The opinion of the court was delivered by: Korman, J.
David Martinez was convicted, after a jury trial, of three counts of burglary in the second degree (New York Penal Law (hereinafter "Penal Law") § 140.25(2)), one count of criminal possession of a weapon in the third degree (Penal Law § 265.02(1)), two counts of criminal possession of stolen property in the fourth degree (Penal Law § 165.45(2)), and six counts of criminal possession of stolen property in the fifth degree (Penal Law § 165.40). Petitioner was sentenced to fourteen years in prison. The conviction was affirmed by the Appellate Division. People v. Martinez, 794 N.Y.S.2d 397 (2d Dep't. 2005), lv. to appeal denied, 4 N.Y.3d 888 (2005). This petition for a writ of habeas corpus, which was reassigned to me on March 10, 2010, followed.
In early 2000, the New York City Police Department ("NYPD") was investigating a string of neighborhood burglaries in Queens, New York. On January 25, 2000, Police Officer Daniel Schindlar was patrolling the Briarwood section of Queens, when he received a call to respond to a robbery at 84-10 Main Street, the home of Eduardo Quiroa and Herberth Arce. (H: 8-9; T: 1093-94.) When Mr. Arce returned from work, he found that his living room window lock had been broken. His apartment was in shambles as dresser drawers were opened, his belongings were strewn on the floor, and he was missing several pieces of jewelry. (T: 1096-97.) When Officer Schindlar arrived at the scene, he made the same general observations. (H: 9; T: 487.) He then looked outside the window and found footprints in the snow. Officer Schindlar followed the footprints to another apartment building where he subsequently found another window which was also pushed in. (H: 9-11; T: 488-91.) This apartment was occupied by Dora Chaimov. (T: 491.) At trial, Ms. Chaimov testified that several pieces of jewelry were stolen and subsequently recovered by the NYPD. (T: 928-30.) When Officer Schindlar looked inside the window, he saw a man in dark clothes running toward the doorway leading out of the apartment. (H: 11; T: 493-94.)
At the same time and in the nearby vicinity, Detective Michael Gilmartin was on patrol. He heard Officer Schindlar's broadcasted description of the suspect and witnessed petitioner walking near the corner of 141st and Main Streets. (H:12; T:958-59.) Detective Gilmartin noticed that Officer Schindlar's description of the man he observed fleeing the apartment matched petitioner's characteristics. Petitioner and the described suspect wore the same colored clothes and were of similar height and physical stature. (H: 13; T: 958.) When Detective Gilmartin began to approach petitioner by car, petitioner immediately turned and walked in the opposite direction (H: 117-119; T: 959-60.) Detective Gilmartin then proceeded to ask petitioner where he was coming from, but he remained silent. (T: 966.) Gilmartin then got out of the car and noticed a screwdriver stuck in the snow by petitioner's feet. When asked, petitioner admitted that the screwdriver was his. (H: 119-120, 128-130; T: 966-67.) Detective Gilmartin then asked petitioner if he had any identification, to which petitioner responded by handing over a wallet. (H: 15; T: 967.) The wallet contained several credit cards in the names of different people and an alien identification card with the name "David Martinez." (H: 15-16, 29, 120, 128; T: 506.)
Subsequently, Officer Schindlar joined Detective Gilmartin at the corner of 141st and Main Streets after he heard a radio broadcast that Gilmartin had stopped petitioner. Officer Schindlar asked petitioner where he was coming from. Visibly nervous, petitioner said he was coming from 168th Street, but motioned in the wrong direction. (H: 15.) Schindlar then frisked petitioner and found a flashlight, rubber glove, approximately 80 pieces of jewelry, cash, a.45 caliber bullet, a hotel key, a beeper, and a cell phone. (H: 16-17, 19-20, 31-32, 89; T: 506-08.) Petitioner was placed in a police car and driven to the 107th precinct.
At the precinct, petitioner was informed that he was under arrest for burglary of the apartment buildings. For purposes of vouchering the recovered property, Schindlar tried to ascertain what property belonged to petitioner. Petitioner stated that the cell phone, beeper, and wallet were his. (H: 20.) Subsequently, Detective Edward Wong read petitioner his Miranda rights. (H: 134; T: 679, 687-90.) It is NYPD practice to use a pre-printed Miranda form, so that the officer marks "yes" or "no" after each particular warning is read to the defendant. The defendant then signs and dates the end of the form indicating that he has understood his rights. Detective Wong testified that this was the procedure used when he read petitioner his rights. (T: 680-81.) Although the prosecution could not produce the exact sheet petitioner signed at trial, Detective Wong testified that petitioner had signed such a form. (H: 139, 146-148, 171-174; T: 690.)
Detective Wong then began to question petitioner. The questions focused on the circumstances of the burglaries that lead to his arrest as well as a second cell phone that was found in the burglarized apartment of another victim named Yvette Bermudez. (H: 139; T: 690-91.) Like Mr. Arce and Ms. Chaimov, Ms. Bermudez also found that her apartment was ransacked. She told the NYPD that her jewelry and a watch were stolen. (T: 945-46.) She also gave Detective Wong a cell phone that she found in her apartment. (T: 947-48.) When asked if that cell phone also belonged to him, petitioner admitted that it was, although he said that he loaned the phone to a friend named Ismael Lopes. (H: 139-140; T: 691.) Petitioner also denied taking part in any of the burglaries that recently occurred in Briarwood.
Detective Wong also investigated the hotel key recovered during the frisk. He ascertained that it came from the Jets Motel on Queens Boulevard. Petitioner was renting room 219 under his own name on a daily basis. (H: 140-141; T: 692.) The hotel clerk informed Detective Wong that the rental agreement was set to expire the following morning. (H: 141-142; T: 692.) Wong placed an officer outside the room (H: 171; T: 691-92) and returned the next morning to find a gun, pieces of jewelry, and a cell phone box (H: 142-144; T: 694-96). All of these items were seized by the NYPD.
The trial judge denied petitioner's motion to suppress the above mentioned physical evidence. In addition, all of petitioner's statements were held admissible except for his answer and gesture in response to Officer Schindlar's question as to which direction he was coming from and his response at the precinct as to his ownership of the cell phone, wallet, and beeper. The judge found that both statements were made while petitioner was being interrogated in custody, and therefore, required the administration of Miranda warnings.
At trial, Arce, Bermudez, and Chiamov all testified that they their homes were ransacked and that cash, jewelry, and other valuable items were taken. Other victims who lived in the neighborhood also testified about finding their homes burglarized. However, petitioner's three burglary convictions were based on the burglaries of Arce, Bermudez, and Chiamov's homes. The victims also testified that they were able to identify their missing jewelry, credit cards, clothes, and other stolen items that were seized from petitioner at the police precinct. (T: 866-68, 929-35, 1014-17, 1030-31, 1055-61, 1084-86, 1098-102).
Petitioner seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 alleging that (1) the trial court failed to suppress property that the police recovered without probable cause to search him; (2) the trial court failed to suppress statements made by him to the police after he was questioned without being advised of his Miranda rights; (3) the prosecution failed to give proper notice of the grand jury proceeding thereby depriving him of his right to appear as a witness on his own ...