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Jermar R. Mcdaniel v. T. Lavalley

November 22, 2011

JERMAR R. MCDANIEL,
PETITIONER
v.
T. LAVALLEY,
RESPONDENT.



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

OPINION AND ORDER

Jermar McDaniel ("McDaniel") brings this timely filed pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction following a jury trial on the charge of robbery in the first degree. The petition was referred to the Honorable James C. Francis IV for a report and recommendation (the "Report") on December 21, 2010. The Report was filed on September 1, 2011, and recommends that the petition be denied. McDaniel made a limited objection to the Report which did not address the grounds for the dismissal of his claims, in a letter dated September 13 and received on September 19 (the "September 13 Letter"). For the following reasons, the Report is adopted and the petition is denied.

BACKGROUND

I. The Robbery and Arrest

The facts relevant to the petition are set out in detail in the Report and are summarized here. On March 15, 2003, Mervia Wilson ("Wilson") was on her way to school at the Baychester Avenue subway station ("Subway Station"). On the Subway Station stairway, a man -- whom she identified at trial as McDaniel -- stopped approximately one foot in front of her, put a hand around her neck, the other "under the arm like," and said, "give me the blood clot money else I'm going to kill you." Wilson, fearing McDaniel had a gun, gave him all of her money, approximately fifty dollars. He then released her and fled from the station.

Immediately thereafter, Wilson reported the incident to two police officers in the Subway Station. She gave Officer Samuel Garcia ("Garcia") a physical description of the assailant. Wilson later spoke with Detective Michael Connelly ("Connelly"), who told Wilson to call him if she saw the robber again.

On April 2, Wilson was at a delicatessen near the Subway Station when a man said to her, "I know you from someplace." Wilson asked where he knew her from, but the man did not respond. She then became nervous, recognizing him as the robber. She left the delicatessen without incident and went to school, where she took an exam.

On April 3, Wilson called Detective Connelly and reported seeing the robber at the delicatessen. While speaking with the detective on her cell phone, Wilson arrived at a gas station near the Subway Station and spotted McDaniel, again recognizing him as the robber. When Detective Connelly arrived at the gas station, McDaniel was seated in the backseat of a car. The detective removed him from the car at gunpoint and handcuffed him. Detective Connelly testified at trial that while being handcuffed, McDaniel stated, in substance, "This has nothing to do with marijuana. It must have been something that happened at the train station" (the "Statement").

II. Pre-Trial Proceedings, Trial, and Sentencing

McDaniel was indicted in 2003 and charged with first degree robbery, N.Y. Penal L. § 160.15; third degree robbery, N.Y. Penal L. § 160.05; fourth degree grand larceny, N.Y. Penal L. § 155.30(5); and fifth degree criminal possession of stolen property, N.Y. Penal L. § 165.40. On April 12, 2005 a Huntley hearing was held before Justice Robert Seewald, New York State Supreme Court Judge in New York County, to determine whether the Statement was admissible at trial.*fn1 At the hearing, McDaniel disputed the State's contention that he made the Statement at the time of the arrest, arguing that he had made the Statement at the "transit authority precinct" after the officers had found marijuana in his pockets and held him for over five hours without telling him why he had been arrested. Justice Seewald denied the suppression motion.

McDaniel's trial took place on April 18, 2005. The prosecution presented testimony from Wilson, Connelly, and Garcia. During her testimony, Wilson identified McDaniel as the man who robbed her and the man she saw at both the delicatessen and the gas station. Wilson testified about the placement of McDaniel's arms when he had threatened to kill her during the robbery, and stated that she "thought he had a gun under his coat" and "was going to shoot [her]."

On cross-examination, defense counsel highlighted the discrepancies between McDaniel's appearance and the descriptions of the robber given by Wilson and recorded by Garcia on the day of the robbery. Defense counsel also attempted to cast doubt on Wilson's identification by suggesting that she did not immediately call the police after her encounter with the man in the delicatessen because she was not sure about her identification. The prosecution offered explanations for the discrepancies and for Wilson's delay in speaking with Connelly.

Without objection from defense counsel, Justice Seewald dismissed all charges against McDaniel except the charge of first degree robbery. Defense counsel then requested that the court submit a petit larceny instruction to the jury on the ground that the jury could reasonably find the defendant had committed the robbery without force. Justice Seewald said that he believed "either the identification . . . is of the right man or it's not. Either it's a robbery or it's nothing." Defense counsel agreed with the court, noting that "[t]he entire case is an identification at this point." Accordingly, only first degree robbery was submitted to the jury.

During summation, the prosecutor characterized McDaniel as a "robber of women who are going to work"; noted that McDaniel "took advantage of a working wom[a]n, but he took advantage of the wrong working woman"; asked the jury, "now, what are you to do about it?"; and stated, "robbing women in the morning on their way to work is about as serious as you can get." Defense counsel did not object to these statements.

The court specifically instructed the jury to consider only the crime charged. The jury found McDaniel guilty of robbery in the first degree. On May 2, 2005, Justice Seewald sentenced the petitioner as a mandatory persistent violent felony ...


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