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Micolo v. State

August 18, 2010

MARCUS MICOLO, PETITIONER,
v.
STATE OF NEW YORK RESPONDENT.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM & ORDER

Pending before the Court is Marcus A. Micolo's Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth herein, the Petition is DENIED.

BACKGROUND

I. Robbery, Investigation, and Arrest

On November 6, 2001, Petitioner used a slim jim and screw driver to steal a car from a shopping-center parking lot. Petitioner then drove the car to the Green Point Savings Bank in Rocky Point, Long Island, and proceeded inside. There, Petitioner leapt over the counter, ordered two tellers to empty their cash drawers, and threatened to kill them. Witnesses testified that Petitioner put his hand in the front pocket of his sweatshirt, thus indicating that he was armed. After placing the money in a bag, Petitioner leapt back over the counter, exited the bank, and fled in the stolen car. The robbery was over in roughly one minute.

Four cameras captured the crime. Two video cameras in the ATM vestibule (the "Vestibule Cameras") filmed Petitioner entering and exiting the bank (the "Vestibule Footage"). In addition, two 35 m.m. cameras in the bank's interior ("Interior Camera One" and "Interior Camera Two", or collectively "Interior Cameras") recorded Petitioner as he fled from behind the teller counter. Interior Camera One, positioned above the front door and looking backward into the bank, showed the teller counter, part of the area behind the counter, and the line area in front of it. This camera recorded images (the "Interior Footage") of Petitioner leaping back over the counter and fleeing through the front door. Interior Camera Two was positioned in the rear of the bank and showed roughly the same area as Interior Camera One, but from the opposite angle. Interior Camera Two also filmed the robbery (the "Lost Footage"), but the film was destroyed before it was developed.*fn1 What is certain is that, unlike the Vestibule Cameras, the Interior Cameras were not constantly recording; rather, they only began recording after a bank employee pressed the silent alarm. So, exactly what Petitioner did while behind the counter was never recorded by any camera.

When Suffolk County police arrived at the bank, they took custody of the Vestibule Footage. The film from the Interior Cameras, however, needed developing by the bank's security company. A security company employee collected the Interior Footage and the Lost Footage from both cameras, but later only returned the Interior Footage, from camera one, to the bank. (See Tr. Vol. 2, 19-30.)

On November 8, 2001, police located Petitioner's getaway car less than two miles from the bank. Inside, they found cash stained with dye from exploding packs, later determined to be the bank's. The same day, Petitioner's acquaintance, Michael Martino, made a statement to the police that Petitioner told him about robbing the bank. Police also learned of a federal warrant for Petitioner for violating his probation, which was imposed as a result of a prior bank robbery in Florida.

Having been informed by Martino that Petitioner would be at Martino's residence on the night of November 11, 2001, the police staked officers to wait there in an unmarked car. When Petitioner arrived, they detained him. During a search, the officers recovered a slim jim stained with dye and a screwdriver. Dispatchers had informed the officers that Petitioner was wanted for the robbery, as well as for the federal probation violation. Before taking Petitioner to the police station, however, the officers only told Petitioner, on instruction, that he was wanted for the probation violation. (See Hr'g Tr. 62-63.)

II. Interrogation and Confession

Once at the station, after informing Petitioner of his rights, detectives interrogated him. Afterward, Petitioner signed sworn, written statements that he had stolen the car to perpetrate the robbery, that he had robbed the bank, and that during the robbery he had his hand in his pocket but did not have a gun. (See Tr. Vol. 3, 731.) Detectives took Petitioner's boots for comparison with a print that was left on the bank's counter. The police never took Petitioner to be arraigned on the federal warrant. (See Hr'g Tr. 160-65.)

III. Indictment and Pre-Trial Suppression Hearing

The Suffolk County Grand Jury indicted Petitioner for Robbery in the First Degree for robbing the bank while displaying what appeared to be a firearm. Additionally, the Grand Jury indicted Petitioner for Unauthorized Use of a Motor Vehicle in the First Degree for stealing a car with intent to use it during the commission of a robbery. Petitioner was arraigned on the indictment on November 27, 2001.

From January 13 to January 15, 2003, the County Court of Suffolk County, New York, conducted pretrial hearings in response to defense motions to suppress, as products of an illegal arrest, the slim jim, boots, and written statements. The arresting officers and interrogating detectives testified, and the defense played the dispatch tape from the time of the arrest. At the close of the evidence, the defense argued that, because the arresting officers, upon instruction, intentionally concealed from Petitioner that he was wanted for the robbery, telling him only that he was wanted on the federal probation warrant, and because Petitioner was never brought into federal custody, Petitioner's arrest was pretextual and thus illegal. (See id. at 153-55.) The court, however, denied Petitioner's motion because probable cause existed to arrest him for both the robbery and on the warrant, and Petitioner's confessions were voluntarily and intelligently made. (See id. at 160-65.)

