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Arroyo v. Lee

December 8, 2011


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.



Luis Arroyo ("petitioner" or "Arroyo") brings this habeas corpus petition pursuant to 28 U.S.C. § 2254 ("section 2254") (the "petition"), challenging his state court conviction entered on July 11, 2005, following a jury trial in New York State Supreme Court, New York County. Petitioner was convicted of Assault in the First Degree (Penal Law § 120.10[1]), Attempted Murder in the Second Degree (Penal Law §§ 110.00 and 125.25[1]}, Burglary in the Second Degree (Penal Law § 140.25[2], and Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[2]).*fn1 Petitioner was sentenced to twenty (20) years each for the assault and attempted murder counts, seven (7) years for the burglary count, and fifteen (15) years for the weapon count, to be served concurrently.*fn2

Arroyo challenges his conviction on the following grounds: (1) the evidence was legally insufficient to uphold the burglary conviction; (2) the trial court erred in precluding defense counsel from eliciting testimony that demonstrated "a key witness' untruthfulness;" (3) the trial court erred when it refused to allow defense counsel to impeach the victim with prior contradictory descriptions of the vehicle used in the shooting; (4) the prosecution improperly elicited proof of petitioner's post-arrest silence; (5) petitioner's trial counsel was ineffective because he did not adequately conduct a pre-trial investigation; (6) petitioner's trial counsel was ineffective in failing to adequately prepare for trial; and (7) trial counsel's ineffectiveness prejudiced the outcome of the trial.*fn3 For the following reasons, the Petition is denied.


A. The Offense Conduct

By the year 2000, petitioner was in a relationship with Dorothy Perez.*fn4 Perez and Alexandra Colon ("Colon") were best friends, and through Perez, Colon was introduced to defendant and defendant's brother, Kelly Camarena.*fn5 At the time, defendant drove a black van with a distinctive red stripe around it, a spare wheel and a ladder in the back, and a railing on the top.*fn6

In 2002, Colon began a romantic relationship with Camarena. Despite dating his brother, the friendship between Colon and defendant deteriorated, as did the friendship between Colon and Perez. Over time, the estranged friends stopped communicating altogether. In 2004, Colon and Camarena ended their relationship, in part because of Colon's strained relationships with Perez and Arroyo.*fn7 On

October 26, 2004, Colon saw Perez in their neighborhood in Spanish Harlem and challenged Perez to a "fair fight" where they could settle their differences without their children present.*fn8

1. The Confrontation in Colon's Apartment

At 9:00 p.m. on the same evening, while Colon was alone with her children in her apartment at 1905 Second Avenue, apartment 2G,*fn9 defendant knocked on her door.*fn10 When Colon opened the door, Arroyo pushed the door open and forced his way inside.*fn11 Defendant yelled at Colon for her earlier altercation with Perez, and then smacked her face with his open hand.*fn12 Arroyo proceeded to chase Colon through the apartment, and left the apartment only when Colon succeeded in calling the police.*fn13
On October 29, 2004, three days after the apartment incident, Colon informed her cousin, Richard Rodriguez, what had happened.*fn14 Rodriguez then spoke with Arroyo on the phone, objecting to him getting involved in the dispute between Colon and Perez. Rodriguez told Arroyo that he "didn't have to come in [Colon's] house and do that in front of her kids."*fn15 The two men then decided to meet in person on East 116th Street between First and Pleasant Avenues. Rodriguez arrived first, and saw Arroyo get out of a black van with a red stripe and a spare wheel and ladder in the back.*fn16 The men spoke for a few minutes. Petitioner told Rodriguez to "keep that bitch in her place."*fn17 Rodriguez told Arroyo that if he had any issue with Colon, that he should speak to Rodriguez who would then speak to Colon.*fn18

2. The Shooting

After the two men parted ways, Rodriguez spoke to Colon near the park at 105th Street and told her not to argue with Arroyo or Perez anymore, and to just ignore them.*fn19 Soon thereafter, Rodriguez's wife, Alba Cruz, joined him together with their children. Colon walked to a store down the street while Rodriguez and Cruz watched their children and Colon's children play in the park.*fn20

Around dusk, Rodriguez crossed the street to get a light for his cigarette.*fn21 At the same time, he heard a car screech and saw petitioner driving toward him in his black van.*fn22 Rodriguez testified that the street was well lit, and that he instantly recognized Arroyo, who he had just seen earlier that afternoon. Rodriguez saw Arroyo stop the car, stick his head out of the window and reach his right hand across his body to pull out a black gun.*fn23 Cruz, who was standing on the opposite side of the street, testified that she had been alerted to the dark colored van because of the screeching sound.*fn24 She further testified that the driver had made the movements Rodriguez had described, although she could not see the driver's face or what was in his hand from where she was standing. *fn25

When Rodriguez saw the gun, he started to run. Arroyo fired four or five bullets, one of them hitting Rodriguez in the back, leaving him paralyzed.*fn26

Cruz testified that she had seen the spare tire and ladder on the van as it drove away.*fn27 Cruz called for an ambulance while detectives from the 23rd Precinct arrived at the scene to question Rodriguez. When asked by Detective Michael Pettit who had shot him, Rodriguez responded that he did not know and that he needed to get to a hospital.*fn28

The next morning, Detective Pettit spoke with Rodriguez at the hospital. Rodriguez identified Arroyo as the shooter.*fn29 Arroyo, who had been picked up the night before after an anonymous informant had placed the black van at the scene, was then arrested.*fn30

B. Procedural History

1. Direct Appeal

Arroyo appealed his conviction to the Appellate Division, First Department, raising four claims: (1) that the prosecution had not established some of the elements of the burglary charge, namely that Arroyo knew that his entering Colon's apartment was unlawful and that he had intended to commit a crime upon entry; (2) the trial court should have allowed the defense to impeach Colon's credibility by raising a purported suicide threat she had made in the past to get attention; (3) the trial court erred in precluding the defense from questioning Rodriguez about a previous description of the van he gave to the police in which the red stripe was omitted; and (4) that defendant's Fifth Amendment right to remain silent was violated when a police sergeant "attempted to interview him" when he arrived at the stationhouse.*fn31

On February 20, 2007, the Appellate Division unanimously affirmed petitioner's conviction, holding that the verdict was consistent with the weight of the evidence.*fn32 Additionally, the court found that petitioner's first claim regarding the legal sufficiency of the evidence in the burglary charge was unpreserved for appellate review, and that even if it were preserved, the court would have rejected it.*fn33 The court also ruled that the trial judge properly precluded the line of questioning about Colon's purported "false statement" of a suicide threat, as it was irrelevant to any trial issue or to her credibility.*fn34 Lastly, the court found that the trial court properly used its discretion with regard to the "minor descriptive detail" on petitioner's van.*fn35 On June 19, 2007, the New York Court of Appeals denied defendant's motion for leave to appeal.*fn36

2. Motion to Vacate the Judgment

On October 30, 2006, while the direct appeal was still pending, petitioner moved for an order vacating his conviction pursuant to section 440.10 of the New York Criminal Procedure Law ("CPL").*fn37 Arroyo's appellate counsel argued that Arroyo's trial attorney, Barry Weinstein, had provided ineffective assistance. Specifically, petitioner argued that his trial counsel failed to (1) investigate Ada Carrion, a potentially helpful witness and owner of the apartment Colon was living in, who could vouch that Arroyo was welcome in the apartment; (2) investigate Arroyo's alibi defense that he was at a laundromat at the time of the shooting; and (3) adequately prepare for trial. The People included an affidavit from Weinstein explaining the decisions Arroyo was ...

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