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Smart v. J. Colvin

United States District Court, W.D. New York

January 11, 2018

FLOYD SMART, Plaintiff,
v.
J. COLVIN, Superintendent, Defendant.

          DECISION & ORDER

          DAVID G. LARIMER UNITED STATES DISTRICT JUDGE.

         Petitioner, 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.

         Smart 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).

         FACTUAL BACKGROUND

         Petitioner 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.

         At some 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.

         That 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 during deliberations;
(6) ineffective assistance of trial counsel; and
(7) a challenge to the persistent felony sentencing law.

         Respondent has duly provided copies of the relevant record and has filed a detailed memorandum of law[1] 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.

         A. Admission of Sherry Grant's Grand ...


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