United States District Court, E.D. New York
Petitioner is represented by Richard M. Langone, Langone & Associates, PLLC, Garden City, NY.
Respondent is represented by Kathleen M. Rice, District Attorney, Nassau County, by Sarah Rabinowitz, Mineola, NY.
MEMORANDUM AND ORDER
JOSEPH F. BIANCO, District Judge.
Jose Hernandez (hereinafter "Hernandez" or "petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in the Supreme Court of the State of New York, County of Nassau (the "trial court"), for murder in the second degree (N.Y Penal Law § 125.25(1)) and gang assault in the first degree (N.Y. Penal Law § 120.07). Petitioner was sentenced to a term of imprisonment of twenty-five years to life.
Petitioner challenges his conviction on the following grounds: (1) the prosecution failed to establish his identity as the stabber beyond a reasonable doubt; (2) the evidence was insufficient to support a finding of guilt beyond a reasonable doubt; (3) he was denied the effective assistance of counsel; (4) he was deprived of his right to a fair trial by the comments of the prosecutor; and (5) he was denied his right to a fair trial because the jury was not instructed that it could draw an adverse inference from the prosecution's failure to call most of the material witnesses to the crime.
For the reasons set forth below, the Court concludes that petitioner's claims of prosecutorial misconduct and failure to give a missing witness charge are procedurally barred. In any event, the Court has examined all of the petitioner's claims on the merits and determines that there is no basis for habeas relief.
The following facts were adduced from the petition and documents attached thereto, as well as from the state court trial and appellate record. On November 16, 2005, Christian Pagan ("Pagan") was stabbed in the chest and groin at 416 Clinton Street in Hempstead, New York, which was the location of the Laundry Palace. (Tr. at 654, 668.) Pagan was a twenty-three year old member of the gang Salvadorans With Pride ("SWP"), and the Laundry Palace was a known SWP hangout. ( Id. at 601, 629.)
Police Officer Martino Derisi and his partner Officer Espina arrived at the Laundry Palace around 9:12 p.m. and found Pagan lying face up in a pool of blood. Officer Derisi called for an ambulance. When emergency medical technicians arrived at the scene at approximately 9:20 p.m., Pagan was in cardiac arrest. ( Id. at 554-55.) On the way to Winthrop University Hospital, ambulance medical technicians attempted to revive Pagan, but he eventually died at the hospital at 9:55 p.m. as a result of multiple stab wounds to the chest and groin, resulting in perforations to the heart and left lung. ( Id. at 555-56, 666.) Doctor Brian O'Reilly performed an autopsy on Pagan on November 17, 2005. ( Id. at 654.) A toxicology test revealed that Pagan had approximately a.25 percent blood alcohol content at the time of his death. ( Id. at 670-71.)
On November 16, 2005, after Pagan was taken to the hospital, several more police officers went to the crime scene. ( Id. at 609.) Detective Bruce Schurmann of the Crime Scene Search Section arrived at the Laundry Palace at 10:45 p.m. and photographed and videotaped the laundromat. ( Id. at 487-88.) He also dusted for fingerprints and collected physical evidence, which included concrete pieces, a stone, a black plastic bag, a t-shirt and a sweatshirt. ( Id. at 496, 501, 512.) Detective Barbara Stemmle of the Latent Fingerprint Section testified at trial that there were no identifiable fingerprints on the black plastic bag. ( Id. at 565.) Four latent fingerprints were lifted from some of the other recovered items, but none matched petitioner's or Yoni Martinez's ("Martinez") prints. ( Id. at 568-69.) Detective Stemmle testified that the concrete pieces were not good surfaces for fingerprint impressions because they were too rough. ( Id. at 561-65.) Detective Aylward, the lead detective on the investigation of Pagan's death, interviewed approximately six or seven witnesses who were present at the Laundry Palace that evening. ( Id. at 544, 546.)
1. Evidence of Motive
There was evidence introduced at trial regarding the events that preceded the death of Pagan, which established a motive for the killing. That evidence is summarized below.
On November 16, 2005, petitioner and four of his friends gathered in Hempstead, New York. ( Id. at 739.) The group consisted of petitioner, Martinez, Roquetta, Ardillo, and Fantasma,  ( id. at 747), who were all members of the El Salvadoran gang Mara Salvatrucha, commonly known as MS-13. ( Id. at 622.) Martinez informed the group that his friend was beaten with sticks the prior week by members of MS-13's rival gang, SWP. ( Id. at 748.) Petitioner and the other members of the group agreed that they should seek out revenge on an SWP member to get even for SWP's assault on Martinez's friend. ( Id. at 748.)
