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Rodriguez v. Uhler

United States District Court, S.D. New York

January 24, 2017

NILTON RODRIGUEZ, Petitioner,
v.
DONALD UHLER, Superintendent, Upstate Correctional Facility, Respondent.

          OPINION AND ORDER

          J. PAUL OETKEN United States District Judge

         Pro se petitioner Nilton Rodriguez has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C § 2254, seeking review of his conviction in the Supreme Court of New York, New York County, on one count of course of sexual conduct against a child in the first degree, New York Penal Law § 130.75(a). (Dkt. No. 1 (“Petition”).) For the reasons that follow, the Petition is denied.

         I. Background

         A. The Crimes, Indictments, and Trial

         From 1999 to 2003, Rodriguez was in a relationship with Leni, the mother of L.S., [1] the complainant in Rodriguez's underlying criminal case. They lived together in a two-bedroom apartment in Manhattan with L.S., and for part of that time with L.S.'s grandmother, Luz (Leni's mother). (Dkt. No. 13, Trial Transcript (“T”) at 35, 36, 38-39, 109-10, 113, 177-79.)[2] The relationship was volatile and there were frequent arguments. (Id. at 117-18, 181, 277.) During the course of the relationship, L.S. was between roughly six and twelve years old. (Id. at 36, 38, 179.)

         At trial, L.S. testified to repeated inappropriate contact with Rodriguez. On New Year's Eve when L.S. was six or seven years old, Rodriguez kissed her on the lips while she was in bed. (Id. at 41-44.) This kissing on the lips continued throughout their time living together, “a lot of the days of the week, not every day, but when there wasn't anybody around.” (Id. at 59, 67.) Early on, Rodriguez told L.S. not to tell anyone about what had happened. (Id. at 69-70, 75.) At some point after the initial New Year's kiss, Rodriguez on two occasions asked L.S. for a hug just after he had showered; each time she complied, and he opened his bathrobe to reveal he was naked and his penis touched her body. (Id. at 44-46.)

         When L.S. was seven years old, Rodriguez on at least three occasions touched her vagina over her underwear. (Id. at 48-51.) On one of these occasions, Rodriguez put his finger in her vagina and told her it was wet. (Id. at 50-51.) When L.S. was around eight years old, Rodriguez asked her to perform oral sex on him, to suck on his penis “like it was a lollipop.” (Id. at 52-55.) He ejaculated into her mouth and told her to swallow it “because it was good for [her], ” just like the “stuff a banana has.” (Id. at 53.) On another occasion, he asked her to perform oral sex on him again, and she again complied. (Id. at 54-55.)

         When L.S. was around nine years old, she attended a Yankees game with Rodriguez. On the way home that night, they lingered in a deserted park and he again asked her to perform oral sex, but she declined. (Id. at 55-56.) Rodriguez on two occasions pulled down her underwear, sat her on the toilet, and pushed his penis against her vagina, without penetration. On both occasions, he ejaculated into his hand. (Id. at 58-64.) In an additional instance of penis-vagina contact, when L.S. was nine years old, while in L.S.'s bedroom, Rodriguez pushed his penis against her vagina and “the tip of his penis went in a little bit and it hurt a lot.” She told him to stop, but he continued “lightly” pushing against her vagina until he ejaculated into his hand. (Id. at 61-64.)

         Then in May 2003, when L.S. was ten years old, Leni walked in on Rodriguez kissing L.S. on the lips and unbuttoning her pants while they were on the sofa in their apartment. Leni promptly hit him with a cooking implement. (Id. at 64-66.) Rodriguez moved out within days. (Id.)

         A few months later, Leni and L.S. visited Rodriguez at his new apartment to see Rodriguez's dog, which had lived with them before Rodriguez moved away. (Id. at 66-67.) Aside from two other non-sexual encounters when Rodriguez visited Luz's apartment a year or so later and when he made a phone call to the apartment, L.S. had no further contact whatsoever with Rodriguez until the state criminal case. (Id. at 68-69; 73.)

         On June 21, 2010, Rodriguez was indicted on two counts of Course of Sexual Conduct Against a Child in the First Degree. He filed a motion to dismiss the indictment as improperly charged, which was granted. (State Record (“SR”) at 167.) The case was re-presented to the grand jury, and a new indictment was issued on January 19, 2011, charging Rodriguez with one count of Course of Sexual Conduct against a Child in the First Degree, for abuse of L.S. (Id.) In April 2011, Rodriguez fired his attorney, Charles Abercrombie, and hired Michael Discioarro as his attorney for trial. (Id. at 168.) Rodriguez explicitly waived his right to a trial by jury, and proceeded with a bench trial on September 20, 2011. (Id.)

         Prior to opening statements, defense counsel sought to preclude mention of Rodriguez's prior convictions. (T. at 10-17.) Among the prior convictions described to the judge by the prosecution was one from 1998 for sexual misconduct under N.Y. Penal Law § 130.20, for which Rodriguez served forty-five days in jail after pleading guilty. (T. at 12.) In that case, according to the prosecutor, Rodriguez had approached his roommate's girlfriend while she slept and performed oral sex on her. (Id.) The judge permitted the prosecutor to ask Rodriguez whether he'd been convicted of a Class A Misdemeanor, but precluded questions regarding the underlying facts or the title of the penal law violated. (T. at 15-16.)

