Arnold v. Superintendent of Upstate Corr. Facility

• Decision Date: 24 September 2022
• Docket Number: 1:21-cv-10423 (LGS) (SDA)
• Parties: Tarrek Arnold, Petitioner, v. Superintendent of Upstate Correctional Facility,[1] Respondent.
• Court: U.S. District Court — Southern District of New York

Tarrek Arnold, Petitioner,
v.
Superintendent of Upstate Correctional Facility,^[1] Respondent.

No. 1:21-cv-10423 (LGS) (SDA)

United States District Court, S.D. New York

September 24, 2022

REPORT AND RECOMMENDATION

STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.

TO THE HONORABLE LORNA G. SCHOFIELD, UNITED STATES DISTRICT JUDGE:

INTRODUCTION

Pro se Petitioner Tarrek Arnold (“Arnold” or “Petitioner”), currently incarcerated at Upstate Correctional Facility in New York State,^[2]seeks a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. (Pet., ECF No. 1, at 1.) On March 20, 2016, following a jury trial, a judgment was rendered in the Supreme Court of the State of New York, New York County, convicting Petitioner of the following charges: one count of Attempted Murder in the Second Degree under Penal Law § 110-125.25(1) sentencing him to twenty-two years imprisonment and five years of post-release supervision (“PRS”); one

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count of Assault in the First Degree under Penal Law § 120.10(1) sentencing him to twenty years imprisonment and five years of PRS; two counts of Criminal Possession of a Weapon in the Second Degree under Penal Law § 265.03(1)(b) and (3) sentencing him to fifteen years imprisonment and five years of PRS; one count of Assault in the Second Degree under Penal Law § 120.05(3) sentencing him to five years imprisonment and five years of PRS; and one count of Escape under Penal Law § 205.15(2) sentencing him to two to four years imprisonment to run consecutively to the concurrent sentences. (Pet. at 2-3; Answer, ECF No. 16, ¶ 5.)

Petitioner challenges his conviction on seven grounds he raised in state court on appeal, plus two additional grounds. (See Pet. at 4-12.) For the reasons set forth below, I respectfully recommend that the Petition be DENIED.

BACKGROUND

I. Facts Giving Rise to Arnold's Conviction

The incidents giving rise to Arnold's conviction occurred on June 8, 2015 and June 23, 2015. (SR 862, 869-74^[3](Det. Cabbell).^[4]) On June 8, 2015, Jamal McCaskill (”McCaskill”) was shot four times on a sidewalk on the corner of 140th Street and Seventh Avenue in New York City. (Id. 862-64.) On June 23, 2015, following Arnold's arrest in connection with the shooting, Arnold escaped police custody in handcuffs after knocking down an officer. (Id. 874.)

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A. The Shooting

On June 8, 2015, Ricardo Santos, the manager of the bodega in front of which McCaskill was shot, heard noises and gunshots around 10 p.m. when he was checking out customers at the cash register. (SR 772, 774 (Santos).) Video footage from outside the bodega showed a man walking south on Seventh Avenue from the direction of the residential building 2400 Seventh Avenue to the corner of 140th Street and Seventh Avenue. (Id. 971, 973 (Det. Hull);^[5]People's Ex. 4.^[6]) The man was wearing a gray hooded sweatshirt, three quarter pants that came around the calf, black socks and black sneakers. (SR 972, 977 (Det. Hull).) The man pulled a firearm out of his sweatshirt pocket and fired numerous shots at another male. (Id. 971 (Det. Hull).) According to Detective Hull, that man was McCaskill. (Id. 972.) The shots were fired around 10 p.m. (Id. 864 (Det. Cabbell).)

McCaskill fell to the ground in a puddle of his own blood. (SR 864 (Det. Cabbell).) Two women ran into 2400 Seventh Avenue into Apartment 6. (Id. 886.) The shooter was right behind them running into the same building. (Id. 886 (Det Cabbell), 972, 976 (Det. Hull).) Arnold later was seen coming out of Apartment 5 right next door to where the women entered. (Id. 1025 (Det. Hull).)^[7]

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Around the same time, off-duty NYPD Officer Lorenzo Jones was leaving his apartment in 2400 Seventh Avenue for work when he heard three or four gunshots coming from 140th Street. (SR 831, 834 (Off. Jones).) Officer Jones looked out his window and saw a man stumble at the southwest corner of 140th street and collapse to the ground, and twenty to thirty seconds later, Officer Jones saw a police van pull up. (Id.) After Officer Jones went downstairs to see if he could help, another officer sent him a video of footage of the shooting outside the bodega that had been obtained from the bodega.^[8](Id. 831-32.)

Officer Jones did not recognize the shooter from the video, but the shooter's walk “looked familiar,” and he noted that the shooter was wearing black shorts, high black socks and black boots. (SR 833 (Off. Jones).) As he was heading back to his apartment, Officer Jones noticed someone coming down the stairs leaving the building wearing the same type of clothing. (Id. 83334.) Officer Jones recognized this man to be Arnold who Officer Jones knew from when Arnold lived in the building about a year earlier. (Id. 834, 829.) Officer Jones was friends with Arnold's brother with whom Arnold lived with for about fourteen years, and Officer Jones would see Arnold nearly every day since they lived on the same floor in the apartment building. (Id. 830, 841.)

