) She concluded that analysis was also entered into the DNA petitioner's DNA matched the DNA from the database. (See id. 293:22-294:16.) Kinemotive and Marchon Eyewear scenes.

(Id. 321:5-10.)

In February 2003, Mr. Galdi, the crime lab scientist, became aware that petitioner's DNA B. Procedural History matched the DNA recovered from the Kinemotive and Marchon Eyewear scenes. 1. State Court Trial (Id.) Subsequently, in December 2003, Dennis Harrington, a Detective Investigator with the On April 14, 2003, petitioner was indicted Suffolk County District Attorney's Office, took on two counts of Burglary in the Third Degree a swab from the inside of petitioner's mouth to pursuant to New York Penal Law § 140.20. collect tissue for an analysis of petitioner's Trial began on November 22, 2004. (See DNA. (See id. 302:13-303:21.) The procedure generally Tr:1:1-150:6.) The prosecution that Investigator Harrington performed is called presented evidence from Kenneth Moll a "buccal swab." (See id.) The swab was sent regarding what he saw when he arrived at to the Suffolk County crime lab for analysis. Kinemotive Corporation on October 7, 2000 (Id. 303:22-303-25.) and from Detective McLeer and a forensic scientist from the Suffolk County Crime Lab At the crime lab, Ms. Wyss, who had regarding the evidence recovered from the previously performed a DNA analysis on the scene. Constantino Pontecorvo testified blood recovered from Marchon Eyewear, regarding what he saw at Marchon Eyewear performed a DNA analysis on the tissue taken on July 13, 2002, and another Marchon from petitioner via the buccal swab. (Id. employee testified about the missing laptop. 312:18-313:12.) Additionally, Ms. Wyss also Detective Priestly, Officer Bose, and Mr. performed her own DNA analysis of the blood Galdi testified about the physical evidence recovered from the Kinemotive burglary. (Id. recovered from Marchon. Additionally, 312:5-17.) As noted above, an outside lab had Detective Keteltas and Investigator Harrington previously performed a DNA analysis on a testified regarding the samples taken from portion of this blood. Ms. Wyss then compared petitioner that were used in the DNA analyses.

Mr. Galdi also testified about initially learning whereabouts on the dates that the burglaries because of the "overwhelming presence of law occurred, nor could he explain how his blood enforcement officials from [Nassau and ended up at both crime scenes. (Id. 335:7- Suffolk] counties" and because he was being 337:15.) interrogated at the time; (3) the evidence at trial did not establish his guilt beyond a After hearing the evidence, the jury found reasonable doubt, and the trial court's verdict the petitioner guilty of both third degree was against the "weight of the evidence"; and burglary counts on December 2, 2004. He was (4) that petitioner was incapable of giving his sentenced as a predicate felony offender to consent to the previously mentioned blood and consecutive terms of incarceration from three saliva samples because he suffers from to six years on the first count and from three schizophrenia and an "anti-social disorder." and one-half to seven years on the second The Suffolk County District Attorney count. submitted an opposition on December 31, 2008. Petitioner did not submit a formal reply 2. Direct Appeal but did submit a letter in October 2009 asking about the status of his case and a letter on


Petitioner appealed his conviction to the December 21, 2009 citing a recent Supreme Appellate Division, Second Department. He Court case. See infra note 3. The Court has argued that: (1) given that only circumstantial fully considered all the submissions of the evidence was introduced against him at trial, parties. the trial court gave the jury an improper instruction; (2) the evidence at trial was insufficient to convict him, and the verdict was against the weight of the evidence; and (3) the To determine whether petitioner is entitled imposed sentence was harsh and excessive. In to a writ of habeas corpus, a federal court a decision and order dated February 13, 2008, must apply the standard of review set forth in the Second Department affirmed petitioner's 28 U.S.C. ยง 2254, as amended by the conviction. See People v. Brewster, 849 Antiterrorism and Effective Death Penalty Act N.Y.S.2d 902 (App. Div. 2008). On May 8, ("AEDPA"), which ...

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