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Craig Mccullen v. John Lempke

September 13, 2011

CRAIG MCCULLEN, PETITIONER,
v.
JOHN LEMPKE, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se Petitioner Craig McCullen ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered August 21, 2007, in New York State, County Court, Erie County (Hon. Shirley Troutman), convicting him, after a jury trial, of Grand Larceny in the Fourth Degree (N.Y. Penal Law ("Penal Law") §§ 155.30 [4], 20.00), Criminal Possession of Stolen Property in the Fourth Degree (Penal Law former §§ 165.45 [2],

20.00), Criminal Possession of Stolen Property in the Fifth Degree (Penal Law §§ 165.40, 20.00), and Possession of Burglar's Tools (Penal Law § 140.35). Petitioner was sentenced as a persistent felony offender to concurrent terms of fifteen years to life under counts one and two of the indictment, and concurrent terms of one year imprisonment under counts three and four of the indictment.

For the reasons stated below, habeas relief is denied and the petition is dismissed.

II. Factual Background and Procedural History

Under Indictment No. 01360-2006, Petitioner was charged with one count each of Grand Larceny in the Fourth Degree, Criminal Possession of Stolen Property in the Fourth Degree, Criminal Possession of Stolen Property in the Fifth Degree, and Possession of Burglar's Tools. The charges arose from an incident that occurred on May 24, 2006 in the City of Buffalo, New York, wherein Petitioner stole a purse from a parked vehicle.

At 9:15 a.m. on May 24, 2006, Michele Korb ("Korb" or "the victim") drove a company truck to 26 Urban Street. Korb, who was a secretary for an asbestos abatement demolition company, had gone to that location to post occupancy notices on a building. When she got out of her truck to post the notices, she left her purse and cell phone behind. She did not lock the truck. After posting the notices and while on her way back to her truck, Korb saw a male, whom she later identified as Petitioner, walking away from her truck. Petitioner wore a black, hooded sweatshirt and a black cap. The hood of Petitioner's sweatshirt was down, and Korb could see that Petitioner was African American. Trial Trans. [T.T.] 298-304.

Korb went to her truck and discovered that her purse, which contained a black wallet, was gone. Inside her purse, Korb kept her credit and debit cards, a small amount of cash, and receipts.

No damage had been done to the truck. The passenger side door was ajar. T.T. 305, 309.

Korb grabbed her cell phone, which had not be taken, and called 911. Korb watched Petitioner as he walked toward a black Jeep, which was "driving very slow" down Urban Street. Korb noticed that Petitioner was wearing black jeans and black sneakers. Petitioner entered the Jeep through the driver's side door and the Jeep drove away. T.T. 310-314.

Buffalo Police Officer Thomas Whelan arrived at 26 Urban Street approximately five minutes later. On his way to the scene, Officer Whelan had seen a dark Jeep with a cracked windshield pass him. Officer Whelan spoke with Korb and put out a description of Petitioner and the Jeep. Officer Whelan noticed that the passenger side door of Korb's truck was ajar. Shortly thereafter, Officer Whelan received a call that the Jeep had been stopped on Lathrop Street near Broadway. Officer Whelan and Korb followed to that location. T.T. 316, 359, 361, 364.

Buffalo Police Officer Arrie Moore, who was on patrol that morning, heard the description put out by Officer Whelan and spotted the black Jeep at Lathrop and Broadway adjacent to an automotive store. Officer Moore stopped the Jeep and waited for back-up. The vehicle had four occupants. Petitioner was in the front passenger seat. T.T. 390-393, 399.

Buffalo Police Officer Alphonso Wright arrived at Lathrop and Broadway shortly after Officer Moore. Officer Wright identified Daniel Lewandowski ("Lewandowski") as the driver; Shantelle Lascelle ("Lascelle") was seated behind Lewandowski in the back seat, and George Madison ("Madison") was seated behind Petitioner in the back seat. Officer Wright removed Lewandowski from the Jeep first. A crack pipe was discovered in his pocket and money was discovered in his hand. Next, Officer Wright removed Lascelle from the Jeep and discovered a tan purse in her lap. Officer Wright also discovered a black wallet on the floor of the Jeep. T.T. 510-514.

Buffalo Police Officer Dell Storey also responded to Lathrop and Broadway that morning. Officer Wright gave Officer Storey the tan purse to show to Korb. Officer Storey discovered debit cards on the floor of the Jeep along with some receipts. Korb identified the purse, the debit cards, and the receipts as her own. T.T. 323-325, 406-411.

At Lathrop and Broadway, Korb was asked by Officer Whelan if she recognized Petitioner or Madison. Korb identified Petitioner based upon his clothing and build. Petitioner wore the same black cap, sweatshirt, jeans, and sneakers as the individual she saw walking away from her vehicle. Petitioner was broad-shouldered and tall. Madison wore a t-shirt and was thin. T.T. 320-322, 328.

Buffalo Police Officer Arthur Collins, who had also responded to Lathrop and Broadway, removed Petitioner from the Jeep and conducted a pat-down. Officer Collins discovered two screwdrivers in Petitioner's pants pocket. Petitioner told Officer Collins that he had not used the screwdrivers to gain access to the truck, and that there was no damage to the doors. T.T. 519, 520-526.

At trial, Lewandowski and Lascelle testified that they had been together the morning of May 24, 2006. They had been using crack cocaine for over a day together and had run out. In an effort to acquire money to buy more crack cocaine, they went for a drive in Lewandowski's black Jeep, which had a cracked windshield. They picked up Madison, Lewandowski's friend, and, at Madison's request, had also picked up Petitioner. The four individuals agreed to look for vehicles to steal things from. Lewandowski drove to Urban Street where they spotted a truck. According to Lewandowski, Petitioner stated, "this is exactly what I was looking for." Petitioner got out of the Jeep and walked towards the victim's truck. Lascelle testified that she saw Petitioner at the truck, but was reluctant to watch. According to Lascelle, Petitioner returned to the Jeep a short while later, entering through the front passenger side of the Jeep carrying a purse. Once inside the Jeep, Petitioner rifled through the purse, removing from it a black wallet which he then passed around to the other individuals in the vehicle. T.T. 422-428, 432, 467, 469, 467, 477-480.

Prior to trial, a Huntley hearing was conducted, at the close of which the trial court denied suppression of Petitioner's statements to police. Hr'g Mins. [H.M.] of 01/19/07 31.

A Wade hearing was also conducted during the trial. At the close of this hearing, the trial court denied Petitioner's motion to suppress identification evidence. T.T. 282-296.

After a jury trial before the Hon. Shirley Troutman, Petitioner was found guilty as charged. T.T. 651-652. He was subsequently sentenced, as a persistent felony offender, to concurrent terms of fifteen years to life under counts one and two of the indictment, and to a one year term of imprisonment each under counts three and four of the indictment. All of the sentences were ordered to run concurrent to one another. Sentencing Mins. [S.M.] 2, 9-10.

Petitioner appealed his judgment of conviction on the following grounds: (1) the trial court erred in failing to suppress identification evidence; (2) the verdict was against the weight of the evidence; (3) the trial court erred in admitting evidence of uncharged crimes and prior bad acts; (4) the sentencing of Petitioner as a persistent felony offender violated his right to a trial by jury; (5) ...


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