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Nazario v. Miller

United States District Court, S.D. New York

January 10, 2020

ROBERT NAZARIO, Petitioner,
v.
CHRISTOPHER MILLER, Respondent.

          ORDER

          PAUL G. GARDEPHE, U.S.D.J.

         On April 7, 2015, pro se Petitioner Robert Nazario filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254, seeking to vacate his New York State conviction for murder in the second degree. (Pet. (Dkt. No. 1)) On June 10, 2015, this Court referred the petition to Magistrate Judge Sarah Netburn for a Report and Recommendation (“R & R”). (See Order (Dkt. No. 5)) On December 28, 2015, Judge Netburn issued an R & R recommending that the petition be denied. (R & R (Dkt. No. 25)) For the reasons stated below, this Court will adopt the R & R in its entirety, and Nazario's petition will be denied.

         BACKGROUND

         I. THE INDICTMENT

         Corrections Officer Scott Barker was killed by knife wounds to his neck in the early morning hours of February 23, 1990, in the midst of an altercation with another man - Hector Lopez - outside “Sully's, ” a bar in the Bronx. (See Pet. (Dkt. No. 1) at 5; R & R (Dkt. No. 25) at 2) No. charges resulted from the New York City Police Department's initial investigation into Barker's murder, but NYPD Detective Kevin Tracy - who focuses on “cold” cases - began investigating anew in 1997, and collected evidence suggesting that Nazario was Barker's killer. (Pet. (Dkt. No. 1) at 5; Resp. Br. (Dkt. No. 9) at 4) On December 27, 2001, Nazario was arrested for this crime, and on January 11, 2002, a grand jury returned an indictment charging him with two counts of murder in the second degree, manslaughter in the first degree, and criminal possession of a weapon in the fourth degree. (Indictment (Dkt. No. 9-12) at 28-31)

         The First Count and Second Counts of the Indictment read as follows:

FIRST COUNT
THE GRAND JURY OF THE COUNTY OF THE BRONX BY THIS INDICTMENT, ACCUSES THE DEFENDANT ROBERT NAZARIO OF THE CRIME OF MURDER IN THE SECOND DEGREE COMMITTED AS FOLLOWS:
THE DEFENDANT, ROBERT NAZARIO, ON OR ABOUT FEBRUARY 23, 1990, IN THE COUNTY OF THE BRONX, WITH INTENT TO CAUSE THE DEATH OF A PERSON, DID CAUSE THE DEATH OF SCOTT BARKER BY CUTTING HIS THROAT WITH A SHARP METAL OBJECT.
THE SUBJECT MATTER OF THIS COUNT IS AN ARMED FELONY AS THAT TERM IS DEFINED IN SECTION 1.20 OF THE CRIMINAL PROCEDURE LAW.
SECOND COUNT
THE GRAND JURY OF THE COUNTY OF THE BRONX BY THIS INDICTMENT, ACCUSES THE DEFENDANT ROBERT NAZARIO OF THE CRIME OF MURDER IN THE SECOND DEGREE COMMITTED AS FOLLOWS:
THE DEFENDANT, ROBERT NAZARIO, ON OR ABOUT FEBRUARY 23, 1990, IN THE COUNTY OF THE BRONX, UNDER CIRCUMSTANCES EVINCING A DEPRAVED INDIFFERENCE TO HUMAN LIFE, DID RECKLESSLY ENGAGE IN CONDUCT WHICH CREATED A GRAVE RISK OF DEATH TO ANOTHER PERSON, AND THEREBY CAUSED THE DEATH OF SCOTT BARKER, BY CUTTING HIS THROAT WITH A SHARP METAL OBJECT.
THE SUBJECT MATTER OF THIS COUNT IS AN ARMED FELONY AS THAT TERM IS DEFINED IN SECTION 1.20 OF THE CRIMINAL PROCEDURE LAW.

