United States District Court, E.D. New York
Robert D. DiDio, Esq., Law Offices of Robert DiDio, New York, NY, for Petitioner.
Michael J. Miller, Esq., Suffolk County District Attorney's Office Criminal Courts Building, Riverhead, NY, for Respondent.
MEMORANDUM & ORDER
JOANNA SEYBERT, District Judge.
Before the Court is petitioner Arthur Cockett's ("Cockett" or "Petitioner") Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the Petition is DENIED.
In 2006, Cockett participated in two fraudulent mortgage transactions secured by property in Suffolk County. (Resp't's Ans., Docket Entry 8, ¶¶ 3-4.) One property was 26 Hamlin Street in West Babylon, with a closing date of August 9, 2006, and the other property was 119 McKinley Drive in Mastic Beach, with a closing date of October 6, 2006. (Resp't's Ans. ¶ 4.) Cockett, from his office located in New York County, and in his capacity as an office manager of a Florida-based mortgage brokerage firm, as well as Walter Crawford ("Crawford"), a New York City based accountant, provided lenders with false information in order to obtain a mortgage on the properties. (Pet., Docket Entry 1, at 7.) When the loans were funded proceeds were routed through Cockett and Crawford rather than the proper recipients of the funds. (Resp't's Ans. ¶ 5.) In both transactions a straw buyer-Donna Reid ("Reid")- asserted that she was buying the house as her primary residence, and was paid a total of $25, 000.00 for her role, which included participation in a third fraudulent mortgage deal. (Resp't's Ans. ¶ 5.) For each transaction, Jordan Kapchan, Esq. ("Kapchan"), was used by Cockett to act as the closing agent for the lender. (Resp't's Ans. ¶ 5.)
Cockett and Crawford were charged with two counts of Grand Larceny in the Third Degree (under New York Penal Law ("N.Y.P.L.") § 155.35); one count of Scheme to Defraud in the First Degree (N.Y.P.L. § 190.65); two counts of Criminal Possession of a Forged Instrument in the Second Degree (N.Y.P.L. § 170.25); and ten counts of Falsifying Business Records in the First Degree (N.Y.P.L. § 175.10). (Resp't's Ans. ¶ 3.)
On March 6, 2009, Cockett was arrested and subsequently released after posting bail (Pet. at 12), and on April 8, 2009, he was arraigned on the indictment. (Pet. at 12.)
On May 5, 2010, a Molineux/Ventimiglia hearing was held to determine if the prosecution would be allowed to introduce evidence at trial that Cockett engineered a third fraudulent mortgage for 153 Putnam Avenue, Freeport in Nassau County on or about or between October 6, 2006 and November 6, 2006. (Hearing Transcript ("Hr'g Tr."), Docket Entry 8-9, at 6:17-23; Resp't's Ans. ¶ 6.) The prosecutor provided documents and the proposed testimony of Crawford, Reid, and Kapchan to the hearing court, in an effort to establish Cockett's involvement with the third fraudulent transaction. (Hr'g Tr. 12:22-15:6.) Cockett objected to the use of the documentary evidence as well as the entire Molineux/Ventimiglia motion. (Hr'g Tr. 16:16-24:18.) He argued that if Crawford, Reid, and Kapchan were believed, then there was no need for testimony about an additional mortgage. (Hr'g Tr. 41:2-23.) Cockett further asserted that if allowed at all, the proposed Molineux evidence should be reserved for rebuttal. (Hr'g Tr. 42:19-44:18.) The hearing court concluded that both the documentary and testimonial evidence would be admissible at trial:
The Court finds that testimonial and documentary evidence, for the alleged uncharged fraudulent real estate transaction which involved the defendant and occurred on or about November 6, 2006, for premises located at 153 Putnam Avenue, Freeport, New York, are probative regarding similar acts done under similar circumstances at about the same time with intent to defraud by the same means, and that the common method, purpose and victim formed the connecting links which strung together the... [alleged] successive and successful efforts to defraud pursuant to a common scheme; and that the evidence [is] competent to show knowledge, intent and absence of mistake" (see People v. Rutman, 260 A.D. 784, 24 N.Y.S.2d 334 [2nd Dept 1940]). The Court further finds the evidence which relates to the identity of defendant is clear and convincing and the evidence provides a background to the pending charges. The Court would note that while the November 6, 2006 events are subsequent to the events in the indictment (see People v. Ingram, supra), the contract for sale of the Freeport property was executed August 1, 2006. The Court has balanced the probative value and the need for the requested evidence against the potential for delay, surprise and prejudice to defendant, and finds the similarities of method, scheme, time, means, participants, knowledge, intent, and alleged fraudulent success, preclude any potential for delay, surprise and prejudice to defendant (see People v. Alvino, supra), as well as any difficulty defendant might have in rebutting the inference the uncharged fraudulent charge might bring into play (see People v. Robinson, supra).
