United States District Court, S.D. New York
THE HONORABLE WILLIAM H. PAULEY, U.S.D.J.:
REPORT AND RECOMMENDATION
AMES C. FRANCIS, IV, Magistrate Judge.
Mark Inesti was convicted after a bench trial of two counts of robbery in the first degree, one count of robbery in the second degree, two counts of assault in the second degree, and one count of criminal possession of a weapon in the third degree. The trial judge sentenced him as a persistent violent felony offender to a term of 20 years to life in prison. His conviction and his sentence were affirmed on appeal. Now proceeding pro se, he petitions for a writ of habeas corpus. I recommend that the petition be denied.
Mr. Inesti's prosecution arose out of an incident in the summer of 2008 in which he admittedly absconded with some clothes he took from an outdoor bin of a department store on 173rd Street in Manhattan.
At trial, an assistant manager of the El Mundo department store and three law enforcement officers involved in apprehending Mr. Inesti testified for the prosecution. According to assistant manager Wayne Roberts, Mr. Inesti was on the sidewalk outside the El Mundo department store among outdoor tables and bins containing store merchandise when he placed an item in a large bag he was carrying and began walking away. (1/7/10 Tr. at 17-18, 20-22, 24). After Mr. Roberts haled him, Mr. Inesti took off running. (1/7/10 Tr. at 22-24). Mr. Roberts and a coworker gave chase; when they closed in on the petitioner, he dropped the bag he was carrying. (1/7/10 Tr. at 25-27). As Mr. Roberts attempted to retrieve the bag, Mr. Inesti turned around, unsheathed a gravity knife, and advanced toward Mr. Roberts, saying, "Come on. Come on." (1/7/10 Tr. at 26-29, 139). Mr. Roberts backed away, and the petitioner again fled, turning into an alley. (1/7/10 Tr. at 29-30).
Mr. Roberts reported the incident and described the suspect to a plain-clothes police officer who happened to be nearby. (1/7/20 Tr. at 33, 131). The officer and a colleague pursued Mr. Inesti down the alley. (1/7/10 Tr. at 35, 131-32). Meanwhile, Mr. Roberts, his store manager (who had since arrived on the scene), and two different officers - Lieutenant Richard Duggan and Lieutenant Gerald Pizzano, both of whom were assisting in executing a search warrant in a nearby building - canvassed the neighborhood in a car for the petitioner. (1/7/10 Tr. at 35, 75, 77-78, 106, 108-10).
When Mr. Roberts identified the petitioner on the sidewalk, Lieutenant Duggan got out of the car and chased him on foot. (1/7/10 Tr. at 38-39, 82-83, 111-12). Mr. Inesti collided with a boy on a bicycle but continued running. (1/7/10 Tr. at 82-84, 112, 114). The petitioner again dropped the bag and darted between two parked cars. (1/7/10 Tr. at 84, 86-87). Lieutenant Duggan grabbed Mr. Inesti and their momentum caused them to crash onto the hood of a parked minivan, shattering the windshield. (1/7/10 Tr. at 86-87, 114). The petitioner slipped away, and Lieutenant Duggan cut his hand on the broken glass as he pushed himself up from the hood of the minivan. (1/7/10 Tr. at 88, 116-17). Lieutenant Duggan again caught up with Mr. Inesti and shoved him, causing him to bang into another parked car, at which point Lieutenant Pizzano, now on foot, was able to tackle him. (1/7/10 Tr. at 88, 114-15). Another officer involved in the chase, Detective Pedro Alfonso, arrested Mr. Inesti. (1/7/10 Tr. at 89, 117, 128, 134-35). Detective Alfonso recovered the clothing from the bag and the gravity knife from Mr. Inesti's pocket. (1/7/10 Tr. at 136, 138).
