United States District Court, S.D. New York
THOMAS P. GRIESA, District Judge.
Petitioner Milton Gonzalez applies for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is acting pro se. He alleges that the State of New York is holding him in violation of his federal constitutional rights, and he seeks either a reversal of his conviction or a sentence reduction.
On November 17, 2008, petitioner was indicted on two counts. The first count charged Robbery in the Second Degree, New York Penal Law § 160.10, and the second count charged Criminal Impersonation in the First Degree, Penal Law § 190.26. The indictment alleged that petitioner impersonated a police officer as part of a robbery on November 4, 2008.
Petitioner's jury trial in New York Supreme Court in New York County began on May 27, 2009. The state showed that petitioner, with accomplices, lured a victim into the inner lobby of an apartment building, then displayed a false police badge and directed the victim to place his hands against a wall, whereupon petitioner and an accomplice stole a mobile phone and cash from the victim's pockets. Later on the day of the robbery, police officers viewed surveillance videos from the building's security system and identified petitioner as a suspect. Petitioner was arrested the next day. When arrested, petitioner had a false police badge in his pocket.
On the first day of trial, before jury selection, the prosecutor informed the court that, although there were four cameras in the apartment building's lobby areas and entryway, detectives on the case only copied and retrieved as evidence videos from two of the four cameras. The videos from the other two cameras had been "overwritten, " and material relevant to the present case was thus lost. The lost videos apparently showed the inner lobby, where the actual robbery occurred, whereas the saved footage primarily depicted the victim and defendants entering and leaving through the entryway. The prosecutor further stated that the building superintendent and the officers who responded to the crime scene viewed incriminating footage on all four cameras on the night of November 4, 2008. The prosecutor applied for those witnesses to testify as to what they had seen on the lost surveillance videos. Subsequently, the prosecutor withdrew that application, and ultimately, the jury heard no testimony as to the content of the lost videos.
During her opening statement at the trial, the prosecutor stated the following:
Now you will not see the actual robbery on the video because the defendant, who lived in the building for years, made sure the robbery occurred at the only blind spot for the security cameras in the lobby of the building, but on this video you will see the people that [the victim] describes to you. Trial Tr. p. 15 (Dkt. No. 11).
The prosecutor thus argued to the jury that the videos from the inner lobby would not be shown because petitioner had positioned himself in the cameras' "blind spot", rather than because videos had been lost. Petitioner's counsel made no objection. However, following the prosecutor's opening statement, petitioner's counsel offered the following in his opening statement:
There were four security cameras in all. The testimony in this case is going to be that the police received the video footage from two of these four cameras, and that's the video footage you're going to see. They did not recover, the evidence will show, or retrieve the video footage from the room in which the alleged robbery took place. There's no reasonable explanation for why that happened. That is what the evidence will show. Trial Tr. p. 18 (Dkt. No. 11).
Later in the trial-when the jury was not present-the prosecutor represented to the court that one of the officers who had viewed the now-overwritten videos would be willing to testify that those videos showed a person resembling petitioner with a hand outstretched in a manner consistent with the display of a police shield. Trial Tr. p. 132 (Dkt. No. 11). The prosecutor further stated that when police detectives visited the building several days later to copy and retrieve video evidence, they were unaware that the cameras from the inner lobby had captured such an image. Id.
The prosecutor made this disclosure out of "an abundance of caution", in case petitioner's counsel might want to elicit testimony to this effect from the officer who had viewed the overwritten videos. Petitioner's counsel did not seek to elicit that testimony. Instead, petitioner's counsel requested that the court prohibit officers who viewed the lost videos from testifying that those videos contained no pertinent information. The court ruled that the officers should offer no testimony as to the content of the lost videos.
In his closing, petitioner's counsel further contested prosecutor's assertion that the videos from the inner lobby were not retrieved because petitioner committed his crimes in the blind spot of the cameras:
[T]he prosecution's position is, yes, there was a video system and, yes, it was working on the night of the incident, yes, we have copies of the video tape, but, no, we don't have copies of the room in which the robbery occurred.... I submit to you that the police didn't - that those tapes aren't here at trial because they did not show that a robbery occurred.... The prosecution... is going to try to cover over this issue by arguing that the robbery occurred in a blind spot of the security system. Trial Tr. p. 286-89 (Dkt. No. 11).
Petitioner's counsel thus repeatedly communicated to the jury that the unavailability of the videos was a major weakness in the prosecutor's ...