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Hayes v. Lee

United States District Court, Second Circuit

July 30, 2013

GEORGE HAYES, Petitioner,
WILIAM E. LEE, Respondent.


PAUL G. GARDEPHE, District Judge.

George Hayes, a New York state prisoner incarcerated at Green Haven Correctional Facility, has filed a pro se petition for a writ of habeas corpus. On July 16, 2010, this Court referred the petition to Magistrate Judge Ronald L. Ellis for a Report and Recommendation ("R&R"). (Dkt. No. 3) On July 27, 2010, Hayes filed an Amended Petition. (Dkt. No. 5) On April 8, 2011, Judge Ellis issued an R&R recommending that this Court deny the petition in its entirety. (Dkt. No. 16) Hayes has filed objections to the R&R. (Dkt. No. 20) For the reasons stated below, this Court will adopt the R&R and will deny Hayes's Amended Petition.


On July 10, 2007, Hayes was convicted by a jury in Supreme Court of the State of New York, New York County, of criminal possession of a weapon in the third degree, criminal possession of a controlled substance in the fourth degree, and criminal use of drug paraphernalia in the second degree. (R&R at 1)

Hayes's convictions arose from the execution of a search warrant at 201 Linden Boulevard, Apartment 22D, in Brooklyn, on August 17, 2006. (R&R at 2 (citing Trial Tr. at 33-34)) The police officers executing the search warrant used a hydraulic ram to take down the door of the apartment. (Trial Tr. at 36) When the police entered, Patrick McGuilkin ran into a bedroom, and Rasean Williams threw a plastic bag containing cocaine out of the living room window. (R&R at 2 (citing Trial Tr. at 37, 39); Trial Tr. at 38-39, 233) Several officers followed McGuilkin into the bedroom, where he threw himself onto the bed and appeared to reach for something under the mattress. (R&R at 2; Trial Tr. at 231-32) Officers found a fully-loaded, chrome-plated, semi-automatic 9 mm. Norinco-brand handgun under the mattress in the bedroom. (R&R at 2 (citing Trial Tr. at 196); see also Trial Tr. at 89-90)

When the police entered the bedroom, they found Hayes standing by a window. (Trial Tr. at 39) Detectives searched Hayes and found cocaine in his pocket; he was holding tinfoil wrappers used to package drugs. (R&R at 2; Trial Tr. at 39, 43, 196) In the bedroom, police also found three large black trash bags that contained clear, zip-lock plastic bags used to package drugs, a number of photographs showing Hayes in the apartment, and a bank statement addressed to Hayes at a post office box. (R&R at 2 (citing Trial Tr. at 45-55)) One of the photographs the police recovered from the trash bags in the bedroom showed Hayes sitting in that bedroom, on the bed, holding what appeared to be the same handgun found under the mattress (the "Photograph"). (Trial Tr. at 46-48, 92-94)


Before trial, defense counsel moved to exclude the Photograph as unfairly prejudicial, arguing that there was no proof as to when it was taken, and that because the Photograph "was taken on an unknown date, one cannot infer [that] my client even knew the gun was still in the apartment." Defense counsel also mentioned, in passing, that he didn't "think [the People] could prove that it is the same gun." (June 4, 2007 Pre-Trial Tr. 6-10; June 5, 2007 Pretrial Tr. at 14-15) The trial judge ruled that the Photograph was admissible, commenting that "It appears to be the apartment. It appears to be the gun. It is and appears to be the defendant." (June 5, 2007 Pre-Trail Tr. at 20) Defense counsel then asked the trial judge whether there were any limitations on the use of the Photograph:

Mr. Delbaum: I have a question with respect to having admitted the allowing the - admission of the photograph. The question is, are there any restrictions, should it be, if -
The Court: What kind of restrictions are you talking about?
Mr. Delbaum: Well, you know the issue here is knowledge, access, dominion and control.
Does that picture basically indicate any time my client - my argument that is - it is basically, if they want to show my client ate pizza last Monday, did he eat pizza this Monday.
The Court: You could argue anything you want.
Mr. Delbaum: Is that picture admissible for all purposes, any purpose the People want?
The Court: It is him in the apartment.

(June 5, 2007 Pre-Trial Tr. at 20-21)

The decision to admit the Photograph prompted an outburst from Hayes, which led the trial judge to remove Hayes from the courtroom for the balance of the trial. (R&R at 3 (citing June 5, 2007 Pre-Trial Tr. at 21-27, 55))

At trial, the Photograph was admitted through Detective Selwyn Fonrose, who had discovered the photographs in one of the trash bags while searching the bedroom. (Trial Tr. at 44-48) Detective Desmond Stokes, a firearms expert, testified that the handgun Hayes was holding in the Photograph was the same type of semi-automatic pistol that was recovered in the bedroom, and that it was also the same color. (Trial Tr. at 82-86, 92-94) Det. Stokes conceded, however, that he could not determine whether it was "the exact same gun, " because that could only be determined by a serial number comparison, and the serial number of the handgun shown in the Photograph was not legible. (Trial Tr. at 93-94).

In connection with the use of photographs generally, the trial judge instructed the jury that

... the fact that I'm admitting a photograph doesn't mean you have to do anything with it other than in the jury room put it aside and say, that's nice to know. You can make an evaluation and decide the photograph has some connection or probative value with respect to all the probative issues you are asked to figure out, use it. If it does not make sense, don't use it.

(Trial Tr. at 51)

In summation, defense counsel conceded that the gun Hayes was holding in the Photograph was - if not the same gun "a gun that appears to be very much like [the gun that was recovered under the mattress].... Certainly, the same kind of gun." (Trial Tr. at 256) Counsel argued, however, that the People had not proven that Hayes had dominion and control over the gun, or that he even knew that it was under the mattress when the search warrant was executed, noting that it was Patrick McGuilkin who had reached for the gun and therefore it was under his control. (Trial Tr. at 257-58; see also Trial Tr. at 263-64 ("even if the gun he held in that picture is the same gun, they did not prove that he knew it was under the bed") With respect to the Photograph, defense counsel argued that Hayes had been "stoned" and may "not [have] even [been] aware that somebody put this gun in his hand." (Trial Tr. at 256)

In response to defense counsel's argument that McGuilkin had dominion and control over the gun, the prosecutor argued - over defense counsel's objection - that "there is no picture of Patrick McGuilkin holding the gun. We only have a picture of George Hayes holding the gun. He's the only person who knew about the gun in that room." (Trial Tr. at 276) The prosecutor also ridiculed defense counsel's argument that someone had slipped the gun into Hayes's hand and then snapped the Photograph:

Now, does it look like he was set up here? Do you think someone slipped that gun into his hand [and] then snapped a quick picture? Look at how comfortable he is in this picture holding that gun. Look how comfortable he is in the surroundings in all of the pictures. He's comfortable in the apartment. He knew the gun was there, and he obviously had dominion and control over the gun. You could see it.

(Trial Tr. at 276)

The jury found Hayes guilty on all counts. (R&R at 4 (citing ...

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