United States District Court, W.D. New York
DECISION & ORDER
G. LARIMER UNITED STATES DISTRICT JUDGE.
Floyd Smart (“Smart”) has filed a pro se
petition for a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254, challenging his conviction and sentence in
Monroe County Court of Burglary in the Second Degree (N.Y.
Penal Law 140.25(2)). Smart was originally sentenced, as a
persistent felony offender to an indeterminate prison term of
20 years to life.
appealed the judgment and the Appellate Division, Fourth
Department affirmed the conviction, but it modified the
judgment, as a matter of discretion in the interest of
justice, by reducing Smart's sentence to an indeterminate
prison term of 15 years to life (two Justices dissented from
that reduction). People v. Smart, 100 A.D.3d 1473
(4th Dep't 2002). Thereafter, leave to appeal to the New
York Court of Appeals was granted and that Court affirmed the
Appellate Division on May 1, 2014. People v. Smart,
23 N.Y.3d 213 (2014).
and another, Robert Verstreate, were indicted for Burglary in
the Second Degree relating to their entry into the
victim's home in Greece, New York, on October 2008. When
the victim, Joelle Taylor, returned from a shopping trip, she
discovered petitioner's car parked in her driveway.
Petitioner was not known to her. At that point, Sherry Grant,
petitioner's girlfriend, honked the car horn and shortly
thereafter petitioner and Verstreate emerged from the
residence and fled the house. Items were missing from inside
the house and the police were called.
point Grant agreed to cooperate with the People and she gave
incriminating testimony before the grand jury concerning the
burglary. Based on that testimony and other evidence, the
Indictment was returned. As the case proceeded toward trial,
the People moved to introduce Grant's grand jury
testimony because it believed that petitioner had procured
Grant's unavailability to testify through threats and
other means. The court conducted a hearing pursuant to New
York authority, People v. Geraci, 85 N.Y.2d 359
(1995); Matter of Holtzman v. Hellenbrand (Sirois),
92 A.D.2d 405 (2d Dep't 1983) (Sirois hearing). After
taking testimony, at the conclusion of that hearing, the
County Court granted the People's request and allowed
introduction of Grant's grand jury testimony to be
presented to the jury.
hearing and the trial court's decision to admit the grand
jury testimony was one of the issues raised by petitioner on
direct appeal and he raises the matter again in this
petition. Petitioner claims that the trial court violated his
Sixth Amendment right to confront witnesses when it admitted
Grant's grand jury testimony. Petitioner also raises a
spate of other claims. These claims include:
(1) insufficiency of the evidence;
(2) alleged actual innocence of petitioner;
(3) failure of the People to disclose evidence concerning
petitioner's telephone calls from the Monroe County Jail;
(4) improper instructions to the jury;
(5) errors concerning the handling of a note from the jury
(6) ineffective assistance of trial counsel; and
(7) a challenge to the persistent felony sentencing law.
has duly provided copies of the relevant record and has filed
a detailed memorandum of law in opposition to the petition.
Respondent contends that all these claims should be denied
for several reasons, some because of procedural default and
all because they lack merit.
Admission of Sherry Grant's Grand ...