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Lewis v. New York State

United States District Court, E.D. New York

October 28, 2017

ERICK LEWIS, Petitioner,
v.
NEW YORK STATE, Respondent.

          MEMORANDUM & ORDER

          ERIC N. VITALIANO United States District Judge.

         Erick 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.

         Background

         The 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.[1]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.[2] 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 414-15, 421.

         Months after his apprehension in Alabama, on February 2, 2009, CW-1 and CW-3 independently picked Lewis out of a lineup.[3] Id. at 131-33, 304-07. He was thereafter formally charged with various crimes related to the three attacks.[4]

         Lewis 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.

         The 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.

         CW-1's 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 tooth.

         Changing 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.

         Having 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, 334.

         CW-3 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.

         The DNA 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. at 501-10.

         Knitting 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.

         The 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, [5] 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 571.[6]

         Lewis 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.

         The 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.

         Summation 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.

         On 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.[7] All sentences were to run consecutively. Id. at 15. The court also imposed consecutive periods of post-release supervision.

         In May 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[8], 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.

         As for 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.

         Lewis's 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.

         On 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.

         Applicable ...


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