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Chrysler v. Guiney

United States District Court, S.D. New York

March 31, 2014

G. GUINEY, Acting Superintendent, Five Points Correctional Facility, Respondent

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For Petitioner: Michael Howard Sussman, Esq., Sussman & Watkins, Goshen, NY.

For Respondent: Andrew R. Kass, Esq., Orange County Attorney, Goshen, NY.


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Petitioner Gregory Chrysler, through counsel, filed the instant petition for the writ of habeas corpus (" the Petition" or " Habeas Petition" ) pursuant to 28 U.S.C. § 2254, challenging his July 2000 conviction. The Court referred the case to the Honorable Magistrate Judge Lisa M. Smith, pursuant to 28 U.S.C. § 636(b), who issued a Report and Recommendation (" R& R" ), concluding that the Petition should

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be dismissed as untimely. (R& R 14 (Dkt. No. 43).) Petitioner submitted timely objections, again through counsel. (Petitioner's Objections to R& R Denying Habeas Corpus Petition as Untimely Filed (" Obj." ) (Dkt. No. 45).) For the reasons stated herein, the Court adopts the conclusion of the R& R that the Petition should be denied, although for different reasons.

I. Background

A. The Underlying Events

Petitioner was a marijuana dealer operating in and around the town of Newburgh, New York. ( See Resp't's Mem. at 2.) In late August 1998, police arrested Petitioner for felony marijuana possession based, at least in part, on information provided by a confidential informant.[1] ( See id. at 8-9.) Unknown to Petitioner at the time, the informant was Michael Ronsini (" Ronsini" ), who sold marijuana as part of Petitioner's criminal enterprise and whom police had arrested a few weeks prior to Petitioner. ( See id. at 6-8.)

Upset by his arrest and knowing that someone had cooperated with the police, Petitioner sought to discover the identity of the informant, whom Petitioner sometimes referred to as the " rat." ( See id. at 9-11.) Initially, Petitioner correctly suspected Ronsini. ( See id.) However, after conversations with Ronsini and others, Petitioner at some point came to suspect Dominic Pendino (" Pendino" ), another of Petitioner's associates. ( See id. at 10-12.)

On the morning of March 3, 1999, Pendino went missing. At approximately 5:47 a.m., Pendino's wife, Cynthia, saw him leave for work. ( See id. at 17.) But shortly after 6:00 a.m., and then again approximately one hour later, Cynthia received phone calls from Pendino's employer asking where he was. ( See id. at 18.) Cynthia ultimately went outside and found Pendino's car in the driveway, the keys still in the ignition. ( See id.) Alarmed, she immediately called the police. ( See id.) The responding officers conducted a search of the premises, whereby they observed droplets of blood in the driveway and other areas. ( See id. at 19.) The officers then declared the area to be a crime scene and called for additional assistance from the Newburgh Police Department and the New York State Major Crimes Unit. ( See id.)

After a thorough investigation of the scene, police investigators found a number of pieces of evidence indicating that Pendino had possibly been murdered. First, they found a fresh trail of blood droplets leading from Pendino's driveway to a large pool of blood in the backyard, and then a heavier trail of blood leading from that location to the driveway belonging to the house next door. ( See id. at 20.) Second, they found Pendino's blood-stained pager near the driveway. ( See id. at 20-21.) Third, they found a pair of eyeglasses, which they later traced to Petitioner. ( See id. at 20, 24.) Also, later that afternoon, after police told Ronsini about Pendino's disappearance, Ronsini provided tape recordings of conversations between him and Petitioner wherein Petitioner expressed his strong desire to seek revenge against the " rat." ( See id. at 10-11, 22.)

During their investigation into Pendino's disappearance, police investigators came to suspect Petitioner and one of his associates, Larry Weygant (" Weygant" ). Based on evidence collected during their investigation, police obtained and executed a search warrant authorizing them to seize two vehicles connected to Petitioner,

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among other items. ( See id. at 23-24.) Forensic testing initially revealed the presence of blood in both vehicles, ( see id. at 26-27), and subsequent DNA testing confirmed the blood to be Pendino's, ( see id. at 37-38). Additionally, police investigators approached Weygant's girlfriend, Salvatriece Ferretti (" Ferretti" ), and established a relationship whereby Ferretti spoke to police and gave them information on both suspects " virtually everyday" during their investigation. ( See id. at 27-28.)

In early May 1999, police arrested Petitioner and Weygant. ( See id. at 36.) A grand jury subsequently returned an Indictment against Petitioner and Weygant on June 7, charging them with two counts of murder in the second degree, one count of conspiracy in the second degree for conspiring to murder Pendino, and one count of conspiracy in the fifth degree for conspiring to possess marijuana. ( See Resp't's Ex. 1 (First Indictment).) But for reasons that are not relevant to the Petition, the prosecution convened a second grand jury to consider the charges. (Resp't's Ex. 15 at 184-85.) Weygant, but not Petitioner, chose to testify during these proceedings. (Resp't's Mem. at 38-43.) Ultimately, the Grand Jury returned a superseding indictment on October 22, 1999, charging the same four counts.[2] ( See Resp't's Ex. 13 (Second Indictment).) To this day, Pendino's body has never been found. ( See Pet. ¶ 40.)

B. Pre-trial Proceedings

During pre-trial proceedings, it was discovered that the police department responsible for investigating the crime, the Newburgh Police Department (" the Department" ), had been using a system that recorded all of the Department's incoming and outgoing telephone calls, at all times relevant to the investigation. (Resp't's Mem. at 47; Resp't's Exs. 18 (Order To Show Cause), 19 (Aff. in Supp. of Order To Show Cause).) The prosecutor requested a protective order in relation to the taped conversations, arguing that it would impose a tremendous burden on the Department to isolate and record all of the phone calls relevant to the investigation of Petitioner and Weygant. (Resp't's Exs. 18, 19.)

The trial court (Berry, J.), held a hearing on the issue, and credited testimony that to ascertain the existence of all recorded conversations going back more than a year and to retrieve and record those conversations would take two detectives working full time one to three years or would require a substantial monetary investment in new equipment, which equipment would not be available for forty-five to sixty days. ( See Resp't's Mem. at 47-54; Resp't's Ex. 24 (Decision and Order granting requested protective order).) The trial court also found that Department officers had credibly testified that they had not been previously aware that the tape recordings might yield discovery material, and that the District Attorney's Office had not been previously aware that the Department regularly recorded its phone calls. ( See Resp't's Mem. at 53; Resp't's Ex. 24.) In a written decision, the trial court ruled that the Department was required to produce recordings of phone conversations between March 3, 1999, the date of the incident, and May 3, 1999, the date of the arrests, but was not required to find or produce relevant recordings outside that window. (R& R 3; see also Resp't's Ex. 24.)

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Also before trial, Petitioner moved to sever his trial from Weygant's. ( See Resp't's Ex. 30 at 341 (Hr'g Tr.).) At a hearing, however, Petitioner withdrew his severance motion after allocution with the court, during which Justice Berry expressly stated that he would have granted Petitioner's severance request if it had not been withdrawn. ( See id. at 341, 345-48, 377-79.) Justice Berry also discussed with Petitioner several items of evidence that would be admissible against Weygant but would be otherwise inadmissible against Petitioner; but, according to Petitioner, Justice Berry did not expressly state that the prosecutor would introduce Weygant's statements to the second Grand Jury against Petitioner, or that ...

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