Blake v. Martuscello, 10-CV-02570 (MKB)
| Decision Date | 08 July 2013 |
| Docket Number | 10-CV-02570 (MKB) |
| Parties | SYLVESTER BLAKE, Petitioner, v. DANIEL F. MARTUSCELLO, Superintendent, Coxsackie Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner Sylvester Blake, proceeding pro se, brings the above-captioned petition pursuant to 28 U.S.C. § 2254, in which he alleges that he is being held in state custody in violation of his federal constitutional rights. Petitioner's claims arise from a judgment of conviction after a jury trial in New York Supreme Court, Kings County, for attempted murder in the second degree, assault in the second degree, and criminal possession of a weapon in the second degree. Petitioner was sentenced to concurrent determinate terms of imprisonment of twenty years for attempted murder, ten years for weapon possession and seven years for assault. Petitioner appealed his conviction to the New York Appellate Division, Second Department, raising five claims: (1) the trial court erred in denying his motion to suppress statements made following his arrest; (2) the trial court erred in allowing testimony regarding the contents of a lost videotape in violation of the best evidence rule; (3) testimony pertaining to his failure to respond after Detective Hunter left his card at Petitioner's address should not have been admitted into evidence at trial; (4) his convictions were against the weight of the evidence; and (5) the sentence imposed was excessive. The Appellate Division rejected Petitioner's claims and affirmed hisconviction. People v. Blake, 876 N.Y.S.2d 653 (App. Div. 2009). The New York Court of Appeals denied leave to appeal. People v Blake, 12 N.Y.3d 923 (2009). Petitioner raises the first four of the five claims in the instant petition. For the reasons set forth below, the petition is denied.
The evidence at trial showed that on January 19, 2005, at approximately 9:15 p.m., Petitioner entered Evangelista Urena's grocery store and almost immediately opened fire on Thomas Pettaway, who had entered the store a minute earlier. (Resp't App. Br. 3.) Petitioner fired several shots at Pettaway, hitting him in the leg. (Id.) Fifteen-year-old Jasmine Lopez, who happened to be in the store with her younger brother at the time, was also grazed by a bullet on the ankle. (Id.) After Petitioner and Pettaway left the store, Urena called 911. (Id.) Detectives responded to the scene of the incident and questioned both Pettaway and Lopez about the incident. (Pet. App. Br. 5.) Lopez provided detectives with a description of Petitioner as the shooter. (Id. at 6.)
Petitioner was arrested on May 10, 2005, without a warrant, in a basement apartment of a private home at 58 Interboro Parkway, Brooklyn, New York. (Id. at 6, 33-36; Resp't App. Br. 3, 5; Opp'n Aff. ¶ 8.) Petitioner's official residence was 61 Riverdale Avenue, Brooklyn, New York. (Resp't App. Br. 5, Opp'n Aff. ¶ 8.) Petitioner made two post-arrest statements. (Pet. App. Br. 6.) First, while being fingerprinted, Petitioner asked what he was being charged with, and, upon being told that it was two counts of assault, replied that "he wasn't shooting at the girl, he was shooting at the male." (Id.; Resp't App. Br. 3.) Second, while making a phone call from the jail cell, a detective overheard Petitioner say, (Pet. App. Br. 6.) The next day, Petitioner was positively identified in a lineup by Lopez and her brother. (Id.)
Petitioner was charged by indictment with murder in the second degree, assault in the second degree, attempted assault in the first degree, attempted assault in the second degree, reckless endangerment in the first degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. Prior to Petitioner's trial, the court held a Dunway,1 Huntley2 and Wade3 suppression hearing. (See Resp't App. Br 4-11; Hearing Tr. 100:4-7.) Petitioner argued that the statements made after his arrest should be suppressed because the arrest was unlawful and violated Payton v. New York, 445 U.S. 573 (1980).4 (Resp'tApp. Br 4-11.) The court denied Petitioner's motion to suppress and found the arrest lawful. (Hearing Tr. 107:12-14.) The court made several findings, crediting the testimony of the witnesses presented by the State and finding Petitioner's testimony as not credible. (Id. at 100:8-14.) The court found that Petitioner resided at 61 Riverdale Avenue5 and not at 58 Interboro Parkway, where he was arrested, (id. 101:20-25), and that Petitioner was illegally present at 58 Interboro Parkway when he was found there, (id. at 107:6-10). The court also found that when Petitioner was arrested at 58 Interboro Parkway in a basement apartment, the police had been told that no one was supposed to be in the apartment and the detectives entered upon hearing noises coming from behind the door, and thus, exigent circumstances existed. (Id. at 102:9-24; 106:20-23.) The court further found that Petitioner made the two incriminating statements without being prompted by the detectives. (Id. 106:12-19.)
