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Manuel Perez v. Robert Ercole

December 30, 2010


The opinion of the court was delivered by: Townes, United States District Judge:


Pro se petitioner Manuel Perez, who was convicted in New York State Supreme Court, Queens County, of Robbery in the First Degree, Robbery in the Second Degree, Criminal Mischief in the Fourth Degree, and Resisting Arrest, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Perez alleges that he was denied due process and effective assistance of counsel because: (1) the trial court should have appointed new counsel to represent him at the post-verdict competency hearing; (2) the trial court should have expanded the hearing to determine whether he was competent at trial; (3) the trial court should not have sentenced him because he was unfit; (4) the trial court lacked jurisdiction over his case because his grand jury waiver of immunity was invalid; and (5) the police lacked probable cause to arrest him. For the reasons set forth below, the petition is denied.


This case stems from three robberies committed at gunpoint -- two in bodegas and one in a parked car -- that took place in Corona, Queens, in January 2002. The last victim alerted police and less than an hour later spotted Perez at a nearby restaurant, where officers recovered a gun and empty magazine. They arrested Perez, whom four witnesses separately identified during lineups the next day. Forensics also matched the gun to the shell casing recovered from the first bodega. Perez was charged under New York state law with three counts of Robbery in the First Degree, two counts of Burglary in the Second Degree, and one count each of Robbery in the Second Degree, Reckless Endangerment in the First Degree, Criminal Mischief in the Third Degree, and Resisting Arrest. The burglary charges were dismissed on the People's motion at the commencement of trial and the reckless endangerment charge was dismissed on a defense motion prior to jury deliberations.

A. Pretrial Suppression Hearing

On February 19 and 21, 2003, the trial court held a hearing pursuant to United States v.Wade, 388 U.S. 218 (1967) and Mapp v. Ohio, 367 U.S. 643 (1961) to address Perez's motion to suppress (1) identification testimony, which included identification at the restaurant and at the lineups; and (2) physical evidence, which included the gun and magazine. (See S.H. at 4)*fn1 .

Three witnesses testified at the hearing. Police Officers Keri Hoovert and Christopher Camacho stated that they were involved in canvassing for the person who robbed a man in his parked car in the early morning hours of January 29, 2002. (S.H. 6-8, 35-36). According to their testimony, the complainant rode with them for approximately forty-five minutes, and then stated that he saw the perpetrator, later identified as Perez, inside a well lit restaurant with large front windows. (S.H. 7, 36, 39-41). Perez was sitting on a stool at the bar and Officer Hoovert saw him stand up, "futsing with his waistband, pulling his pants, pulling his shirt," and walk to the back of the restaurant before returning to his seat. (S.H. 8-9). The officers asked Perez to step outside, where they observed the complainant confirm the identification, performed a pat-down on Perez, and recovered a gun magazine from his right front pants pocket. (S.H. 9-10, 38). Officer Camacho then proceeded to the back of restaurant, where he located a black handgun inside an empty case of beer bottles. (S.H. 38). Officer Hoovert placed Perez under arrest. (S.H. 10). On January 30, 2002, just after midnight, Detective Kenneth Paccio held a series of lineups related to the investigation of that and two prior robberies. (S.H. 56). He testified that four witnesses separately identified Perez from the lineups. (S.H. 58-60).

Justice Joseph Grasso denied Perez's motion to suppress in its entirety. (S.D. 7). As to identification, the court determined that the canvass was proper, where the complainant was in the police van and the first identification through the restaurant windows "seemed to be a self-generated one." (S.D. 6). The court found that this identification "in and of itself establishes probable cause" and that the additional identification after Perez exited the restaurant was merely confirmatory. (S.D. 6-7). Justice Grasso also concluded that there was probable cause to place Perez in the lineup and that the lineup itself was fair. (S.D. 7). As to the physical evidence, the court found that Perez had no standing to challenge the seizure of the gun because there was no expectation of privacy at the restaurant and "[i]t appears in any event that the property would have been abandoned in an attempt by Mr. Perez to conceal that weapon." (S.D. 7).

B. Pretrial Section 730 Examination

On April 7, 2003, defense counsel Thomas Sheehan, Esq., requested an examination pursuant to New York Criminal Procedure Law ("CPL") § 730.30,*fn2 to assess Perez's fitness to stand trial. (H-1. 2). When asked whether he knew the charges against him, Perez claimed, "I don't know anything." (H-1. 3). Perez also stated that he was on medication for depression and had been hearing voices. (H-1. 2-3). The court granted the request for examination, which the People did not oppose. (H-1. 3). On May 8, 2003, the court reviewed the Section 730 reports, concluded that Perez was not fit to proceed, and committed him to the jurisdiction of the Mid-Hudson facility, a secure adult psychiatric center. (H-2. 3).

