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Joseph v. Lavalley

United States District Court, Second Circuit

June 19, 2013

THOMAS LaVALLEY, Respondent.


MICHAEL A. TELESCA, District Judge.

I. Introduction

Pro se Petitioner Nicholas Joseph ("Petitioner" or "Joseph") 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 May 12, 2009, in New York State, Supreme Court, Monroe County (Justice Francis A. Affronti), convicting him, upon a non-jury verdict, of Aggravated Vehicular Assault (N.Y. Penal Law ("Penal Law") § 120.04-a[4]), two counts of Assault in the Second Degree (Penal Law § 120.05[4]), Leaving the Scene of a Personal Injury Accident (Vehicle & Traffic Law ("V&T Law") § 600[2][a]), Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol and any Drug or Drugs (V&T Law § 1192[4-a]), Criminal Possession of a Controlled Substance (Penal Law § 220.03), and Perjury in the First Degree (Penal Law § 210.15).

II. Factual Background and Procedural History

Petitioner was charged in a seven-count indictment with numerous offenses in violation of New York's Penal Law and V&T Law. The charges arose from an automobile collision that occurred on June 7, 2008, in which the vehicle Petitioner was driving struck a vehicle stopped in the left lane of Route 390 in Greece, New York.

A. The Non-Jury Trial

1. The People's Case

In the early morning hours of June 7, 2008, Petitioner, an off-duty Sergeant with the Greece Police Department ("GPD") went to "Spenders Bar and Grill, " where video-surveillance recorded him receiving numerous alcoholic beverages. Trial Trans. [T.T.] 740, 774-780.[1] At approximately 2:00 a.m., Petitioner left the bar driving his brother's Ford Fusion. T.T. 313-314, 733. As he traveled on Route 390 North, Petitioner was observed by a passing motorist speeding up and slowing down several times. T.T. 253-255.

Meanwhile, Alexis Sharp ("Sharp") and her boyfriend Terence Green ("Green") were driving home on Route 390 North when Sharp's car stalled. Sharp, who was driving, pulled over to the side of the road to call for assistance and activated her hazard lights. T.T. 197-198, 214-215. Sean Pieken ("Pieken"), who was also traveling on Route 390 North that evening, observed the stalled car with its hazards flashing from "probably 30 yards away." T.T. 229, 243. Brian Benedict ("Benedict"), also traveling on Route 390 North, testified that he observed Sharp's stalled car in the left lane with its hazards flashing, and continued past it. T.T. 257. Passing motorist Amy Myers ("Myers") testified that she observed the stalled vehicle in the left lane from approximately a half mile away, and moved into the right lane to pass it. T.T. 293-294. Petitioner, traveling at a speed in excess of 75 miles per hour, slammed into the rear of Sharp's stalled car without ever applying the brakes. T.T. 946, 1075. Petitioner, whose head was bloodied from hitting his windshield, got out of his vehicle and surveyed the scene, talking to motorist Pieken who had stopped after the crash. T.T. 235-236, 345-346. Before police or emergency personnel arrived, Petitioner fled the scene. T.T. 237-238, 275-276.

Sharp and Green were taken to the hospital and treated for their injuries. T.T. 200-201, 216, 362, 364, 380-381. Sharp, who was 25 weeks pregnant, underwent an emergency C-section as a result of the accident. T.T. 196, 199, 817. The premature birth resulted in various health problems for the infant, many of which are of permanent consequences. T.T. 426-430, 435-436, 451. Sharp also suffered a herniated disc in her neck that required her to wear a neck brace for two to three weeks. T.T. 200-201. She continued to require pain medication for a month or two after she was discharged from the hospital, and still has a "big scar" on her left arm. T.T. 201. Green suffered a concussion, a strained neck, a sprained back, and needed one or two stitches on his head. T.T. 216.

GPD Officer Brandon White, who arrived at the crash scene first, observed a Ford Fusion in the median between the north and southbound lanes of Route 390 with front end damage and its airbag deployed. T.T. 309. Upon closer inspection, Officer White observed blood on the airbag and blood and hair on the windshield of the car, which the police later determined was registered to David Joseph. T.T. 313-314. On the east side of the road, Officer White observed a Hyundai Elantra with damage to the rear end. T.T. 310. Numerous police and other emergency personnel eventually arrived at the scene and searched the area looking for the driver who had fled the scene with an apparent head injury, but the search was unsuccessful. T.T. 315, 390-391, 488-489, 501-502, 557, 578. GPD Officer Kevin McKeon inspected the crash scene and determined that "there were no indications of any braking" with respect to Petitioner's vehicle given the absence of skid marks on the road. T.T. 585-586. Officer McKeon arranged for the Ford Fusion to be towed from the scene and taken to the impound lot of Don Walker Towing. T.T. 337, 587.