III. Mini-Hearing, Trial, Conviction, and Sentencing

Jury selection began on March 17, 2003. Despite discovery demands made in early 2002, the prosecution had never disclosed possession of the Vestibule Footage, nor had it sought to obtain the Interior Footage. In fact, the Prosecution did not possess the Interior Footage until February of 2003, and only turned it over to the defense, along with the Vestibule Footage, on the eve of trial. Apparently, the prosecution claimed that it was not even aware of the existence of Interior Camera Two, or the Lost Footage, until March 19, 2003, while jury selection was ongoing. (See Tr. Vol. 2, 19.) In response to these revelations, the trial judge conducted a "mini-discovery hearing" (the "Mini-Hearing"). (Id. at 14.)

At the opening of the Mini-Hearing, defense counsel moved for a mistrial based on the prosecution's alleged discovery violations; specifically, Petitioner argued that the Interior Footage and the Lost Footage could have been exculpatory. (See id. at 52.) The court denied the motion because evidence had not, as yet, been presented to the jury, and the violations could be remedied without prejudice to Petitioner. (See id. at 58.) The court did, however, grant funds to the defense to hire an investigator to make any necessary inquiries about the cameras. (See id. at 65.)

During the Mini-Hearing, both the head of the security company (the "Security Head") and the detective in charge of the investigation (the "Lead Detective") testified. The Security Head testified that the Interior Footage was developed first, yielding images of Petitioner. He added that, when good images of a perpetrator have been recovered from one camera, the company's typical policy was not to develop, or even review, film from other cameras unless requested to do so, and to discard any such film within a year. He also testified that the Lost Footage would have shown the same thing as the Interior Footage, but from the opposite angle. (See id. at 75-102.) The Lead Detective testified that, had the police not rapidly developed a suspect as a result of Martino's statement and Petitioner's arrest, they would have more vigorously pursued the film from the Interior Cameras. The detective also testified that, generally, the police department only sought such photographic evidence in order to generate wanted flyers, which were not needed here. (See id. at 108-10.)

At the close of the Mini-Hearing, Petitioner sought an adjournment to give the defense time to conduct an inquiry into the Lost Footage, when the alarm was pressed, and issues surrounding the discovery violations. (See id. at 120-131.) Counsel moved for dismissal of the indictment or, in the alternative, a ruling precluding the prosecution from introducing the Vestibule and Interior Footage and directing that an adverse inference charge be submitted to the jury. (See id. at 133.) While finding a "gross violation of the discovery statute," the court also found that the violations were made in good faith. Thus, the court denied an adjournment on the motion to dismiss; however, the court precluded the prosecution from admitting both the Vestibule and Interior Footage, and agreed to submit a jury charge that (1) important evidence that could have been presented was lost, and (2) the jury was entitled to draw all negative inferences warranted by that fact. (See id. at 148-50.)

At trial, Petitioner objected to many of his counsel's decisions. Twice, counsel asked questions of a witness at Petitioner's behest but against his own advice. (See id. at 352-53; Tr. Vol. 3, 672-73). Petitioner further insisted, despite rulings that the prosecution could not discuss his criminal history in detail, that the details of his convictions should be brought in. Petitioner also wanted the suppressed evidence admitted. (See Tr. Vol. 2, 375-77.) Eventually, these disagreements resulted in Petitioner's seeking, on the second day of the prosecution's case, to defend himself pro se. The court denied this request as untimely. (See id. at 473-83.) Later, counsel informed the court that its investigator had found only two cameras in the bank. Petitioner insisted, nevertheless, that more cameras were visible on a video made by the investigator. (See Tr. Vol. 3, 498-99.)*fn2 Counsel and Petitioner also disagreed as to whether counsel should ask witnesses about the number of cameras and the Lost Footage. Counsel resisted doing so on the basis that such questions might lead to readmission of the precluded evidence. (See id. at 513.) Petitioner and counsel also disagreed on whether to call certain witnesses. (See id. at 765.)

Finally, Petitioner testified against counsel's advice. On the stand, Petitioner admitted to every aspect of the robbery except simulating a weapon. Petitioner also claimed that his statements to the police were coerced because he was denied use of a bathroom, water, a phone call, and a lawyer, and he was hit twice in the face and grabbed by his neck. (See id. at 780-82.) As part of his testimony, Petitioner also succeeded in having the Vestibule and Interior Footage admitted. In response to Petitioner's ...


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