Carmel v. Graham
| Decision Date | 05 November 2020 |
| Docket Number | 6:17-CV-6050 CJS |
| Parties | KEITH EDWARD CARMEL, Petitioner, v. H. GRAHAM, Respondent. |
| Court | U.S. District Court — Western District of New York |
Petitioner Keith Carmel ("Carmel" or "Petitioner") brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions in New York State Supreme Court, Monroe County, for Burglary in the Second Degree, Criminal Possession of a Forged Instrument in the Second Degree and Criminal Possession of Stolen Property in the Fourth Degree, for which he was sentenced, as a persistent violent felony offender, to prison for terms of 16 years to life , 3 years and 6 months to 7 years, and 2 to 4 years, respectively. The Petition asserts ten claims but the primary issue presented is whether there was legally sufficient evidence to convict Petitioner of burglary. For the reasons explained below, the petition for a writ of habeas corpus is denied.
The following is a summary of the relevant facts. On the night of July 15, 2010, or the early morning hours of the next day, a home in the Town of Brighton, New York, was burglarized. As the residents of the home slept, an intruder entered the house through an unlocked door and stole a variety of items including a purse, several backpacks and a bicycle. The intruder evidently took the items outside behind some trees where he rifled through the purse and backpacks, removing items such as cash and a credit card. Two of the backpacks, along with the purse and most of its contents, were left behind on the lawn, but one of the backpacks, the bicycle and a credit card were taken from the property. No one witnessed the burglary, and the intruder left behind no fingerprint or DNA evidence that was discovered.
Shortly after the break-in, at approximately 12:50 a.m. on July 16, 2010, the stolen credit card was used to make a purchase at the Wegmans supermarket on East Avenue in the City of Rochester, slightly more than one mile from the burglarized residence. Video cameras at the entrance to the Wegmans store showed a white male arriving at the store minutes before the purchase, with a bicycle and a backpack. Other surveillance cameras inside the store captured the same individual using the stolen credit card to purchase Mastercard gift cards and other miscellaneous items in the amount of $219.01.
Attempting to identify the individual shown in the Wegmans surveillance video, the Brighton Police Department issued a Crime Information Bulletin to local law enforcement agencies. Charles Bour ("Bour"), the Bureau Chief of the New York State Parole Division office in Rochester, saw the video accompanying the bulletin and immediately recognized the individual shown as one of his parolees, the petitioner, Keith Carmel. In a supporting deposition, Bour indicated that Petitioner was a parolee assigned to the Rochester office, and that he had known Petitioner "as a parolee for about 15 years." In that regard, Petitioner was under parole supervision at that time and had a lengthy criminal history including several prior convictions for burglary.
On July 26, 2010, the Brighton Police Department filed a felony complaint in Brighton Town Court, charging Petitioner with Burglary in the Second Degree and Grand Larceny in the Fourth Degree. Brighton Town Court declined to issue an arrest warrant at that time, requesting additional information before doing so. Brighton PoliceDepartment continued its investigation and eventually provided additional information to the court which, on August 28, 2010, issued a warrant for Petitioner's arrest. On August 28, 2010, the Monroe County District Attorney was informed that the arrest warrant had been issued, and on August 30, 2010, the District Attorney received from Brighton Town Court faxed copies of the felony complaint and supporting depositions.
On August 31, 2010, Petitioner was arrested.
On February 10, 2011, a Monroe County Grand Jury returned a three-count indictment charging Petitioner with Burglary in the Second Degree in violation of New York Penal Law ("PL") § 140.25(2), Criminal Possession of a Forged Instrument in the Second Degree in violation of PL § 170.25, and Criminal Possession of Stolen Property in the Fourth Degree in violation of PL § 165.45(2), all relating to the break-in discussed earlier.
On February 28, 2011, Petitioner was arraigned on the Indictment, at which time the People announced their readiness for trial. At that time, Petitioner acknowledged that he was back in state prison after pleading guilty to a parole violation. In particular, he stated that following his arrest in August 2010 he had been charged with a parole violation relating to the burglary, but that he had pleaded guilty to a lesser violation in exchange for a fifteen-month sentence.
On February 24, 2012, just prior to the start of the trial, Petitioner moved to dismiss the burglary count of the Indictment as untimely under New York Criminal Procedure Law § 30.30, arguing that the People had not announced their readiness for trial until more than six months after July 26, 2010, the date that the felony complaint was first submitted to Brighton Town Court. However, the trial court denied the application, pursuant to CPL § 30.30 (4)(g), finding that the District Attorney had no notice of the matters in BrightonTown Court prior to August 30, 2010, and that the People had announced their readiness for trial within six months after that date.
On February 29, 2012, the jury trial began. The Prosecution's case consisted of testimony from Wegmans' employees concerning the video and electronic evidence relating to the use of the credit card shortly after the burglary, testimony from the police officers who investigated the break-in, testimony from Parole Officer Bour concerning his acquaintance with Petitioner and his recognition of Petitioner on the Wegmans surveillance video, and testimony from the homeowner victims concerning the circumstances of the break-in and the property that was taken.
At the close of the Prosecution's case defense counsel made a motion for a trial order of dismissal as to all counts of the indictment, which the trial court denied.
The Defense did not put on a case. Instead, defense counsel attempted to show, through his cross-examination of the prosecution witnesses, that Wegmans' camera system and computer system were unreliable; that the video evidence relied upon by the prosecution was selective in that it did not show, for example, from which direction the individual shown had come before arriving at the store; that there was no direct evidence as to who had actually entered the victims' home and removed the property; that the burglarized residence was in a heavily populated area, and that it was possible that Petitioner might have merely found the stolen property after it was discarded by the actual burglar; and that it was not possible for the victims to positively identify the bicycle and backpack shown in the surveillance video (which were never recovered) as belonging tothem.1 Although, there was no dispute that the credit card used at the Wegmans was the same one that had been stolen from the victims.
Defense counsel did not cross-examine Bour concerning his identification of Petitioner as the person shown in the Wegmans surveillance video. In that regard, during the charging conference, defense counsel noted that he had intentionally avoided cross-examining Bour, who had been identified to the jury only as an "employee of New York State," evidently in order to avoid opening the door to testimony about how Bour knew Petitioner.2
In his summation, defense counsel emphasized the concept of reasonable doubt and argued that, in addition to there being no direct evidence that Petitioner entered the victims' home, the evidence did not show that Petitioner had been in recent and exclusive possession of the property taken during the burglary.3 Counsel also urged the jury to disregard the testimony from the Wegmans employees, arguing that, since there was a discrepancy in the time-stamp on one of the video recordings (apparently related to the change to daylight savings time) the jury should view all of the computer and electronic evidence from Wegmans with skepticism.
On March 6, 2012, the jury returned a verdict of guilty on all three counts in the Indictment.
On July 11, 2012, the trial court sentenced Petitioner as a persistent violent felony offender, for the burglary conviction to a term of 16 years to life imprisonment, and for the remaining two convictions, to concurrent terms of 3 years and 6 months to 7 years and 2 to 4 years imprisonment, respectively.
On July 11, 2012, Petitioner filed a Notice of Appeal. Petitioner's counseled brief raised three issues on appeal: 1) the evidence at trial was legally insufficient to sustain the burglary conviction; 2) the conviction on the burglary count was against the weight of the evidence; and 3) trial counsel was ineffective for failing to challenge the identification made by Bour. Opposing the appeal, the People stated, in part, that the jury had been properly instructed, and that it was logical and proper for the jury to infer that the person seen in possession of the credit card, bicycle and backpack shortly after the burglary was the burglar himself:
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