On September 25, 2003, the court opened the conference by noting that Perez had been released from Mid-Hudson where those overseeing his care "are of the view that [Perez has] been restored to competence." (H-3. 3). Perez was being held in the mental health unit at Rikers Island and was receiving medication three times a day. (H-3. 3). The court found that "Perez gives the appearance of being competent," a position both sides accepted. (H-3. 4). The court also commented that "nobody is saying that the man is necessarily without psychiatric problems. He may well have them. We are talking about a very narrow sense of competence as defined in Article 730 of the Criminal Procedure Law." (H-3. 4).

C. Request for New Counsel

After a number of perfunctory appearances, Justice Evelyn L. Braun held a conference on March 23, 2004, during which Perez sought to have a new attorney assigned to his case. Displaying a certain knowledge of procedure, Perez stated: "I feel that my attorney's represented me bad. I was denied a 30.30*fn3 because he hadn't showed up several times." (H-5.4). Perez also complained that he was "being persecuted by this Court," prompting Justice Braun to respond, "I don't think you are being persecuted, I think you are playing games." (H-5.6). Defense counsel averred that there had been an "irreparable" breakdown of cooperation in the relationship with his client. (H-5. 8). Justice Braun ultimately relieved Mr. Sheehan and recused herself from the case, though criticizing Perez's "ridiculous remarks and allegations." (H-5. 11). In closing the conference, the court concluded that Perez "obviously . . . has some personality problems that don't affect . . . his ability to go to trial." (H-5. 11). From that point forward, defense counsel Andrew S. Wogan, Esq., represented Perez as trial counsel. (H-6. 2-4).

D. Trial

The People's evidence at trial would have permitted a reasonable juror to find as follows. (The defense did not call witnesses).

1. Kiko Groceries Robbery

Eduardo Checo testified that at the time of the incident he was working at Kiko Groceries, a small bodega he owned in Queens. (Tr. 325-26, 343). On January 12, 2002, at approximately 9:15 p.m., he was taking care of customers alone, when another person entered the bodega and stood back from the others waiting to pay. (Tr. 327-28). Checo thought that the person was just another customer until he walked up to Checo at the counter, "pulled out a weapon and he fired a shot. And he said, this is a holdup." (Tr. 328, 329). The bullet landed in front of the counter and "went into the Coca Cola refrigerator," whereupon two remaining customers dropped to the floor. (Tr. 329, 330). Checo testified that the shooter pointed the gun at him and demanded his money and jewelry. (Tr. 330). After Checo relinquished approximately $700 to $800, two chains, and a ring, the perpetrator left the store and Checo called the police, who collected "a spent bullet and . . . copper jacket" at the scene. (Tr. 330-31, 620). Checo stated that during the confrontation, he and the perpetrator stood face to face with only the counter between them and that the store was lit as brightly as the courtroom. (Tr. 331-32). On cross examination, Checo admitted that he had used and pleaded guilty to possession of cocaine during the same year as the robbery. (Tr. 343-44).

2. Baez Grocery Robbery

The prosecution also called Jose Baez, who owned and worked at the Baez Grocery in Corona, Queens. (Tr. 377, 382). Baez testified that on January 28, 2002, at approximately 3 p.m., a beer vendor had just left the bodega when an unknown man entered and purchased peanuts. (Tr. 378-80). Jose Baez's brother, Francis Baez, and a friend, Francisco Reinoso, arrived at the store just before Jose Baez gave the man change. (Tr. 380). Reinoso testified that he had recently seen the same man in the neighborhood. (Tr. 534-36, 550-51). The man departed and Jose Baez went downstairs to use the bathroom, leaving his brother and Reinoso in the grocery area. (Tr. 380, 389, 584). According to Reinoso, who said he was a police officer in Santo Domingo, the man returned to the bodega approximately five minutes later (while Jose Baez was still in the basement) and put a gun to Reinoso's back. (Tr. 518-19). The man said in Spanish that it was a robbery and Reinoso should give him everything. (Tr. 519). He also demanded that Francis Baez give him money from the cash register. (Tr. 520, 587). When Francis Baez said he had no money and knew nothing about money in the store, the man proceeded to empty the cash register himself. (Tr. 521, 587). Reinoso also gave the man his watch and bracelet. (Tr. 521, 590). After some confusion with ordering Francis Baez to go down to the basement, the perpetrator lowered his gun, ran out of the bodega, and departed in a livery cab. (Tr. 522-23, 590-91).

