426 F.3d 588 (2nd Cir. 2005), 04-0935, Gersten v. Senkowski

Docket Nº:04-0935-PR.
Citation:426 F.3d 588
Party Name:Ben GERSTEN, Petitioner-Appellee, v. Daniel SENKOWSKI, Superintendent of Clinton Correctional Facility, Respondent-Appellant, Eliot L. Spitzer, Attorney General of the State of New York, Respondent.
Case Date:October 17, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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426 F.3d 588 (2nd Cir. 2005)

Ben GERSTEN, Petitioner-Appellee,


Daniel SENKOWSKI, Superintendent of Clinton Correctional Facility, Respondent-Appellant,

Eliot L. Spitzer, Attorney General of the State of New York, Respondent.

No. 04-0935-PR.

United States Court of Appeals, Second Circuit.

Oct. 17, 2005

Argued: Feb. 3, 2005.

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[Copyrighted Material Omitted]

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Georgia J. Hinde (Laurie S. Hershey and Kevin J. Keating, on the brief), New York, NY, for Petitioner-Appellee.

Karen Wigle Weiss, Assistant District Attorney (Denis Dillon, District Attorney, Nassau County, and Tammy J. Smiley, Assistant District Attorney, on the brief), Mineola, NY, for Respondent-Appellant.

WINTER and POOLER, Circuit Judges, BRIEANT, District Judge [*].

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POOLER, Circuit Judge.

Respondent-appellant Daniel Senkowski, Superintendent of Clinton Correctional Facility, appeals from a memorandum, judgment, and order of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge ), entered January 21, 2004, granting petitioner-appellee Ben Gersten's petition for a writ of habeas corpus under 28 U.S.C. § 2254, ordering that he be released from custody unless new state criminal proceedings were commenced within 60 days, and staying judgment until completion of respondent's appeal before this Court. See Gersten v. Senkowski, 299 F.Supp.2d 84, 106 (E.D.N.Y.2004).


Petitioner was charged in an indictment issued July 22, 1999, by a grand jury in Nassau County, New York, with six counts of first degree sodomy under N.Y. Penal Law § 130.50, two counts of first degree sexual abuse under N.Y. Penal Law § 130.65, and one count of endangering the welfare of a child under N.Y. Penal Law § 260.10. The indictment alleged that between approximately March 15 and March 31, 1995, petitioner forcibly inserted his penis into the mouth and anus, and forcibly placed his mouth on the vagina of, his then nine year old daughter, and that on or about December 13, 1998, petitioner forced his then thirteen year old daughter to rub his penis, and forcibly touched her vagina.

Pretrial Proceedings

Contrary to the advice of his attorney, petitioner, a law school graduate who apparently passed the New York State Bar Examination but was never admitted to practice as an attorney, waived his right to a jury trial and requested a bench trial. The prosecution requested a pretrial hearing pursuant to People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59 (1981), to seek permission to offer evidence of uncharged crimes. In particular, the prosecution sought to admit evidence that petitioner sexually abused his daughter, including forcibly compelling her to perform oral sex on him, beginning in 1990, when she was between the ages of five and seven, and that he had forced her to have vaginal intercourse with him on two occasions in November 1998, when she was thirteen years old. The court ruled that the evidence from the early 1990s could be admitted on the prosecution's direct case solely for the purpose of enabling the court to understand the daughter's testimony, and the evidence from 1998 could be admitted solely for the purpose of allowing the court to understand the daughter's state of mind, medical evidence and the timing of the daughter's disclosure of the abuse.

The Trial

At trial the prosecution presented five witnesses: (1) petitioner's daughter, the alleged victim; (2) Elaine Gersten, the alleged victim's mother and petitioner's ex-wife; (3) Aleksander Fester, the alleged victim's ex-boyfriend; (4) Dr. Bella Silecchia, a medical expert who had examined the alleged victim after her revelation of the alleged abuse; and (5) Dr. Donald J. Lewittes, a child psychologist who testified as an expert on children's psychological reactions to sexual abuse. The defense presented no witnesses and no evidence.

