United States District Court, E.D. New York
MEMORANDUM & ORDER
N. VITALIANO United States District Judge.
Lewis has filed a habeas corpus petition, pro
se, pursuant to 28 U.S.C. § 2254. He was convicted
by a jury in 2010 on multiple counts stemming from the brutal
sexual assaults of three Brooklyn women. Lewis contends (i)
that he was denied a fair trial, (ii) that his right to
confront the witnesses against him under the Confrontation
Clause was violated, (iii) that the trial judge was biased
and the sentence excessive, and (iv) that he was
"force[d] to go to trial." Two additional grounds
in his papers appear to be a result of scrivener's error.
For the reasons set forth below, the writ is denied and the
petition is dismissed.
challenged convictions arise from three separate sexual
assaults, on three otherwise unrelated women, in the Crown
Heights area of Brooklyn. The attacks came in January 2008,
August 2008, and September 2008.Police canvassed the neighborhood
in which the assaults occurred, checked security cameras of
local businesses and spoke with neighbors, all in an effort
to find the perpetrator. Transcript Record, People v.
Lewis, Indict. No. 5005/09 (Sup. Ct., Kings County,
2010) ("Tr.") at 334-35. The initial investigatory
steps were to no avail. The investigation took a positive
turn after detectives received a tip leading to petitioner.
Id. at 392-93. Police attempted to locate Lewis at
his last known address, which background checks revealed to
be in the same Crown Heights area. Id. at 394-96.
Detectives were still unable to bring Lewis into custody
until a "Crime Stoppers" tip, received on or about
October 1, 2008, alerted them that Lewis was heading south to
his cousin's home in Alabama. id. at 412-13.
With the help of Alabama authorities, Lewis was arrested at a
bus depot in Birmingham, id. at 413. He was
extradited to New York on October 14, 2008, id. at
after his apprehension in Alabama, on February 2, 2009, CW-1
and CW-3 independently picked Lewis out of a
lineup. Id. at 131-33, 304-07. He was
thereafter formally charged with various crimes related to
the three attacks.
went to trial on July 27, 2010. Tr. at 2. In its opening, the
People sketched out a case that would prove the devastating
attacks on the three victims. The opening also described the
investigatory fits and starts that followed. A major
breakthrough in the investigation came, explained the
prosecutor, when the DNA recovered from the crime scene
involving CW-2 was determined to match DNA recovered from
CW-3, id. at 17-28, and was then linked to DNA
obtained from Lewis, id. at 29.
proof would hew tightly to the prosecutor's preview.
There was evidence to show that, on January 17, 2008, CW-1
was sexually assaulted in the laundry room of her Crown
Heights apartment building. Tr. at 104-59. During the
assault, the perpetrator approached her from the back,
grabbed her by the neck, shoved her up against a wall, and
choked her. Id. at 115-18, 149, 157. CW-1 described,
in vivid detail, about how she was standing face-to-face with
the assailant as he repeatedly punched her with a closed
fist, id. at 118-19, 147, 157-58. The assailant then
pulled his pants down, and CW-1 observed that her attacker
was wearing a condom. Id. at 120, 150. Frustrated
with CW-1's noncompliance with his sexual demands, he
then pulled up his pants. Before leaving the laundry room,
however, the assailant threatened to kill CW-1, stating that
he "knew where [she] lived and [that] if [she] told
anyone, ... [he] would come and kill [her]."
Id. at 121. In shock, CW-1 hid in the laundry room.
When she heard her attacker leave, she ran to her apartment,
where her mother called the police. Id. at 123-24.
mother described that CW-1 was bruised and crying when she
returned to the apartment after the assault. After calling
them herself, the mother met with the police when they
arrived. Id. at 99-100. The victim was taken to the
hospital where she gave a statement to a Detective Roman,
including a description of her assailant. The description
specifically referenced the assailant's gold cap or
scenes, CW-2 testified in graphic detail how, on the night of
August 16 or early morning on August 17, upon returning home
from dinner at a friend's apartment, she was confronted
by a man in the vestibule of her apartment building.
Id. at 216, 218-22. As she entered the lobby, she
noticed an unfamiliar man, who, she thought, appeared
nervous. Id. at 220-21. She was momentarily relieved
when the man boarded one of two elevators, leaving her alone
in the lobby. Mat 225. Her relief was fleeting. After
boarding the second elevator, it stopped unexpectedly on the
second floor, where the nervous man from the lobby reappeared
and entered her elevator with a gun. Id. at 225-26.
He pointed the gun at CW-2's temple and pushed her
against the elevator wall. At one point, he was face-to-face
with CW-2. Id. at 226, 231, 234. Lewis threated to
kill CW-2, stating, "Don't turn around. If you turn
around, I'll [shoot] you. If you scream, I'll kill
you. I've done this before. I'm going to get away
with it." Id. at 231; see also Id. at
227-28, 233. After forcing CW-2 to take off her pants and
underwear, he raped her with the gun at her back. For good
measure, the assailant fled with CW-2's purse.
