United States District Court, E.D. New York
THOMAS F. GREEN, Petitioner,
WILLIAM LEE, Superintendent of Green Haven Correctional Facility, and the ATTORNEY GENERAL OF STATE OF NEW YORK, Respondents
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For the Petitioner: Ronald L. Kuby, Esq., Lea Marie Spiess, Esq., Of Counsel, The Law Office of Ronald L. Kuby, New York, NY.
For Karla Lato, Assistant District Attorney, Respondent: Thomas J. Spota, Suffolk County District Attorney, Riverhead, NY.
MEMORANDUM OF DECISION AND ORDER
ARTHUR D. SPATT, United States District Judge.
The presently incarcerated petitioner Thomas F. Green brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds (1) that he was denied his constitutional right to effective assistance of counsel and (2) prosecutorial misconduct. The Court finds that the Petitioner has established that he received
constitutionally inadequate assistance of counsel and that a " reasonable probability" exists that the outcome of the trial would have been different had he received effective assistance of counsel. Thus, Green was deprived of a fair trial.
For the reasons that follow, the habeas petition is conditionally granted.
A. The Trial
On April 17, 2007, a Suffolk County Grand Jury indicted the Petitioner on ten counts related to the alleged sexual molestation of his granddaughter, G.G., and four of her friends, B.M., B., S., and K. The indictment, as supplemented by a bill of particulars, alleged that the crimes were committed in both public and private places and during particular seasons in 1998-1999, 2001, and 2003.
B.M., the first of the complainants to accuse Green of sexual abuse, did not come forward until the Fall of 2006. Although B.M. also alleged that G.G. had been abused as well, G.G. denied that any abuse had taken place. Green has consistently denied that such abuse occurred, and has denied even knowing B.M. in 1998-1999.
Counts one through four of the indictment involved incidents that allegedly took place between the end of 1998 and 1999. The Petitioner allegedly committed sodomy in the first degree twice against B.M., attempted sodomy in the first degree against G.G., and sexual abuse in the first degree against B.M.
Count five accused the Petitioner of sexual abuse in the first degree against B. during the summer of 2003.
Counts six and seven accused the Petitioner of sexual abuse in the first degree against S. during the summer of 2001.
Counts eight and nine accused the Petitioner of sexual abuse in the first degree and sexual abuse in the second degree against K. during the summer of 2003.
Count ten accused the Petitioner of sexual abuse in the second degree against B.M. during the summer of 2003.
A jury trial commenced in July 2008 before Judge Barbara R. Kahn in Suffolk County, County Court.
1. Opening Statements
Relevant here, in its opening statement, the People indicated that, in the winter of 1998 to 1999, B.M. and G.G. " spent almost every weekend together at [the Petitioner's] house." (Tr. 41.) The People also asserted that on one occasion during this time period, the Petitioner sexually assaulted B.M. and G.G. (Tr. 41-44.) By contrast, in Green's opening statement, the trial counsel, Paul Gianelli, stated that B.M. " [wa]s absolutely wrong. She did not spend time in Mr. Green's presence and with [G.G.] in 1998. You'll hear from witnesses who will say that it never happened." (Tr. at 54.)
2. The People's Case
The jury first heard testimony from B.M. She testified that, when she was seven years old, in 1998, she met G.G. and that thereafter, G.G. was her best friend. (Tr. at 513-14.) B.M. stated that, at this time, she began spending nights at Green's home. (Tr. at 522.) According to B.M., she and G.G. slept at Green's home " [e]very weekend," and " every day" during the summer of 1998. (Tr. at 522.) In this regard, the People introduced into evidence a photograph of B.M. and G.G. together dressed in Halloween costumes. According to B.M., the Halloween photograph was taken on Green's front porch when she was seven years old in 1998. (Tr. at 516-17; Plf's Exh G.)
B.M. further testified that at some point during the winter of 1998-1999, she was sexually molested by Green. (Tr. at 541-42.) In particular, B.M. testified that on one occasion, B.M., G.G., and Green watched a scary movie that they rented from Blockbuster Video. (Tr. at 543.) B.M. and G.G. became frightened by the movie, and the girls slept that night with Green in his bed. (Tr. at 544.). During the night, B.M. stated that she awoke to find that Green had pushed aside her underwear and had his mouth on her vagina. (Tr. at 544-45.) B.M. stated that she kicked Green in the face and he fell over. (Tr. at 545.) B.M. further stated that she was too scared to leave the bed and fell back asleep. (Tr. at 546.)
