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Brink v. Artus

July 6, 2010

RICHARD C. BRINK, PETITIONER,
v.
DALE ARTUS, RESPONDENT.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Pro se Petitioner Richard C. Brink ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered April 20, 2004, in New York State, County Court, Livingston County, convicting him, after a jury trial, of Robbery in the First Degree (N.Y. Penal Law ("Penal Law") § 160.15[2]), Robbery in the Second Degree (Penal Law § 160.10[1]), Burglary in the First Degree (Penal Law § 140.30[1]), Unlawful Imprisonment in the Second Degree (Penal Law § 135.05), Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[2]), and Petit Larceny (Penal Law § 155.25).

For the reasons stated below, habeas relief is denied and the petition is dismissed.

II. Factual Background and Procedural History

A. Introduction

The charges arise out of an incident that occurred on December 11, 2002, in Avon, New York, wherein Petitioner, armed with a weapon, invaded the home of Susan O'Grady ("O'Grady" or "the victim") and took money and valuables.

B. Indictment & Pre-Trial

Petitioner was charged by a Livingston County Grand Jury with robbery in the first degree, robbery in the second degree, burglary in the first degree, unlawful imprisonment in the second degree, criminal possession of a weapon in the second degree, and petit larceny.

Prior to trial, a Mapp*fn1 hearing was conducted before the Honorable Ronald A. Cicoria. Hearing Minutes [H.M.] 3-27. In a written decision, the trial court denied Petitioner's motion to suppress the evidence seized by the police from Petitioner's vehicle. See Decision and Order of the Livingston County Court (Hon. Ronald A. Cicoria), Ind. No. 2003-027, dated 11/18/03.

C. Trial

1. The People's Case

On December 11, 2002, O'Grady and her dog were alone in her home located on Sutton Road in Avon, New York. Because O'Grady was scheduled to work the night shift at her nursing job, she went to bed at around 3:00 p.m. that day. Before going to bed, she closed the shades in her bedroom and placed her cordless phone in the living room underneath a pillow so that it would not ring and wake her up. Trial Transcript [T.T.] 247-249.

Earlier that day, at around 12:30 p.m., 26-year-old Tina Green ("Green") went with her friend, 22-year-old Helen Irland ("Irland") to Petitioner's house. Petitioner asked Irland if she was interested in making some "fast cash" by robbing someone's home. Petitioner, Irland and Green then went into Petitioner's garage where he sawed off the barrel of a shotgun. Petitioner and Irland then tested the shotgun. T.T. 347-396.

At approximately 5:30 p.m. that same day, Petitioner, Irland and Green left Petitioner's house with the intent of finding a home to break into to collect valuables or money. T.T. 350, 398. The three individuals stopped at a shopping plaza where Green bought black gloves and Petitioner bought a license plate cover. T.T. 402-404. They then headed towards Avon, New York. Irland drove Petitioner's white Lincoln Navigator and eventually ended up on Sutton Road. T.T. 351-352, 398-399. Petitioner had with him duct tape, screwdrivers, and the sawed-off shotgun. T.T. 399. Petitioner observed O'Grady's home, and noted that it was a "nice house" and looked like no one was home. Petitioner and Green walked, arms linked, towards O'Grady's house. T.T. 353-354, 405-406.

Michelle Vanvoukenberg ("Vanvoukenberg"), O'Grady's neighbor, observed two people who matched the description of Petitioner and Green walking on Sutton Road at approximately 6:00 p.m. on December 11, 2002. T.T. 287-290.

In the back of O'Grady's home, Petitioner opened a window with a screwdriver, and entered her home. Once inside, Petitioner instructed Green to look for a phone. As Petitioner and Green walked towards the bedroom, they discovered that someone was home. T.T. 357-358.

O'Grady, after being awakened by her dog's barks and growls, heard Petitioner yell, "this is a home invasion" and "I am here to get your valuables." O'Grady began to scream when Petitioner approached. T.T. 250-252. She indicated to Petitioner that she had no valuables, but Petitioner persisted and asked if she had money. T.T. 359. O'Grady went to her purse, handed Petitioner $100 or $150, and Petitioner grabbed a loose $10 bill. O'Grady could not see Petitioner's face because the house was dark, but she noticed that he was a large man. T.T. 253-254. Petitioner then told O'Grady to get the telephone and give it to Green, which O'Grady did. Petitioner then instructed O'Grady to get back in her bedroom. There, Petitioner went through O'Grady's jewelry box and took various items. T.T. 261-262, 360. Petitioner then duct-taped the doorknob of the bedroom door to another doorknob so that O'Grady was unable to leave her bedroom. Once outside O'Grady's home, Green used Petitioner's cell phone to call Irland to come and pick them up, which she did, and the three drove away. T.T. 360, 410.

