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Frederick Carpenter v. James Conway

February 25, 2011


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



Petitioner Frederick Carpenter, pro se, commenced this action seeking a writ of habeas corpus under 28 U.S.C. § 2254. For the foregoing reasons, Mr. Carpenter's petition is DENIED.


I. The Crimes

At approximately 11:30 a.m. on the morning of January 8, 2003, Petitioner walked into the State Bank of Long Island in Farmingdale wearing a black ski mask and carrying a gun. He approached a teller window, repeatedly yelling "give me your money," and held the gun six to eight inches from the teller's face. (T. 595-597, 600-601.) At that point another teller, Mahtaj Samghabadi, called Petitioner over to her station. (T. 882-883.) Ms. Samghabadi placed money, including $250 in bait money, on her counter for the Petitioner to take. (T. 884, 890.) The bait money was marked with a special strap that identified the teller and bank, among other things. (T. 890, 894-896.) Petitioner grabbed the money, along with a check on the counter that Ms. Samghabadi was about to certify, and left the bank. (T. 884-886, 890.)

Meanwhile, at approximately the same time on that day, Stephen Vaccaro, an employee of the Weeping Willow catering hall located on the same block as the bank, noticed a gold SUV parked in the hall's lot with a woman standing five feet away from the vehicle. (T. 1002, 1004-1005.) A couple minutes later, Vaccaro observed a masked man running to the vehicle, and the woman whom he had seen earlier was sitting in the driver's seat. (T. 1006-1008, 1039-1041.) The man jumped into the passenger side of the SUV, which then spun its tires and drove away. (T. 1008.) Vaccaro was able to write down the license plate number of the vehicle, and he gave it to the police later on the same day.

(T. 1008, 1013, 1016, 1438-1440.) Subsequently, on January 12, 2003, Vaccaro was shown a police-arranged line-up where he recognized Tina Thebault as the woman driving the SUV. (T. 1019-1022.)*fn1

The SUV, a Nissan Pathfinder, was located in Brentwood on January 10, 2003, and Detectives Karen Kolsch and Steven Braithwaite began surveillance on the vehicle. (T. 1066-1067, 1142-1143, 1234-1236.) Surveillance continued on January 11, 2003, with Detective Kolsch operating a borrowed Brentwood school security vehicle, and Detective Braithwaite in an unmarked vehicle. (T. 1145-1146, 1238-1239.) They were joined by Detective Lawrence Conde and Detective Sergeant Terence Fanning, who were also in unmarked vehicles. (T. 1146-1147, 1238.) At 8:30 p.m. on January 11, 2003, Detective Kolsch alerted the team that the vehicle had started, and the group followed it through the streets of Brentwood. (T. 1148-1152.) As the SUV stopped at a stop sign, Detective Conde maneuvered his vehicle in front of it, while Detectives Braithwaite and Kolsch boxed the SUV in from the side and behind, respectively.

(T. 1151-1152, 1244-1245.) While next to the side of the SUV, Braithwaite observed that Petitioner was driving the Nissan, and just as Braithwaite was about to exit his vehicle, he observed the Nissan accelerate, ram Detective Conde's car and proceed forward. (T. 1152, 1245-1246, 1247-1248.) Detective Kolsh followed the Nissan, which was driving on the wrong side of the road. (T. 1152, 1247-1248, 1153-1154, 1250-1251.) The SUV sideswiped Detective Kolsch's vehicle, then flipped and landed in a wooded area. After the SUV flipped, Petitioner exited out of the front passenger door and ran away. (T. 1091-1092, 1156-1159, 1253-1254.)

After identifying themselves as police, Detectives Kolsch and Braithwaite told Petitioner to stop. (T. 1160-1161, 1255.) Detective Braithwaite halted Petitioner as he was running and grabbed him. (T. 1161, 1254-1256.) Petitioner, however, struggled with Braithwaite, pulling his arms away and attempting to push the Detective off of him before he was subdued. (T. 1255-1258.) Petitioner, along with Tina Thebault and William Danielson, the passengers in the Nissan, were arrested for Criminal Possession of Stolen Property and transported to the police station. (T. 1162-1163, 1258-1259.)

While at the police station, during the early morning hours of January 12, 2003, Petitioner orally waived his Miranda rights, and admitted committing the bank robbery to Detective Vincent O'Leary. (T. 1459, 1464-1465, 1469.) Petitioner refused to give a written statement, but claimed that the gun used in the robbery was a BB gun, and that it had been discarded along with the mask. (T. 1472-1473, 1479, 1481.) Petitioner also claimed that the money he had stolen had been spent on drugs and on his children. (T. 1468, 1471-1472.) Later that day, Detective Anthony Piazza processed the Nissan, and recovered a check and bank money strap that were identified by Ms. Samghabadi as the items taken by the thief during the robbery. (T. 1370-1374, 1379-1384, 881-882, 892-893.)