B.M. also stated that she was later awakened when G.G. " punched [her] in the face . . . because [G.G.] woke up to [Green] trying to do the same thing to her." (Tr. at 545) B.M. stated that she instructed G.G. to kick Green in face, which G.G. did. (Tr. at 545.) The two girls subsequently fled to the next room and locked the door. (Tr. at 547-548.)
At some point, Green unlocked the door and asked the girls if they wanted to see a magic trick. (Tr. at 549.) Green allegedly told B.M. that she would have to put her mouth on his penis to see the trick. (Tr. at 549.) After initially refusing, B.M. relented and put her mouth on his penis but removed it when she began to gag. (Tr. at 550.)
B.M. stated that afterward, she fell asleep. (Tr. at 551.) B.M. later awoke and found herself again in Green's bed, and Green was rubbing his penis against her vagina. (Tr. at 550-51.) She stated that she pushed Green away and told him to stop. (Tr. at 551.)
B.M. testified that the two girls made a pinky promise that they would tell others about the incident when they got older. (Tr. at 552, 561.) The next day, Green wore a bandage on his nose. (Tr. at 547.) He allegedly warned B.M. that if anyone asked about the bandage, she should say that Green fell down the stairs. (Tr. at 563-64.) Green allegedly advised B.M. not to tell anyone about the previous night because other people would not understand about having " fun." (Tr. at 567.)
With regard to the belated disclosure of the abuse, B.M. testified as follows:
Q. Why didn't you want to right away?
A. Cause I was scared.
. . .
Q. Where did you talk to [G.G. immediately after the incident]?
A. In Mr. Green's bathroom.
Q. And what did you say to her?
A. I told her when we get older and ready to face it that we were going to tell.
Q. And what did you do in that regard?
A. We made a pinky promise to tell.
Q. What was the reason you didn't want to tell then?
A. Because I knew I wasn't going to be able to go through all this at that age.
Q. What does that mean, " all this" ?
A. All the courts, all that, I wouldn't understand all of it, it was so frustrating when I was younger.
(Tr. at 552, 561-62.)
On cross-examination, B.M. testified:
Q. And you indicated that you made a decision that you were going to tell when you got older?
Q. And you say at the time this happened you were seven years old, right?
Q. And one of the reasons that you and [G.G.] made this particular promise when you were seven years old was that
you said " I knew I wasn't going to be able to go through this at that age" ?
Q. That you didn't want to go through all the courts, I wouldn't understand all of it, right?
Q. Let me ask you this. At age seven, how did you know what you were going to go through with the courts?
A. Cause my mom used to watch Law and Order.
Q. You understood at age seven what was going to happen?
A. I understood that it was a big responsibility, yes.
Q. And because of what you saw on Law and Order you made a decision with [G.G.] not to disclose this, is that what you're saying?
A. And I knew that [G.G.] --
Q. No. No. Is that what you're saying?
Q. Was there a particular show on Law and Order that left this impression on you when you were seven?
A. No, it's just Law and Order.
A. It's just another Law and Order show.
Q. Was there a show about a young girl who was seven years old who had to go to court?
Q. Or anything like that?
A. No, but [Law and Order: Special Victims Unit] is all about molestation and rape.
. . .
Q. Was that on in 1998?
Q. It was?
Q. You used to watch it?
Q. So you made a decision -- could you distinguish between, you know, fiction on TV and real life? Could you do that?
(Tr. at 710-12.)
On re-direct examination, B.M. testified as follows:
Q. You had testified before on cross-examination that telling would be a big responsibility, what does that mean?
A. It's just how I am now, if I was seven, if I was ten years younger now, could you see me up here doing this? I can't.
(Tr. at 770.)
After the alleged incident, Green began giving B.M. money and gifts. (Tr. at 568-69.) In that regard, the People introduced into evidence a device called a " Turbo Twister Speller" that Green gave to B.M. to help with her spelling. (Tr. at 580.) B.M. stated that Green gave her the " Turbo-Twister" toy when she " started failing school . . . for spelling" in " third grade." (Tr. at 580.) B.M. stated that she was in third grade in 1999. (Tr. at 521.) B.M. ...