Anderson v. Lempke
| Decision Date | 05 June 2015 |
| Docket Number | 11 Civ. 8240 (NSR)(PED) |
| Parties | YKIM ANDERSON, Petitioner, v. JOHN LEMPKE, Superintendent, Wende Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
I. INTRODUCTION
On December 15, 2007, a Dutchess County jury convicted petitioner Ykim Anderson ("petitioner" or "defendant") of the crimes of enterprise corruption (N.Y. Penal Law § 460.20(1)(a)), third degree criminal sale of a firearm (two counts) (N.Y. Penal Law §§ 265.11(1), (2)), second degree burglary (N.Y. Penal Law § 140.25(2)), third degree criminal possession of a controlled substance (two counts) (N.Y. Penal Law § 220.16(1)) and third degree criminal sale of a controlled substance (two counts) (N.Y. Penal Law § 220.39(1)). He was sentenced on March 20, 2008 to an indeterminate term of imprisonment of six to eighteen years (count 38: enterprise corruption) and determinate terms of imprisonment of four years plus three years post-release supervision ("PRS") (counts 21 and 22: criminal sale firearm), seven years plus five years PRS (count 23: burglary), four years plus two years PRS (count 30: criminal sale controlled substance; count 31: criminal possession controlled substance) and eight years plus two years PRS (count 32: criminal sale controlled substance; count 33 criminal possession controlled substance). The sentences on counts 21, 23 and 30 are consecutive (resulting in a determinate sentence of fifteen years); the remaining sentences are concurrent with the consecutive sentence and with each other.
Presently before this Court is petitioner's pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. This petition is before me pursuant to an Order of Reference entered December 20, 2011 (Dkt. #7). For the reasons set forth below, I respectfully recommend that Your Honor deny the petition in its entirety.
II. BACKGROUND2
On or about November 13, 2006, petitioner and his five co-defendants (Avery Green, Dwayne Malcolm, Justin Daniels, Raymond Sharp and David Green, Jr.) were charged in a Superseding Indictment with 89 crimes stemming from their activities as members of a street gang known as Partners-N-Crime ("PNC"). According to the Superseding Indictment, PNC's structure was based on military-style rankings: the captain ("capo"), Avery Green, controlled the daily workings of the gang; beneath him were the lieutenants, including petitioner, Dwayne Malcolm and Raymond Sharp; beneath the lieutenants were the soldiers or enforcers, including Justin Daniels and David Green, Jr.
PNC operated primarily in the City of Poughkeepsie, New York. PNC's members engaged in a pattern of criminal activity, including buying and selling narcotics and firearms, robbery, burglary, assault and murder. All PNC members were required to make money for PNC ("put in work") by selling narcotics or robbing drug dealers of their goods, cash or assets. The monies made from the sale of narcotics and firearms and commission of robberies was used for three purposes: to buy additional narcotics and firearms for future sale or use; to support the lifestyle of its members (including rent and travel); and to invest in the rap music industry with a goal of legitimizing a portion of the criminal enterprise.
On or about February 6, 2007, petitioner filed an Omnibus Motion seeking various forms of relief, including severance of his trial from that of his co-defendants. See Resp. Aff., Exh. 4, at 5, 14-15 (unpaginated in original).3 Petitioner argued severance was warranted because (1) each defendant may attempt to "point the finger" at a co-defendant, creating irreconcilable defenses and a significant risk that the jury would infer petitioner's guilt from the fact that he was mentioned more prominently in the pattern acts than some of his co-defendants, (2) the People were expected to offer "rap" lyrics as part of their proof of the existence of a criminal enterprise, in violation of Crawford v. Washington, 541 U.S. 36 (2004), and (3) "[t]he evidence the prosecution has divulged is rife with conversation by one defendant concerning the criminal culpability of another" which severely prejudices the non-speaking co-defendant. Id. at 15. By Decision and Order dated April 11, 2007, the County Court (Hayes, J.) ruled on the bulk of petitioner's motion, but held the decision as to severance in abeyance pending consideration of "the motion of the other defendants for severance, suppression of eavesdropping evidence and other factors pertinent to the issue of severance." Exh. 6 at 5.
