United States District Court, E.D. New York
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For the Petitioner: Christopher J. Cassar, Esq., Of Counsel, Christopher J. Cassar P.C., Huntington, NY.
For the Respondent: Glenn D. Green, Assistant District Attorney, Of Counsel, Suffolk County District Attorney's Office, Riverhead, NY.
MEMORANDUM OF DECISION AND ORDER
ARTHUR D. SPATT, United States District Judge.
On January 29, 2014, the Petitioner Maurice Taylor (the " Petitioner" ), presently incarcerated at the Fishkill Correctional Facility in Beacon, New York, brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to vacate, set aside, or correct his New York State court judgment of conviction and sentence. The Petitioner is currently serving a determinate term of eight years imprisonment in connection with a conviction of criminal possession of a controlled substance in the second degree and assault in the second degree.
The charges in this case arose from a stop on October 7, 2008 by two policemen of the Petitioner's vehicle for certain apparent New York State vehicle and traffic law violations, after which the Petitioner attacked the police officers and tried to flee the scene. At the time, the Petitioner was in possession of narcotics, which were ultimately recovered by the police after the Petitioner tossed them from his person.
Here, the Petitioner argues that the New York trial court (1) improperly denied his motion to suppress certain evidence; (2) improperly admitted testimony that the policemen were previously familiar with the Petitioner; (3) improperly admitted radio calls from one of the injured police officers; (4) improperly responded to the jury's partial verdict note; (5) improperly denied the Petitioner's request to charge lesser-included offenses; and (6) imposed an excessive sentence. The Petitioner also contends that the evidence presented at the trial was insufficient to establish the Petitioner's guilt beyond a reasonable doubt.
For the reasons set forth, the Court dismisses the Petitioner's habeas petition.
At the time of the underlying incident, Defective Christopher Breuer was assigned to the Neighborhood Enforcement Special Operations Team (" NESOT" ), a unit within the Suffolk County Police Department, which engaged in street level narcotics investigations.
Breuer knew the Petitioner for about ten years prior to October 7, 2008, having spoken to him at least a half dozen times over that period. (Transcript (" Tr." ) 450).
Detective James Ryan was also assigned to NESOT. (Tr. 628.) He was also previously familiar with the Petitioner, in part from having taken a statement from him in 2004, which lasted 30-45 minutes. (Tr. 629-30.)
On October 7, 2008, at approximately 4:45 p.m., Breuer and Ryan were driving south in Huntington Station on Folsom Avenue in an unmarked Mercury Mountaineer. (Tr. 463-64.) Breuer was dressed in jeans and a long sleeve shirt, wearing a vest -- which had " Police" written on both sides -- and a badge on a chain. (Tr. 464-65.) Ryan was also wearing a vest that said " Police" on the front and back. (Tr. 635-36.). As they drove, Breuer said to Ryan, " [t]here's Mo. T," meaning the Petitioner. (Tr. 482.) The Petitioner was standing in the driveway at 61 Folsom Avenue, leaning on a black SUV-type vehicle. (Tr. 482.)
Breuer drove past and turned around, stopped at a location on the side of the road from which to conduct surveillance of the Petitioner. (Tr. 483-84.) Breuer observed the Petitioner lean a couple of times into the black vehicle through an open side door. (Tr. 483.) At some point, the Petitioner entered the vehicle and drove out of the driveway onto Folsom Avenue heading south. (Tr. 486) Breuer pulled out and traveled north. (Tr. 487.)
As the Petitioner was driving, he made eye contact with Breuer and Ryan. The Petitioner then immediately stopped his vehicle, put it in reverse, and screeched the tires while driving in reverse down Folsom Avenue. (Tr. 487-89). The Petitioner was not wearing a seatbelt. (Tr. 488.) Breuer turned on his car light and siren and followed as the Petitioner continued down Folsom Avenue until he reached 61 Folsom, where he proceeded into the driveway. (Tr. 488-89.)
Breuer stopped his vehicle perpendicular across the driveway at 61 Folsom and exited the car. (Tr. 490-91.) Ryan also exited the car and displayed his badge and walked to the Petitioner's car, but he had to turn back to grab a portable radio. (Tr. 643.). As Breuer approached the Petitioner's vehicle, the Petitioner exited his vehicle, with the engine still running. (Tr. 491.). The Petitioner placed his left hand into his pants pocket, creating a bulge as if he was holding something, and Breuer asked to see his hand. (Tr. 491.) The Petitioner replied, " yo, Chris, why you got to do me like this[?]" (Tr. 492.) Breuer again asked the Petitioner to take his hand out of his pocket so as to ensure that the Petitioner did not have any weapons or anything that could hurt him. (Tr. 492.)
Finally, after being asked several times, the Petitioner removed his left hand from his pocket, immediately using it to punch, from a foot away, Breuer on the right side of his face. (Tr. 493.) This caused Breuer sharp pain, who stumbled back before regaining his balance. (Tr. 494.) Breuer dove toward the Petitioner to grab him to place him under arrest, but the Petitioner knocked him to the ground, causing Breuer to land on his left shoulder onto the blacktop driveway. (Tr. 494.) Breuer
had previously injured his left shoulder in October 2007, but had returned to work from that injury without any further problems. (Tr. 622-23.)
Ryan subsequently approached the Petitioner, who punched at him, and a struggle ensued as the two rolled around the driveway. During the struggle, Ryan felt his right knee buckle and pop, and which accompanied by a sharp pain shooting from his knee. (Tr. 647.)
As Ryan held the Petitioner around the waist or chest area, the Petitioner entered a crouched position and began to stand up. He took a white object, a sock from his left pocket, which he tossed over the hedges on the front lawn next to a tree on 61 Folsom Avenue. (Tr. 459.) The Petitioner continued to struggle, but the detectives finally subdued him. (Tr. 497-98.)