Shortly thereafter, O'Grady freed herself from the bedroom, found the telephone, and called the police. T.T. 264, 285.

On December 12, 2002, at approximately 5:00 p.m., Petitioner gave 17-year-old Christopher Bray ("Bray") the sawed-off shotgun that was used in the invasion of O'Grady's home the preceding day. Bray and Petitioner had recently had a falling out, and Bray later used the same gun to shoot the rear window of Petitioner's Lincoln Navigator. The police were alerted and subsequently confiscated the gun. T.T. 301-308.

On December 21, 2002, a search warrant was executed on Petitioner's Lincoln Navigator. Among other things, the police recovered a gold-colored metal heart-shaped earring belonging to O'Grady and a roll of duct tape. T.T. 278, 436.

At the close of the People's case, the trial court issued a Sandoval*fn2 ruling from the bench, finding that Petitioner could be cross-examined on various prior convictions, including a rape conviction that was pending on appeal, if he chose to testify at trial. T.T. 11, 452-462.

2. The Defense's Case

John Rouse ("Rouse") testified that in late December of 2002, he was in Petitioner's Lincoln Navigator with Green and Irland and Green told Rouse that she was a "gangster" and that she would tie people up and snatch their jewelry. Irland then told Rouse not to touch a bag that was in the car, and stated, "you don't want to know what's in there." T.T. 479-480.

Lori Brink, Petitioner's ex-wife, testified that Petitioner often permitted approximately six different people, including Irland, to drive his Lincoln Navigator and that he normally kept his cell phone in the console of the vehicle. She also testified that she worked with Petitioner at a car dealership and that he arrived at work on December 11, 2002 at approximately 5:00 p.m. and left at approximately 7:00 p.m. She testified that she called Petitioner on December 11, 2002 at approximately 8:00 p.m. and that Green answered Petitioner's cell phone. She also testified that she owned a pair of earrings similar to the one found in Petitioner's vehicle. Finally, she testified that she remained friends with Petitioner although they had been divorced for approximately thirteen years. T.T. 483-493.

3. The Prosecution's Rebuttal

The prosecutor showed Irland a video surveillance tape from the East Avon Sugar Creek Store, and Irland identified herself and Petitioner in that video. She noted that the time was 4:15 p.m. and that Petitioner was purchasing batteries. In another surveillance video taken from the Rush Sugar Creek Store at approximately 6:45 p.m., Irland identified herself and indicated that Petitioner and Green were outside in the car. T.T. 530-533.

Officer Michael Whitthuhn ("Officer Whitthuhn") of the Monroe County Sheriff's Office, testified that he monitored phone calls between Petitioner and Lori Brink from jail. In those conversations, Petitioner directed Lori Brink to go to his house and take CDs, DVDs, clothing and his dogs out of his house. T.T. 540-550.

D. Verdict and Sentence

On February 5, 2004, Petitioner was found guilty as charged. T.T. 633-634.

On April 20, 2004, the trial court sentenced Petitioner to concurrent, determinate terms of twenty-five years imprisonment for the first degree burglary and robbery counts, concurrent, determinate terms of fifteen years imprisonment for the second degree robbery and criminal possession of a weapon counts, and one year imprisonment for the unlawful imprisonment and petit larceny, plus five years post-release supervision. Sentencing Minutes [S.M.] 11.

E. Direct Appeal

Petitioner appealed his judgment of conviction, which was unanimously affirmed by the Appellate Division, Fourth Department on July 7, 2006. People v. Brink, 31 A.D.3d 1139 (4th Dept. 2006); lv. denied, 7.N.Y.3d 865 (2006).

F. Collateral Motions

On December 23, 2005, Petitioner filed a pro se motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10, which was denied by the county court on state procedural grounds. See Decision and Order of the Livingston County Court (Hon. Joan S. Kohout), Ind. No. 2003-027, dated 04/07/06 (Resp't Ex. M). Petitioner appealed the denial of his motion, which was denied by the Appellate Division, Fourth Department on November 17, 2006. See Order of the Appellate Division, Fourth Department (Hon. Robert G. Hurlbutt), Ind. No. 2003-027, dated 11/17/06 (Resp't Ex. P).

On January 31, 2007, Petitioner filed a pro se application for a writ of error coram nobis with the Appellate Division, Fourth Department, which was summarily denied on April 20, 2007. Brink, 39 A.D.3d 1285 (4th Dept. 2007). On June 4, 2007, Petitioner appealed the denial, which was ...


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