(Id. at 29) (emphasis in original). Both sides agree that the Indictment's characterization of the subject matter of these charges as an “armed felony” is incorrect.[1] (Pet. (Dkt. No. 1) at 7; Resp. Br. (Dkt. No. 9) at 14)

         II. TRIAL

         The charges against Nazario proceeded to trial in Bronx County Supreme Court on March 23, 2006. Nazario waived his right to a jury trial. Accordingly, the presiding judge, Supreme Court Justice Caesar Cirigliano, served as the fact-finder. (See Trial Tr. (“Tr.”) at 72-73)

         A. The Evidence at Trial

         1. The People's Case

         Michael Fanzo testified that on the night of Barker's death, he arrived at Sully's with Nick Ludovico. Inside the bar Fanzo “bumped into Hector Lopez and my friend Rob [Nazario].” (Id. at 711) Fanzo had known Nazario since age ten or twelve, because they had lived in the same neighborhood. (Id. at 707) Fanzo also knew Lopez “from the neighborhood.” (Id. at 712) Fanzo - who testified that he had consumed “quite a few beers” during the night (id. at 735) - stated that he and Scott Barker - whom Fanzo had just met - “got into a little argument, ” because Barker “was making fun of [Fanzo's] name and stuff.” They “w[ou]nd up going outside. (Id. at 711-12) But Barker was “mostly joking around . . . and [they] hand shaked and hugged.” (Id. at 712) Subsequently, however, “[Lopez] and Scott started getting into it . . . [o]utside . . . in front of the bar, ” and Fanzo testified that “Scott just pick[ed] [Lopez] up and slamm[ed] him on the floor, ” and “was on top of him, ” and “had [Lopez] pinned, ” with his knees on either side of Lopez's lower chest and abdomen, and holding Lopez's arms on the ground. (Id. at 713, 723-24)

         Fanzo then “saw Rob [N]azario just run over to his car, [and] open[] his door, and . . . c[o]me running back” across the street “with his hand closed really tight.” (Id. at 713, 779) “When he came running back, ” Nazario “[p]ut Scott Barker in a headlock, ” and Fanzo “saw a quick motion going across, and like a few seconds later . . . [he] saw Scott holding his neck.” (Id. at 713-14) Fanzo testified that this “quick motion” consisted of Nazario's “right hand c[oming] across the front of [Barker's] neck almost to the crook of [Nazario's] elbow, ” and Nazario “ma[king] a swiping motion going to the right.” (Id. at 725) After that, Barker “was just holding his neck and [Fanzo] just saw blood.” (Id. at 757) Fanzo did not actually see Nazario cut Barker's neck, however, and Fanzo did not see the object in Nazario's hand with which he made the “quick sweep” across Barker's neck. (Id.) While Fanzo initially indicated that Nazario was positioned on Barker's left at this time (id. at 725), he subsequently testified that “when [Nazario] ran up, he came around on the right.” (Id. at 791-92)

         Fanzo watched Barker holding his neck for a few moments, and then “heard a screech.” A car containing Ludovico, Lopez, and Nazario “pulled up on top of the sidewalk and [someone] told [Fanzo] to get the fuck in the car.” (Id. at 714) Fanzo and a woman he was with got into the car, and they drove to Van Nest Avenue and Garfield Street. Everyone then got out of the car. Fanzo testified that “Hector and Rob were taking their clothes off, and they threw everything in the sewer, and they just told everybody to go the fuck home and that was basically it.” (Id. at 714-15)

         Thomas Cataldo testified that he arrived at Sully's at about 11:00 p.m. on February 22, 1990, and remained at the bar through closing time at 4:00 a.m. on February 23. (Id. at 326, 328) Cataldo had known Barker since age thirteen, and Barker was Cataldo's best friend. Cataldo socialized with his sister, Carlanne Cataldo, and with Barker at Sully's that evening, and consumed about four drinks. (Id. at 327-28) At closing time, he and the bar's other customers walked outside. At that point, “[t]here w[ere] some words” between Barker and Mike Fanzo. (Id. at 328-29) That argument was resolved without any physical altercation, but then another man in Fanzo's group - whom Cataldo later learned was Hector Lopez - began “egging [Barker] on, . . . apparently . . . want[ing] to fight” Barker. (Id. at 330)