Mr. Inesti's defense was two-fold. He argued that, "by virtue of mental disability, " he "fail[ed] to formulate the necessary intent to commit" some of the crimes with which he was charged, and that, "by reason of mental disease or defect, [he] lack[ed] substantial capacity... to appreciate or know the nature and consequences of his actions." (1/7/10 Tr. at 5; 1/11/10 Tr. at 130-33). Factually, Mr. Inesti's account of the relevant events, to the extent that he remembered them, differed slightly from the prosecution's. He testified that he was outside El Mundo on his way to have his hair braided when he began to hear threatening voices. (1/11/10 Tr. at 39, 74). In order to disguise himself from those who were threatening him, he took off his shirt and put it into a bag that he had picked up, and began behaving as if he worked at the store, folding and stacking the clothes in the outdoor bins. (1/11/10 Tr. at 39-40, 44, 76-77). When he noticed someone running to get a gun from under a car, he panicked, putting a stack of clothes that he was folding inside the bag. (1/11/10 Tr. at 40, 45-47, 78-79). He gave the money that was in his pocket to someone, saw an array of lights, which he identified as demons, coming after him, and pulled out his knife. (1/11/10 Tr. at 40, 79-80). To ward off the spirits, he practiced a ritual he had learned in prison, making the sign of the cross with the knife while reciting the beginning of the Lord's Prayer. (1/11/10 Tr. at 33-34, 40-42, 47, 53-54). And he ran. (1/11/10 Tr. at 41-42). He testified that he did not remember anything else until he woke up in the hospital. (1/11/10 Tr. at 42, 57).
Mr. Inesti also testified about his difficulties in school, drug use (both legal and illegal), and mental health problems. (1/11/10 Tr. at 32-36). While he was in prison in the 1990s, he began to take psychiatric medications. (1/11/10 Tr. at 36). Also while he was in prison, he was stabbed nine times and subsequently began practicing certain protection ceremonies involving a pocket knife, which he used instead of a (cost-prohibitive) ceremonial sterling silver dagger. (1/11/10 Tr. at 33-34, 79, 83). His mental health problems intensified after September 11, 2001. (1/11/10 Tr. at 33). He was no longer incarcerated at the time, and he believed that people were trying to kill him to take possession of the house that he had inherited from his mother. (1/11/10 Tr. at 34-35, 37, 68).
Forensic psychologist Marc Janoson, Ph.D., testified that he administered a psychological test known as the MMPI-2 in order to evaluate Mr. Inesti's "mental disease or defect" defense, and specifically to determine whether Mr. Inesti was malingering, as previous doctors had found. (1/11/10 Tr. at 105, 113, 127-28, 152, 198-202). Although the company that scored the test "invalidated the profile" because Mr. Inesti "made so many atypical and rarely given responses" (1/11/10 Tr. at 114-15), Dr. Janoson nonetheless examined three validity scales - variable response inconsistency, true response inconsistency, and infrequency psychopathology responses - determined them to be acceptable or borderline acceptable, and interpreted the test. (1/11/10 Tr. at 116-17). He asserted that Mr. Inesti presented "an exaggerated profile, " but also "a paranoid schizophrenic profile." (1/11/10 Tr. at 118, 120). He further "hypothesi[zed]" that Mr. Inesti was "severely mentally ill at the time of the incident" and did not understand the nature and consequences of his actions, finally concluding that the petitioner was not guilty by reason of mental disease or defect. (1/11/10 Tr. at 123, 221).
In rebuttal, over the defense's relevance objection, the prosecution played recordings of seven phone calls that Mr. Inesti made between March and August 2009, while he was incarcerated at Rikers Island. (1/11/10 Tr. at 223-24). In summation, the prosecution argued that, unlike his "halting, " "flat, " and "rambl[ing]" trial testimony, his manner on the phone calls was "witty, " "expressive, " and engaging, and therefore provided evidence of malingering. (1/14/10 Tr. at 33-34).
The judge rejected Mr. Inesti's mental illness defenses as not credible and found him guilty of six of seven counts, acquitting him only of second degree assault against the boy on the bike. (1/14/10 Tr. at 50; S. Tr. at 14). At sentencing, Mr. Inesti admitted that he had two prior violent felony convictions for attempted robbery in the second degree, and he was therefore sentenced as a persistent violent felony offender. (S. Tr. at 2-3, 5).
Mr. Inesti appealed his conviction and sentence, contending that (1) the recorded phone calls were erroneously admitted; (2) the evidence was insufficient to establish the element of physical injury required to sustain the second degree robbery and second degree assault convictions; (3) the evidence was insufficient to establish the element of a threat with a dangerous weapon required to sustain the first degree robbery conviction; (4) the three robbery convictions were against the weight of the evidence, which failed to establish that Mr. Inesti had formed the necessary intent; and (5) the sentence was unconstitutional because it was based on factual findings made by a judge rather than a jury. (State Court Record at 12-13). The Appellate Division affirmed the conviction and sentence, holding (1) the challenges to the sufficiency of the evidence were not preserved; (2) even if they were preserved, the convictions were based on legally sufficient evidence; (3) the convictions were not against the weight of the evidence; (4) ...