Bonds v. Keyser

• Decision Date: 31 March 2020
• Docket Number: 18-CV-02794 (AMD),16-CV-05908 (AMD)
• Parties: GENTL BONDS, Petitioner, v. WARDEN WILLIAM KEYSER, Respondent.
• Court: U.S. District Court — Eastern District of New York

GENTL BONDS, Petitioner, v. WARDEN WILLIAM KEYSER, Respondent.

16-CV-05908 (AMD)

18-CV-02794 (AMD)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 31, 2020

MEMORANDUM DECISION & ORDER

ANN M. DONNELLY, United States District Judge:

The pro se petitioner, currently incarcerated at Auburn Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was charged with Predatory Sexual Assault, Rape in the First Degree and two counts of Robbery in the First Degree for two attacks in August of 2008. In December of 2010, a jury convicted him of two counts of Robbery in the First Degree, but could not reach a unanimous verdict on the predatory sexual assault and rape charges. The petitioner was retried in October of 2011, and convicted of both counts. He was sentenced to concurrent determinate prison terms of twenty-three years on the robbery counts, and an indeterminate term of twenty-three years to life on the predatory sexual assault and rape charges.

In separate petitions, the petitioner challenges both convictions.¹ I consolidate the actions because the petitions rely on similar factual and legal arguments. For the reasons that follow, the petitions are denied.²

FACTUAL BACKGROUND³

I. Overview

In August of 2008, the petitioner attacked and robbed two women at gunpoint in the Richmond Hill neighborhood of Queens. On August 14, 2008, he robbed Alisha Wilks⁴ at gunpoint; he forced her to pull down her pants and underwear, pointed a gun at her vagina and took her wallet and phone. Two weeks later, the petitioner attacked Shivonne Serraty; he held a gun to her head, raped her and robbed her of her debit card and wallet. Police arrested him on August 29, 2008.

In written and oral statements, the petitioner admitted that he used a fake gun to attack and rob multiple victims, including several women. The petitioner admitted that he made Ms. Wilks pull down her pants and robbed her at gunpoint. He also admitted that he pointed a gun at Ms. Serraty but claimed that Ms. Serraty then willingly had sex with him and gave him her debit card.

In line-ups conducted on the day of the arrest, Ms. Serraty identified the petitioner, but Ms. Wilks did not make an identification and refused to cooperate further.⁵ After the line-up, the petitioner identified Ms. Wilks from a photograph as one of the women he attacked and robbed in August of 2008.

The petitioner was charged with Predatory Sexual Assault (N.Y. Penal Law § 130.95(1)(b)), Rape in the First Degree (N.Y. Penal Law § 130.35(1)), two counts of Robbery in the First Degree (Penal Law § 160.15(4)) and Unlawful Sale or Possession of an Imitation Pistol(New York City Administrative Code § 10-131(g)). He went to trial before the Honorable Gregory L. Lasak. As noted above, the jury convicted him of robbery but could not reach a verdict on the rape and predatory sexual assault counts. After that trial, Judge Lasak sentenced the petitioner to concurrent, determinate prison terms of twenty-three years on the robbery counts. In October of 2011, following the convictions on the remaining counts, Judge Lasak sentenced the petitioner to a total of twenty-three years to life for the remaining counts, to run concurrent to his sentence on the robberies.

The Appellate Division, Second Department affirmed both convictions, and the Court of Appeals denied leave to appeal. The petitioner filed petitions for writs of error coram nobis, which were also denied.

II. Pre-Trial Suppression Hearing

Before the first trial, the petitioner moved to suppress his post-arrest statements to police and prosecutors. On February 23, 2010, Judicial Hearing Officer Arthur S. Cooperman held a hearing on the motion. (Bonds I: ECF No. 8 at 553-609.)

Detective Richard Santangelo testified that he arrested the petitioner on August 28, 2008 at his parents' home in Queens after one of the victims identified the petitioner from a photograph. (Id. at 556:8-13, 564:9-566:25.) Detective Santangelo took the petitioner to the Special Victims Squad at around 1:15 in the morning. (Id. at 567:23-568:2.) He advised the petitioner of his constitutional rights from a pre-printed form; the petitioner waived his rights and signed the form. (Id. at 568:3-570:16.)

The petitioner admitted that he committed multiple robberies, and specifically confessed to attacks on Ms. Wilks and Ms. Serraty; he claimed, however, that Ms. Serraty had sex with him voluntarily, and willingly gave him her debit card. (Id. at 570:21-571:12.) At DetectiveSantangelo's request, the petitioner wrote out five statements between 1:15 a.m. and 3:30 a.m., as follows:

• "I robbed a person near 118th Street and 133rd Avenue. The victim was a male. I robbed a female somewhere near Queens Boulevard. The victim was a female. I used a fake black gun to rob these people. I disposed of the gun. I apologize for my actions and the people I have hurt." (Id. at 721:13-17.)

