Blume v. Martuscello

• Decision Date: 14 March 2016
• Docket Number: No. 13-CV-4310 (KMK) (PED),13-CV-4310 (KMK) (PED)
• Parties: DONALD BLUME, Petitioner, v. DANIEL MARTUSCELLO, Superintendent, Coxsackie Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

DONALD BLUME, Petitioner, v. DANIEL MARTUSCELLO, Superintendent,Coxsackie Correctional Facility, Respondent.

No. 13-CV-4310 (KMK) (PED)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 14, 2016

ORDER ADOPTING REPORT & RECOMMENDATION

KENNETH M. KARAS, District Judge:

Petitioner Donald Blume ("Petitioner"), proceeding pro se, files this Petition for a Writ of Habeas Corpus (the "Petition") pursuant to 28 U.S.C. § 2254, challenging his conviction for two counts of robbery in the second degree in violation of N.Y. Penal Law § 160.10 and one count of criminal possession of a weapon in the second degree in violation of N.Y. Penal Law § 265.03. (See Pet. Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody ("Pet.") ¶ 4 (Dkt. No. 1).) Petitioner was sentenced to determinate, concurrent prison terms of 15 years, plus five years of post-release supervision for each robbery conviction, and a determinate prison term of seven years, plus five years of post-release supervision for the weapons possession conviction. (See Resp't's Mem. of Law in Opp'n to the Pet. for a Writ of Habeas Corpus ("Resp't's Mem.") 12 (Dkt. No. 10); see also May 5, 2010 Sentence Tr. ("Sentence Tr.") 16-18 (Dkt. No. 11).)¹ The weapons possession sentence was ordered to run consecutively to the robbery sentences, totaling an aggregate prison term of 22 years and 10 years of post-releasesupervision. (Pet. ¶ 3; Sentence Tr. 17.) Petitioner seeks habeas relief on the following grounds: (1) Petitioner's right to the assistance of counsel was violated when he was not represented by counsel at a preliminary hearing; (2) Petitioner was deprived of due process of law when he was denied a Wade hearing with respect to the victim's "identification" of Petitioner at trial; and (3) the trial court illegally sentenced Petitioner to consecutive, rather than concurrent, sentences in violation of N.Y. Penal Law § 70.25(2). (Pet. ¶ 10.) The case was referred to Magistrate Judge Paul E. Davison, who issued a thorough Report and Recommendation (the "R&R"), recommending that the Court deny the Petition. (See R&R (Dkt. No. 14).) Petitioner subsequently filed timely objections to the R&R (the "Objections"), advancing arguments related to his right to counsel and Wade hearing claims. (See Pet'r's Obj's to R&R ("Pet'r's Obj's") (Dkt. Nos. 17-18).) For the reasons stated herein, the Court adopts the R&R in its entirety and denies Petitioner's request for habeas relief.

I. Background

The factual and procedural background of this case is set forth in the R&R and the Court assumes the Parties' familiarity therewith. (See R&R 2-9.) The Court nevertheless summarizes the relevant facts.

During the early morning of April 27, 2009, Petitioner and a group of his friends—including Fredrick Pagan ("Pagan") and Lynn Thomas ("Thomas")—decided to rob Richard Olsen ("Olsen"), a taxicab driver known to Thomas, in order to pay for drugs. (Resp't's Mem. 2.) Thomas called Olsen and asked him to pick her up at the Hemlock Ridge apartments in the Village of Liberty. (Id.) Olsen arrived at the location around 3:50 a.m. and Thomas and Pagan entered Olsen's minivan. (Id. at 2, 5.) Shortly thereafter, Petitioner opened the driver's side door of the minivan and eventually punched Olsen in the face. (Id. at 2, 6.) Petitioner and Paganattacked Olsen together, repeatedly punching him in the face. (Id. at 2.) After Olsen retrieved a gun he kept in his minivan and unsuccessfully attempted to fire it, Petitioner wrestled the gun away from Olsen, pulled him outside of the car, and struck him in the head with the gun. (Id. at 2-3, 6.) The attackers then fled having stolen Olsen's wallet, $88, and his gun. (Id. at 3.) Olsen returned to his car and called 911. (Id.) When Petitioner, Pagan, and Thomas returned to the rest of their group, Petitioner waived the gun in the air and stated that he had pistol-whipped Olsen. (Id. at 3, 7.) Because Olsen knew Thomas, and Thomas had contacted Olsen by phone, the police used Olsen's phone to locate and arrest Thomas, as well as Pagan and Petitioner on April 28, 2009. (Id. at 3.)

