Baptiste v. Ercole, Civil Action No. 9:08–CV–00728 (TJM).

CourtUnited States District Courts. 2nd Circuit. United States District Court of Northern District of New York
Writing for the CourtHon. THOMAS J. McAVOY, Senior District Judge.
Citation766 F.Supp.2d 339
PartiesMalcolm BAPTISTE, Petitioner,v.Robert ERCOLE, Supt., Green Haven Correctional Facility, Respondent.
Docket NumberCivil Action No. 9:08–CV–00728 (TJM).
Decision Date21 January 2011

766 F.Supp.2d 339

Malcolm BAPTISTE, Petitioner,
v.
Robert ERCOLE, Supt., Green Haven Correctional Facility, Respondent.

Civil Action No. 9:08–CV–00728 (TJM).

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

Jan. 21, 2011.


[766 F.Supp.2d 343]

Office of Jonathan I. Edelstein, Jonathan I. Edelstein, Esq., of Counsel, New York, NY, for Petitioner.Hon. Eric T. Schneiderman, Office of the Attorney General, Leilani J. Rodriguez, Esq., Ass't Attorney General, of Counsel, New York, NY, for Respondent.

DECISION AND ORDER
Hon. THOMAS J. McAVOY, Senior District Judge.

Petitioner Malcolm Baptiste is an inmate in the custody of the New York Department of Correctional Services (“DOCS”). He was convicted by a jury in Schenectady County Court of two counts of second degree murder (N.Y. Penal Law § 125.25(2)) and second degree criminal possession of a weapon (N.Y. Penal Law § 265.03) and was sentenced to serve an aggregate term of fifty years to life in prison. Dkt. No. 1 at 2.

Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that: (1) the evidence was insufficient to prove depraved indifference murder; (2) his post-arrest statements should have been suppressed because police lacked probable cause to arrest him; (3) he was improperly precluded from calling a rebuttal witness; (4) trial counsel was ineffective; and (5) appellate counsel was ineffective. Dkt. No. 1 at 5–14, including attached pages; Dkt. No. 5, Memorandum of Law (“Mem.”) at 10–32. Respondent has filed an answer, memorandum of law and the relevant state court records. Dkt. Nos. 13–20. Petitioner filed a reply memorandum. Dkt. No. 23. For the reasons that follow, the petition is denied and dismissed.

I. Relevant Background

The Supreme Court of New York, Appellate Division, Third Department, briefly summarized the facts of this case:

On August 11, 1995, defendant and his former girlfriend, Jeanette Cortijo, engaged in a verbal altercation, after which defendant uttered that he was tired of her and “I am going to kill her.” In the early morning hours of August 12, 1995, the two had another altercation where defendant pushed Cortijo into her car. She then drove her car at defendant, causing him to fall off of the bicycle he was riding. He again stated that he was tired of her and was going to kill her. Defendant then retrieved his 9 millimeter gun from the apartment at 945 Emmett Street in the City of Schenectady, Schenectady County, where he lived with codefendant Jamal Dennis 1

[766 F.Supp.2d 344]

and three women. He and Dennis located Cortijo, leading to another verbal altercation. While the two men attempted to walk away, Cortijo followed them in her car, drove away, then quickly returned. At that point, at approximately 3:30 A.M., defendant shot into Cortijo's car multiple times, killing her and her passenger, Chakima Dickerson.

Defendant and Dennis then fled and returned to their nearby apartment, where defendant admitted to one of the women that he killed Cortijo. At approximately 4:00 A.M., defendant called a girlfriend in Brooklyn to pick him up.

An individual informed the police that he saw three men running in the direction of an alley next to 945 Emmett Street at about the time of the shootings. Police saw defendant, Dennis and others hurriedly loading a cab from Brooklyn at that location at approximately 9:00 A.M. Police questioned these individuals regarding their actions and the cab was searched, revealing nothing. The vehicle then left for Brooklyn. Later that morning, a downstairs resident of 945 Emmett Street called the police. She had found a shirt wrapped around a gun clip in the backyard bushes, which had not been there around 1:00 A.M. The clip contained 9 millimeter bullets of the same brand as the casings recovered from the crime scene. As a result of this discovery, the Schenectady police sent a bulletin to the State Police requesting that they stop the cab and detain its occupants. Several State Police cars stopped the vehicle on the Thruway. Troopers approached with guns drawn, requesting that everyone exit the vehicle. Each occupant was patted down, handcuffed and then transported to the State Police barracks in separate police cars. At the barracks, defendant was shackled to the wall in an investigation room and read his Miranda rights; he sat for about two hours and then was questioned. At first, defendant denied knowing anything about the incident. Questioning continued, intermittently, for several hours, during which time defendant was provided food, beverages and cigarettes. Meanwhile, in Schenectady, police located a 9 millimeter Glock pistol and empty clip in a vacant lot two blocks from the murder scene and one block from 945 Emmett Street.