Between April 27, 2007 and May 24, 2007, co-defendants Dwayne Malcolm, Raymond Sharp, Justin Daniels and David Green pled guilty to various counts in the indictment. Thus, of the original six co-defendants charged with enterprise corruption, only two remained: petitioner and Avery Green. By Decision and Order dated June 20, 2007, the County Court (Hayes, J.) denied petitioner's motion for severance on the ground that petitioner failed to demonstrate "that the core of his defense is in irreconcilable conflict with that of his co-defendant nor has he made a showing that there is significant danger that such a perceived conflict would lead the jury to infer [petitioner's] guilt." Exh. 7, at 7. In so holding, the County Court specifically found (1) no evidence that defendants gave statements that were diametrically opposed or inculpated each other and (2) any statements made by petitioner or Green during the course of the alleged criminal transactions were "res gestae" and did not create an issue under Bruton v. United States, 391 U.S. 123 (1968). Id.
On or about July 13, 2007, petitioner's co-defendant moved to preclude two videos on the ground they were prejudicial and not probative of any material issue in the case:
The two (2) videos purport to show the defendant [Avery Green], in the first one, driving in an automobile and talking about his group of friends (unnamed in the video) and how, if anyone gives them trouble, he will "kill" them, and, in the second, as a background member of, presumably, a "rap" group singing an unintelligible song which the prosecution claims demonstrates the membership hierarchy of the alleged criminal enterprise, Partners N' Crime (PNC).
Exh. 8, ¶¶ 3-4.4 The prosecution responded, inter alia, (1) the first video constituted "direct proof of the existence of the criminal enterprise" and (2) the "rap" in the second video "set forth the method and means by which the enterprise operates" and "is directly relevant in establishing the existence of the criminal enterprise and to show how they were operating." Exh. 10, at 2-4. By Decision and Order dated September 14, 2007, the County Court (Hayes, J.) denied Green's motion to preclude the first video (Green driving and talking) on the grounds that it (1) "bears directly on the crime of Enterprise Corruption, a necessary element of which is the defendant's knowledge of the existence of the criminal enterprise and the nature of its activities" and (2) its direct probative value outweighed any possible prejudicial effect. Exh. 11, at 2-4. The County Court declined to rule as to the second video (the "rap" group) and referred that decision to the trial judge. Id. at 2.
At trial, upon a foundation laid by Detective Alston's testimony on direct examination, the People moved both videos contained on the Prince of the City DVD into evidence, without objection. See Resp. Supp. Aff., Exh. C, at 2929-2937.5 Later in the trial, prior to the testimony of prosecution witness Detective Terrence Dwyer, the People marked three exhibits: (1) People's Exhibit 104D, a "presentation disk" used at the pretrial hearings, consisting of both videos contained on the Prince of the City DVD; (2) People's Exhibit 357, a transcript of the first video on Exhibit 104D (Avery Green driving and talking); and (3) People's Exhibit 358, a transcript of the second video on Exhibit 104D (the "rap" video). See Resp. Supp. Aff., Exh. D, at 3930-31. After a brief discussion, all three exhibits were admitted into evidence without objection. See id. at 3932.6 See also Resp. Supp. Aff. Exh. A (transcript of video of Avery Green driving and talking) and Exh. B (transcript of the "rap" video).
Petitioner (by and through counsel) timely appealed his conviction to the Appellate Division, Second Department on the following grounds: (1) the trial court's admission into evidence of the Prince of the City DVD violated petitioner's Sixth Amendment right to confront witnesses; (2) the trial court erred in admitting evidence of an anonymous threat to witness David Stokes under the consciousness of guilt exception to the hearsay rule; (3) the trial court improperly admitted Dwayne Malcolm's hearsay testimony under the co-conspirator exception to the hearsay rule; (4) petitioner was denied a fair trial because the trial court allowed six witnesses to testify-without foundation-that petitioner was a lieutenant in PNC; (5) petitioner's conviction of enterprise corruption was against the weight of the evidence and was not supported by sufficient evidence; (6) the County Court erred in denying petitioner's motion for severance of the trial; (7) petitioner's convictions related to the March 24, 2006 drug sale, the gun sale and the burglary were against the weight of the evidence; (8) the special verdict sheet was improper; and (9) petitioner's sentence was excessive. See Exh. 14, at 58-74. By Decision and Order dated September 14, 2010, the Second Department affirmed petitioner's judgment of conviction. People v. Anderson, 76 A.D.3d 980, 908 N.Y.S.2d 409 (2d Dep't 2010). Petitioner, by and through counsel, timely submitted an application for leave to appeal to the New York Court of Appeals, wherein he sought review of all of the claims raised in his appellate brief. See Exh. 18. The Court of Appeals de...
To continue reading
Request your trial