         At trial, L.S. testified to not reporting the abuse until 2009, because she feared Rodriguez might become violent against her, Leni, or Luz. (Id. at 69.) However, L.S. also testified that she “loved [Rodriguez], ” because he “hung out” with her and she “didn't think what was going on was bad.” (Id. at 70.) It was not until a couple of years after the incidents occurred that she recognized that what Rodriguez had done to her was wrong. (Id. at 70-71.) During high school, she fell into a depression, started performing poorly in classes, had difficulty sleeping, and was consuming sleeping pills and alcohol. (Id. at 71-74.) Only when confronted by her mother about her drinking, years after the abuse had ended and her last contact with Rodriguez, did L.S. reveal the history of abuse. (Id. at 71-72.)

         On cross-examination of L.S., defense counsel pointed out that L.S. had earlier in her trial testimony said there were three instances of oral sex, whereas in later trial testimony she said there were only two instances of oral sex, and that she did not perform oral sex upon the third request, in the park following the Yankees game. (Id. at 89.) L.S. admitted that she was “wrong” when she said oral sex had happened three times. (Id.) Further, defense counsel elicited that L.S. did not remember anything about the Yankees game she attended, but was able to remember all the details of the park where Rodriguez requested oral sex. (Id. at 90.) On cross-examination, L.S. also admitted that Leni or Luz was home most of the time at the beginning of the period of abuse. (Id. at 91.)

         Defense counsel also elicited L.S.'s admission that she noted on hospital medical forms in 2005 that she had never engaged in oral or vaginal sex or been abused. (Id. at 92-93.) L.S. on cross examination also admitted that she was not afraid of Rodriguez once he moved out, and that she requested the visit to Rodriguez's apartment to see the dog, despite the abuse, and was willing to stay there overnight. (Id. at 93-94.)

         Defense counsel also drew out discrepancies between L.S.'s grand jury and trial testimony regarding the last kissing incident. (Id. at 95-96.) He posed questions suggesting that Leni had drug and alcohol problems, and that Rodriguez financially provided for them. (Id. at 96-101.) To conclude his cross-examination, defense counsel elicited from L.S. that Rodriguez had “never” had sexual intercourse with her. (Id. at 101.)

         On her direct examination, Leni testified regarding the kissing incident she had witnessed, and said that L.S. had told her that it was the only time Rodriguez had kissed or touched her in that way. (Id. at 120.) Leni testified to still loving Rodriguez after he moved out, but wanting him to get help; she saw him regularly for several months afterwards. (Id. at 122-23.) She noted a couple of times she had bumped into him in the years since. (Id. at 124-25.)

         On cross-examination of Leni, after inquiring as to drug, alcohol, and financial difficulties, defense counsel elicited that Rodriguez had herpes, a contagious disease, and advanced the notion that Leni had contracted it from Rodriguez, though she denied it. (Id. at 128-29.) On cross-examination, Leni admitted that she may have consumed alcohol the day of the kissing incident she witnessed, and that she did not call the police after witnessing the incident. (Id. at 130-32.) She also admitted that the kissing incident made Rodriguez “not someone you want to have around your child, ” and that she wanted to “kill” him, yet she and L.S. visited Rodriguez after the kissing incident anyway and stayed overnight. (Id. at 131-33.) Defense counsel also elicited that despite this kissing incident, Leni loved Rodriguez, and reached out to him for help even after he moved out. (Id. 134-36.) On re-cross, Leni also admitted that they relied on Rodriguez, but that he didn't have “long periods of extended alone time” with L.S. (Id. at 142.) Leni also noted on cross that she had met Rodriguez and his new fiancée at a bar years after he moved out. (Id. at 138.)

         The People then introduced testimony from an expert in child sexual abuse and developmental psychology, Dr. Eileen Treacy. (Id. at 152.) Treacy testified to general patterns of behavior among victims of childhood sexual abuse. (Id. at 153.) She also noted the variety of reactions minors have to abusers, that loving an abuser is more common than hating, and that the closer the relationship, the less likely the victim is to report the abuse; she confirmed that some victims even keep the secret into old age. (Id. at 158-62.)

         On cross-examination, defense counsel elicited that Dr. Treacy had served as a defense witness only ten percent of the time (suggesting a prosecution bias in analysis) (id. at 166); had previously found a child not to be a reliable reporter of abuse (id. at 167); and that child witnesses have made false reports of abuse to cover up misdeeds (id. at 173.). Defense counsel also drew out that Dr. Treacy had not, aside from a brief discussion with the assistant district attorney, reviewed any evidence in the Rodriguez case, or spoken to any of the witnesses, a much lower degree of involvement than in other cases she had worked on. (Id. at 169-170.)