3. Parked Car Robbery

John Gutierrez testified that on January 29, 2002, at approximately 4:10 a.m., he saw a man approaching as he left a Queens restaurant and began to walk to his parked car. (Tr. 469-70). It seemed as though the man was following him, so Gutierrez walked past his car toward a sanitation truck he saw on the corner -- but the truck left before he reached it. (Tr. 470-71, 486). After Gutierrez returned to and entered his car, the man knocked on the window, "pulled a gun," and demanded money. (Tr. 471-72). Gutierrez said he was the "wrong person," but the man repeated his demand and warned that "this is the reason why people around here . . . get killed." (Tr. 473). Gutierrez relinquished approximately $150 to $200 in case before the man departed. (Tr. 473).

Gutierrez immediately flagged down a police van and said he was just robbed. (Tr. 474). At the two officers' request, Gutierrez got in the van and canvassed for approximately forty-five minutes until they approached a restaurant and Gutierrez told the officers he thought he saw the perpetrator inside. (Tr. 475-76, 400, 430). The restaurant was well lit with two large and unobstructed frame windows; the police van also had a strobe light pointed at the front. (Tr. 401-02, 431). The officers testified that they saw the man inside stand up, place his hand in his waistband, and then walk to the back left of the restaurant, where he was briefly hidden behind a door. (Tr. 402-03, 432). The officers stood at the entrance of the restaurant and asked the man to step outside, which he did. (Tr. 403-04, 433-34). Gutierrez testified that when the police officers brought the man over for a better look, Gutierrez "knew it was him and . . . told them that was him."*fn4 (Tr. 477). Officer Hoovert placed Perez in handcuffs and patted him down for weapons, recovering an empty magazine clip for a nine millimeter gun from Perez's front pants pocket. (Tr. 406, 435-36). At that point, Officer Camacho testified that he went to the back of the restaurant where he had seen Perez disappear earlier and retrieved a semi-automatic handgun, without a clip, from inside an empty case of beer bottles. (Tr. 436). He brought it over to the van and Gutierrez stated that he recognized it from the robbery. (Tr. 437, 478).

Both officers testified that Perez became "erratic" and began to scream, kick, and curse. (Tr. 407, 441). Officer Hoovert ultimately placed Perez into a different police car and, as the arresting officer, vouchered the gun and magazine clip. (Tr. 408-09). Officer Phillip Adaszewski, who manned that police car, testified that Perez kicked out the driver's side back window and Emergency Services Unit responded, which deals with situations such as emotionally disturbed or barricaded people. (Tr. 506, 510-11). When ESU arrived, Perez was placed in a physical restraint. (Tr. 512). On cross examination, Officer Adaszewski maintained that he did not hear or see anything that led him to believe Perez was having difficulty breathing. (Tr. 509).*fn5

4. Lineups and Forensics

Assistant District Attorney Peter Lomp testified that he observed the lineups conducted in the early morning hours of January 30, 2002, at the 115th Precinct. (Tr. 459-60). Perez was given the opportunity to choose his own number as one of six individuals included in the lineups. (Tr. 461, 462). All four witnesses, including Reinoso (Tr. 527), Francis Baez (Tr. 591-92), Checo (Tr. 336-38), and Jose Baez (Tr. 383-84) each independently identified Perez during the separate lineups, (Tr. 616). The entire procedure took eight minutes. (Tr. 467).

Additionally, Detective Anthony Pellicio, who served in the Firearms Analysis Section of the New York Police Department, testified that he compared cartridge components recovered from the first robbery scene to samples produced from a "test fire" of the vouchered gun. (Tr. 626, 634). He determined that (1) the piece of copper jacketing lacked sufficient characteristics to form a conclusion, but (2) the shell casing was in fact fired from the same firearm as the test samples. (Tr. 644-45).

E. Verdict

On July 27, 2004, the jury found Perez guilty of three counts of Robbery in the First Degree, and one count each of Robbery in the Second Degree, Criminal Mischief in the Fourth Degree, and Resisting Arrest. (Tr. 753-57). At the conclusion of the proceedings that day, defense counsel requested and the court ordered a pre-sentence examination of Perez.*fn6

F. Competency Hearing

On September 28, 2004, the trial court noted that it had received a report from clinical psychologist Dr. Jennifer Mathur indicating that Perez, "according to her view[,] is unfit to proceed." (H-7. 2). The court therefore ordered a Section 730 examination in aid of sentencing. (H-7. 2). Justice Seymour Rotker also considered and denied Perez's pro se application that the verdict be set aside, inter alia, on the ground that police fabricated probable cause evidence -- commenting that "I must say for a person who is not competent to proceed, he did a very workman like legal motion."*fn7 (H-7. 3).

On March 24, 2005, after receiving the Section 730 report, the court held a hearing to determine Perez's competency for sentencing. (H-8. 2). Four experts testified as to their ...

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