• "I was told I robbed a female on Sunday. I do not recall this because I was intoxicated. There has been plenty of nights I was intoxicated and don't remember my actions." (Id. at 722:6-8.)

• "I'm referred to as General. I've been called that since junior high. My phone is under my cousin's name." (Id. at 723:17-22.)

• "I approached a girl with a fake gun, planning to rob her. When I approached her, I pulled her to the side. She started talking to me, telling me how she was having a really horrible day. I said really? What happened? She had told me that she just caught her boyfriend cheating on her. We were kneeled down to prevent cars from seeing us. She stood up, pulled her pants down and said go ahead, do it. Afterwards she gave me her credit card. Note that she did have conversation with me. She told me she lived just up the block and how her credit card was in her sister's name. She then gave me the pin and told me there was 800 in savings in 200 in checking. I did not ask for the credit card. She offered. We had sex in a position where I was behind her. Afterwards I ran off and turned up a block. No, there was no one chasing me." (Id. at 724:17-725:10.)

• "I approached a girl planning to rob her like the other incident. I was intoxicated. I seen her, pulled her into a driveway and told her to put her bag down. I then told her to pull her pants down. She unbuckled it and began to pull it down. As soon as she unbuckled her pants and pulled it down just a little, I told her to stop. I told her to buckle back up and run down the block. I told her I wasn't going to rape her, kill her or hurt her. I took her bag." (Id. at 724:22-726:9.)

The petitioner signed and dated each statement.

At around eleven-thirty in the morning, the petitioner made a videotaped statement to an assistant district attorney, in which he admitted to robbing Ms. Wilks; he also admitted to pointing a gun at Ms. Serraty, but again claimed that the sex was consensual and that shevolunteered her debit card. (Id. at 577:1-24.)⁶ Later that day, Detective Santangelo put the petitioner in a line-up, which Ms. Wilks, Ms. Serraty and her boyfriend Johnell Adams viewed separately. (Id. at 579:1-581:3.) Ms. Serraty identified the petitioner. (Id. at 581:2-12.) Mr. Adams did not identify anyone. (Id. at 597:1-3.) Ms. Wilks said she did not recognize anyone in the line-up and was "uncooperative as far as continuing." (Id. at 734:12-15, 581:16-22.) She agreed to let Detective Santangelo take her photograph, which he then showed to the petitioner. (Id. at 582:4-11.) The petitioner recognized Ms. Wilks as the woman he robbed after forcing her to pull down her pants. (Id. at 582:11-13.) He signed the back of the photograph and wrote, "This is the girl from the robbery incident." (Id. at 583:16-18.)

The petitioner did not call any witnesses. The judicial hearing officer recommended that the petitioner's motion to suppress be denied, a recommendation that Judge Richard Buchter adopted.

III. The Petitioner's First Trial

a. The Prosecution's Case

The petitioner went to trial before Judge Lasak and a jury on December 1, 2010. The prosecution called ten witnesses: Officer John Sforza, Detective Richard Santangelo, Desiree Rahman, Shivonne Serraty, Sergeant Elena Fezza, Detective Samuel Gilford, Detective Caryn Eldridge, Officer Demetrius Starling, Alan Pollack and Kareem Belt. The prosecution established the following facts.

On the evening of August 12, 2008, Alisha Wilks was walking down 131st Street in the Richmond Hill neighborhood of Queens.⁷ The petitioner came up behind her, put a gun to herside and ordered her to walk up a driveway at 105-54 131st Street. He told her to pull down her pants and underwear, which she did. He took her wallet, cell phone, keys and money, and then looked closely at her body, pointing a gun at her vagina. He told her to pull up her pants and run, which she did. (Id. at 724:22-726:9, 893:3-8.)

That same evening, Desiree Rahman was at her home on 135th Street in Richmond Hill. As she was standing at her door saying goodbye to her cousin, Ms. Wilks, "crying in distress" and "scared," ran to Ms. Rahman while "looking over her shoulder." (Bonds I: ECF No. 8-2 at 880:13-25, 881:9.) Her belt and pants were unbuckled, and she was missing an earring. (Id. at 881:6-7.) When Ms. Rahman asked her if she was lost, Ms. Wilks responded, "He has a gun." (Id. at 881:15-23.) At that point, Ms. Rahman brought her inside; Ms. Wilks said she had been robbed and that a man had taken her things and "made her pull her pants down." (Id. at 882:17-21.) Ms. Rahman called the police and told them what the victim had told her about the attack. On the 911 call, which was played at trial, Ms. Wilks can be heard describing her attacker as "a black male with braids and a bandana or something on the face." (Id. at 883:14-24.) Ms. Rahman told the police that Ms. Wilks said she had been attacked in a driveway "down the block" from Ms. Rahman's house. (Id. at 891:3-13.)⁸

Officer Demetrius Starling received a radio...