United States District Court, E.D. New York
Jimmy Jacobs, Petitioner, Pro se, Queens Village, NY.
For William Connolly, Respondent: NEW YORK STATE ATTORNEY GENERALS OFFICE - GENERIC, LEAD ATTORNEY, New York State Attorney Generals Office; QUEENS COUNTY DISTRICT ATTORNEYS OFFICE - GENERIC, LEAD ATTORNEY; Priscilla Steward, LEAD ATTORNEY, State of New York Office of the Attorney General, New York, NY.
MEMORANDUM AND ORDER
SANDRA L. TOWNES, United States District Judge.
Currently before the Court is Petitioner Jimmy Jacobs's pro se petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2010 conviction, after a jury trial, in the New York Supreme Court, Queens County, of two counts of criminal possession of a weapon in the third degree, criminal possession of stolen property in the third degree, and criminal possession of stolen property in the fourth degree. Petitioner alleges that his due process rights were violated because: (1) the prosecution violated its obligations under People v. Rosario, 9 N.Y.2d 286, 173 N.E.2d 881, 213 N.Y.S.2d 448 (1961) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) the evidence supporting his conviction was legally insufficient; and (3) his conviction and sentence for third degree criminal possession of a weapon under Penal Law § 265.02(4) was unconstitutional because the statute under which he was indicted was superseded before entry of judgment. For the reasons set forth below, the petition is denied in its entirety.
Underlying Criminal Case
In the early morning of March 17, 2005, Petitioner allegedly threatened his ex-girlfriend, Andrea Simmons, via voicemail, allegedly stating: " I am going to get you. I am going to get everyone." (T: 250-51.) Around 6:20 P.M. that evening, Petitioner, wearing black clothing and a white gauze eye patch, approached Simmons and her daughter in front of their home; Simmons and her daughter ran to their car and fled. (Id. at 252-5 8.) Simmons reported Petitioner to the police by calling 911 and visiting her local precinct. (Id. at 258-59.) At approximately 6:30 P.M., in Simmons's neighborhood, Petitioner allegedly approached a stranger, Pauline Holness, took her car keys from her at gunpoint, and drove away in her green Volvo. (Id. at 442-46.) Holness reported the robbery to the police and provided a description of the culprit. (Id. at 447-48.) Approximately eight hours later, police officer Brenden Cessar stopped Petitioner, who was driving another vehicle, because Petitioner matched the description provided by Ms. Simmons in her police report. (Id. at 548-51.) After searching Petitioner and the automobile, Officer Cessar recovered the keys to Holness's Volvo, which was parked 100 feet away. (Id. at 561.) Officer Cessar then searched Holness' vehicle and found a black handgun in the glove compartment and Jacobs' New York State driver's license underneath the front passenger seat. (Id. at 560, 574.)
The Trial & Verdict
On these facts, Petitioner was indicted and tried before a jury with crimes involving robbery, possession of a weapon, and possession of stolen property. Because the prosecution failed to produce the handwritten notes made by the police officer to whom Simmons initially described Petitioner and the incident that occurred outside of her home, the trial court provided the jury with an adverse inference instruction. The court instructed the jury that the prosecution's failure to produce the notes " may have impaired the ability of defense counsel to cross examine Ms Simmons." (T: 619-20; 690-91.) Defense counsel did not object to this instruction nor raise any further claims with respect to the Rosario or Brady material. (Id.)
At the conclusion of trial, the jury convicted Petitioner of Criminal Possession of Stolen Property in the Third and Fourth Degrees (Penal Law § § 165.45, 165.50) and two counts of Criminal Possession of a Weapon in the Third Degree (Penal Law § § 265.02(1), (4)). (Id. at 809-12.) On February 8, 2007, Petitioner was sentenced as a second violent felony offender to a determinate sentence of 7 years in prison, plus 5 years of post-release supervision. (Sentencing T: 2-9.)
On June 21, 2008, Petitioner, represented by counsel, filed a direct appeal with the New York Supreme Court, Appellate Division, Second Department, arguing that his conviction was not based on legally sufficient evidence. (Resp. Ex. 1 at 30-45.) Additionally, Petitioner filed a supplemental pro se brief, asserting that: " [t]he prosecution[']s falure [ sic ] to disclose important Rosario and Brady material, in a timely fashion, deprived the appellant's right to a fair trial, affective [sic] counsel and due process." (Id. at 47-66.) On March 2, 2010, the Appellate Division unanimously affirmed Petitioner's conviction, finding Petitioner's legal sufficiency challenge and supplemental pro se claims based on alleged violations of Rosario and Brady procedurally barred because those claims were unpreserved for appellate review. People v. Jacobs, 71 A.D.3d 693, 894 N.Y.S.2d 908 (App.Div. 2d Dep't 2010). The Appellate Division noted that, alternatively, none of Petitioner's claims had merit. Id.
On March 9, 2010, Petitioner sought leave to further appeal to the New York Court of Appeals. (Resp. Ex. 1 at 167-219.) On May 27, 2010, the New York Court of Appeals denied petitioner's application. People v. Jacobs, 14 N.Y.3d 888, 929 N.E.2d 1012, 903 N.Y.S.2d 777 (2010).
Petitioner's New York Criminal Procedure Law (" CPL") § 440.20 Motion to Set Aside ...