United States District Court, E.D. New York
DECISION AND ORDER
WILLIAM F. KUNTZ, II, District Judge.
Before the Court is Petitioner Noel Hicks's Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For his role in three burglaries, Petitioner was convicted in New York state court of three counts of burglary in the second degree, one count of criminal possession of stolen property in the fourth degree, one count of criminal possession of stolen property in the fifth degree, one count of petit larceny, and one count of criminal mischief in the fourth degree. On charges related to a fourth break-in, the jury found Petitioner not guilty of burglary in the second degree and criminal possession of stolen property in the third degree, but convicted him of criminal possession of stolen property in the fourth degree, a lesser included offense.
Petitioner now alleges four constitutional errors by the state court that he contends warrant a writ of habeas corpus. Petitioner argues that: (1) the trial court erred in refusing to sever the indictment; (2) the trial court erred in denying Petitioner's motion to suppress evidence; (3) the trial court erred in continuing with jury selection after one potential juror was dismissed for inappropriate comments; and (4) the trial court erred in denying an adjournment after granting Petitioner's motion for self-representation. Because Petitioner's claims are exhausted and neither procedurally defaulted nor time-barred, they are ripe for adjudication by a federal habeas court. However, the state court's rulings on Grounds 1, 3, 4, and part of Ground 2 of the Petition were neither contrary to nor involved unreasonable application of clearly established federal law as determined by the United States Supreme Court. Furthermore, the Fourth Amendment issues raised in Ground 2 are barred by the rule in Stone v. Powell, 428 U.S. 465, 483 (1976). Accordingly, the Petition is denied in its entirety.
I. THE BURGLARIES AND ARREST
Petitioner Noel Hicks is a convicted burglar, albeit, not a very good one. Beginning in
November 2007, Petitioner embarked on a spree of home burglaries in Nassau County, New York. Petitioner was involved in four known break-ins where he stole jewelry, electronics, and other valuables. During two of Petitioner's burglaries, he left personal items containing his DNA at his victims' homes. In another instance, Petitioner provided a photocopy of his license to a jeweler to whom he was selling illegally obtained valuables. Petitioner was eventually arrested, four to five blocks from the scene of his last break-in, after being identified by a vigilant neighbor who watched Petitioner climb through a window. As will become clear below, Petitioner left a substantial trail of incriminating evidence as he engaged in his criminal pursuits.
A. The Flint Ave. Burglary
On November 19, 2007, Petitioner broke into the home of a retired New York Police
Department ("NYPD") employee, Kenneth Jones, on Flint Ave. in Hempstead, New York (hereinafter the "Flint Ave. Burglary"). Jones had a surveillance camera installed in his home that captured an intruder, later identified as Petitioner, rummaging throughout the house. The camera also captured Petitioner taking Jones's coat, but leaving his own jacket behind. The jacket left behind contained a lighter and eyeglasses that did not belong to Jones. It was later determined that the DNA collected from those items matched Petitioner's DNA. Petitioner was ultimately found guilty of burglary in the second degree, amongst other crimes, for this conduct.
B. The Marvin Ave. Burglary
On January 18, 2008, an intruder broke into Christiana Alicea's home on Marvin Ave. and stole approximately 25 to 30 pieces of her jewelry (hereinafter the "Marvin Ave. Burglary"). Soon thereafter, Alicea discovered that her jewelry had been sold to a local jeweler, Gold Town Jewelry, on Main St. in Hempstead. The store's proprietor, Dong Yul Song, told police that when he bought the jewelry, he took a photocopy of the seller's driver's license and recorded each piece of jewelry purchased in a ledger. At trial, Song identified Petitioner as the seller. Petitioner was ultimately acquitted of burglary in the second degree and possession of stolen property in the third degree charges related to this incident, but he was convicted of stolen property in the fourth degree.
C. The Clyde Ave. Burglary
On January 30, 2008, Petitioner broke into the home of Johnathan Wilds on Clyde Ave. (hereinafter the "Clyde Ave. Burglary"). The Wilds returned home later that day to discover that their window had been smashed open with a brick and that they were missing jewelry, a laptop computer, a Playstation system, a DVD collection, and police equipment bags. Under the window that the burglar had entered through, the police found a watch and a lighter that did not belong to the Wilds. At trial, it was established that the lighter contained DNA that matched Petitioner's DNA, while the watch contained insufficient DNA to provide a match. Petitioner was subsequently found guilty of burglary in the second degree, among other crimes, for this conduct.