         Luz, on direct examination, corroborated the volatile nature of Leni and Rodriguez's relationship, and that Leni and L.S. were distraught when he moved out. (Id. at 193-94.) On cross-examination, Luz admitted that she moved back in with Leni after Rodriguez moved out because Leni could not afford the rent on her own. (Id. at 202.)

         Defense counsel also called Detective Hernandez, who had interviewed L.S. as part of the abuse investigation. (Id. at 210.) Counsel elicited from Detective Hernandez that the DD-5 police form memorializing the interview showed that L.S. had told him that she had engaged in oral sex “just about every day” with Rodriguez, contravening L.S.'s testimony at trial that there were only a few instances of oral sex; Detective Hernandez excused it as a mis-transcription, referring to something other than oral sex. (Id. at 210-16.)

         Rodriguez's aunt testified that Leni did not want Rodriguez to move out, even after the kissing incident. (Id. at 222-23.)

         Finally, Rodriguez himself testified. Defense counsel elicited that Rodriguez had contagious herpes and this had strained the relationship with Leni. (Id. at 228.) Leni was behind in rent and using alcohol and cocaine when he moved in. (Id. at 229.) Rodriguez ended up covering living expenses for Leni and L.S. (Id.) Rodriguez testified that he eventually decided to move out in May 2003, and obtained a lease for a new apartment, and informed Leni, who promptly “flip[ped] out, ” cried, and talked about how Rodriguez was their support. (Id. at 230-32.)

         Rodriguez also provided a markedly different description of the “kissing incident” that Leni witnessed. He testified that, two days after he informed Leni about moving out, after a day at the beach where Leni drank six piña coladas (id. at 232), L.S. and Rodriguez were sitting on the sofa watching television and L.S. was kissing him on the cheek saying, “I love you daddy, I love you daddy.” (Id. at 233.) Then Leni, in a drunken stupor, entered the room and accused him of kissing L.S. Rodriguez responded: “Are you crazy, are you still drunk?” (Id.) Leni then hit him with a spatula, and said that if L.S. had herpes, she was going to call the police. (Id. at 233.) He then moved out. (Id. at 284.) Despite this altercation, Leni and L.S. visited him four months later (id. at 235-39), and Leni on another occasion sought Rodriguez's help in dealing with a woman threatening to assault her, a situation Rodriguez defused (id. at 239-40). She also asked him for money, according to his testimony. (Id. at 244.) Rodriguez was “always very friendly” with Leni, but when Leni met Rodriguez's fiancée at a party, Leni gave them dirty looks, which made Rodriguez uncomfortable. (Id. at 241.)

         Rodriguez further testified that he was never home alone with L.S., and strenuously denied all of the alleged inappropriate acts with L.S. (Id. at 242-44.)

         On cross-examination, Rodriguez described the progression of his volatile relationship with Leni, and noted uneventful social interactions he had with Leni and L.S. after he moved out. (Id. at 258-263, 276-78.) He recounted the tension when Leni met his fiancée at a bar in 2009. (Id. at 264-67.) The prosecutor elicited some discrepancies between how Rodriguez described the Leni-fiancée meeting at trial and in a prior interview with the prosecutor, when it was described as amicable. (Id. at 264-67.) The prosecutor pointed out that in a previous statement to the prosecutor, Rodriguez had said that he moved out because he was acting like an animal and scaring L.S. (Id. at 283.) Rodriguez said he would not respond to further questions about that prior statement, because it was taken when he was in shock, but he eventually responded to questions posed. (Id. at 283-84.)

         Although it is not reflected in the trial transcript, the trial judge permitted the prosecutor, over defense counsel's objection, to inquire about Rodriguez's prior sexual misconduct conviction after Rodriguez had opened the door on direct by stating that he could not secure employment because this charge appeared on a background check. (Petition at 51-52; SR at 185-86; T. at 244.) The prosecutor proceeded, on cross, to question him in general terms about the sexual misconduct conviction; Rodriguez promptly volunteered unsolicited facts regarding the conviction (“they say that I performed-I forced myself and orally tried to do something” to the victim), and denied having committed the crime, despite having pleaded guilty. (T. at 286-91.) Defense counsel objected to the continued line of questioning. (Id. at 290.)

         In his opening and closing statements (Id. at 23-27; 294-301), defense counsel depicted Leni as a drug and alcohol user who was cash-strapped and depended on Rodriguez to cover her living costs. He pointed out the weaknesses in the prosecution's case: the good relations after the kissing incident (id. at 23-25, 297-98, 301); the incorrect dates in the indictment (id. at 294-95); L.S.'s apparently contradictory statements that there had not been sexual intercourse yet Rodriguez had inserted his penis into her vagina (id. at 295); the tight quarters of the apartment and the constant presence of other family members, reducing the opportunities for abuse (id. at 297); Detective Hernandez's DD5 report showing an accusation of oral sex every day, unlike the two or three incidents alleged at trial (id. 295-96); the delay in the reporting of abuse (id. at 300-301); the medical form on which L.S. indicated that ...


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