B. Aftermath Of The Shooting

On June 8, 2015, working with the Fire Department, Jonathan Nazaroff (“Nazaroff”) and his partner were assigned to the ambulance that responded at 9:54 p.m. to McCaskill being shot. (SR 749-50 (Nazaroff).) Nazaroff and his partner were the first emergency services personnel to

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arrive, and when they arrived, the police were surrounding McCaskill who was laying on the south side of the street. (Id. 750-51). They removed McCaskill's clothing and found four gunshot wounds located in his abdomen, flank and both arms to which they applied dressings in order to control the bleeding and transported him to Harlem Hospital. (Id. 751-52.)

McCaskill was admitted to the Harlem Hospital on June 8, 2015 at 10:42 p.m., where a trauma team responded. (SR 998, 1003 (Dr. Safavi).^[9]) After his initial resuscitation in the emergency room, McCaskill was taken to the operating room to undergo exploration of both arm wounds because his pulse was diminished. (Id. 1007.) Through this exploration, the vascular surgeon found the ulnar nerve severed causing nerve damage for which he needed surgery, and he also found a fracture in McCaskill's arm above the elbow. (Id. 1008.) In addition, McCaskill had gunshot wounds to the right chest, both arms and face; a collapsed lung; and three nondisplaced fractures to three different ribs. (Id. 1003-04, 1006.) A chest tube was placed in McCaskill in order to drain blood and re-expand his lung and two lacerations were stapled on his chin. (Id. 1006, 1003-04.) Several days later, Dr. Safavi performed surgery to drain residual blood clots that would not drain through the tube. (Id. 1005.)

C. The Police Investigation

On June 8, 2015, Detective Hull arrived on location where the crime scene already was secured and McCaskill had been removed. (R. 962, 968 (Det. Hull).) While doing a video canvas, Detective Hull noticed video cameras on the outside of the bodega where the shooting occurred. (Id. 969.) Detective Hull, with permission of the owner, downloaded footage from the cameras to assist in the investigation of the shooting. (Id.) After viewing the bodega video and noticing

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the shooter came from 2400 Seventh Avenue, Detective Hull conducted a building canvas of the apartment complex and found numerous cameras on the outside and inside of the building. (Id. 973.) Detective Hull then called the building manager, who requested the footage from the company that had installed the cameras.^[10](Id.)

Detective Darnell Cabbell of the 32nd Precinct was in charge of the police investigation, and he and his partner responded to the scene the night of June 8, 2015. (SR 863, 880-81 (Det. Cabbell).) There were about eight to ten NYPD officers already on scene when they arrived. (Id.) They began their investigation by canvassing the area looking for witnesses and other evidence. (Id. 863, 880-81.) After canvassing the area, Detective Cabbell attempted to speak with McCaskill twice about the shooting, but McCaskill was not willing to answer any questions. (Id. 863-65, 89091.)

NYPD Officer Contreras of the Evidence Collection Team arrived at the scene at 11:45 p.m. and collected evidence, including four .45 caliber shell casings. (SR 780-83 (Off. Contreras).) Thereafter, NYPD Detective Jason Bomberger of the Police Crime Laboratories Firearm Analysis Section performed a microscopic examination on the four shell casings, which revealed that all four casings came from the same gun. (SR 790 (Off. Contreras), 799 (Det. Bomberger).)

Over the course of multiple days from June 9, 2015 to June 17, 2015, Officer Jones met with Detective Cabbell to view footage of the video surveillance from the bodega and the

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apartment building at 2400 Seventh Avenue.^[11](SR 834, 892-94 (Det. Cabbell).) After Officer Jones identified the shooter as Arnold, Detective Cabbell issued an I-card alerting NYPD officers that the detectives were looking for Arnold in connection with this shooting. (Id. 835, 839, 869.)

D. Arnold's Arrest And Escape

On June 23, 2015, Arnold was arrested and brought to the precinct around 10:30 a.m. (SR 871 (Det. Cabbell).) Arnold's cellphone was taken, and he was processed in relation to the shooting. (Id. 869, 895.) Arnold was “calm” and “cooperative” during the process, and Detective Cabbell and another detective, i.e., Detective Pacheco, rear cuffed Arnold to take him downtown to the detention center near the courthouse. (Id. 873, 895, 896.) After leading Arnold down the stairs of the precinct, Detective Pacheco was distracted by a speeding bus going eastbound, but Detective Cabbell held Arnold by the bicep waiting for the unmarked vehicle that would take them downtown. (Id. 873-74.) As Detective Cabbell pulled Arnold back from a vehicle going around a car, Arnold used his body and shoulder to shove Detective Cabbell back causing Detective Cabbell to fall to the ground. (Id. 874, 897-98.)

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