         Barker - who “was a big kid, ” at six feet tall and 240 pounds - went after Lopez, got on top of him, and straddled him, sitting on Lopez's stomach and holding Lopez's arms, by his wrists, against the ground. (Id. at 331-32) Cataldo - who was standing about fifteen feet away - looked at the crowd, worried that someone would hurt Barker while he had Lopez on the ground. Cataldo then observed two men come out of the bar and head towards Barker; Cataldo grabbed them by their shirts. (Id. at 333-34, 346)

         Cataldo then heard Barker yell, and he turned his head back towards Barker. (Id. at 335) Cataldo then saw Nazario approaching the crowd from a car across the street. (Id. at 349) Barker was “still on top of [Lopez], ” but then Cataldo “saw [Barker] let go of [Lopez's] hands, ” and lift his hands towards his neck. (Id. at 335-36) Cataldo testified that as Barker raised his hands to his neck, Nazario “was standing right next to him, practically on top of him, ” directly to Barker's right side. (Id. at 336, 344) Although ten or eleven people were standing outside the bar, only Nazario was “immediately in the vicinity” of Barker and Lopez. (Id. at 341)

         Cataldo then observed Nazario and Lopez run across the street towards a parked car. Cataldo approached Barker - who was holding his neck, which was bleeding - and then chased after Nazario and Lopez. Cataldo observed Nazario and Lopez, and one or two others, enter the car, and Cataldo memorized the license plate number. (Id. at 336-38) Cataldo testified that he did not actually observe Nazario - or anyone else - slash Barker's neck. (Id. at 372)

         Carlanne Cataldo - Thomas Cataldo's sister - testified that she arrived at Sully's between 3:30 and 4:00 a.m. on February 23, 1990, after having consumed a couple of drinks elsewhere. Carlanne observed her brother Thomas and Scott Barker, whom she had known for most of her life, at the bar. (Id. at 466-67, 469) She also saw Nazario - who lived in the same area as her boyfriend - and Lopez at the bar. (Id. at 468) Carlanne remained at the bar until closing time. Carlanne testified that Barker and Mike Fanzo began arguing as the bar was closing and customers were leaving. After that argument broke up, Lopez and Barker “started scuffling.” (Id. at 469-71) Carlanne - who was four or five feet from the two men (id. at 487) - testified that Barker “pinned [Lopez] to the floor. He had his hands down. . . . [Lopez] couldn't do anything at this point. He was pinned to the floor. . . . [Barker] had his hands on [Lopez's] wrists and [Lopez's] wrists were on the concrete.” Barker “was over [Lopez's] body, his one leg on one side and one leg on the other side.” (Id. at 471, 472)

         While Barker and Lopez were fighting, Nazario was “standing right next to them, ” at Barker's right side. (Id. at 491) When Barker pinned Lopez to the ground, Lopez “gave up trying to fight.” (Id. at 473) But Barker then “let go of [Lopez's] hands [and] grabbed [Barker's] throat.” Carlanne observed that Barker “was bleeding pretty bad.' (Id. at 474, 475)

         Carlanne testified that she did not see anything in Nazario's hands when Barker got injured, nor did she observe Nazario make any motions. (Id. at 492) However, when Barker sustained the injury to his neck, “there w[ere] only two people close to [Barker], one which was [her], and the other, which was [Nazario].” Lopez was on the ground beneath Barker. (Id. at 503) After Barker released Lopez and reached for his own neck, “everybody started running across the street, they scattered. . . .[A] kid named Claudio, [Fanzo], Hector [Lopez], Rob [Nazario], they all ran across the street and hopped into a car.” (Id. at 495-96)

