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Daly v. Lee

United States District Court, E.D. New York

April 4, 2014

JOHN DALY, Petitioner,

Petitioner is proceeding pro se.

Respondent is represented by Andria M. DiGregorio, Nassau County District Attorney, Mineola, NY.


JOSEPH F. BIANCO, District Judge.

John P. Daly ("petitioner" or "Daly") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction entered on June 11, 2002 in the County Court of the State of New York, County of Nassau, for six counts of robbery in the first degree, N.Y. Penal Law § 160.15(1)-(2); two counts of assault in the first degree, id. § 120.10(1); and two counts of attempted robbery in the first degree, id. § 110 160.15(1)-(2). Petitioner was sentenced to a term of imprisonment of thirty-five years, which was subsequently reduced to twenty-five years.

Petitioner challenges his conviction on the following grounds: (1) ineffective assistance of counsel; and (2) his constitutional rights were violated because of "prejudicial spillover" when he was tried simultaneously for two robberies, one at an Off Track Betting parlor ("OTB") in Farmingdale, New York, and the other at a Mobil gas station in Hempstead, New York, where the OTB robbery conviction was later vacated. For the following reasons, the Court denies the petition for writ of habeas corpus in its entirety on the merits.


A. Factual Background

The Court has adduced the following facts from the instant petition and underlying record. This case concerns two separate crimes that were tried together against petitioner.

1. OTB Robbery and Shooting

The first incident occurred on January 14, 2001, at the Off Track Betting ("OTB") in Farmingdale, New York, on Hempstead Turnpike. (Tr.[1] at 5). Throughout the afternoon, several individuals observed a "very suspicious" and "odd-looking" man in the OTB. ( Id. at 255-60, 265-67, 323-25, 349-50, 516-20.) The man was a White male, about thirty to forty years old, with an approximate height of six feet and weight of 190 pounds. ( Id. at 258, 324, 341, 349-50.) He had a mustache and was wearing a blond shoulder-length wig, dark baseball cap, lightly tinted sunglasses, scarf, and large ski jacket. ( Id. at 258-59, 323-25, 340-41, 349-51.)

At about 1:00 p.m., the OTB operations manager, Glen Abraham ("Abraham"), took special notice of the man because he was an "odd-looking character." ( Id. at 349-52.) Abraham watched him sporadically throughout the day, observing that the man wore his sunglasses most of the time while checking the results and watching the races. ( Id. at 349-50.) Abraham later identified petitioner as this man. ( Id. at 359-62.) Around 2:00 p.m., Peter Shank ("Shank") entered the OTB and began watching the races on the televisions in the back of the room. ( Id. at 255-57.) After about five minutes, Shank noticed the same man, whom he described as "very suspicious, " wearing sunglasses about three feet away from him. ( Id. at 257-60.) Shank began watching the races and placing bets while continuing to look over at the man, who stood about twenty feet away and never left the area where the results were posted. ( Id. at 260-61). Shank identified petitioner as this man. ( Id. at 264-65, 285-91.)

Around 4:20 p.m., the ninth race had just closed and three cashiers-Catherine Koscik ("Koscik"), Georgeann Bragman ("Bragman"), and Carol Corrado ("Corrado")-were working at different windows. ( Id. at 337-38, 513-15, 320-22.) Abraham was in the back room doing paperwork, and all of the customers were watching the race. ( Id. at 355, 338.) The man approached Koscik's window, pointed a silver revolver at her face, and said, "Give me your large bills." ( Id. at 338-40, 518.) Koscik grabbed a pack of large bills and threw it into the man's knapsack. ( Id. at 340.) When the man moved to Bragman's window, Koscik ran into the back room and screamed, "We're being robbed. We're being robbed." ( Id. at 341-42.)

The man approached Bragman's window and pointed his gun at her. ( Id. at 518.) Having just witnessed the man rob Koscik, Bragman knew what he wanted and had her money ready. ( Id. ) She placed about $2200 in his knapsack, and the man walked over to Corrado's window. ( Id. at 519.) The man then robbed Corrado in the same manner. ( Id. at 325-27, 519.)