Petitioner admitted in a sworn statement to Detective Aponte that MS-13 and SWP do not get along, and that his group wanted to demonstrate to the members of SWP that MS-13 was a more powerful gang. ( Id. at 739.) The group decided to walk towards the Laundry Palace, a known SWP hangout, located on 416 Clinton Street in Hempstead, New York. ( Id. at 601, 629.) The exterior wall of the Laundry Palace contained graffiti of both MS-13 and SWP, which was a sign of gang conflict. ( Id. at 631-33.)
As petitioner's group approached Clinton Street, they picked up rocks and broken pieces of concrete from the ground to use to throw at the first SWP member they could find. ( Id. at 748.) Petitioner placed concrete and rocks in his pockets, while others carried bats, and Martinez carried a knife in his waistband. ( Id. at 748.)
When the group arrived at the Laundry Palace, petitioner spotted Pagan. ( Id. ) Petitioner knew that Pagan was an SWP member because he witnessed Pagan graffiti the Laundry Palace for SWP on a prior occasion. ( Id. ) Petitioner then flashed M13 hand signals to Pagan, who responded with SWP hand gestures. ( Id. ) It was at that point that some members of petitioner's group followed Pagan into the Laundry Palace. ( Id. ) The altercation began at approximately 9:15 p.m. ( Id. at 601.) In a sworn statement to the police, petitioner stated that three members of his group rushed in ( id. at 748), while at trial an employee of the laundromat (discussed below) testified that only two members of petitioner's group went into the Laundry Palace ( id. at 581-85.)
2. Eyewitness Testimony
At trial, only one eyewitness was called by the prosecution to testify ( id. at 575), although there were approximately six or seven customers in the Laundry Palace at the time of the altercation ( id. at 544, 46). The prosecution called Lus Amanda Rodriguez ("Rodriguez"), an employee of the Laundry Palace who had worked there for two years. ( Id. at 575-76.) Rodriguez was in the back office of the Laundry Palace with her husband Miguel Quillen at around 9:10 p.m. on November 16, 2005. ( Id. ) Rodriguez testified that a Hispanic man, a dark-skinned man, and Pagan entered the laundromat. ( Id. at 580-81.) At trial, Rodriguez testified that she heard a loud noise from the back office, which sounded like the front door slamming open. ( Id. at 577.) It was at that point that she stood up to observe what was happening in the main area of the Laundry Palace. ( Id. at 578-79.) Although Rodriguez could not see anything at the time of the first noise, she had a view of the front doors when she heard a second noise that sounded like something hitting the coin kiosk. ( Id. ) Rodriguez testified that two men entered the laundromat to confront Pagan, who had been at the Laundry Palace earlier to use the restroom. ( Id. at 580-81.) She described one of the men as Hispanic, thin, and a little taller than 4'10". ( Id. ) Rodriguez testified that the Hispanic man was wearing a baseball cap and had a light mustache. ( Id. ) Rodriguez described the other man as black and tall. ( Id. at 581). Rodriguez testified that she made eye contact with the stabber during the altercation. ( Id. at 597.)
At trial, Rodriguez testified that the thin Hispanic man threw stones at Pagan. ( Id. ) One of the stones struck Pagan in the face, causing him to bleed and then collapse onto the ground. ( Id. at 580.) Rodriguez said that, once Pagan was on the ground, the thin Hispanic man took out a knife and stabbed Pagan once in the chest. ( Id. at 581.) She described the knife as about sixteen to eighteen inches in length with a wooden hilt. ( Id. )
Rodriguez testified that the Laundry Palace was brightly lit during the entire altercation ( id. at 585), and that she was as close as six feet from Pagan and at most fifteen to twenty feet away at all times ( id. at 585, 597). Rodriguez stated that, after the thin Hispanic man stabbed Pagan, the stabber and the tall black man left the Laundry Palace and ran away. ( Id. at 587-88.) Two other Hispanic men who were waiting outside also fled the scene. ( Id. at 587-88.) Rodriguez testified that the entire incident lasted no longer than one minute. ( Id. at 598.) Rodriguez made conflicting statements as to whether she called the police during the altercation or after the fight had ended. ( Id. at 607-09.)
On December 20, 2005, at 7:25 p.m., Rodriguez went to the Robbery Squad on Newbridge Road in Bellmore, N.Y. to identify Pagan's stabber from a lineup. ( Id. at 588.) Rodriguez selected petitioner from the lineup. ( Id. ) At trial, Rodriguez was not able to identify petitioner as the stabber in court. ( Id. ) However, the prosecution introduced evidence, including photographs of petitioner shortly after the murder, to establish that petitioner's appearance had changed substantially from the time of the lineup. ( Id. at 779-81.)