As Ryan stayed on top of the now-handcuffed petitioner, who was on his stomach in the driveway, Breuer retrieved the sock. (Tr. 499.) Inside the sock was a black scale and two bags of a light-colored substance in them. (Tr. 459-60.) During his police career, Breuer had considerable experience with cocaine. (Tr. 499-500.)
Breuer, still in pain and having a hard time moving his left shoulder, needed medical attention. (Tr. 508) The next day, Breuer was unable to attend work due to his injuries. He could not lift his left arm over his shoulder without pain and was not allowed to return to work. (Tr. 530.) On October 22, 2008, Breuer visited a physician because he was still in pain. (Tr. 530.)
In August 2009, Breuer had a " flare-up" of pain in his shoulder. (Tr. 533-34.) On September 10, 2009, he received two cortisone injections into his arm, but was unable to return to work until September 22, 2009. (Tr. 535-37.). As of the date of his trial testimony, April 22, 2010, Breuer was still experiencing pain in his shoulder. (Tr. 538.)
Dr. Scott Alpert, who treated Breuer both regarding his prior shoulder injury and this shoulder injury, also testified. At a visit on October 22, 2008, Dr. Alpert documented pain over the AC joint, with extreme tenderness; there was some inflammation around the rotator cuff. (Tr. 755-756.) A subsequent MRI revealed a contusion/bone bruising consistent with the injury in this case.
At a follow up visit on March 9, 2009, Breuer's symptom's worsened, there being more tenderness in his shoulder. Dr. Alpert gave him a cortisone injection in the shoulder. (Tr. 761-62.). After another flare up in July 2009, Dr. Alpert prescribed oral steroids to alleviate the symptoms. (Tr. 763-64.) Breuer's pain continued to be significant into September 2009, at which time, he was given two more cortisone injections. (Tr. 764-65.) Because of continuing problems to his shoulder, in October 2009, Dr. Alpert recommended that Breuer undergo an arthroscopy with a subacromial decompression and AC joint recession. (Tr. 766.)
As to Ryan's injuries, Ryan stated that he difficulty bending his knee and heard clicking inside his knee. (Tr. 667.). His discomfort lasted about 10 days to two weeks and he was able to return to work on October 28, 2008. (Tr. 669.) He was seen by orthopedic surgeon Dr. Stuart Cherney, who first treated Ryan for a torn anterior cruciate ligament and sprain to the medial collateral ligament in his right knee in 2006. (Tr. 796-98.) Ryan reinjured his knee in January 2008, but the symptoms were substantially resolved by February 12, 2008. (Tr. 798-99.)
Following the Petitioner's arrest, Dr. Cherney examined Ryan on October 13, 2008. (Tr. 801.). Dr. Cherney observed some tenderness over the anteromedial
joint line. (Tr. 801.) A follow-up MRI suggested that Breuer had suffered subluxation of the knee. (Tr. 802.). Ryan was cleared on October 23, 2008 to return to work.
Subsequent to a jury trial in the County Court, Suffolk County (Hudson, J.), on May 5, 2010, the Petitioner was found guilty of criminal possession of a controlled substance in the second degree; assault in the second degree; and unsafe backing in violation of Vehicle and Traffic Law § 1211(a). On September 9, 2010, the Petitioner was sentenced to a determinate term of eight years imprisonment, with a five-year period of post-release supervision, on the criminal possession charge, and to six years imprisonment and three years of post-release supervision on the assault conviction; the sentences to run concurrently.
The Petitioner appealed his judgment of conviction and sentence. On appeal, the Petitioner argued that the trial court, among other things, improperly (1) denied his motion to suppress certain evidence; (2) admitted limited testimony that the police were familiar with the Petitioner; (3) admitted police radio calls; (4) responded to a jury's partial verdict note; (5) denied the Petitioner's request to charge lesser-included offenses; and (6) improperly imposed an excessive sentence. The Petitioner also challenged the sufficiency of the evidence.
On March 27, 2013, the Appellate Division, Second Department rejected all but one of the Petitioner's claims -- that is, the court modified the judgment to vacate the conviction of unsafe backing and dismissed that count. People v. Taylor, 104 A.D.3d 961, 962, 961 N.Y.S.2d 566. Other parts of the Appellate Division decision are recounted throughout this opinion.
On June 25, 2013, the Petitioner moved for leave to appeal to the New York Court of Appeals, but that motion was denied. 21 N.Y.3d 1010, 993 N.E.2d 1285, 971 N.Y.S.2d 262.
As stated above, on January 29, 2014, the Petitioner commenced this habeas petition pursuant to 28 U.S.C. § 2254.
A. The Standard of Review
Under the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (" AEDPA" ), a writ of habeas corpus shall not issue with respect to any claim that was adjudicated on the merits in state court unless the state court's decision (1) " was contrary to," or involved an unreasonable application of, " clearly established federal law" as determined by the United States Supreme Court, or, (2) " was based on an unreasonable determination of the facts" in light of the evidence presented. 28 U.S.C. § 2254(d); see also Gutierrez v. McGinnis, 389 F.3d 300, 304 (2d Cir. 2004) (describing this standard as " AEDPA deference" ). AEDPA's deferential review applies whenever a state court disposes of a state prisoner's federal claim on the merits, regardless of whether it gives reasons for its determination or refers to federal law in its decision. Harrington v. Richter, 562 U.S. 86,, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011); see also Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). " An adjudication on the merits is one that (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment." Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007) (internal quotations omitted), citing Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
" Section 2254(d) reflects the view that habeas corpus is a 'guard against extreme malfunctions ...