At about 4:00 p.m., Shank witnessed two fearful-looking cashiers placing money in a robber's bag. ( Id. at 265-66.) He deduced that a robbery was in progress and ran towards the robber, who was walking toward the exit. ( Id. at 267.) Shank tackled the robber near the door and landed on top of him. ( Id. at 268-69.) As Shank stood and went to pick the man up off the floor, he heard a shot. ( Id. ) He felt a burning sensation in his stomach, realized he had been shot, and fell to the ground. ( Id. ) The robber then ran out of an emergency exit door. ( Id. at 270.) Bragman called the police after witnessing Shank tackle the man and hearing a gunshot. ( Id. at 520.) The police arrived a few minutes later and began securing the crime scene. ( Id. at 358.) Shank was airlifted to a hospital, where he underwent surgery to repair his bulletdamaged liver. ( Id. at 272-73.)

At around 7:15 p.m., Detective Patrick Carroll ("Detective Carroll") entered the OTB and observed a pool of blood on the floor, a bullet hole in a wood partition, and a bullet lying on the floor. ( Id. at 302-05.) The bullet was a damaged lead fragment from a revolver which was deformed from either going through or hitting a hard object. ( Id. at 311-12.) In the OTB parking lot, Detective Carroll found a dark-colored baseball cap with an Abercrombie and Fitch logo. ( Id. at 310.) When presented with the baseball cap in court, neither Shank nor Abraham could positively identify the cap as the one worn by the OTB robber. ( Id. at 263, 351.)

2. Mobil Station Attempted Robbery and Shooting

The second incident occurred on February 26, 2001, at the Mobil Gas Station at 710 Fulton Avenue in Hempstead. ( Id. at 427-30.) At about 10:20 a.m., Liquat Ali ("Ali") was at work pumping gas while Harbans Bharaj Sr., ("Bharaj Sr."), the gas station owner, and Harbans Bharaj Jr. ("Bharaj Jr."), his son, were counting money inside the office. ( Id. at 427-29, 390.) When Ali opened the door to walk inside the station, a man grabbed him by his shirt from behind. ( Id. at 429.) The man held a silver revolver to Ali's shoulder and demanded that Ali go in the station and give him "whatever was inside." ( Id. at 429-31.) The man was of average size, about 5'9" or 5'10, " and had fair skin. ( Id. at 392, 431.) He was wearing a dark ski hat pulled over his face with an opening that revealed his eyes, nose and lips. ( Id. at 431-32, 486, 392-94.) He was also wearing a black and red plaid shirt and cut-off gloves that revealed his fingers. ( Id. at 431, 486.) Ali identified petitioner as this man. ( Id. at 434-35.)

Ali had seen petitioner at the Mobil on four or five different occasions about two weeks before the incident. ( Id. at 436-37.) On two of these occasions, petitioner gave Ali an Exxon credit card and told him to swipe the card and give him $20 in cash instead of pumping gas. ( Id. at 437.) On both of these occasions, petitioner never received any money for his attempted transactions because his credit card was not approved. ( Id. ) On another occasion, petitioner came to the gas station and asked customers if he could use his credit card to pay for their gas in exchange for cash. ( Id. )

On multiple visits to the Mobil, Ali had observed petitioner driving a large white pickup truck with blue lettering, and later identified a photograph of the truck. ( Id. at 437-38.)

Bharaj Sr. and Bharaj Jr. were sitting in the office of the gas station when they heard Ali scream. ( Id. at 392, 484, 490.) They ran out of the office and saw petitioner pushing Ali through the gas station door. ( Id. at 392, 484-86.) Ali was yelling, "Help, help, he's robbing me, help." ( Id. at 484.) Bharaj Sr. immediately recognized petitioner as the same customer who had visited the station on multiple prior occasions. ( Id. at 490.) On the first occasion, two weeks prior to the attempted robbery, Bharaj Sr. witnessed petitioner arrive at the station driving a white pickup truck with blue lettering and New Jersey license plates. ( Id. at 487-88.) Petitioner attempted to use his company credit card to pump gas for other customers in exchange for their cash. ( Id. at 487.) On the second occasion, petitioner attempted to use his credit card again to pay for gas but the card would not work. ( Id. at 488.) On the third occasion, Bharaj Sr. saw petitioner arrive at the station on a bicycle, which he dropped in front of the door before entering the sales area. ( Id. at 489.) Petitioner was hostile toward Bharaj Jr. as he bought cigarettes and, at one point, petitioner threatened to kill him. ( Id. at 489-90, 397-98.) Shortly after threatening Bharaj Jr., petitioner then left the gas station on his bicycle. ( Id. at 398.)

