United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
pro se seeks relief pursuant to 28 U.S.C. §
2254, setting aside his state court conviction for
second-degree burglary. Relevant facts will be set forth
below as necessary to address each point of error that
petitioner has raised, but to summarize, petitioner, who
exercised his right to proceed pro se at trial (with
a legal advisor), was convicted based upon the presence of
his palm prints at the scene of the burglary.
raises two due process points in his habeas corpus petition:
(1) the trial court should have appointed a second
fingerprint expert; and (2) the trial court should have
enforced a discovery subpoena for documents concerning the
testing of his palm prints by the prosecution. Neither of
these points has merit, and the petition is therefore denied.
Failure to Appoint a New Fingerprint Expert
point of error presents something of a moving target as his
theory continually evolved in the state courts.
through his legal advisor, obtained the services of Robert
Garrett, a fingerprint analyst, to test the analysis
performed by the prosecution's expert. Petitioner sent
Mr. Garrett the prosecution expert's latent print
reports, and, as petitioner himself admits, Mr. Garrett
informed petitioner's brother that he in fact had
received them. Thereafter, at a hearing before the state
court, the prosecutor confirmed that, at the direction of the
court, the prosecution's fingerprint expert had met with
petitioner's expert, Mr. Garrett, and had provided him
with all of the relevant evidence. The prosecutor, however,
was clear that she was not present for the meeting and had
taken steps to assure that she would not learn of what had
transpired in that meeting.
petitioner expressed the view that his expert had reviewed
the fingerprint evidence and had reached an opinion that was
not in conflict with the opinion of the prosecution's
expert. Petitioner made a motion to suppress Mr.
Garrett's “disfavorable” statements regarding
his review of the prosecution's fingerprint evidence,
claiming that Mr. Garrett's opinion was obtained via an
“unlawful procedure” because Mr. Garrett had
disclosed the results of his analysis to the prosecutor.
motion to suppress was denied as moot when the prosecution
asserted that it would not seek to admit any alleged
statements of Mr. Garrett at trial, so there was no need for
suppression. Petitioner then moved for the appointment of a
new fingerprint expert. However, he did not explain what the
new expert could do that the first expert had not done or why
he could not continue using the first expert, except for his
theory that the expert had been compromised. The trial court
denied his motion for a new expert.
he was convicted, petitioner made a motion pursuant to New
York Criminal Procedure Law § 330.30(1) to set aside the
verdict, arguing that the trial court improperly denied his
request for the appointment of a new fingerprint expert,
again asserting that his expert had been compromised. In
support of this argument, petitioner further claimed that the
prosecutor had represented to the court at the hearing on the
suppression motion that petitioner's expert had reached
the same conclusion as the prosecution's fingerprint
the transcript contained no such statement by the prosecutor.
Petitioner therefore further contended that the transcript
must have been altered to delete the prosecutor's
statement. The trial court denied his motion, finding that
petitioner had already been provided with an expert who had
rendered services on his behalf, and that he was simply
dissatisfied with the expert's services.
direct appeal of his conviction, petitioner again argued that
he was improperly denied a second fingerprint expert.
However, this time petitioner argued that his expert, Mr.
Garrett, never in fact rendered services on petitioner's
behalf. Petitioner accused the prosecutor of misrepresenting
to the court that petitioner's expert had examined the
prosecution's fingerprint evidence, when, in fact, Mr.
Garrett never performed an analysis. To support this claim,
petitioner asserted that he had no personal knowledge that
his expert had in fact examined the evidence, and that when
he filed his motion to suppress stating the contrary, he had
been relying solely upon the prosecutor's statements on
the record (the ones that had subsequently
“disappeared” from the transcript). He also
submitted a New York City Department of Finance letter, which
he obtained via a Freedom of Information Law request, stating
that there were no records of petitioner's expert, Mr.
Garrett, submitting a voucher for payment in connection with
Appellate Division rejected petitioner's contentions and
affirmed the trial court's decisions denying
petitioner's request for a second fingerprint expert and
his § 330.30 motion:
A defendant seeking expert services must demonstrate that
such services are necessary. The record indicates that the
defendant had already been provided with an expert and did
not set forth any reason why his expert could not perform any
additional fingerprint or palm print analysis he needed. The
defendant's contention that fingerprint expert services
were never rendered on his behalf is belied by the record.
Since the defendant failed to demonstrate the necessity of
the expert services he requested, the Supreme Court
providently exercised its discretion in denying the motion.
People v. Phillip, 139 A.D.3d 881, 881, 31 N.Y.S.3d
184, 185 (2d Dep't 2016) (citations omitted), leave
to app. denied, 27 N.Y.3d 1154, ...