         The People also called Peter Pecovic. Pecovic first met Nazario in 1993 - three years after Barker's murder. (Id. at 256) The two men became “best friends, ” and Pecovic served as the best man at Nazario's wedding and the godfather to his child. (Id. at 178-79) According to Pecovic, one night in late 1994 or 1995, he and Nazario were drinking, and possibly using drugs, at Sully's - which by then was called Gleason's. (Id. at 182, 259, 262-63) Pecovic asked Nazario what had happened the night the corrections officer was killed, and Nazario told him he “almost cut his fucking head off.” (Id. at 184) Pecovic did not disclose this information to law enforcement until 2001. (Id. at 296)

         The People also called Dr. James Gill, Bronx County's Deputy Chief Medical Examiner. Gill had reviewed Barker's autopsy records, and explained that Barker had suffered “two incised wounds or cuts . . . in front of [his] neck.” (Id. at 434) The first was “a seven inch long wound” that was two inches deep at its deepest point. (Id. at 434, 435) Part of this wound “was on the left front of the neck, and then the rest had an upward trajectory towards the backside of the neck,, follow[ing] along the jawbone, towards the right ear lobe.” (Id. at 434) The second wound was just below the first, “was nine inches in length[, ] and involved the right side of the neck . . . [and] tracked up behind the right ear.” (Id. at 435) This wound was also about two inches deep at its deepest point. (Id.) Dr. Gill testified that the person who had inflicted these injuries was “behind the decedent and to the right.” (Id. at 441)

         Dr. Charles Hirsch, the City of New York's Chief Medical Examiner, described the wounds similarly, and also opined that “Mr. Barker's assailant was behind him when his neck was cut.” (Id. at 1116)

         2. The Defense Case

         Nazario called two witnesses - Nicola Claudio Ludovico and Bernard McCaffrey - and also testified in his own defense.

         Ludovico testified that he “kn[e]w [Nazario] from the neighborhood, though they “don't socialize.” The same was true for Hector Lopez - they were “just . . . guys from the same neighborhood who go to the same bars.” (Id. at 606) Ludovico was at Sully's the night of the incident, and testified that he saw “[Lopez] on the ground with the guy [Barker] on top of him and there was two guys fighting, and then there was three guys fighting, and . . . the man came up . . . holding his neck.” (Id. at 601, 605) The third man to enter the fray was Nazario: “. . . it was [Lopez] and the fella, and then there was Robert [Nazario].” (Id. at 607) “[W]hen it was three, the guy got up bleeding.” Ludovico did not see Barker stand up and hold his neck, or see any blood, until after Nazario became involved in the altercation. (Id. at 624-26) Ludovico did not observe Nazario “do anything” in particular. “He was just part of the fight.” (Id. at 607)

         McCaffrey was working as a bartender at Sully's on February 23, 1990. (Id. at 926) After closing time, McCaffrey was sitting in the bar having a drink when his co-worker ran out of the bar to try to break up an altercation on the sidewalk outside the bar. McCaffrey followed him. (Id. at 927) Once outside, McCaffrey “saw two individuals fighting” and a No. of people around them. McCaffrey “tried to grab one of them” - the person on top - “off, to break the fight up, ” and succeeded in grabbing the man from behind. (Id. at 928) As a result, McCaffrey “end[ed] up being covered with blood.” (Id. at 929) He “propped the victim up, [and] ran into the bar to call 911.” (Id.) In McCaffrey's statement to police at the time of the offense, McCaffrey reported that while he was calling a ambulance, he “saw a short male, possibly Hispanic or Italian, . . . jump into a vehicle . . . . Two other persons got in with him.” (Id. at 940)

         Nazario testified that on February 23, 1990, he was on bail, awaiting sentencing on a robbery charge to which he had pled guilty the previous month. (Id. at 962) Nazario arrived at Sully's - where his ex-girlfriend worked - at about 11:00 p.m. on February 22, 1990. At about midnight, he escorted her home. He then returned to Sully's. (Id. at 963) By the time he arrived back at the bar, the lights in the bar were on, and the bar's customers were coming out. Nazario saw that “[t]here was an argument going on with Mikey Fanzo” outside.” (Id. at 964-65) ...


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