After leaving the office and seeing petitioner and Ali in the sales area, Bharaj Jr. panicked when he realized that a robbery was in progress and threw a piece of Lshaped countertop at petitioner. ( Id. at 392, 394-95, 417.) Petitioner then abandoned his robbery plans and started running away toward Cameron Avenue. ( Id. at 392-93, 490-92.) Bharaj Sr. and Jr. began pursuing petitioner. ( Id. at 393, 435, 490-91.) As he approached the corner of the gas station, he turned to look toward the Bharajs and then headed down Cameron Avenue. ( Id. at 491.) About fifty feet further, petitioner turned around a second time. ( Id. ) Bharaj Sr. then saw that petitioner was holding a gun and screamed to warn his son, "Run, he's got a gun." ( Id. at 393, 491-92.) Bharaj Jr., who was about ten feet away from petitioner, saw a silver revolver in petitioner's hand. ( Id. at 400-01.) Petitioner then turned toward the Bharajs and fired. ( Id. at 400, 491-92.) The bullet hit Bharaj Jr. in his finger, continued into his abdomen, and became lodged near his spine. ( Id. at 402-05.)

After firing his gun, petitioner proceeded down Cameron Avenue and turned right onto Devon Street. ( Id. at 402-03.) At about 10:20 a.m., Clarence Jackson ("Jackson"), a resident of Cameron Avenue, heard gunshots from outside his home. ( Id. at 702-05.) He looked out the window and saw a man in a red plaid jacket running across Cameron Avenue. ( Id. at 705-06.) He also witnessed the man get into a small white car on the corner of Devon Street and Cameron Avenue and drive away. ( Id. )

Bharaj Sr. stopped chasing petitioner when his son was shot and called 911 for help. ( Id. at 403, 492.) Bharaj Jr. was transported to a hospital where he underwent abdominal surgery. ( Id. at 492-93, 403-05.) He was hospitalized for four days and returned to the hospital for a second surgery to remove the bullet. ( Id. at 405-06.)

3. Police Surveillance of Petitioner's House

On February 26, 2001, the morning of the Mobil incident, Detectives Robert Ragona ("Detective Ragona") and Douglas Sorenson ("Detective Sorenson") were conducting surveillance near petitioner's home in Levittown. ( Id. at 451-52, 472-73.) At about 9:00 a.m., they parked by the house in an unmarked vehicle. ( Id. at 473-74.) There was a white Nissan pickup truck with blue writing on the sides parked in the driveway. ( Id. at 454, 474.) At about 10:10 a.m., a male tenant driving a red van pulled up to the front of the residence and entered the house. ( Id. at 474-75.) The tenant was not carrying anything. ( Id. at 456, 475.)

At about 10:50 a.m., the detectives saw petitioner pull into the driveway in a white Nissan Pulsar. ( Id. at 456-59.) Petitioner got out of the car and was holding a small bag against his waist. ( Id. at 458-59.) When petitioner entered the driveway, the tenant exited the house and the two men spoke briefly before going inside the house. ( Id. at 458-60, 477.) At sometime between 11:15 a.m. and 11:50 a.m., [2] the tenant left the house in a red van. ( Id. at 461.) After that time, no one other than petitioner entered or exited the house. ( Id. at 460, 562-63, 647.)

At about 1:00 p.m., Detectives Ragona and Sorenson were relieved of their surveillance duties by Detectives Edward Byrnes ("Detective Byrnes") and Thomas Washington ("Detective Washington"), who continued the surveillance. ( Id. at 461, 478-79, 559-60, 643-45.) Around 6:30 p.m., petitioner was arrested by members of the Special Operations Unit. ( Id. at 563-64.) Detectives Ragona and Byrnes drove petitioner to the Robbery Squad office. ( Id. at 564-65.)

