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George Philips v. William Brown

May 20, 2011

GEORGE PHILIPS, PETITIONER,
v.
WILLIAM BROWN, RESPONDENT.
GEORGE PHILIPS, PETITIONER,
v.
WILLIAM BROWN, RESPONDENT.



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

MEMORANDUM AND ORDER

Petitioner George Philips ("Philips") seeks a writ of habeas corpus. In Case No. 08-CV-2625, he challenges his convictions on various sex offenses following a jury trial in Queens County ("the Queens case"); in Case No. 08-CV-2626, he challenges his convictions on various offenses upon his plea of guilty in Nassau County ("the Nassau case"). The two petitions turn on substantially the same issues, and the Court considers both in this memorandum and order. Both petitions are denied for the following reasons.

I

The familiarity of the parties with the underlying facts and procedural posture of the two cases is presumed. Only a brief summary, drawn from the state-court record, is necessary to put the discussion that follows in context.

A. Philips's Arrest

In 1996 and 1997, several young women near the border of Queens and Nassau Counties were sexually assaulted in a similar way: a man wearing a mask would force the women into his car at gunpoint and force them to perform sex acts. The young women would then be told to pull their shirts over their heads, at which point they were released. As early as August 1996, Philips was identified as a suspect on the basis of a tip; he was surveilled (but not arrested) by Nassau and Queens police at various times during the following year.

On the evening of September 3, 1997, Stephanie Corr ("Corr") was attacked in Nassau County. An automobile approached her as she walked down a residential street; a masked man emerged, pushed her to the ground, and tried to spray something in her mouth. Corr screamed; the driver retreated to his automobile and fled. Corr promptly reported the incident to the police, describing the automobile (a black Acura) and giving a partial plate number. The police immediately suspected Philips, who was pulled over a short time later in Queens County in his black Acura bearing a license plate that matched the partial plate number given by Corr. Corr later identified the automobile.

Philips was arrested and questioned for the remainder of September 3 and into the early hours of September 4 by Nassau County Detective Gary Tepperman ("Tepperman") and Queens County Detective Derek Partee ("Partee"); they questioned him about not only the assault on Corr, but several of the unsolved Queens and Nassau County assaults.

After waiving his Miranda rights, Philips made several inculpatory statements. In addition to describing in detail several sexual assaults he had committed, he acknowledged having a "problem" and blamed his ex-wife for leaving him sexually frustrated. He then wrote out and signed an apology. Philips also consented to a search of his automobile, which produced (among other evidence) a mask, starter's pistol, and DNA samples.

B. Procedural History

1. Indictment and Suppression Hearings

A Queens County grand jury indicted Philips on 24 counts of rape, sodomy, sexual abuse, and kidnapping. a Nassau grand jury indicted him on 20 counts of sodomy, sexual abuse, kidnapping, and criminal use of a firearm.*fn1

In both counties, Philips moved to suppress all evidence obtained on September 3 and 4. He claimed that the police had had no probable cause to arrest him; that he had not consented to a search of his automobile (or that any such consent was invalid); and that the inculpatory statements given by him had been obtained in violation of his Miranda rights. Both motions were denied.*fn2

2. Queens County Trial

Phillip's Queens County convictions resulted from a retrial, after the jury initially impaneled was unable to reach a verdict. Corr testified, as did several other young women who had been assaulted: April Murman ("Murman"), Karen Welby ("Welby"), Joanna Dispenza ("Dispenza"), Diane Semizian ("Semizian"), and Sabrina Craig ("Craig"). Each described a roughly similar assault: they were forced into an automobile by a man wearing a mask or scarf, sexually abused, and released. None of these witnesses, however, was able to identify Philips as her assailant.

Detectives Tepperman and Partee testified as to Philips's arrest and interrogation, including the inculpatory statements he had made. Several other police detectives testified about the evidence recovered in the search of Philips's automobile. Meghan Clement ("Clement") of LabCorp, which tested the DNA recovered from Philips's vehicle, opined that some of the DNA came from Dispenza and Craig.

In his defense, Philips called several police detectives: John Schaeffer and Vito Schiraldi testified that no fingerprints or hairs matching any Queens victim were recovered from Philips's automobile, while Scott Kovar testified that unidentified tire tracks near the location where Corr was assaulted did not match Philips's automobile. Philips also offered a partial alibi defense: His ex-fiancee testified that she was with Philips on the nights some of the young women were attacked; his father testified that he was with Philips every day between July 29 and August 12, 1999, a period that covers the date on which Dispenza was attacked. Philips did not testify.

The jury convicted Philips of (1) two counts of rape in the first degree, (2) one count of sodomy in the first degree, and (3) three counts of sexual abuse in the first degree. All of these counts related to the attacks on Dispenza and Craig; Philips was acquitted of the remaining counts.

On January 25, 2000, Philips was sentenced to a mix of consecutive and concurrent terms of imprisonment. In the aggregate, Philips will serve between 25 and 50 years in prison on the Queens County convictions.

3. Nassau County Guilty Plea

After he was sentenced in Queens County, Philips reached an agreement with the Nassau County prosecutors and entered an Alford plea to (1) one count of rape in the first degree, (2) two counts of sodomy in the first degree, and (3) one count of attempted sodomy in the first degree. See North Carolina v. Alford, 400 U.S. 25, 37 (1970) ("An individual accused of crime may [plead guilty] even if he is unwilling or unable to admit his participation in the acts constituting the crime.").*fn3 Pursuant to the agreement, Philips was sentenced to an aggregate term of between 10 and 20 years' imprisonment on April 10, 2000.

The Nassau County sentence runs concurrently to the Queens County sentence. Thus, Philips is currently incarcerated pursuant to the convictions in both counties.

C. Collateral Challenges

Before exercising his rights on direct appeal, Philips filed motions pursuant to § 440.10 of the New York Criminal Procedure Law in both counties. Since the Court cannot discern from the voluminous pro se documents in the state court record which papers Phillips submitted in support of his § 440.10 motions, the Court cannot exactly determine what claims were raised in those collateral attacks. Both motions were denied, however, and those decisions are in the record.

The Queens County opinion denying Philips's § 440.10 motion focuses principally on various challenges to the DNA evidence. See Fahringer Decl. (Dec. 31, 2008), Ex. X (Decision of Justice Jaime Rios dated Apr. 14, 2003). The Court cannot locate a record documenting that Philips sought leave to appeal the decision, but the parties agree that he did, and that leave was denied. See Weiss Decl. at ¶ 71 (Apr. 30, 2009) (noting that application was denied on September 18, 2003); Philips Mem. of Law at 104 ("Petitioner sought leave to appeal the decision[] to the Appellate Division.").

The Nassau County trial court focused principally on claimed violations of Brady v. Maryland, 373 U.S. 83 (1963). It held that all of the challenged evidence was (1) disclosed, (2) not Brady material, (3) not prejudicial, and/or (4) mooted by Philips's guilty plea. See Fahringer Decl. (Dec. 31, 2008), Ex. W (decision of Justice Donald E. Belfi dated Jan. 30, 2003). The Appellate Division granted leave to appeal, and affirmed on the fourth ground . People v. Philips, 817 N.Y.S.2d 373 (2d Dep't 2006), leave to appeal denied, 8 N.Y. 3d 949 (2007).

D. Direct Appeal

Philips next sought relief via direct appeal. He challenged the Queens ...


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