921 F.2d 28 (2nd Cir. 1990), 447, Grant v. Hoke

Docket Nº:447, Docket 89-2082.
Citation:921 F.2d 28
Party Name:Alfred L. GRANT, Petitioner-Appellant, v. Robert HOKE and Robert Abrams, Attorney General of the State of New York, Respondents-Appellees.
Case Date:December 14, 1990
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 28

921 F.2d 28 (2nd Cir. 1990)

Alfred L. GRANT, Petitioner-Appellant,

v.

Robert HOKE and Robert Abrams, Attorney General of the State

of New York, Respondents-Appellees.

No. 447, Docket 89-2082.

United States Court of Appeals, Second Circuit

December 14, 1990

        Argued Nov. 29, 1989.

Page 29

        George Edelstein, New York City, for petitioner-appellant.

        Ivan A. Vogel, Asst. Dist. Atty., Queens County, Kew Gardens, N.Y. (John J. Santucci, Dist. Atty., Queens County, Kew Gardens, N.Y., of counsel), for respondents-appellees.

        Before KEARSE, ALTIMARI, and MAHONEY, Circuit Judges.

        MAHONEY, Circuit Judge:

        This is an appeal from a judgment of the United States District Court for the Southern District of New York, Leonard B. Sand, Judge, that denied petitioner-appellant Alfred L. Grant's application for a writ of habeas corpus brought pursuant to 28 U.S.C. Sec. 2254 (1988).

        We affirm.

        BACKGROUND

        Grant was convicted in 1980 in the Supreme Court of the State of New York, Queens County, of attempted murder in the second degree, N.Y. Penal Law Secs. 125.25(1), 110.00 (McKinney 1987); assault in the first degree, id. Sec. 120.10(1); and two counts of robbery in the first degree, id. Sec. 160.15(1), (2) (McKinney 1988). He brought an initial petition for federal habeas corpus prior to the instant proceeding, which was dismissed because it included claims for relief that had not been exhausted at the state level. See Grant v. Hoke, 87 Civ. 4010, 1988 WL 3393 (S.D.N.Y. Jan. 7, 1988). The instant petition seeks relief on the sole ground that the denial of Grant's motion to sever his trial from that of codefendant Roy Calhoun abridged Grant's right to a fair trial, as guaranteed by the fourteenth amendment. This claim is concededly exhausted.

        The facts developed at the state court trial, and found by the district court in this proceeding, are as follows. On the evening of November 3, 1978, Anthony Moseley was working as an assistant manager of a Merit gas station at 97-11 Northern Boulevard in Queens County together with two other attendants, Moses Norman and an individual named Walter. At approximately 9:25 p.m., Norman gave Moseley some cash receipts to put in a safe in the office. Moseley returned to the office, counted the money, which amounted to $260, placed it in an envelope, logged in the amount in the receipt book, and was preparing to place the cash in the office safe. At this juncture, Calhoun, a former employee, approached the office. Upon seeing Calhoun, Moseley dropped the envelope containing the cash into a small garbage can under his desk.

        Calhoun entered the office and inquired about some boots that he claimed to have left in the office. Shortly thereafter, Grant entered the office. Moseley told Grant to leave. Grant refused and the two began arguing. Norman and Walter thereupon came to the office to see if anything was wrong. When they entered, Grant told them to leave. After noticing a pistol in Grant's waistband, they complied.

        Inside the office, Grant took out a .45 automatic pistol from his belt, held it to Moseley's eye, and demanded to know where the money was. Moseley told him it was in the garbage can. Calhoun took the money and left the office. After Calhoun left, Grant took other money that Moseley had in his pockets, and told him "you're going to come with us." The two then left the office. When Moseley did not see Calhoun, he ran away from Grant. As Moseley was running, Grant fired three shots at him, one of which seriously injured Moseley.

        Grant and Calhoun were subsequently arrested, indicted, and tried. Prior to trial, Grant moved before Justice Anthony P. Savarese to sever his case from that of codefendant Calhoun because of a potential Bruton problem arising from a pretrial statement by Calhoun. Justice Savarese ruled:

        Based upon the representation of the People that the statement of the codefendant will not be introduced as part of their direct case at a joint trial of this indictment, no Bruton problem (see Bruton v. United States, 391 U.S. 123 [88

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S.Ct. 1620, 20 L.Ed.2d 476 (1968) ] exists.

        The defendant's motion for a severance and for an order directing a separate trial is denied with leave to renew upon...

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