4. Petitioner's Statements to the Police

At about 6:45 p.m., Detective Byrnes placed petitioner in an interview room at the Robbery Squad office, where they were joined by Detective Washington. ( Id. at 566-68, 650.) After he was advised of his rights, petitioner agreed to talk to the police and stated, "I don't need a lawyer. I didn't do anything." ( Id. at 568-69, 651.) Petitioner authorized a search of his house by signing a consent form. ( Id. at 573, 653.) He denied any involvement in or knowledge of the Mobil incident, claiming that he had stayed at a motel the night before until about 11:00 a.m. ( Id. at 574, 653-54.) Detective Byrnes noted several lies and inconsistencies in petitioner's statements concerning his whereabouts the prior week, his activity on the morning of the Mobil incident, and whether he had ever been to the OTB. ( Id. at 578-81, 655-56.) When the detectives pointed out these inconsistencies, petitioner indicated that he no longer wished to talk and ended his interview. ( Id. at 581, 657.)

5. Incriminating Evidence Recovered from Petitioner's Home

Immediately after petitioner's arrest, Detectives Robert Hillman ("Detective Hillman") and Stephen Kowalski ("Detective Kowalski") entered petitioner's home with the consent of his wife, Nancy Daly. ( Id. at 525, 544.) Mrs. Daly retrieved two handguns from the bedroom and handed them to the detectives along with their carrying case. ( Id. at 525-26, 543-45.) One of the handguns was a.38 caliber silver revolver. ( Id. at 526, 545-46.) The detectives brought the guns to the Robbery Squad where they were invoiced for testing at the Scientific Investigation Bureau ("SIB") Firearms Section. ( Id. at 528, 546.)

The following morning at about 4:40 a.m., Hillman and Kowalski returned to petitioner's home to execute a search warrant. ( Id. at 529, 546.) During the search, they recovered a red and black plaid flannel jacket in an upstairs bedroom. ( Id. at 529-30, 546-47.) The jacket was rolled into a ball and inside of it was a blue ski hat with a hole cut out of the face area. ( Id. at 530-31, 547-48.) These two items were invoiced and sent to SIB for further evaluation. ( Id. at 548-49.) At trial, Bharaj Jr. identified the jacket and hat recovered from petitioner's house as the same garments worn by the man who shot him near the Mobil station. ( Id. at 407-08.)

6. Petitioner's Identification by the OTB Witnesses

On March 29, 2001, Abraham and Shank independently identified petitioner as the OTB robber from a lineup at the Nassau County Police Department Robbery Squad. ( Id. at 359-62, 285-91.) Prior to viewing the lineup, neither man discussed the case with anyone else in the waiting area. ( Id. at 360, 287-88.) After the identification, neither man had any contact with the other witnesses, who had not yet viewed the lineup. ( Id. at 362, 291-92.)

7. Petitioner's Identification by the Mobil Station Witnesses

On March 29, 2001, Bharaj Jr.[3] and Ali separately identified petitioner as the Mobil station robber at the Robbery Squad. ( Id. at 411-17, 441-43.) They did not discuss the case with anyone else at any time prior or subsequent to viewing the lineup. ( Id. at 413-16, 440-43, 642-43.)

8. Evidence Connecting Petitioner to Both Crimes

On February 27, 2001, Detective Robert Nemeth ("Detective Nemeth") received the two handguns, magazines and ammunition given to the police by petitioner's wife. ( Id. at 715.) He also received the.38 caliber lead bullet recovered from the OTB on January 14, 2001. ( Id. at 715-16.) Detective Nemeth compared the "lands and grooves"[4] of the OTB bullet to the "lands and grooves" of petitioner's revolver. ( Id. at 714, 720-21.) He concluded that it was "probable, " but not certain, that the bullet was fired from petitioner's revolver. ( Id. at 721.)

On March 15, 2001, Detective Nemeth received the copper-jacketed bullet removed from Bharaj Jr.'s body during surgery. ( Id. at 716-17.) He analyzed the "lands and grooves" of this bullet and compared them to bullets that were test-fired from petitioner's revolver. ( Id. at 720-21.) Nemeth concluded that, to a reasonable degree of scientific certainty, the bullet recovered from Bharaj Jr.'s body was fired from petitioner's revolver. ( Id. at 722.)

