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Dale Leeson v. J.T. Smith

June 1, 2011

DALE LEESON,
PETITIONER,
v.
J.T. SMITH, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

05-B-3098

ORDER

I. Introduction

Pro se petitioner Dale Leeson ("petitioner") has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of Sodomy in the Second Degree (N.Y. Penal L. § 130.45(1) (two counts), Sexual Abuse in the Second Degree (§ 130.60(2)) and Endangering the Welfare of a Child (§ 260.10(1)). Petitioner was convicted following a jury trial before Judge Frederick G. Reed in Ontario County Court, and was subsequently sentenced to two consecutive terms of imprisonment of two and one-third to seven years on each sodomy count, concurrent to one-year terms on the lesser counts.

II. Factual Background and Procedural History

Petitioner's conviction stems from a series of incidents that occurred between August and October of 2003, wherein petitioner, who was forty years-old, sexually abused the twelve-year-old daughter ("the victim") of a family friend. Petitioner was charged with thirty-two counts of various crimes against the victim, including sodomy, sexual abuse, attempted rape, and endangering the welfare of a child. See Ontario County Indictment No. 03-10-154 (Resp't Ex. C at 6-16).

Petitioner, a close friend of the victim's mother ("Marie"), frequently visited the home that she shared with her daughter and thirteen year-old son ("Mark"), in Ontario County, New York. According to Marie, petitioner would help the family with household chores and repairs. T. 70, 108, 186.*fn1 During this time, petitioner befriended the victim, who has learning disabilities and attention deficit hyperactivity disorder. T. 68, 86. Petitioner bought the victim clothing, such as blouses and underwear, and games. T. 74-75, 129, 189-90. Petitioner also had a daughter, Vicki, who was the same age as the victim, and the two girls were friends. T. 71, 109, 188. After Vicki visited with petitioner, he would drive her home to her mother's house, and the victim would accompany petitioner with Marie's permission. T. 72-73, 84, 110, 188, 200.

After petitioner dropped his daughter off, he would then pull off to the side of a rural road near the victim's house, while it was dark outside, and turn off his truck lights. T. 112, 116, 142, 228. Petitioner would then touch the victim's genitals with his hands and mouth, and make her touch his penis with her hands and mouth. He also photographed the victim wearing underwear that he kept in his glove compartment. T. 112-123, 151, 168, 174-76, 179. According to the victim, petitioner told her that he loved her and wanted to marry her, and that she should not disclose the incidents because he would go to jail. T. 118, 124. Although the petitioner's actions upset the victim, she was too frightened to tell her mother about what was happening. T. 124, 134, 150, 177.

Marie also testified to an incident that occurred at her home in September of 2003, where she observed petitioner lying on a bed with the victim. The victim's shirt was pulled up, and petitioner was kissing her. T. 76. Marie confronted petitioner, and he responded that they were "just sitting there talking and he was trying to put her to sleep." T. 76. She further testified that the victim would regularly sit on petitioner's lap, or put her head in his lap, and petitioner referred to the victim as "his special little girl." T. 77. Marie acknowledged that she had a criminal history involving welfare fraud, endangering the welfare of a child, and selling marijuana. T. 78.

Prior to trial, a combined Huntley/Mapp hearing was held before the county court, during which the prosecution called as a witness Ontario County Sheriff's Investigator James McCaig. Inv. McCaig testified that, upon investigating the allegations of abuse, he went to the home of Dorothy Leeson, petitioner's mother, in the village of Palmyra, New York, to interview the petitioner. When the investigator arrived, only petitioner's mother was at home. He discussed the allegations with her, explaining that the victim told him that petitioner had purchased thong underwear for her to wear and when she last saw the underwear they were located inside the glove box of a white Toyota pickup truck. Accompanied by Inv. McCaig, Dorothy Leeson went to petitioner's pickup truck, which was parked on her property, and retrieved "two pair of adult sexual-type underwear" from the glove box. Inv. McCaig did not enter petitioner's truck. H. 7-9.

When petitioner met with Inv. McCaig at the Sheriff's office, petitioner waived his Miranda rights and maintained that he had no sexual contact with the victim. H. 12. He acknowledged owning a Polaroid camera, but denied photographing the victim. With regard to the underwear found in his truck, he told the investigator that he bought the underwear for his girlfriend, who was very petite, but would not provide her name or address. H. 13.

In a written decision, the county court held that petitioner's mother validly consented to the search of petitioner's truck, and denied suppression of the items taken from the truck and petitioner's subsequent statements. Resp't Ex. C at 46-47.

The jury found petitioner guilty of two counts of second-degree sodomy, one count of sexual abuse, and one count of endangering the welfare of a child. He was acquitted of the remaining twenty-eight counts in the indictment. T. 448-53. Petitioner was sentenced to aggregate terms of imprisonment totaling four and two-thirds to fourteen years. A permanent order of protection was issued for the benefit of the victim and her family. S. 8-9.

Through counsel, petitioner appealed his conviction to the Appellate Division, Fourth Department, on the following grounds:

(1) the search of petitioner's truck was illegal and his subsequent statements were inadmissible as ...


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