Id. at 232-34.
heard the perpetrator leave the building, CW-2 ran to her
neighbors' apartment. The neighbors would later describe
CW-2 as hysterical for 15-20 minutes, speaking in fragments
they eventually pieced together as "He had a gun. I was
raped." Id. at 236, 265, 285. The neighbors
then accompanied CW-2 to Methodist Hospital, where a sexual
assault evidence collection kit was used in an effort to
obtain identification of the attacker. Id. at
241-42, 272-73. Upon her release from the hospital, CW-2 met
with a detective from the Brooklyn Special Victims Squad and
provided a description of her attacker. This description,
too, mentioned a gold front tooth. Id. at 242-44,
was the last victim to take the stand, giving harrowing and
all too familiar testimony. Again, a simple trip home, on
September 11, 2008, resulted in another a brutal elevator
attack. Tr. at 294. CW-3, as she described it, encountered a
young man in the elevator of her apartment building.
Id. at 292. When the elevator doors closed, the
young man grabbed her, covered her mouth with his hands, and
placed CW-3 in a chokehold. Id. at 295. During the
assault, CW-3 came face-to-face with her assailant.
Id. at 294. CW-3 begged the assailant to stop. He
did not; he pushed CW-3 to the ground, forced his penis into
her mouth, and sexually assaulted her. Id. at 297-
98. During the course of the attack, the assailant threatened
to blow CW-3's head off. Id. at 298, 313. Before
he fled, and in common with the prior episodes, the assailant
stole $80 from his victim. Id. at 298-300. As he
left, he threatened CW-3 that she "better not call the
cops because [he knew] where [she] lived." Id.
at 299. She did call, nonetheless, and sought medical
treatment at Long Island College Hospital, where she also met
with detectives from Brooklyn's Special Victim's
Squad. Id. at 302.
evidence on top of the victims' tales of horror assumed
the usual prominence in the prosecutor's case. Daniel
Boggiano, assigned to the NYPD Crime Scene Unit
("CSU"), explained how he photographed the laundry
area where the attack on CW-1 occurred, collected DNA swabs
from the door handles, and provided the samples for
vouchering. Tr. at 35, 41, 44, 46. Dr. Hillary Fairbrother,
the physician at New York Methodist who performed the sexual
assault kit collection procedures on CW-2, testified as to
those procedures. Id. at 365, 373-75. Officer Carlos
Pantoja, also from CSU, described how he documented the scene
of the attack on CW-3. Id. at 166-67, 172-83,
327-28. Detective Maribel Roman described how, once
apprehended, she procured oral swabs from Lewis. Id.
the DNA evidence together, a criminalist from the Office of
the Chief Medical Examiner ("OCME"), Dr. Craig
O'Connor, explained the tests he conducted on (i) swabs
collected from two separate doorknobs of the laundry room
where CW-1 was attacked, and (ii) the oral swabs taken from
CW-1 and, later, those taken from Lewis. Id. at 437,
452-58. Though Dr. O'Connor was not able to definitively
link Lewis to the DNA collected from the CW-1 crime scene,
Lewis could not be "excluded as a contributor to"
the DNA mixtures pulled from one of the door knobs and CW-1
's mouth. Id. at 459. To put this in context,
O'Connor testified that, "if [one] were to take a
random person's [DNA] ... [one] would expect that person
to be excluded ...." Id. at 459, 483-84, 490.
People called as its final witness Lydia DeCastro, an OCME
criminologist. Id. at 540. DeCastro's laboratory
had received and examined the sexual assault kit collected
from CW-2. Id. at 554. The male DNA profile
generated from this kit, DeCastro said, could be expected in
"one in greater than one trillion people."
Id. at 562. DeCastro's laboratory also received
the DNA swab recovered from the elevator floor where the
sexual assault of CW-3 occurred. Id. at 563. There
too, the statistical analysis that was performed on the floor
sample produced a male DNA profile that was one in
"greater than one trillion people." Id. at
567. The evidence at crescendo was, powerfully, that the DNA
profile produced in CW-2's case matched that produced in
the attack on CW-3,  id. at 567-68. Finally, DeCastro
testified that when the laboratory received an oral swab
containing DNA from the then-apprehended Erick Lewis, it
would tie it all together. Id. at 570-71. After an
oral swap was obtained from Lewis, DeCastro confirmed that
the DNA collected from Lewis matched the DNA samples
extracted from the victim or at scene of the attacks on CW-2
and CW-3. Lewis was the contributor of the male DNA that had
been collected in those two cases. Id. at
was the sole defense witness. Tr. at 594. He offered a
complete denial. He said that he had never seen the victims
before encountering them during trial, and he even told the
jury that he had never entered any of the residential
buildings where the attacks occurred. Id. at 596-97.
He could not recall, he said, where he had been on any of the
days on which the women were assaulted. Id. at 598.