(May 26, 2010 Decision and Order ("Order"), Docket Entry 8-2, at 3.)
On August 20, 2010, at the conclusion of a jury trial in New York Supreme Court, Suffolk County, Cockett was found guilty of twelve of the fifteen counts charged in the indictment. (Pet. at 32.) Cockett was convicted of both counts of Third Degree Grand Larceny, a Scheme to Defraud in the First Degree, one count of Second Degree Criminal Possession of a Forged Instrument, and eight counts of Falsifying Business Records in the First Degree. (Pet. at 32.) On November 19, 2010, after the jury returned its verdict, but before sentencing, Cockett moved to set aside the verdict pursuant to Criminal Procedure Law ("CPL") § 330.30. (Pet. ¶ 4.) Cockett argued that the verdict was against the weight of the evidence and that the geographical jurisdiction was not proper in Suffolk County. (Pet. ¶ 4.) The motion was denied. (Resp't's Ans. ¶ 13.) On December 3, 2010, Cockett was sentenced to serve twelve concurrent terms of incarceration, with the maximum term of 11/3 to 4 years imprisonment. (Resp't's Ans. ¶ 9.) On December 6, 2010, Cockett petitioned the Appellate Division, Second Judicial Department ("Appellate Divisions"), for a Writ of Prohibition pursuant to Article 78 of the New York Civil Practice Law and Rules. (Resp't's Ans. ¶ 14.) Cockett petitioned that the Appellate Division prohibit the trial court from taking any action with regard to this case because the trial court lacked jurisdiction. (Resp't's Ans. ¶ 14.) On December 28, 2010, the application was denied. (Resp't's Ans. ¶ 15.)
Cockett appealed the judgment to the Appellate Division on July 5, 2011. (Pet. ¶ 10.) The appeal raised ten claims: (1) Cockett's alleged criminal conduct took place outside of Suffolk County and did not cause a particular effect in Suffolk County; (2) Cockett did not intentionally cause harm in Suffolk County; (3) the indictment against Cockett was defective and should be dismissed; (4) the records which Cockett was convicted of falsifying are not business records as contemplated under Penal Law §§ 175.00 and 175.10; (5) the documents used to secure the falsifying business records convictions were not maintained for the purpose of evidencing or reflecting the condition or activity of an enterprise; (6) the evidence was insufficient to prove the crime of grand larceny in the third degree; (7) the rule concerning uncharged evidence as set forth by People v. Molineux was violated; (8) the People did not prove Cockett's guilt beyond a reasonable doubt; (9) the verdicts were against the weight of the evidence; and (10) Cockett's sentence should be reduced in the interest of justice. (Pet. ¶ 10; see also Appellant's Br., Docket Entry 1-1, Ex. D, at 10-11.)
On May 23, 2012, The Appellate Division affirmed the judgment of conviction in its entirety. ( People v. Cockett, 95 A.D.3d 1230, 945 N.Y.S.2d 172 (2d Dep't 2012).) The Appellate Division specifically held that geographical jurisdiction was properly pled with adequate notice to the petitioner, and that it was proven at trial. ( Cockett, 95 A.D.3d at 1231, 945 N.Y.S.2d at 173.) The Appellate Division further held that the uncharged crimes evidence was properly admitted into evidence at trial because it was probative as to Cockett's knowledge and intent with respect to the charged crimes. ( Cockett, 95 A.D.3d at 1231, 945 N.Y.S.2d at 173-74.)
Following the Appellate Division's affirmance, Cockett sought leave to appeal to the New York Court of Appeals on May 28, 2012. (Pet. ¶ 12.) On June 29, 2012, the Court of Appeals denied Cockett's leave to appeal. (People v. Cockett, 19 N.Y.3d 958, 973 N.E.2d 208, 950 N.Y.S.2d 110 (N.Y. 2012).) Cockett's subsequent motion for reconsideration and reargument of his leave application was also denied. (People v. Cockett, 19 N.Y.3d 972, 973 N.E.2d 764, 950 N.Y.S.2d 354 (N.Y. 2012).)
Ultimately, on November 2, 2012, Cockett filed this application for writ of habeas corpus. He seeks a writ on the grounds that: (1) the state court permitted the prosecution to present evidence of an uncharged crime on their direct case, thereby impairing Cockett's right and ability to defend himself and receive a fair trial, and (2) the state court compelled Cockett to stand trial before a jury not compromised of his peers, where proper jurisdiction over him ...