Alvarez v. Scully

• Decision Date: 24 September 1993
• Docket Number: 90 Civ. 2047 (MJL).
• Citation: 833 F. Supp. 1000
• Parties: Caesar ALVAREZ, Petitioner, v. Charles SCULLY, Respondent.
• Court: U.S. District Court — Southern District of New York

833 F. Supp. 1000

Caesar ALVAREZ, Petitioner, v. Charles SCULLY, Respondent.

90 Civ. 2047 (MJL).

United States District Court, S.D. New York.

September 24, 1993.

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Caesar Alvarez, pro se.

Robert Abrams, Atty. Gen., N.Y., New York City (Tyrone Mark Powell, Asst. Atty. Gen., of counsel), for respondent.

MEMORANDUM AND ORDER

LOWE, District Judge.

Before the court is the Report and Recommendation addressing the application by pro se petitioner Caesar Alvarez ("Alvarez") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This application was referred to Magistrate Judge Sharon Grubin on March 20, 1991. The Magistrate Judge filed a Report and Recommendation ("R & R") on June 7, 1993, in which she advises that Alvarez' petition be denied. No objections to the R & R have been filed. For the reasons set forth below, the Court adopts the R & R in full.

Alvarez challenges the October 30, 1984 conviction and December 3, 1984 sentence imposed by the New York State Supreme Court. He was sentenced as a predicate felon to concurrent prison terms of 11 to 22 years on two counts of burglary in the first degree (Penal Law § 140.30), and 3-½ to 7 years on a count of assault in the second degree (Penal Law § 120.05). The conviction was affirmed in June of 1987, 516 N.Y.S.2d 567, and leave to appeal was denied in August of 1987, 70 N.Y.2d 708, 519 N.Y.S.2d 1043. Alvarez states the following grounds in support of this petition: (1) that his right to confrontation was violated by the trial court's exclusion of evidence potentially probative of the credibility of a witness for the prosecution; (2) that his due process rights and right to a fair trial were violated when the trial court improperly instructed the jury on the intent element of the crime of burglary; (3) that his due process rights and right to a fair trial were violated when the trial court erred in failing to instruct the jury about a mistake of fact defense to burglary; and, (4) that the imposed sentence was "harsh and excessive."

In addressing Alvarez' contentions, Magistrate Judge Grubin found that the trial court's ruling relating to confrontation was not unreasonable and, in any case, did not taint the trial. As to Alvarez' second argument, she found that the trial court properly charged the jury not to infer an "intent to commit a crime" merely on the basis of Alvarez' having committed a crime while entering or inside the apartment. She stated further that even if the jury was instructed that for the purpose of a burglary conviction "the intent to commit a crime" could be formed after unlawful entry onto a premises, Alvarez had failed to make the requisite showing in a habeas corpus petition that such error violated a right guaranteed by the federal Constitution. As for Alvarez' third contention, relating to the mistake of fact defense, Magistrate Judge Grubin agreed with the State's argument on appeal and found that such a defense was not preserved due to the failure of trial counsel to earlier raise this issue, and it is now not appropriately addressed in a habeas corpus petition. Lastly, Magistrate Judge Grubin pointed out that the sentence imposed was not excessive since it was within the guidelines prescribed by the New York State legislature for these classes of felonies committed by second felony offenders such as Alvarez. Accordingly, Magistrate Judge Grubin recommended that Alvarez' petition be denied.

As stated, no objections to the R & R have been filed. Where no objections have been timely filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the Magistrate Judge's recommendation. See Walker v. Hood, 679 F.Supp. 372, 374 (S.D.N.Y. 1988); Fed.R.Civ.P. 72 advisory committee's note. Upon review of the findings of fact and conclusions of law contained in the R & R, the Court finds no clear error and adopts the R & R.

CONCLUSION

For the reasons set forth above, the Report and Recommendation by Magistrate Judge Grubin is adopted as the Opinion of this Court. The application for habeas corpus relief is denied, and the petition is dismissed in its entirety.

It is SO ORDERED.