Several witnesses testified at trial including the police officers involved in the investigation, Urena, Jasmine Lopez and her brother. The Lopez siblings testified that Petitioner entered the store with a scarf covering his face. (Tr. 455:11-459:24, 502:21-22, 505:1-5.) Jasmine Lopez testified that she was able to see Petitioner's face because the scarf began to fall once he started shooting. (Id.) Urena and the Lopez siblings testified consistently that they saw Pettaway enter the store and observed Petitioner enter the store after him. (Id. at 451:13—456:11, 502:10-504:22, 669:5-674:1.) The witnesses also testified that Petitioner was quite short andchubby, rendering it unlikely that they would mistake him due to his distinct build. (Id. at 455:11-12, 502:21-22.) The police officers testified that during the investigation, they returned to the store to view the surveillance videotape. (Trial Tr. at 787:22-789:12; 860:4-15; 863:13-25; 882:23-884:2.) The videotape was viewed by Urena and the officers. (Id.) Detective Parsekian took the videotape from the store after viewing it and placed it in a case folder upon his return to the precinct. (Id. at 789:10-18.) Several months after Petitioner's arrest, officers could not find the videotape. (Id. at 792:2-24.) All the officers testified to the voucher process regarding the videotape and all the circumstances that may have resulted in the loss of the videotape. (See, e.g., id. at 790:5-792:24; 864:9-20.) No one knew what happened to the videotape. (Id.) The officers and Urena testified that "nothing" could be seen on the videotape due to the poor quality. (Id. at 719:24-720:11; 787:22-789:12; 860:4-15; 863:13-25; 882:23884:2.)
Detective Hunter testified about his attempts to find Petitioner at various locations, including 61 Riverdale Avenue. (Pet. App. Br. 22.) He left his business card with Petitioner's son Tyrell at 61 Riverdale Avenue, and asked Tyrell to have Petitioner contact him. (Id. at 865:23-866:10.) Detective Hunter met with an unnamed female who had been at 58 Interboro Parkway with Petitioner. (Id. at 866:11-867:9.) Detective Hunter learned that Petitioner had "been hiding [at 58 Interboro Parkway] for [a] couple of days." (Id.) Petitioner's trial attorney made several objections to Detective Hunter's testimony on relevance and hearsay grounds. (Id.) With one exception, the objections were overruled. (Id.) The trial court sustained the objection to the portion of Detective Hunter's testimony about being told that Petitioner was "hiding" at 58 Interboro Parkway. (Id.) At the close of Detective Hunter's testimony, Petitioner moved for a mistrial, arguing that the statements made by Detective Hunter were hearsay, prejudicial andirrelevant. (Id. at 875:24-877:11.) The trial court denied the motion and instead elected to give a curative instruction to the jury. (Id. at 877:10-878:25.) Petitioner made a motion for an order of dismissal at the close of the People's case. (Id. at 933:22-934:16.) The trial court denied Petitioner's motion and found that there was legally sufficient evidence for the case to go forward against Petitioner. (Id.)
Petitioner was the only witness called for the defense. (See id. at 940:19-971:2.) Petitioner testified that he frequented the Saratoga Avenue grocery store and was there on the night in question. (Id.) According to Petitioner, he was there only to buy bread and immediately ran out of the store when he heard people arguing and shots being fired. (Id.) The jury found Petitioner guilty of attempted murder in the second degree, assault in the second degree and criminal possession of a weapon in the second degree. (Id. at 1087:6-1088:10.) Petitioner was sentenced to concurrent determinate terms of imprisonment of twenty years for attempted murder, ten years for weapon possession and seven years for assault. (Sentencing Tr. 12:25-13:25.)
Petitioner appealed to the Appellate Division, Second Department raising five claims: (1) the trial court committed error in denying Petitioner's motion to suppress the statements that were made to Detective Parsekian following his arrest because they were subsequent to an "unlawful search or seizure;" (2) the trial court erred in allowing testimony from three detectives regarding the contents of the lost videotape in violation of the best evidence rule; (3) the court abused its discretion and committed reversible error in denying Petitioner's request for a mistrial after testimony was admitted before the jury that Petitioner failed to respond to Detective Hunter after the detective left his card for Petitioner to contact him; (4) Petitioner's convictions were against the weight of the evidence; and (5) the sentence imposed...
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