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Phillip v. McArdle

United States District Court, E.D. New York

May 2, 2017

KEVIN PHILLIP, Plaintiff,
v.
BARRY MCARDLE, Defendant.

          MEMORANDUM DECISION AND ORDER

          COGAN, District Judge.

         Petitioner 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.

         Petitioner 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.

         I. Failure to Appoint a New Fingerprint Expert

         Petitioner's point of error presents something of a moving target as his theory continually evolved in the state courts.

         Petitioner, 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.

         Initially, 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.

         Petitioner's 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.

         After 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 expert.

         However, 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.

         On 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 petitioner's case.

         The 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, ...


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