3. Petitioner's Sworn Statement
Petitioner was arrested and questioned by Detective Milton Aponte on December 19, 2005. ( Id. at 684, 739.) Without an attorney present, petitioner voluntarily gave a sworn statement to Detective Aponte. ( Id. at 747.) Detective Aponte is certified by the Nassau County Police Department as a Spanish interpreter. ( Id. at 731-32.)
In petitioner's sworn statement to Detective Aponte, he stated that he was with a group of four other MS-13 members and that they decided to seek out revenge on an SWP member. ( Id. at 747-48.) He claimed that Martinez stabbed Pagan twice in the chest with a knife that Martinez kept in his waistband. ( Id. at 748.) Petitioner further stated that he did not participate in the stabbing himself. ( Id. ) However, petitioner admitted that he threw rocks at Pagan's face and chest both before and after Martinez stabbed Pagan. ( Id. ) Petitioner also stated that the two members who did not enter the Laundry Palace were Roquetta and Fantasma, but that the other three members went inside. ( Id. ) Petitioner admitted in his sworn statement that, after Pagan was stabbed and he threw a rock at him, he fled the Laundry Palace with Martinez and the other four members of his group. ( Id. at 748-49.)
B. Procedural History
1. State Court Proceedings
a. Pre-trial Suppression Hearing
From February 13 to 15, 2007, Judge Calabrese held a pre-trial suppression hearing to determine whether petitioner's oral, written, and videotaped statements after his arrest were admissible. (Def.-Appellant Br. at 4.) Petitioner argued that his statements had been obtained in violation of his constitutional right against self-incrimination. (Resp't Aff. at 2; Def. Appellant Br. at 7-8.) Petitioner claimed further that he had been deprived of food and sleep for twenty-six hours, and only after that did he agree to give a sworn statement about the events that occurred on November 16, 2005. (Def.-Appellant Br. at 7.) Petitioner also contended that Detective Aponte failed to take down the entirety of his statement, but rather picked and chose particular sentences. ( Id. at 7.)
Petitioner's motion to suppress his statements was denied in all respects on February 22, 2007. ( Id. at 8.) Judge Calabrese found that the police had probable cause to arrest petitioner,  the identification procedure was not suggestive, the lineup was not suggestive, and that petitioner's statements were made after proper Miranda warnings were administered. ( Id. )
b. Trial and Sentencing
The following details of petitioner's trial are relevant to the instant petition. At trial, the prosecution presented its case by calling police personnel, an eyewitness, a medical examiner, and fingerprint analysts. (Resp't Aff. at 4-6.) The prosecution also introduced petitioner's own sworn statement made after his arrest through the testimony of Detective Aponte. ( Id. at 6.) The prosecution's case relied on Rodriguez's description of the events on November 16, 2005, as well as her subsequent identification of petitioner in a lineup on December 20, 2005. ( Id. at 4-6.) The prosecution argued that petitioner had stabbed Pagan in the chest after first hitting him with a rock, which caused Pagan to fall to the floor. (Tr. at 855.) The prosecution also argued, in the alternative, that even if petitioner had not been the person who fatally stabbed Pagan, he had acted in concert with the other MS-13 members, one of whom stabbed Pagan. ( Id. at 853-54, 864.)
The prosecution tried to establish petitioner's intent to kill by noting that he threw rocks at Pagan both before and after he was stabbed. ( Id. at 855, 860, 862.) Further, the prosecution stressed that petitioner had met with fellow MS-13 members earlier in the night and had made a conscious decision to get even with SWP for an assault on Martinez's friend. ( Id. at 853.) The prosecution argued that petitioner's actions, therefore, clearly established his intent to kill Pagan, a member of SWP who was at the Laundry Palace, a known SWP hangout. ( Id. at 858-60.) The prosecution argued that, even if petitioner had not stabbed Pagan, he had acted in concert with the other MS-13 members and his actions showed his intent to kill Pagan. ( Id. at 862, 864.)
The defense focused its argument on Rodriguez's inability to identify petitioner in court and the prosecution's failure to call any additional eyewitnesses to testify. ( Id. at 807, 811-12.) Defense counsel also attempted to impeach Rodriguez's credibility through her cross-examination and summation. Counsel considered calling witnesses who had failed to identify petitioner from a photo array. ( Id. at 403.) However, defense counsel later declined to do so after Rodriguez failed to identify petitioner in court. ( Id. at 807.)