Don Walker ("Walker"), the owner of Don Walker Towing, testified that the lot where the Ford Fusion was towed to is "fenced, big." T.T. 828. Walker testified that on the date of the accident, the lot would have been accessible to himself and to his son "and that's about it." T.T. 829. He testified that, to his knowledge, no one entered the lot and approached the Ford Fusion on June 7 or 8. T.T. 830. He testified further that on June 8, he received a call from Petitioner and Petitioner came to Walker's home at about 1:30 p.m., at which time Walker gave Petitioner the key to the lot gate. T.T. 831. Petitioner returned the key about 20 minutes later. T.T. 832. Walker testified that was the only time that day the lot gate was opened. T.T. 833.

On June 9, 2008, Kevin Burns ("Burns"), who worked for Miller Towing, received a call from a collision shop instructing him to pick up the Ford Fusion at Don Walker Towing, which he did. T.T. 517-518. Burns testified that he transported the Ford Fusion to L&V Automotive, which is owned by Vince Bevilaqua ("Bevilaqua"). He also testified that his lot is surrounded by an 8-foot fence with barbed wire on top, and that the gate is open during business hours but is locked at night. T.T. 530. Bevilaqua testified that while the Ford Fusion was in his lot, he did not see anyone go inside the car, except for one of his employees who entered to retrieve a CD, and Dave Joseph who "got some stuff out of there." T.T. 534-535. Bevilaqua also testified that "Mr. Kelly", a homeless man whom Bevilaqua knew to be a drug user, stayed on the premises. T.T. 536, 544-545.

On June 11, 2008, two GPD Sergeants went to L&V Automotive to pick up the Ford Fusion after receiving word that the vehicle was part of a police investigation and that they were awaiting a search warrant concerning that vehicle. T.T. 534, 617-618. When the GPD Sergeants received word that a search warrant had been signed, they instructed Griff's Towing to begin towing the vehicle. T.T. 620, 630. The Ford Fusion was then taken to GPD Headquarters and secured in the impound lot. T.T. 631. The next day, the state police took possession of the vehicle and transported it to a secure garage at Troop E Headquarters in Canandaigua. T.T. 633, 650. On June 16, 2008, State Police Investigator Kenneth Smith processed the Ford Fusion. T.T. 852-853. He removed the power train control module, which monitors the vehicle's mechanical functions. T.T. 859. He also removed the airbag and secured it, and took several blood samples from the vehicle. T.T. 873. Investigator Smith also recovered hair and tissue from the windshield, and collected the rear view mirror. T.T. 873-891.

Subsequently, Nancy Scibetta ("Scibetta"), the DNA Technical Manager at the Monroe County Public Safety Lab, collected red/brown stains on the airbag from the Ford Fusion using swabs. T.T. 1006, 1010, 1191. After test screening showed the presence of blood, Scibetta performed a DNA extraction, in which she obtained a DNA profile from the blood. She did not detect the profile of more than one individual. T.T. 1016. An investigator for the District Attorney's office then obtained two oral swabs from Petitioner, which Scibetta analyzed. T.T. 1004-1005, 1017. Petitioner's DNA profile matched the DNA profile from the blood. T.T. 1021. Scibetta testified that the probability of randomly selecting an individual with the same DNA profile would be 1 in 183 quadrillion. T.T. 1023.

Dr. Jeanne Beno, Chief Toxicologist for the Monroe County Medical Examiner's Office, performed cocaine and cocaine metabolite testing on the dried blood samples from the car.[2] T.T. 129-130. The results of the blood testing revealed the presence of cocaine and the cocaine metabolite benzoylcgonine in some of the samples taken from the Ford Fusion. T.T. 28. At trial, Dr. Beno testified that the presence of benzoylecgonine in a sample "indicates that cocaine has been metabolized." T.T. 1202. She testified that, "[u]nder certain circumstances, " benzoylecgonine could be found in blood that had cocaine added to it outside of the body. T.T. 1282-1283. She testified that the ratio of benzoylecgonine to cocaine in the blood samples was "within the error of the method and suggests that the ratio is the same in all of those samples." T.T. 1220. She testified further that this, in turn, suggests "that the benzoyclecgonine was formed in the blood prior to the blood being expelled onto the airbag." T.T. 1228-1229. She concluded to a reasonable degree of certainty that "the cocaine in the[] samples came from cocaine that was in the blood that was deposited on the airbag." T.T. 1227-1228. Additionally, Dr. Beno estimated that the cocaine was ingested "within an hour of the time the blood was deposited, two hours at the most[, ] but likely less than one hour, within one hour." T.T. 1230. Dr. Beno also tested for methylegcgonine and cocaethylene, but none was detected. T.T. 1219. With respect to methylegcgonine, Dr. Beno explained that "[w]hen blood is circulating in the body, it is metabolite that is rapidly cleared from the blood. However, when blood is outside of the body, it becomes the predominant breakdown and often times the exclusive breakdown product of cocaine in the blood because it's not able to be cleared, so it builds up in the blood when blood is in liquified form outside the body." T.T. 1219. She explained that the absence of this metabolite in Petitioner's case suggests that the blood dried quickly. T.T. 1220-1221. Dr. Beno also testified that cocaethylene is a metabolite of cocaine that is formed in the liver when the user consumes alcohol at the same time. T.T. 1220. The absence of cocaethylene in Petitioner's case was, according to Dr. Beno, not surprising given the cocaine and benzoyclecgonine concentrations. She explained that "if there was any cocaethylene produced, the expected concentrations of cocaethylene would be below the levels of sensitivity that we had in this methodology." T.T. 1292. Dr. Beno explained that cocaethylene takes time to build up in the body. T.T. 1306-1307. Based on her testing, Dr. Beno concluded that "it's not a reasonable conclusion that somebody could have planted [the blood]." T.T. 1295. She explained that to have placed the cocaine and benzoyclecgonine on the airbag, someone would have had to "create a low concentration of these drugs in solution and be able to spray very specifically onto those areas that combination of drugs without contaminating the other areas with benzoyclecgonine as well as the cocaine and with creating a uniform enough spray from spot to spot that you would not have extreme differences in the amount of cocaine recovered from each swatch that would suggest obviously that there was something wrong or some issue or problem there." T.T. 1296. Dr. Beno testified further that combined use of alcohol and cocaine will "counteract some of the effects of alcohol." T.T. 1032. She testified, however, this will "lead to impulsive, reckless behaviors. Together, the impairment of judgment is more severe." T.T. 1032. She explained that there would be a significant impairment of vision for the combined cocaine/alcohol user." T.T. 1302.