D. The Forest Ave. Burglary and Petitioner's Arrest
On January 31, 2008, the day after the Clyde Ave. Burglary, Petitioner broke into the home of Minnie Palmer on Forest Ave. (hereinafter the "Forest Ave. Burglary") and stole jewelry belonging to her daughter. However, during the course of the break-in, the Palmers' neighbor, Michael Deluca, was throwing out his garbage when he heard glass shatter next door. Deluca looked toward the Palmers' house and saw a foot going through the back window. Approximately one minute later, the Palmers' house alarm sounded. Deluca then witnessed an African-American male with a gray beard wearing a brown leather jacket, dark pants, and a gray cap or hood exit out the back doors.
Deluca promptly called 911. Deluca informed officers that the intruder fled north away from the Forest Ave. home. A police bulletin went out providing the description given by Deluca and the direction that the perpetrator had fled. Police Officer Anthony D' Alto heard the bulletin and was directed to investigate. As D' Alto drove towards the crime scene, he canvassed the area around Forest Ave. and quickly located Petitioner-matching the eye-witness's physical description and heading north away from the crime scene on foot. D'Alto then stopped Petitioner for questioning.
Simultaneously, Police Officer Eric Myer also responded to the radio call and met with Deluca on Forest Ave. While listening to Deluca recount what he has witnessed, Myer was informed that D' Alto had stopped a potential matching suspect. Deluca agreed to go and view the stopped individual.
Deluca and Myer arrived at the scene of the stop moments later. Petitioner was standing thirty to forty feet from the radio motor patrol ("RMP") with only D' Alto immediately near him. Petitioner was not handcuffed, not under arrest, and, while three other officers were in the vicinity, they were not surrounding Petitioner. Deluca instantly identified Petitioner as the individual that he saw break into Palmer's home. From Deluca's 911 call to the subsequent identification, approximately ten minutes elapsed.
At this point, Petitioner was put under arrest and patted down by the arresting officers. The officers discovered a bag of jewelry, belonging to Ms. Palmer, in Petitioner's pocket. In a processing search conducted at the police station, officers recovered a second bag of jewelry.
E. Indictment and the Motion to Sever
For these acts, the Nassau County District Attorney's Office (hereinafter the "DA") obtained an indictment charging Petitioner with four counts of burglary in the second degree (New York Penal Law ("P.L.") § 140.25(2)), criminal possession of stolen property in the third degree (P. L. § 165.50), criminal possession of stolen property in the fourth degree (P. L. § 165.45(1)), criminal possession of stolen property in the fifth degree (P.L. § 165.40), petit larceny (P.L. § 155.25), and criminal mischief in the fourth degree (P.L. § 145.00(1)).
On March 20, 2009, Petitioner's counsel moved to sever the indictment to have each incident tried separately. That motion was denied by the Supreme Court, Nassau County (Grella, J.) and the original indictment stood. See Dkt. 8-1 (Ex. 1, Brief for Defendant-Appellant in People v. Hicks, XXXX-XXXX (2d Dep't 2010) ("App. Br.")), at 21-22, n. 2.
II. PRE-TRIAL MOTIONS AND JURY SELECTION
A. The Motion to Suppress
Prior to trial, Petitioner sought a "combined Wade/Mapp/Dunaway hearing" to challenge the lawfulness of his stop as well as the admissibility of Deluca's "show-up" identification and the jewelry recovered from Petitioner's person during his arrest. At the evidentiary hearing, the DA presented a case tracking the narrative recounted above, see supra Sec. I.D. Petitioner presented no witnesses at the hearing.
The trial court denied the motion to suppress. The court held that (a) the officers had reasonable suspicion to stop Petitioner; (b) the show-up identification was not unduly or unreasonably suggestive; and (c) the jewelry was lawfully seized following a lawful arrest.
B. Potential Juror Number 10
On the afternoon of the second day of jury selection, in the midst of the voir dire and after six jurors had already been selected, defense counsel informed the court that he had seen Potential Juror Number 10 ("PJlO") speaking loudly with a court security officer ("CSO"), and appearing distraught and irate. Counsel requested that the court question the witness, particularly to ensure that no other potential jurors had overheard. The Clerk of the Court then informed the court that PJ10 had complained to the CSO that Petitioner had been looking her up and down. PJ 10 then testified that she believed that Petitioner was looking at her and she thought that Petitioner may have been looking at her ring and "sizing [her] up." Dkt. ...