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Harris v. Perez

United States District Court, E.D. New York

October 31, 2017

PAUL HARRIS, Petitioner,
v.
ADA PEREZ, Respondent.

          MEMORANDUM AND ORDER

          SANDRA L. TOWNES, UNITED STATES DISTRICT COURT.

         In November 2011, Petitioner Paul Harris ("Petitioner") was convicted after a jury trial in the Supreme Court of the State of New York, Kings County, of manslaughter in the second degree and sentenced to an indeterminate term of four to twelve years' imprisonment. After the judgment of conviction was affirmed on direct appeal, Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing that the trial court 1) deprived him of a fair trial by permitting the prosecution to impeach its own witness in violation of New York Criminal Procedure Law ("CPL") § 60.35 and 2) imposed an excessive sentence. For the reasons set forth below, the petition is denied and this case is dismissed.

         BACKGROUND

         Shortly before 11:30 p.m. on July 6, 2009, a gunfight erupted in and around the courtyard of a three-building housing complex located at 1605, 1615 and 1625 Fulton Street, Brooklyn. Officers arrived at the scene to discover one man, later identified as Rasheed Craig, lying on the ground in front of 1625 Fulton Street and another man, later identified as David Fuller, lying in front of the building directly across the courtyard: 1605 Fulton Street ("1605"). Both men had been shot and Craig had been fatally wounded. There were .45 caliber shell casings on the ground in front of 1605, rifle casings in the lobby of that building, and extensive damage to the glass in the vestibule separating the lobby of 1605 from the courtyard.

         Over the next two days, the police canvassed 1605. The lead detective, Patrick Crosby, interviewed several witnesses, including Fuller and Robert Holt, a man who had been grazed by one of the bullets. On July 7, 2011, Crosby spoke to Holt's brother, Petitioner, who came to the 81st Precinct seeking information regarding the investigation. Petitioner initially told Crosby that he was not an eyewitness, claiming that he went to his grandmother's apartment in 1605 upon hearing the gunfire and was in the apartment at the time of the shooting. The next evening, however, Petitioner met with Detective Chris Wright, a deacon in the church that his grandmother and aunt attended, and admitted to firing an assault rifle from inside the lobby of 1605.

         Upon Wright's recommendation, Petitioner surrendered at the 81st Precinct in the early morning hours of July 9, 2009, and was arrested by Crosby. The lead detective then re-interviewed Fuller, who told him that he had seen Petitioner firing an AK-47, a type of assault rifle, from the lobby of 1605 toward the courtyard. Fuller, who had been in the vestibule located between the lobby and the courtyard during the shooting, assumed that one of the bullets fired by Petitioner had struck him.

         Fuller subsequently testified before a grand jury and unequivocally incriminated Petitioner. Fuller not only testified that he saw Petitioner in the lobby of 1605 firing an AK-47, but also claimed to know "for a fact" that the first round fired by Petitioner had struck him. (T. 205).[1] After he was shot, Fuller fell through the glass window of the vestibule and onto the dirt outside. (T. 205-06). He claimed that he heard additional bullets whizzing over his head, but was not struck by any of them. (T. 205).

         The grand jury indicted Petitioner on five counts. The first two counts charged Petitioner with murder in the second degree under intentional and depraved indifference theories. The third count charged Petitioner with assault in the first degree in connection with the shooting of Fuller. The remaining counts charged Petitioner with reckless endangerment in the first degree and criminal possession of a weapon in the second degree.

         Sometime after Petitioner was indicted but before he went to trial, the police recovered the bullet which had injured Fuller. Detective John Heaney of the New York Police Department's Firearms Analysis Section examined the bullet and determined that it was 45 caliber and not fired from a rifle. Although the prosecution promptly informed defense counsel of Heaney's determination, it did not dismiss the assault count before the case went to trial on November 1, 2011, before Justice Albert Tomei and a jury.

         The Trial

         A total of nine witnesses testified over the course of Petitioner's one-week trial, including Crosby, Wright, Heaney and Fuller. Fuller's trial testimony differed substantially from the testimony he had given in front of the grand jury. Instead of testifying that he had seen Petitioner firing an AK-47, Fuller initially testified that, although he saw people running every which way through the lobby immediately prior to the incident, he did not recognize anybody because he had already been shot. (T. 184-85).

         Immediately after Fuller gave this testimony, the People sought to impeach Fuller with his grand jury testimony pursuant to CPL §60.35(1)-a subsection which creates an exception to the common-law rule prohibiting a party from impeaching its own witness with a prior inconsistent statement. That subsection provides:

When, upon examination by the party who called him, a witness in a criminal proceeding gives testimony upon a material issue of the case which tends to disprove the position of such party, such party may introduce evidence that such witness has previously made either a written statement signed by him or an oral statement under oath contradictory to such testimony.

         The prosecutor argued that Fuller, by claiming not to have recognized anybody, had testified to facts that would materially harm the People's case. (T. 197).

         The Court denied the People's request to impeach Fuller with his grand jury testimony. The Court noted that Fuller had not testified that Petitioner was not the shooter, but had only said that he did not remember anybody. (T. 198). The Court ruled, however, that the prosecutor could attempt to refresh ...


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