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Eliseo Lugo, Jr v. Ed Furness

March 31, 2011

ELISEO LUGO, JR., PETITIONER,
v.
ED FURNESS, NEW YORK STATE DIVISION OF PAROLE, RESPONDENT.



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

MEMORANDUM & ORDER

Petitioner, Eliseo Lugo, Jr. ("Lugo" or "Petitioner"), petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His Petition raises two constitutional arguments. For the reasons discussed below, the Petition is DENIED.

BACKGROUND I.

Factual Background: Commission of the Crimes and Investigation On October 7, 2002, Petitioner used a hot, flat object to scald the face of J.G., the fourteen-month-old son of his domestic partner. (T. 267.)*fn1

Beginning in 2002, J.G. resided at 19 Hope Lane in Hicksville, Nassau County, New York with his stepfather, John Eric Gurian ("Gurian"), and Petitioner, who was Gurian's domestic partner at the time. (T. 185-87.) Despite their relationship with one another, however, Gurian opposed Petitioner's attempts to co-adopt the child. (T. 186, 212.)

Gurian's opposition was not without considerable justification. Before the incidents involved in the criminal case against him, Petitioner had behaved abusively toward J.G., especially at mealtime. Typical were Petitioner's attempts to force-feed J.G., e.g., when the baby manifested an unwillingness to eat any more food, Petitioner would forcefully shovel it into his mouth, and when J.G. spit out the food, Petitioner would tear him out of his high chair, and wantonly hurl him onto his bed. (T. 200-01, 211.) Preventing Gurian from reporting these abuses to the authorities was Petitioner's promise to kill him or anyone else who tried to take J.G. away from him. (T. 201,228-29.)

At 5:30 p.m. on October 7, 2002, Gurian's next door neighbor heard peals of baby screaming coming from the Gurian residence. The neighbor testified that the screaming sounded as if the baby was in extreme pain. (T. 270.) Before proceeding to the gym, he noted that Petitioner's car was the only one parked at the home. (T.271.)

Later in the day, around 7:30 p.m., Gurian, sitting in a college class, received a call from Petitioner. Petitioner informed Gurian that J.G. had been injured in an "accident" but that he was now "alright." (T. 190-91.) Petitioner elaborated that J.G., a fourteen-month-old toddler, had leapt from Petitioner's car, grabbed a stick, ran toward the deck in front of Gurian's home, and tripped, sliding across the deck on his face.

(T. 190, 192.) Gurian's first question for Petitioner was whether he had called Gurian's mother, a nurse. When asked why he had not done so, Petitioner bizarrely replied that he did not want to and initially refused to call. (T. 191.) Concerned by these comments, Gurian proceeded home immediately.

On arriving, Gurian noticed several unusual things. First, Petitioner was suspiciously peering out of the second-floor bedroom window as Gurian made his way to the front door. (T. 193.) Second, Petitioner uncharacteristically rushed to the door to meet Gurian as he entered. (T. 192.) Finally, entering J.G.'s room, where he was asleep under a blanket, Gurian peeled back the covers to find J.G.'s "gushing and nasty" face and his hair burnt off.

(T. 193, 206.) Gurian's mother advised Gurian to let J.G. sleep and to bring him in to the pediatrician the very next morning.

The next day, J.G.'s condition had noticeably declined. One of his eyes partially shut, half of J.G.'s face was swollen and flat. (T. 196.) But because another missed day of class could lead to his being expelled from school, Gurian asked Petitioner to take J.G. to the doctor, accompanied by Gurian's mother. (T. 197.)

Dr. Kalenscher examined J.G., who, at this point, had severe burn-like injuries that covered the right side of his face; J.G.'s eye was swollen shut, much of his hair was missing, and some of his hair follicles had been destroyed. (T. 275, 278.) When the doctor asked Petitioner what had occurred, he repeated the story he told to Gurian, that J.G. had run away, tripped on a step, and fell face-first onto the deck where he slid. Dr. Kalenscher expressed his opinion that the injury did not at all look like the kind that would result from a trip and fall. (T. 277.) Accordingly, after prescribing an antibiotic for J.G.--J.G.'s wound was now infected--the doctor, suspecting child abuse, insisted that J.G. be brought back the next day.

That night, Gurian asked Petitioner to relate what had happened once more, but the story changed somewhat. This time, Petitioner claimed to have had his back turned at the time, so that he could not exactly recall how the injury came about. (T. 198.) After speaking with Gurian about this on October 9, 2002, Dr. Kalenscher reported J.G.'s injury to the Child Protection Services ("CPS") and the police. (T. 281, 284.) Informed that the CPS would be involved, Petitioner grew visibly alarmed and angry, threatening to "get even" with the doctor and all who "put him through this." (T. 200).

On October 9, at the recommendation of a CPS officer who had examined J.G. at his home, Gurian's mother took J.G. to Winthrop Hospital where he was immediately transferred to the burn unit at Nassau County Medical Center ("NCMC"). A burn-injury specialist, Dr. Han Soo Kim, at NCMC concluded that J.G. had second-degree burns along the right half of his face. (T. 311.) On October 11, Dr. Yasmin Pompeii, a pediatrician and member of the Child Abuse and Neglect Team at NCMC, examined J.G.. She too determined that J.G.'s injury could not have been caused by the slip and fall incident claimed by Petitioner. (T. 321-23, 330.) For one thing, J.G.'s injury was not an abrasion that would result from such an incident, but rather a second-degree burn. Furthermore, if J.G. had fallen, he likely would have injured other parts of his body, but J.G. suffered from no other injuries. (T. 326-27.)

Moreover, Dr. Pompeii found that the burn injury did not appear accidental: had the burn occurred as an accident, the child would have instinctively recoiled from the heat source, leaving burn patterns of differing depths. (T. 327-28.) J.G.'s burn depth was homogenous. (T. 327.) Finally, the edges of J.G.'s facial burns were well delineated, indicating that a hot solid surface (e.g., a frying pan or oven door) had been pressed, and ...


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