1. The Daughter's Testimony

Petitioner's daughter and alleged victim, then fourteen years old, testified as follows. In 1990, when she was five years old, petitioner's daughter lived with petitioner and her mother in a two-story house in Malveme, New York. She was in kindergarten at the time. She and her parents each slept in a second story bedroom, at

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opposite ends of the house. At some point that year, according to petitioner's daughter, petitioner began coming into her room late at night and touching her breasts and vagina with his hands. After doing this for some time, he began in addition to forcibly insert his penis into her mouth and anus and to place his mouth on her vagina. He frequently ejaculated into her mouth or anus. When he first did this, he called her a "little slut" and told her that this activity was normal and would be happening from now on. For three years, petitioner did this almost every night while the alleged victim's mother was sleeping in the other bedroom. While petitioner was not working, and he and the alleged victim were alone together for much of the day on most days, petitioner abused her only at night while her mother was in the house, and never abused her while her mother was away from the house.

Petitioner's daughter testified that the abuse continued almost every night from when she was five until her parents separated and petitioner moved out of their house in Malverne when she was nine. Around March 15, 1995, petitioner and his wife told petitioner's daughter that they would be separating and getting divorced. Every night between March 15 and 31, petitioner entered his daughter's room late at night, entered her bed, said dirty words to her, touched her breasts and vagina, and forcibly inserted his penis into either her mouth or her anus. When he placed his penis into her mouth he ejaculated. He also placed his mouth on her vagina. In addition he called her his "little slut," told her that her mother knew and approved of what he was doing, and threatened to kill her if she told anybody. Petitioner moved out of the house soon thereafter, around April 1.

In November 1998 petitioner and his wife had separated and petitioner was living in an apartment in the Chelsea neighborhood of Manhattan. Petitioner's daughter visited him there on the weekend of November 7 and 8. On one of those nights, around midnight, petitioner inserted his penis into her vagina. She had gone to bed around ten o'clock, and at around twelve he entered her room, told her he was going to make her into a "real woman," undressed, and forced her to undress. When she complained, he called her a "little slut." He then got on top of her, pushed her legs open with his hands, and forced his penis into her vagina. After ejaculating, he dressed and left the room. Petitioner's daughter next saw petitioner later that month over Thanksgiving weekend. She visited him at his apartment again. One night, after she went to bed, petitioner entered her room, began to undress, and forced her to undress. He got on top of her and forced his penis into her vagina, at the same time telling her that he would kill her mother if she ever told anybody. After ejaculating, he dressed and left the room.

On December 13, 1998, petitioner visited his daughter and ex-wife at their home in Syosset, New York. While her mother watched television in another room, petitioner's daughter was with petitioner in the kitchen. Petitioner allegedly forced his daughter to put her hand into his pants and touch his penis. He called her a "bad girl" and a "little slut" and then unbuttoned her jeans, placed his hand into her underpants, and touched her vagina.

Petitioner's daughter testified that she and Aleksander Fester had engaged in sexual touching but that he had not penetrated her vagina or anus. During the entire period of the alleged sexual abuse, petitioner's daughter never complained about it to her mother, boyfriend, therapists, or anybody else. She was an excellent student throughout the entire period, receiving very good grades until after she

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revealed the abuse, when she began to miss a large amount of school. Petitioner's daughter was diagnosed with attention deficit disorder and began seeing therapists beginning when in the third grade, and continuing for the rest of her life.

2. Elaine Gersten's Testimony

Elaine Gersten testified that after giving birth to petitioner's daughter in 1985 she went back to work full time and would often come home late. Petitioner attended law school from 1986 to 1990 and after graduating in 1990, studied for the bar. He was not employed during this period and spent a lot of time in class or studying. During this period the Gerstens hired a sitter to watch their daughter during the day while they were not at home.

Sometime in 1990, the year that petitioner's daughter started kindergarten, Elaine noticed a change in her sleeping habits. Whereas before, she had gone to sleep with relative ease, she began to appear very fearful about going to bed. She would beg her mother not to leave her, or to leave the light on, and would physically resist being put to bed, and would wake up having had nightmares. Petitioner's daughter began seeing a psychiatrist for therapy sessions, but this behavior continued. After 1995, when Elaine and petitioner separated, petitioner's daughter continued to have some problems sleeping, though they were apparently less severe. At some point around the same time that her erratic sleep habits first began, petitioner's daughter was diagnosed with attention deficit disorder. Nevertheless, petitioner's daughter received excellent grades in school throughout the entire period of the alleged abuse.

When her daughter was five, six, and seven years old, Elaine noticed that when she bathed her daughter, her daughter's vagina appeared red and her daughter would become very upset when Elaine would attempt to touch it, and would even slap Elaine's hand away. Elaine told her daughter's...

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