Defense counsel chose to not introduce Martinez's plea allocution, in which he admitted to stabbing Pagan at the Laundry Palace on November 16, 2005. ( Id. at 232.) Counsel was unable to find case law that supported admitting only the portions of Martinez's plea allocution where he admitted to stabbing Pagan. ( Id. at 236.) Defense counsel was concerned that, if part of Martinez's allocution were admitted into evidence, the prosecution would be entitled to introduce the other part of Martinez's allocution, in which Martinez stated that petitioner had also stabbed Pagan. ( Id. at 237.)
At the close of evidence, defense counsel moved to dismiss the case on the basis of insufficient evidence. The trial judge denied defense counsel's motion. On March 13, 2007, the jury returned a guilty verdict for murder in the second degree, and a guilty verdict for gang assault in the first degree. ( Id. at 934-36.)
On April 25, 2007, petitioner was sentenced to an indeterminate term of imprisonment of twenty-five years to life for his second degree murder conviction. (Resp't Mem. at 6.) Petitioner was also sentenced to a concurrent, determinate term of twenty-five years imprisonment with five years' post-release supervision for his conviction of gang assault in the first degree. ( Id. )
c. The Direct Appeal
With the assistance of counsel, petitioner filed an appeal from his conviction in the Supreme Court of the State of New York, Appellate Division, Second Department ("Appellate Division"). Petitioner argued the following: (1) the evidence was legally insufficient to prove his guilt of murder in the second degree; (2) the verdict was against the great weight of the evidence; (3) he was deprived of a fair trial as a result of prosecutorial misconduct; (4) he was entitled to a missing witness charge, which the trial court did not provide; and (5) he was denied the effective assistance of counsel. (Def.-Appellant Br. at 15, 25, 33, 45, 53.)
On June 1, 2010, the Appellate Division rejected petitioner's claims and affirmed his conviction. People v. Hernandez, 74 A.D.3d 839 (N.Y.App.Div. 2010). The Appellate Division held that the evidence was legally sufficient to establish petitioner's guilt for murder in the second degree beyond a reasonable doubt, and that the verdict was not against the great weight of the evidence. Id. Further, the Appellate Division held that petitioner's claim regarding the trial court's failure to give a missing witness charge was unpreserved and unreviewable,  and that the prosecutorial misconduct claim was both unpreserved and meritless. Id. at 840. Finally, the Appellate Division found that petitioner's ineffective assistance of counsel claim was meritless. Id. The court held that petitioner had meaningful representation at all stages of the proceedings. Id. Further, the Appellate Division found that defense counsel's decision not to present evidence about a codefendant's arrest and plea allocution, or photo arrays, reflected a reasonable and legitimate strategy under the circumstances and evidence presented. Id. (citing People v. Benevento, 91 N.Y.2d 708, 713 (1998)).
Petitioner's application for leave to appeal to the New York Court of Appeals was denied on August 31, 2010. People v. Hernandez, 15 N.Y.3d 805 (2010).
2. The Instant Petition
Proceeding pro se, petitioner filed the instant petition for a writ of habeas corpus, together with his brief in support of the petition, on November 8, 2010. Respondent filed a memorandum of law in opposition to the petition on March 2, 2011. The Court heard oral argument via telephone on July 26, 2011. At the conclusion of oral argument, the Court ordered respondent to submit the following documents by September 9, 2011: an affidavit from petitioner's trial attorney, Martinez's guilty plea transcript, and statements by eyewitnesses who had not testified at trial. The Court also appointed Martin Goldberg, Esq. ("Goldberg") from the Court's Habeas Corpus Panel of Attorneys to represent petitioner in this matter.
On August 29, 2011, respondent filed a supplemental opposition to the petition. Included in respondent's supplemental submission were three exhibits: (1) an affidavit from petitioner's trial counsel, Dana Grossblatt, Esq. ("Grossblatt"), in which she explained her trial strategy; (2) the transcript of Martinez's guilty plea; and (3) letters from a private investigator to Grossblatt, in which the private investigator memorialized his interviews with Martinez and other witnesses to the Pagan stabbing who had failed to identify petitioner in photo arrays (but who did not testify at petitioner's trial). In response to respondent's supplemental opposition, petitioner's counsel (Goldberg) submitted a letter to the Court on October 3, 2011. In essence, Goldberg's letter explained why petitioner's ineffective assistance claim could not meet the test for ineffective assistance of counsel set forth in Strickland v. Washington. At the conclusion of the letter, petitioner's counsel disclosed that he was currently co-counsel with petitioner's trial counsel (Grossblatt) on a pending criminal case in state court, but that he had met Grossblatt only one ...