At about 5:30 P.M., an investigator spoke with defendant, after again reading him his Miranda rights. Questioning elicited that defendant knew Cortijo, she was a former girlfriend and they had argued the previous night. A few hours later, defendant made an incriminating, but also exculpatory, oral statement to the investigator. The investigator then went through defendant's story again, reducing it to writing, which defendant reviewed and signed at about 11:30 P.M.

Defendant was charged by indictment with 11 counts, including two counts of murder in the second degree in violation of Penal Law § 125.25(1), two counts of murder in the second degree in violation of Penal Law § 125.25(2), and one count of criminal possession of a weapon in the second degree in violation of Penal Law § 265.03. Following an extensive Huntley hearing, County Court found the stop and subsequent arrest legal, rendering defendant's statements admissible. After a jury trial, during which several counts of the indictment were dismissed, defendant was convicted of two counts of second degree murder in violation of Penal Law § 125.25(2) (depraved mind murder) and one count of criminal possession of a weapon in the second degree. Defense counsel unsuccessfully

[766 F.Supp.2d 345]

moved for a new trial, pursuant to CPL 330.30. County Court sentenced defendant to two consecutive prison terms of 25 years to life for the murder counts, and a concurrent prison term of 5 to 15 years for the weapon count.

People v. Baptiste, 306 A.D.2d 562, 563–64, 760 N.Y.S.2d 594 (3d Dep't.2003).

Petitioner timely appealed his conviction, arguing that: (1) the trial court erred by failing to dismiss the depraved indifference murder charges because if he was guilty at all, the shootings were intentional and not reckless; (2) his statements should have been suppressed as fruit of the poisonous tree because police lacked probable cause to arrest him; (3) the trial court deprived him of his right to confront witnesses against him by not permitting him to call witnesses to impeach a prosecution witness; (4) trial counsel was ineffective; and (5) the sentence was harsh and excessive. Dkt. No. 16, Ex. F at 63–86. The People opposed the appeal, and Petitioner filed a reply brief. Id. at Exs. G–H.

On April 24, 2001, while Petitioner's direct appeal was pending, he filed a motion to vacate his conviction pursuant to New York Criminal Procedure Law (“CPL”) § 440.10 on the ground that trial counsel was ineffective for failing to: (1) raise the defenses of mental disease or defect or temporary insanity; (2) discuss trial strategy or any potential defenses with Petitioner; (3) call an expert witness; (4) request a missing witness charge; and (5) assisting the prosecution in obtaining a key witness. Dkt. No. 16, Ex. A. The Schenectady County Court denied the motion on August 6, 2001, finding that Petitioner received “effective assistance of counsel.” Id., Ex. C, at 2. On October 10, 2001, the Appellate Division, Third Department, granted Petitioner leave to appeal that decision and consolidated it with Petitioner's direct appeal. Id. at Ex. E.

On June 5, 2003, the Appellate Division affirmed both Petitioner's conviction and the denial of his section 440 motion. Baptiste, 306 A.D.2d at 562–70, 760 N.Y.S.2d 594. See Dkt. No. 16, Ex. J. Leave to appeal to the New York Court of Appeals was denied on January 26, 2004. Baptiste, 1 N.Y.3d 594, 776 N.Y.S.2d 226, 808 N.E.2d 362 (2004); Dkt. No. 16, Ex. L.

On December 1, 2004, Petitioner filed a second section 440 motion on the ground that counsel was ineffective for failing to argue that: (1) the depraved indifference murder statute was unconstitutional as applied to Petitioner; and (2) the evidence was solely consistent with intentional murder. Dkt. No. 16, Ex. M at 5–20. The People opposed the motion, and Petitioner filed a reply. Id. at Exs. N–O. On May 12, 2005, the Schenectady County Court denied the motion pursuant to CPL § 440.10(3)(c) because Petitioner previously filed a section 440 motion alleging ineffective assistance of counsel but did not raise these grounds, and pursuant to CPL § 440.10(2)(a) because Petitioner's challenge to the “submission and conviction of Depraved Indifference Murder was raised and affirmed on appeal.” Dkt. No. 16, Ex. P, at 2. The court also noted that Petitioner raised an ineffective assistance of counsel claim on direct appeal that was rejected. Id. The Appellate Division denied leave to appeal on July 28, 2005. Dkt. No. 16, Ex. R.