After the crash, at approximately 12:25 p.m. on June 7, 2008, GPD Sergeant Andrew Elmore, received a dispatch telling him to call Petitioner at home. T.T. 666. Sergeant Elmore did and spoke with Petitioner, who told him that he was the driver of the car that was involved in the accident "last night." T.T. 667-668. Petitioner told Sergeant Elmore that he had "blacked out" and did not remember anything other than having an accident somewhere on Route 390. T.T. 668. Without any prompting from Sergeant Elmore, Petitioner stated that, "[he] was coming back from the East End Fest. [He] worked security that night and [he] hadn't been drinking anything that evening." T.T. 668. Petitioner stated further "that he had just woken up and his wife had just told him to make that return phone call to the Police Department. He then went on to ask how the woman was. How the accident was." T.T. 669. Petitioner also told Sergeant Elmore that he did not remember how he got home. T.T. 670. Sergeant Elmore then called the GPD Chief to tell him that Petitioner was the driver of the car, who indicated that he already knew and that he had spoken to Petitioner and that it was Petitioner's wife who had brought him home after the accident. T.T. 679-680.

B. The Defense's Case

The defense presented a number of witnesses. Both of the doctors who examined Petitioner after the crash, Dr. Patrick Wilmont, an internist, and Dr. Joseph Mann, a neurologist, testified that they diagnosed Petitioner as suffering from postconcussive syndrome as a consequence of his head having hit the windshield and that it was not unusual for a person in such circumstances to not recall the traumatic event. T.T. 977-990, 1254, 1264.

Dr. Marc Micozzi, a forensic pathologist, a professor at Georgetown Medical School, and a trained toxicologist, testified that the particular method used for testing the dried blood in this case was "experimental, " and that "some of the experiment was done and parts... were not." T.T. 1342. Dr. Micozzi testified that because the testing was "experimental, " "we just don't know about their reliability." T.T. 1357. He testified that in order to reach a conclusion as to whether the tests on the dried blood found in the car meant that there had been cocaine in Petitioner's bloodstream, one would have to take dried blood and add cocaine, and no metabolite, and then determine if metabolite is produced, which had not been done in this case. T.T. 1343, 1349, 1350. Dr. Micozzi testified that the metabolite benzolecgogine can develop in blood outside of the body, and that it is not necessary to ingest cocaine for it to appear. T.T. 1344. He also testified that the metabolite cocaethylene, which is produced when there is the presence of ethyl alcohol and cocaine in the blood and which one would expect to find if a person had drank alcohol and ingested cocaine, but was not found in the testing of the blood from the Ford Fusion, can only be produced in the liver. T.T. 1345, 1348.

Robert Burns ("Burns"), an accident reconstruction expert for the Rochester Police Department, testified that, given the situation of driving at night and unexpectedly being confronted with a stopped vehicle in his lane, Petitioner's reaction time, as evidenced from the time he took his foot off the accelerator, was within normal parameters. T.T. 1449-1465. Burns further testified that the collision involved the front right of the Ford Fusion and the left rear of the Hyundai, which is consistent with an angular collision. T.T. 1468-1469.

C. Verdict and Sentence

The court returned a verdict of guilty on all counts and sentenced Petitioner to an aggregate term of imprisonment of 3 1/3 to 7 years, with 2 years post-release supervision. T.T. ...

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