According to Lewis, all three victims were mistaken in their
identification of him as their assailant and the DNA matches
were not correct. Id. at 600, 614-16. Defense
counsel also developed testimony about how Lewis had silver
fronts on his teeth in 2008, not gold, as the witnesses had
testified. Id. at 599.
summations were unsurprising. The defense called attention to
claimed mistakes in the police investigation to fit its
mistaken identity theory of defense. Id. at 621-22.
Defense counsel argued that the initial descriptions given by
the victims to the police varied from Lewis's physical
appearance in 2008, id. at 623-24. He highlighted
how the People had failed to produce the mysterious gold
fronts. Id. at 627. It was a point counsel
underscored by emphasizing that arresting officers had
confiscated Lewis's silver fronts upon arrest and, given
their exculpatory nature, were never returned. Counsel also
attempted to poke holes in the DNA analysis, by pointing out
that, in the process of such an analysis, "[a] lot of
other people touch[ed] the work and ... sign[ed] off on the
work" who were not present at trial, id. at
628. Hoping to make a point about the unreliability of DNA
evidence, counsel observed that even the People would have to
acknowledge that the DNA report on CW-1 was not as definite
as the other two reports supposedly were. See Id. at
631. There were, he said, surely too many unanswered
questions to support conviction. Id. at 633-34.
by the People was equally predictable. It was a methodical
recapitulation of the evidence of the three brutal assaults,
the lineup identifications, and the compelling DNA evidence.
Id. at 638-57. The prosecutor also drew upon the
similarities of the three attacks - the locations and what
the assailant said to each victim - to argue that these
crimes were connected by a "unique mo[d]us
operandi." Id. at 653-55.
August 4, 2010, the jury convicted Lewis of attempted
criminal sex act in the first degree, two counts of sexual
abuse in the first degree, assault in the second degree, rape
in the first degree, three counts of criminal sexual act in
the first degree and two counts of robbery in the first
degree. Tr. 707-08. He was sentenced to 25 years for
attempted criminal sex act in the first degree, 7 years for
each sexual abuse in the first degree, 7 years for assault in
the second degree, 25 years for rape in the first degree, 25
years for each criminal sex act in the first degree, 25 years
for robbery in the first degree and 3 and a half to 7 years
for robbery in the third degree. Dkt. No. 6-7, Sentencing
Transcript, ("S. Tr.") at 14-15. All sentences
were to run consecutively. Id. at 15. The court also
imposed consecutive periods of post-release supervision.
2012, Lewis, through assigned counsel, appealed his
conviction. See People v. Lewis, 101 A.D.3d 1154,
956 N.Y.S.2d 526 (2d Dep't 2012). The direct appeal
raised four grounds for relief. First, Lewis argued that he
was denied a fair trial because of the trial court's
erroneous Sandoval ruling, which, according to Lewis,
"allowed the jury to learn the underlying facts of a
prior crime that was extremely similar to one of the charged
crimes[.]" Dkt. No. 6-1 ("Lewis App. Br.") at
23. More specifically, he explained that the trial court
permitted the prosecutor to cross-examine him about facts
underlying prior grand and petit larceny convictions.
See Lewis App. Br. at 25-28. The argument got no
traction in the Appellate Division, which found that this
ruling was "a provident exercise of discretion."
Lewis, 101 A.D.3d at 1155.
the other grounds, Lewis argued that the trial court's
Molineux ruling-which allowed the prosecutor to
argue to the jury that similar language and statements made
by the perpetrator during the three separate assaults tended
to show that the same person committed them and was probative
of a modus operandi-denied him a fair trial. Lewis
App. Br. at 28-35; see People v. Molineux, 168 N.Y.
264 (1901). But, the Second Department rejected the
Molineux point out of hand as unpreserved for
appellate review, though the court did note that, in any
event, "the three incidents were sufficiently
distinctive and similar to each other as to establish a
modus operandi, such that, in her summation, the
prosecutor was properly permitted to comment upon the
similarities." Lewis, 101 A.D.3d at 1154.
third challenge raised a Sixth Amendment lament that he was
denied the right to confront the witnesses against him as a
result of the introduction of DNA evidence through
individuals who, as Lewis argued, did not have firsthand
knowledge of the testing. See Lewis App. Br. at 35.
Again, the Appellate Division determined that Lewis had
failed to preserve it and that, in any event, the argument
was substantively without merit. Lewis, 101 A.D.3d
at 1155. In his final claim, Lewis asserted that the sentence
imposed against him of more than 174 years was unduly harsh
and excessive - in light of the trial court's
"spiteful remarks." Lewis App. Br. at 38. The
Appellate Division was not persuaded, finding that the
sentence, in fact, was not excessive. Lewis, 101
A.D.3d at 1155.
January 22, 2013, Lewis sought leave to appeal to the Court
of Appeals, which was denied. People v. Lewis, 20
N.Y.3d 1101, 988 N.E.2d 535 (2013). Finally, on June 19,
2014, Lewis timely filed this petition seeking a federal writ
of habeas corpus.