The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Charles Stenson (the "Petitioner") brings this petition for a writ of habeas corpus under
28 U.S.C. § 2254 ("§ 2254"), challenging a judgment of conviction entered on May 28, 2008 in the New York Supreme Court, New York County. Petitioner was convicted, after trial, of three counts of Burglary in the Second Degree (N.Y. Penal Law § 140.52(2)), one count of Criminal Mischief in the Second Degree (N.Y. Penal Law § 145.10), and two counts of Criminal Mischief in the Fourth Degree (N.Y. Penal Law § 145.00). Petitioner was sentenced to determinate terms of four years' imprisonment on the Second Degree Burglary counts, an indeterminate term of one and one-third to four years' imprisonment on the Second Degree Criminal Mischief count, and a determinate term of one year imprisonment on the Fourth Degree Criminal Mischief counts, all to run concurrently with each other, but consecutively to a term of imprisonment on a unrelated conviction.
1. Burglary of Wine Lover's Store
In the early morning hours of May 19, 2005, Wine Lover's Store, a retail wine store located at 1752 Second Avenue in Manhattan, was burglarized. (See Trial Tr. ("Tr.") at 37, 72.) Barbara Phillips ("Phillips"), the storeowner, testified at trial that her former assistant manager closed the store on May 18, 2005 and followed the business's standard security procedures for securing the premises. (Id. at 49-50.)
On May 19, 2005 at 11:00 a.m., Phillips opened Wine Lover's Store and customarily reviewed the surveillance videos from the previous night. (Id. at 50-51.) The surveillance tapes showed that after midnight, a man wearing a tan hat, tan jacket, long white t-shirt, tan sweatpants, tan boots, and at least one earring entered an open door in the basement storage area of the store, and moved around the store. (See Pet'r's Exs. in Supp. of Pet. for Writ of Habeas Corpus ("Pet'r's Exs."), Ex. A-1, A-4.) The tape captures the man's body movements and his face is exposed several times. (See Pet'r's Ex. A-1, A-4) Phillips stated that she had never seen the man before. (Tr. at 66-67.) After reviewing the tapes, Phillips inspected the premises, and found the lock to the front door damaged, the lock of the door that led to the basement damaged, and the metal basement doors damaged with a large gap in the center of the door near the lock. (Id. at 54-55, 72-73.) No property had been taken during the burglary. (Id. at 73-74.) Phillips spent $3,000 to repair the door and the lock. (Id. at 56.)
2. Burglary of Garcie's Cafe
Early in the morning of October 30, 2005, Garcie's Cafe, a restaurant located at 1530 York Avenue at 81st Street in Manhattan, was burglarized. (Id. at 150-51.) Keith Kreatsoulas ("Kreatsoulas"), the restaurant owner, arrived at the store on October 29, 2005 at around noon and left at about 10:00 p.m. (Id. at 161.) Kreatsoulas returned to the restaurant at approximately 1:30 a.m. on October 30, 2005 to retrieve his keys, which he believed he had left in a drawer underneath the cash register. (Id. at 161-62.) Upon entering the restaurant, Kreatsoulas noticed that a ceiling tile that held the restaurant's surveillance camera had been "pulled off the wall," and that a chair had been positioned underneath the area where the ceiling tile had once been. (Id. at 164.) Kreatsoulas looked in the drawer underneath the cash register, but was unable to locate his keys. (Id. at 162-63.)
Kreatsoulas did not immediately call the police, but waited until the start of the work day to ask his employees if they knew what had happen to the ceiling tile. (Id. at 164.) After questioning his employees--who claimed to know nothing about the fallen ceiling tile-- Kreatsoulas called the police, and proceeded to review the restaurant's surveillance video tapes. (Id. at 164-67.) Surveillance video taken from a camera located over the cash register shows a man wearing a brimmed cap and jacket going through the drawers under and near the restaurant's cash register, and reveals the man's body movements. (See Pet'r's Ex. A-3.) A video from a second surveillance camera, located in the basement prep area, shows the same man, wearing a dark colored jacket, a dark-colored baseball cap, dark-colored pants, and earrings, moving around the area. (See Pet'r's Exs. A-3, A-6.) The video captures his body movements and his face is exposed briefly. (See Pet'r's Exs. A-3, A-6) Kreatsoulas had never before seen the man in the surveillance video. (Tr. at 171.) Kreatsoulas later observed that one of the basement doors had been pried open, and that the deadbolt lock was broken. (Id. at 172-73.) No property was taken. (Id. at 174-75.) Kreatsoulas spent $250 to repair the lock. (Id. at 173.)
3. Burglary of Danny's & Eddie's Bar
Early in the morning on December 23, 2006, Danny's & Eddie's Bar, located at 1643
First Avenue between 85th and 86th Streets in Manhattan, was burglarized. (Id. at 99-100.)
Jennifer Rubin ("Rubin"), the store manager, worked at the store from 1:00 p.m. on December 22, 2006 until between 3:00 a.m. and 4:00 a.m. the next morning. (Id. at 111.) Rubin returned to the bar on December 23, 2006 between noon and 1:00 p.m. (Id. at 112.) When Rubin went to her basement office, she discovered that the liquor room door was wide open. (Id.) She found that the door lock was damaged and that the latch that hooked the lock was ...