On August 31, 2005, Petitioner filed a writ of error coram nobis in which he argued that appellate counsel was ineffective for failing to argue trial counsel was ineffective for not arguing that the depraved indifference murder statute was unconstitutionally vague as applied to Petitioner. Dkt. No. 16, Ex. S, at 5–18. Petitioner also asked the Appellate Division to vacate its June 5, 2003 decision affirming his conviction and to permit additional

[766 F.Supp.2d 346]

briefing on whether the New York Court of Appeals's decision in People v. Payne, 3 N.Y.3d 266, 786 N.Y.S.2d 116, 819 N.E.2d 634 (2004) was retroactively applicable to Petitioner's case. Id. at 18–27. The People opposed the writ, and Petitioner filed a...

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11 practice notes
  • Hughes v. Sheahan, 9:15–CV–0896
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • May 1, 2018
    ...if so, which witnesses to call, is a tactical decision that generally should not be disturbed on habeas review." Baptiste v. Ercole , 766 F.Supp.2d 339, 363 (N.D.N.Y. 2011) (McAvoy, J.) (denying petitioner's claim that trial counsel was ineffective for failing to call exculpatory witnesses ......
  • Pine v. Superintendent, No. 9:13–CV–1458.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • May 1, 2015
    ...regarding his plea, appellate counsel's performance was not deficient for failing to advance this claim.10See Baptiste v. Ercole,766 F.Supp.2d 339, 367 (N.D.N.Y.2011)(“Since Petitioner's ‘predicate claim for ineffective trial counsel is meritless, his claim for ineffective appellate counsel......
  • Rodriguez v. Smith, No. 10-CV-8306 (KMK) (LMS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 28, 2015
    ...(dismissing claim that the indictment was multiplicitous in violation of the Double Jeopardy Clause); see also Baptiste v. Ercole, 766 F. Supp. 2d 339, 356 (N.D.N.Y. 2011) ("The ultimate question under the AEDPA is whether the Appellate Division unreasonably applied clearly established Supr......
  • Blond v. Graham, No. 9:12-cv-1849-JKS
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • June 5, 2014
    ...have been called or what would have been the thrust of their testimony, and his claim is therefore rejected. See Baptiste v. Ercole, 766 F. Supp. 2d 339, 363 (N.D.N.Y. 2011) ("Petitioner has not identified any witness counsel failed to call, nor has he set forth any facts or arguments in su......
  • Request a trial to view additional results
11 cases
  • Hughes v. Sheahan, 9:15–CV–0896
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • May 1, 2018
    ...if so, which witnesses to call, is a tactical decision that generally should not be disturbed on habeas review." Baptiste v. Ercole , 766 F.Supp.2d 339, 363 (N.D.N.Y. 2011) (McAvoy, J.) (denying petitioner's claim that trial counsel was ineffective for failing to call exculpatory witnesses ......
  • Pine v. Superintendent, No. 9:13–CV–1458.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • May 1, 2015
    ...regarding his plea, appellate counsel's performance was not deficient for failing to advance this claim.10See Baptiste v. Ercole,766 F.Supp.2d 339, 367 (N.D.N.Y.2011)(“Since Petitioner's ‘predicate claim for ineffective trial counsel is meritless, his claim for ineffective appellate counsel......
  • Rodriguez v. Smith, No. 10-CV-8306 (KMK) (LMS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 28, 2015
    ...(dismissing claim that the indictment was multiplicitous in violation of the Double Jeopardy Clause); see also Baptiste v. Ercole, 766 F. Supp. 2d 339, 356 (N.D.N.Y. 2011) ("The ultimate question under the AEDPA is whether the Appellate Division unreasonably applied clearly established Supr......
  • Blond v. Graham, No. 9:12-cv-1849-JKS
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • June 5, 2014
    ...have been called or what would have been the thrust of their testimony, and his claim is therefore rejected. See Baptiste v. Ercole, 766 F. Supp. 2d 339, 363 (N.D.N.Y. 2011) ("Petitioner has not identified any witness counsel failed to call, nor has he set forth any facts or arguments in su......
  • Request a trial to view additional results

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