9. DNA Evidence

On March 6, 2001, Detective Vito Schiraldi ("Detective Schiraldi") from SIB received the plaid flannel jacket and the ski mask recovered from petitioner's home. ( Id. at 617, 622-23). DNA testing on the ski mask established that the mask contained petitioner's DNA. ( Id. at 624-28, 696-97.)

On March 1, 2001, Detective Schiraldi received the dark Abercrombie and Fitch baseball hat that was found in the OTB parking lot. ( Id. at 620-21.) There were four human hairs in the hat, upon which Schiraldi performed DNA testing. ( Id. at 622, 626-27.) The results of the DNA testing indicated that these hairs from the Abercrombie and Fitch baseball hat did not originate from John Daly. ( Id. at 628.)

10. Keiran Ryan

During the course of his investigation, Detective Kowalski interviewed Kieran Ryan ("Ryan"), who was 5'8" tall and weighed 180 pounds. ( Id. at 552-53.) Kowalski had eliminated Ryan as a suspect in the January 14, 2001 OTB robbery when he learned that Ryan had been discharged from a hospital on January 13, 2001 with his right arm in a cast and sling. ( Id. at 555-56.) The date of the OTB robbery was January 14, 2001, and the OTB robber was never described as wearing a cast or sling. (Tr. at 555-56, 258-59, 323-25, 340-41, 349-51.)

11. Petitioner's Case

Petitioner testified that, in early 2001, he was 43 years old and lived in a house in Levittown, New York with his wife, Nancy Daly, and his friend, Jerry Rooney ("Rooney"). ( Id. at 728-29, 744.) He admitted to using crack and cocaine, as well as entering a rehabilitation program to save his marriage. ( Id. at 779-82.)

Petitioner claimed that he weighed 215 pounds at the time of his trial and about 225 pounds at the time of his arrest. ( Id. at 729-30.) He also claimed that he had not weighed 190 pounds since high school and that he was 5'9" tall. ( Id. at 730, 814.) Petitioner denied telling the police and the jail on January 27, 2001, that he weighed about 190 pounds and was 5'10" tall. ( Id. at 730, 769-70.) However, Detective Byrnes testified that on February 26, 2001, petitioner told him that he was 5'10" and weighed 190 pounds. ( Id. at 868-69.) Corporal Keith Knight of the Nassau County Correctional Center testified that all inmates are measured for their height and weight upon admission to the facility. ( Id. at 845-47.) On February 27, 2001, petitioner was measured at 5'10" and 192 pounds, and this information was recorded in the jail's computer system and is reproduced in Respondent's Exhibit 47. ( Id. at 852.)

According to petitioner, on January 11, 2001, he was laid off from his job and he fought with his wife about his unemployment. ( Id. at 737.) On January 13, 2001, he spent the night at his father's house and did not leave until after lunch the next day-the day of the OTB robbery. ( Id. ) Petitioner claimed that he went to Home Depot in Hempstead at 2:00 p.m., went back to his house, and then returned to Home Depot again around 4:30 p.m. ( Id. at 737-38.) He produced two receipts from Home Depot dated January 14, 2001, at 2:08 p.m. and 4:43 p.m., in the amounts of $50 each. ( Id. at 740.) Petitioner testified that the only time he had ever been to the Farmingdale OTB was in November 2000. ( Id. at 736-37.) He also claimed that he was mistaken when he told the detectives that he had been to the OTB in January 2001. ( Id. at 736.)

Petitioner testified that on the night of February 25, 2001, he stayed at the Courtesy Motel in Hempstead. ( Id. at 760.) He claimed that he drove there in his company's white pickup truck. ( Id. at 761.) He asserted that he "w[as]n't desperate for cash" because he had recently received a severance check for $4, 300 from his former employer. ( Id. at 754, 787.) However, he admitted to using a credit card that same night to purchase a $100 gift card from Home Depot and immediately making a 98 cent purchase solely to get the balance of the gift card in cash. ( Id. at 786-87.) Petitioner claimed that he used the cash to pay for his hotel room because the hotel would not accept credit cards. ( Id. at ...

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