The opinion of the court was delivered by: Honorable Deborah A. Batts, U.S.D.J.:
REPORT AND RECOMMENDATION
TO THE HONORABLE DEBORAH A. BATTS, U.S.D.J.:
Alexis Gruyair, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County, for attempted murder in the second degree and assault in the first degree. Mr. Gruyair challenges his conviction on the grounds that:
(1) the trial judge's failure to alert defense counsel of a jury note and to respond to the note violated his constitutional rights;
(2) the trial judge's failure to respond to the jury note at issue violated his constitutional rights; (3) he was denied effective assistance of counsel by his trial counsel's failure to obtain expert analysis and technical enhancement of security camera footage instrumental to his defense; and (4) the judge's failure to show the jury note at issue to the defense rendered his counsel incapable of providing effective assistance effective assistance.*fn1
For the reasons set forth below, I recommend that the petition be denied.
A. The Crime On April 8, 2004, a man wearing a black hooded
sweatshirt shot Omar Holmes multiple times at El Rancho Jubilee
("Jubilee"), a Manhattan restaurant and nightclub. (Respondent's
Memorandum of Law in Support of Answer Opposing Petition for a Writ of
Habeas Corpus ("Resp. Memo.") at 2). Eyewitnesses, including Mr.
Holmes, later identified Mr. Gruyair, who was at Jubilee that night,
as the shooter. (Resp. Memo at 2; Tr. at 169, 281-82).*fn2
Police arrested the petitioner at a hotel in Newark, New
Jersey on April 13, 2004. (Tr. at 487-89).
On April 26, 2004, the petitioner was charged by a grand jury with attempted murder in the second degree and assault in the first degree. (Resp. Memo. at 2-3). He pled not guilty to these charges. (People's Response to Defendant's Motion Pursuant to Criminal Procedure Law 330.30(3) ("330 Response"), attached as Exh. E to Answer Opposing Petition for a Writ of Habeas Corpus ("Answer"), at 6). On January 18, 2005 Justice William Wetzel of the New York State Supreme Court, New York County, denied Mr. Gruyair's suppression motions, and the case proceeded to trial two days later. (330 Response at 6; Resp. Memo. at 3).
B. The Prosecution's Case at Trial At trial, the prosecution introduced testimony that Mr. Gruyair and Mr. Holmes met in 1999 at the home of Mr. Holmes' friend Kelvin.*fn3 (Tr. at 156). Sometime between that meeting and the shooting at Jubilee, Kelvin informed Mr. Holmes that he owed the petitioner money. (Tr. at 156-57). Sometime thereafter, Kelvin shot the petitioner and was arrested. (Tr. at 157-58). Following the shooting, in November 2003, the petitioner offered Jennifer Rosado, a mutual friend of both Mr. Holmes and himself, $10,000 tell him where he could find Mr. Holmes in order to "set him up." (Tr. at 264-67). She declined. (Tr. at 267).
On April 8, 2004, Mr. Holmes made plans with his girlfriend Jackie Sanchez, and her friend Lorraine Castillo, to meet at Jubilee. (Tr. at 161-63, 401). Ms. Castillo arrived at about 11 p.m. and went to the "VIP booth," a section of the main room separated by a raised booth that contained a table, chairs, and a love seat. (Tr. at 402-04). Customers in the VIP booth were visible to those in the adjacent section of Jubilee. (Resp. Memo. at 6) (citing Exhibits 8G-8H, photographs depicting the VIP booth). Ms. Sanchez arrived soon after with a friend. (Tr. at 438-39). Another friend, Luisa Tavares joined them around 11:30 p.m. (Tr. at 278, 290-91). At approximately midnight, Mr. Gruyair also arrived at Jubilee. (Footage from Jubilee's security cameras ("Footage"), attached as Exh. R to Answer; Resp. Memo. at 7). He and several other individuals sat at a table in the back of the restaurant. (Footage; Resp. Memo. at 7, 8). Mr. Holmes arrived at Jubilee at approximately 12:30 a.m. and joined his friends in the VIP section. (Tr. at 163-64, 238).
At 1:06 a.m., Mr. Gruyair left his table and exited Jubilee through a side door. (Footage; Resp. Memo. at 8). Twelve minutes later he reentered Jubilee, now accompanied by another man. (Footage; Resp. Memo. at 8). Both were wearing black hooded sweatshirts. (Footage; Resp. Memo. at 8). The sweatshirt of one of the men -- according to the prosecution it was Mr. Gruyair --had a white logo or lettering across the front. (Footage; Resp. Memo. at 8, Tr. at 601-02). The petitioner returned alone to the table he had occupied earlier. (Footage; Resp. Memo. at 8).
When Mr. Gruyair reached his table, he pushed back his hood, handed a black jacket to one of the men at the table, said something to all four men sitting around it, and pulled his hood back up. (Footage; Resp. Memo. at 8). The four men got up and left the table. (Footage; Resp. Memo. at 8). The petitioner left his jacket on the chair and walked toward the VIP booth. (Footage; Resp. Memo. at 8).
Mr. Holmes was sitting in the VIP booth, with Ms. Sanchez on his lap. (Tr. at 166-67). Her back was to the entrance of the booth. (Tr. at 452). Ms. Tavares was standing outside the booth, talking to a friend when a man wearing a black hooded sweatshirt pushed past them and entered the booth. (Tr. at 281-82, 306, 309-10, 317). Ms. Tavares saw the man's face and recognized him as Mr. Gruyair. (Tr. at 281-82). The man approached Mr. Holmes, spoke to him in Spanish, and shot him in the left shoulder. (Tr. at 168-70). Mr. Holmes was able to see the man's face and identify him at Mr. Gruyair immediately after being shot. (Tr. at 169). Mr. Holmes pushed Ms. Sanchez off his lap and stood up, but the petitioner shot him again. (Tr. at 170-71, 247, 283, 311, 443). Mr. Holmes attempted to struggle with the petitioner, but was shot in the chest again and fell to the ground. (Tr. 171-73, 247-48, 251-52, 257). Mr. Gruyair then shot ...