REPORT AND RECOMMENDATION TO THE HONORABLE MARY JOHNSON LOWE

GRUBIN, United States Magistrate Judge:

Petitioner pro se seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction, entered upon a jury verdict on October 30, 1984 in the New York State Supreme Court, New York County (Cropper, J.), of two counts of burglary in the first degree, see N.Y. Penal Law §§ 140.30(2), 140.30(3) (McKinney 1988), and one count of assault in the second degree, see N.Y. Penal Law § 120.05 (McKinney 1975). Petitioner was sentenced on December 3, 1984 as a predicate felon to concurrent prison terms of 11 to 22 years on the burglary counts and 3-½ to 7 years on the assault count. On June 11, 1987 the Appellate Division, First Department, affirmed the judgment of conviction without opinion, People v. Alvarez, 131 A.D.2d 980, 516 N.Y.S.2d 567, and on August 21, 1987 the New York State Court of Appeals denied leave to appeal, People v. Alvarez, 70 N.Y.2d 708, 519 N.Y.S.2d 1043, 513 N.E.2d 1311.

Viewing the facts in the light most favorable to the state (see, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.), cert. denied, 488 U.S. 929, 109 S.Ct. 316, 102 L.Ed.2d 334 (1988); Garcia v. Warden, 795 F.2d 5, 6 (2d Cir. 1986)), the evidence at trial established that during the year and a half prior to March 1984, Linda and Virgil Williams lived in an apartment at 381 East 8th Street and paid "rent" to Mrs. Lee Lewis, believing that she was the owner of the building. In late February 1984, the New York City Department of Housing Preservation and Development ("HPD") instructed Mr. and Mrs. Williams not to pay further rent because the building was owned by the city and was officially vacant. On March 11 and 12, 1984, petitioner, who lived with Lewis in an adjoining apartment, came to the Williamses' apartment demanding the "rent." After Mr. and Mrs. Williams explained what they had been told, petitioner told them they would have to leave if they did not pay him. On March 13, 1984, sometime after 11:30 a.m. while Mrs. Williams was not at home, petitioner returned to the apartment, pounded on the door and told Mr. Williams he had two hours to get out or be thrown out. At about 5:00 p.m., after Mrs. Williams had returned to the apartment, petitioner again pounded on the door and demanded payment. After the Williamses refused to open the door, petitioner broke into the Williamses' apartment through a side door that joined their kitchen to petitioner's apartment. Petitioner shoved aside the refrigerator, which had been blocking that door, and brandished a foot-long silver crowbar. He pushed the 72-year-old Mr. Williams to the floor and threw a chair at him. He then attacked Mrs. Williams with the crowbar, repeatedly striking her on the head and upper body, and continued to demand the money. After petitioner left Mrs. Williams telephoned the police and her minister. The police later that day recovered the blood-stained crowbar from the floor of petitioner's apartment.

At petitioner's trial Mr. and Mrs. Williams each testified as to his various demands for payment of "rent," his forced entry into their apartment and his assault on Mrs. Williams. The police officer who arrested petitioner testified regarding the Williamses' physical condition upon his arrival at their apartment, the signs of forced entry from the adjoining apartment, his search of that apartment and his discovery there of the crowbar. Mrs. Williams' minister testified that, after he arrived on the scene and confronted petitioner in his apartment, he also saw the crowbar there.

On cross-examination, Mrs. Williams testified that following the breakup of an earlier marriage she had received psychiatric counseling during a two-year period in 1974-1976, that she had not received psychiatric treatment at any other time, and that as the result of a 1982 neglect proceeding in Family Court she lost custody of her son from that marriage. Following Mrs. Williams' direct testimony, defense counsel renewed a request he had made prior to trial to subpoena the Family Court records pertaining to the neglect proceeding on the ground that they might contain pertinent evidence of more recent and extensive psychiatric treatment and, in the alternative, requested that the court inspect the records in camera to determine their materiality. The court denied the request on the ground of the records' lack of relevance to Mrs. Williams' credibility as a witness.¹

The petition herein presents essentially the same four claims that were presented to the Appellate Division. They are: (1) Petitioner's right to confrontation was violated by the trial court's refusal either to sign a subpoena for the Family Court records or to inspect them in camera to determine whether they were material to Mrs. Williams' credibility at trial; (2) Petitioner's rights to due process of law and a fair trial were violated by the trial court's jury instructions on the element of intent for the crime of burglary; (3) Petitioner's rights to due process of law and a fair trial were also violated by the trial court's failure to instruct the jury on a "mistake of fact" defense to burglary; (4) Petitioner's sentence was "harsh and excessive."²

DISCUSSION

Ground (1)

Under the law of New York, a determination of the admissibility of evidence for purposes of impeachment is entrusted to the discretion of the trial court. See, e.g., People v. Duncan, 46 N.Y.2d 74, 80, 412 N.Y.S.2d 833, 837-38, 385 N.E.2d 572, 576 (1978), cert. denied, 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275 (1979). Federal courts have no supervisory authority over state courts, Chandler v. Florida, ...