On May 1, 2009, Petitioner and Pagan were brought before Town Justice Harold Madison in the Town of Rockland Justice Court for a preliminary hearing. (May 1, 2009 Hearing Tr. ("May 1, 2009 Tr.") 1-39.) Pagan's attorney, Joel Proyect, was present, but Petitioner's attorney was not. (Id. at 2-3.) Because of the absence of Petitioner's attorney, Mr. Proyect suggested that the hearing be held only "with respect to Mr. Pagan." (Id. at 2.) The prosecutor, Mr. Farrell, agreed with that approach, indicating that "[t]he People [were] ready to proceed . . . on the . . . Fredrick Pagan portion of the hearing." (Id. at 3.) The court agreed to proceed in that manner. (Id.) Petitioner remained in the courtroom throughout Pagan's preliminary hearing, during which Olsen and a police investigator testified, each of whom was subject to cross-examination by Mr. Proyect. During Olsen's cross-examination, Mr. Proyect asked Olsen if he got a look at the assailant who struck him from the driver's side door. Olsen testified that he saw "a bald gentleman with olive [complexion] skin, and a red hoodie on his head." (Id. at 21.) Prompted by a follow-up question by Mr. Proyect as to what he meant by"bald," Olsen stated that the attacker was "[b]ald like him," (id.), presumably motioning towards the Petitioner.²

At the conclusion of the hearing, the court mistakenly stated: "I find there's . . . reason to believe the felony was committed, and that Donald Blume and Fredrick Pagan are the ones who committed the felony, and will hold them for Grand Jury action." (Id. at 33.) Mr. Farrell immediately responded to correct the record and had the following exchange with the court:

MR. FARRELL: Well, I, I would ask that you give Mr. Blume the opportunity, if his attorney wishes to —

THE COURT: If he wants to —

MR. FARRELL: — to have a hearing.

THE COURT: — attorney or give him a copy of the disk if he wants. Or we'll have him come in, we'll have another preliminary on that.

MR. FARRELL: That's fair.

THE COURT: Okay. Then this will —

MR. FARRELL: Because he, he wasn't represented by counsel. I don't want him to be —

THE COURT: Well, yeah. That, too.

MR. FARRELL: — to be prejudice. So if Mr. Ferrara wants a hearing, we'll certainly set that up.

THE COURT: We'll find out if he wants the hearing. If he want, if he wants it then. We'll have —

MR. BLUME: Well, I, I would like to have a hearing, Your Honor.

THE COURT: You talk to your attorney, and we certainly will have it.

(Id. at 33-34.) Before the proceeding ended, Mr. Farrell again asked the court to "let me know if Mr. Ferrara wishes a prelim, we'll set that up next week." (Id. at 35.)

Later that day, Petitioner's counsel wrote a letter to the court to explain his absence. His letter indicated his belief that Petitioner had not yet received his preliminary hearing:

I visited my client around 4:15 p.m. this afternoon and learned that he was in court for a preliminary hearing today. I apologize for not being present, but the fax I received scheduled the matter for May 7, 2009 at 2:30 p.m. . . .

I was able to reach Mr. Proyect at about 5:00 p.m. today. Based upon that conversation, Ido not believe that either Mr. Farrell or the court considers my client to have had a preliminary hearing.

I will try to contact Mr. Farrell on Monday morning. Until then, however, I wish to confirm that my client's case remains on the court's calendar for May 7, 2009 at 2:30 p.m.

(Decl. in Opp'n to the Pet. for a Writ of Habeas Corpus ("Steward Decl.") Ex. H, at RA-3 (Dkt. No. 9) (emphasis added).) A grand jury voted an Indictment against Petitioner on May 6, 2009 before Petitioner had a preliminary hearing. (Steward Decl. Ex. A ("Record on Appeal") 5-9; see also Reply Mem. of Law ("Reply Mem.") 12 (Dkt. No. 13).) Petitioner's Indictment charged him with two counts of robbery in the second degree and one count of criminal possession of a weapon in the second degree. (Record on Appeal 6-8.)

On May 15, 2009, the prosecution filed a Notice of Intent to Offer Identification Evidence pursuant to N.Y. Crim. Proc. Law § 710.30, which stated that on April 27, 2009, Olsen was shown three different photo arrays by the New York State Police and had been able to identify Thomas and Pagan as participants in the robbery, but not Petitioner. (Id. at 21.) Given Olsen's identification of Thomas and Pagan, a Wade hearing was held on September 18, 2009 in Sullivan County Court with respect to Pagan's and Thomas's objections to the admissibility ofOlsen's pretrial identifications of the two.³ Pagan, Thomas, and Petitioner were all present at the hearing. (See Sept. 18, 2009 Hearing Tr. 1, 14.) Prior to the start of the Wade portion of the hearing, the court stated that there would be no Wade hearing "[w]ith respect to [Petitioner] . . . because the witness [was] not able to identify that defendant and the People will not be asking the witness to identify that defendant." (Id. at 14.) The prosecution confirmed that it would "[a]bsolutely not" ask Olsen to identify Petitioner at trial and the hearing proceeded without objection from Petitioner's counsel. (Id.)

After trial, the jury convicted Petitioner of two counts of robbery in the second degree, in violation of N.Y. Penal Law §§ 160.10(1), (2)(a), and one count of criminal possession of a weapon in the second degree, in violation of N.Y. Penal Law § 265.03(3). (See Nov. 17, 2009 Trial Tr. 74.) Petitioner was sentenced to determinate, concurrent prison terms of 15 years, plus five years of post-release supervision for each robbery conviction, and a determinate prison term of seven years, plus five years of post-release supervision for the weapons possession conviction. (Sentence Tr. 16-18.) The weapons possession sentence ran consecutively to the robbery sentences. (Id. at 17.)

Petitioner, through his counsel, timely filed an appeal in the Appellate...