II. Petioner's Pre-Trial Hearings and Trial

On June 5, 2003, the trial court conducted a pre-trial

Huntley hearing where it determined that Petitioner's statements to Detective O'Leary were voluntary and admissible. A few months later, on October 14, 2003, the trial court held a Sandoval hearing.

Petitioner's trial took place in October 2003. On the second day of trial, Petitioner provided the court with a list of grievances he had against his assigned attorney, Michael Brown. Among other things, Petitioner complained that Brown would not return his calls, had only visited him twice, failed to object during the prosecution's opening statements, and failed to re-file motions that Petitioner had earlier attempted to file pro se. (T. 642-686.) Petitioner then expressed that he did not want his attorney, did not trust his attorney, and that he would no longer speak with his attorney. (T. 655-656, 667, 673-674.) After Brown disputed Petitioner's claims concerning his representation, the court informed Petitioner that either Brown was going to represent him, or Petitioner was going to represent himself. (T. 653-654, 673, 657.) The court rejected Petitioner's request for substitute counsel, finding that there were no meritorious reasons why counsel should be excused, and that good cause had not been shown for any substitution. (T. 666-667, 675-680.) At this point, prior to resuming the trial, Brown informed the court that Petitioner had indicated to him that he would disrupt the proceedings if Brown continued to act as his attorney. (T. 676-677.) After being admonished by the court, Petitioner promptly stated in the presence of the jury that he did not want Brown to represent him, and that he was choosing to represent himself. (T. 678, 691-693.) Once the jury was escorted from the courtroom, the court made a detailed inquiry of Petitioner to ensure that he understood the risks of proceeding pro se, then allowed him to represent himself for the remainder of the trial, with Brown acting as his legal advisor. (T. 687, 711-721.)

III. Sentencing and Post-Trial Appeals

On January 14, 2004, the jury convicted Petitioner of

Robbery in the First Degree, Criminal Possession of Stolen Property in the First Degree, Criminal Possession of Stolen Property in the Fourth Degree, Criminal Mischief in the Second Degree, and Resisting Arrest. Petitioner's sentences for thevarious crimes were to run concurrently, with the longest being twenty-two years to life for the robbery conviction. Upon the People's recommendation, Petitioner was sentenced as a persistent felony offender because he admitted that he had previously been convicted of at least two felonies for which he was sentenced to periods of incarceration longer than one year.

(S. 2.) Both the prosecutor and court noted Petitioner's threat to the community, twenty year criminal history, lack of respect and discipline, and the trauma faced by the bank tellers, which compelled the sentencing court to conclude that his extended incarceration and lifetime supervision were in the public interest. (S. 15-19, 22-32, 35.)

Petitioner, represented by the Legal Aid Society, filed a direct appeal to the Appellate Division, Second Department on September 2, 2005. Petitioner's appeal presented six grounds: (1) that his right to counsel was violated because the trial court failed to make sufficient inquiry into his request for new counsel; (2) that the trial court failed to undertake the required searching inquiry regarding the risks of self-representation; (3) that the evidence was insufficient to convict him beyond a reasonable doubt; (4) that New York's persistent felony offender sentencing laws, pursuant to Penal Law § 70.10 and Criminal Procedure § 400.20, are unconstitutional as a violation of due process; (5) that the trial court failed to put forth the reasons why it imposed a persistent felony status upon him; and (6) that his sentence of twenty-two years to life imprisonment, as a persistent felony offender, is harsh and excessive.

On April 11, 2006, the Appellate Division affirmed Petitioner's judgment of conviction in People v. Carpenter, 28 A.d.3d 572 (2d Dep't 2006). That court found that Petitioner's first, second, and sixth grounds were without merit, and that the third, fourth, and fifth grounds were unpreserved for appellate review, noting that in any event, they were also without merit. Id. at 572--73. Petitioner applied for leave to appeal to the Court of Appeals, and was denied on June 22, 2006. People v. Carpenter, 819 N.Y.S.2d 878 (N.Y. 2006).

On August 23, 2007, Petitioner filed an application for coram nobis relief in the Appellate Division on the grounds that he received ineffective assistance of counsel. This application was subsequently denied on December 4, ...

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