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Cusamano v. Donelli

July 1, 2010


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge


Petitioner Anthony Cusamano seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court conviction for burglary and other related offenses. On December 19, 2007, Magistrate Judge Theodore H. Katz issued a Report & Recommendation ("R&R") recommending that Cusamano's petition be dismissed with prejudice. Cusamano timely filed objections. Upon review of the R&R and the objections, the Court adopts Magistrate Judge Katz's recommendations set forth in his thorough and complete report of 56 pages and denies Cusamano's petition.


I. Facts*fn1

On November 7, 2003, Cusamano was found guilty of third-degree burglary, third-degree robbery, fifth-degree criminal possession of stolen property, and possession of burglar's tools. Cusamano was alleged to have committed these crimes on July 15, 2003 at an Eddie Bauer store located at 1172 Third Avenue in Manhattan. Approximately 5-1/2 years earlier, in February 1998, Cusamano had visited the same store and was caught taking several items of merchandise. He was not prosecuted, however. Instead, he signed a voluntary trespass notice which provided that he would never return to the store. When he did so in July, 2003, and took other merchandise, he was arrested, prosecuted and convicted after a jury trial at which he appeared pro se. The chief witness against Cusamano was an Eddie Bauer employee, Fatah Bensalem, a loss prevention manager. Bensalem had Cusamano sign the voluntary trespass agreement in February, 1998 and he was also the chief witness to Cusamano's conduct in July 2003. On March 10, 2004, Cusamano was sentenced to concurrent indeterminate terms of three and one-half to seven years' imprisonment for the third-degree burglary and robbery convictions. Those sentences were to run concurrent to his determinate one-year prison terms for the fifth-degree criminal possession of stolen property and possession of burglar's tools misdemeanor convictions. Proceeding pro se, Cusamano appealed to the Appellate Division, First Department, which on March 9, 2005, unanimously affirmed his convictions. People v. Cusamano, 22 A.D.3d 427 (App. Div. 1st Dep't 2006). Cusamano sought leave to appeal to the New York Court of Appeals, but his application was denied on January 6, 2006. People v. Cusamano, 6 N.Y.3d 775 (2006).

Cusamano then filed his present petition for a writ of habeas corpus. Respondent John J. Donelli moved to dismiss Cusamano's petition and argued that it lacked merit.

II. Magistrate Judge Katz's R&R

Cusamano's habeas petition repeats the same eleven separate grounds that were the basis for his appeal. Cusamano asserts that: (1) his burglary prosecution did not commence within the applicable limitations period; (2) the pretrial judge should not have denied his motion to dismiss the felony complaint; (3) the felony complaint contained pre-indictment deficiencies; (4) the trial court failed to perform an adequate pro se inquiry; (5) the trial court impermissibly limited his ability to cross-examine the state's main witness against him; (6) the prosecution engaged in prosecutorial misconduct during the proceedings; (7) the prosecution's evidence constructively amended the indictment; (8) both the pretrial judge and the trial judge demonstrated bias against him; (9) he was denied his right to discovery of exculpatory evidence; (10) the conduct of his arraignment counsel amounted to ineffectiveness of counsel; and (11) the "multitudinous errors" of the prosecution and the courts violated his right to a fair trial. (See R&R at 2.) Magistrate Judge Katz found that all of Cusamano's claims were without merit. Cusamano then filed objections to the R&R on January 20, 2008.*fn2


I. Standard of Review for a Report and Recommendation

A district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). When a timely objection has been made to the magistrate's recommendations, the court is required to review the contested portions de novo. Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). The Court, however, "may adopt those portions of the R&R to which no objections have been made and are not facially erroneous." La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y. 2000).

II. Consideration of Cusamano's Objections

Cusamano raises thirteen objections to the R&R: (1) his burglary prosecution was untimely because it was not brought within the applicable limitations period (Objections to Report and Recommendation of U.S. Magistrate Judge Katz ("Objections") at 1); (2) his motions to dismiss his burglary and robbery charges should be granted (Objections at 3); (3) the felony complaint was defective (Objections at 4); (4) the trial court failed "to conduct the requisite pro se inquiry" (Objections at 5); (5) the trial court imposed "undue limitations" on his ability to cross-examine the witnesses against him (Objections at 7); (6) the prosecution engaged in misconduct that deprived him of a fair trial (Objections at 14); (7) the prosecutor constructively amended the indictment because the prosecutor introduced evidence at trial that differed from the evidence that was presented to the grand jury (Objections at 23); (8) the pre-trial and trial courts improperly denied his discovery requests (Objections at 26); (9) his arraignment attorney's failure to challenge the validity of the 1998 trespass agreement amounted to ineffective assistance of counsel (Objections at 28); (10) both the pretrial and trial judges' bias against him mandate reversal (Objections at 29--33); (11) the multitude of errors that the lower courts and the prosecution committed violated his right to fair proceedings (Objections at ...

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