Cooper v. Griffin
| Decision Date | 11 February 2019 |
| Docket Number | 16-CV-0629 (VEC) (BCM) |
| Parties | JERMAINE COOPER, Petitioner, v. THOMAS GRIFFIN, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION TO THE HON. VALERIE E. CAPRONI
Petitioner Jermaine Cooper, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has been incarcerated since 2009, when he was convicted of two counts of first degree robbery, two counts of third degree criminal possession of a weapon, three counts of second degree menacing, and one count of petit larceny, and sentenced as a persistent violent felony offender to a term of 20 years to life. Petitioner seeks the writ on the grounds that (1) his trial counsel was ineffective in failing to (a) subpoena certain evidence prior to trial and (b) seek a mistrial or other redress when the People failed to call a certain witness during trial; and (2) his appellate counsel was ineffective in failing to raise the ineffectiveness of his trial counsel. For the reasons set forth below, I respectfully recommend that the petition be denied.
Petitioner's convictions arise out of three separate shoplifting incidents at Macy's department store in Manhattan.
On December 2, 2007, Wilson Rivera, a Macy's security employee who was operating the store's video surveillance system, observed petitioner pick up a coat in the boy's department, remove its security tag at an unattended cash register in the lingerie department, and take a Macy's shopping bag from behind that register. (Tr. 91-92, 117-18.)1 Rivera lost sight of petitioner after he left the lingerie department, but "picked up visual" again to observe petitioner exit the store with a bag that appeared to contain the coat. (Tr. 93, 126.) Macy's preserved Rivera's surveillance footage, which Rivera later authenticated at petitioner's trial. (Tr. 101-02, 108-28.)
On April 12, 2008, Rivera again observed petitioner via the surveillance system. Petitioner was in the lingerie department, wearing a coat and carrying two Macy's shirts. (Tr. 129-30, 136.) Petitioner carried the shirts into and out of various departments until he reached a "blind area" where Rivera briefly "lost visual." (Tr. 130-31.) When petitioner reappeared on camera, "the shirts weren't in his hand anymore." (Tr. 132.) Rivera continued to observe petitioner as he "proceeded to go down the escalators." (Id.) Once again, Macy's preserved Rivera's surveillance footage, and Rivera authenticated it at trial. (Tr. 133-46.)
During the April 12 incident, while Rivera was watching petitioner through the security cameras, New York Police Department (NYPD) Officers Admir Gutic and Jason Rubenstein responded to the store in plain clothes. (Tr. 423-24, 504, 506, 662.) Petitioner was still holding the shirts and walking through various departments. (Tr. 426, 428.) Officer Gutic followed petitioner around the store from a distance, trying to remain inconspicuous, with Officer Rubenstein further behind. (Tr. 429-31.) Gutic saw petitioner take the shirts behind a "pillar or like a little wall," emerging without the shirts and displaying a bulge under his jacket. (Tr. 432-33.) Gutic continued to follow petitioner down the escalators, to the first floor, and saw him head towards the exit. (Tr. 433-38.) By this time petitioner was also being followed by Jeff Klock, Macy's security director,who was about ten feet behind petitioner when he left the store through the 35th Street and Broadway doors. (Tr. 208, 212-13.)
Klock followed petitioner outside, whereupon petitioner turned around and brandished a "sharp blade," which "looked like a box cutter," in his right hand. (Tr. 213-14.) Klock "jumped back" through the doors he had just exited (Tr. 214) and told Officer Gutic that petitioner had a knife. (Tr. 222.) Gutic then pursued petitioner on foot, trying to "maintain a visual on [him] without immediately engaging him." (Tr. 442.) At the corner of 35th Street and Sixth Avenue, petitioner "pull[ed] out a box cutter, the blade [was] sticking out and [told] me 'Yohe, what's up, what's up.'" (Tr. 443.) Reluctant to engage petitioner without backup, Gutic crossed Sixth Avenue, "a little bit fast," only to find petitioner following him. (Tr. 444-45.) After another block, petitioner changed course and entered a subway station. (Id.) Rather than "go there by myself," Gutic met up with Officer Rubenstein and other police officers, who went into the station together but were unable to locate petitioner. (Tr. 444-45, 548-49.) No video evidence was produced by the People or presented at trial showing petitioner exiting Macy's on April 12 or any of the events outside the store.
On April 21, 2008, petitioner returned to Macy's, where store detective Rodrigue Deras, who was on patrol on the 7th floor, saw him holding two shirts and "heading towards the kid's department." (Tr. 358-61.) After petitioner made eye contact ("he stared me down"), Deras walked towards a different department ("I didn't want to confront"), but turned around to see petitioner about ten feet from him, holding a partially opened folding knife. (Tr. 363-68; 396-97.) In fear for his safety, Deras stepped behind a pillar and radioed for assistance, and then reported in person toKlock. (Tr. 368, 223, 372.) He may have also called Officer Gutic on his cellphone.2 No video evidence was produced by the People or presented at trial showing these events.
Petitioner was arrested when he returned to Macy's on August 16, 2008. (Tr. 146-47.) No weapon was recovered. (Tr. 588.) Before petitioner was taken to the Midtown South precinct for arrest processing, he made certain inculpatory statements to Macy's personnel, including security director Klock. (Tr. 240, 474-76.)
On August 22, 2008, petitioner was indicted and charged with two counts of robbery in the first degree in violation of N.Y. Penal Law § 160.15(3), two counts of criminal possession of a weapon in the third degree in violation of N.Y. Penal Law § 265.02(1), three counts of menacing in the third degree in violation of N.Y. Penal Law § 120.14(1), and one count of petit larceny in violation of N.Y. Penal Law § 155.25. (SR 91-93.)3
Petitioner was tried by jury in New York Supreme Court, New York County. On November 12, 2009, shortly before jury selection commenced, petitioner's criminal defense counsel noted that no video evidence had been produced concerning the out-of-store events on April 12 or any of the events on April 21. (Voir Dire Tr. (Dkt. No. 13-8), at 3-4.) When the trial judge asked whether the defense intended to put on evidence, counsel noted (apparently referencing a letter from Macy's to the District Attorney) that a Macy's paralegal, Denise Pilgram, "did a search for [video] records." (Voir Dire Tr. 3.) Defense counsel told the judge that she would be a "relevant defense witness." (Voir Dire Tr. 4.) Alternatively, counsel stated, he would accept "a writtenstipulation" as to the absence of any video evidence from April 21. (Voir Dire Tr. 4-5.) The Assistant District Attorney then confirmed that the People would put on "a witness" (he did not identify the witness by name) "who actually did the search for the video," and who would say, if asked, that "there was no video for April 21st." (Voir Dire Tr. 5.)
The People never called Ms. Pilgram. However, several witnesses discussed the lack of any video footage showing the events of April 21. Officer Rubenstein testified that he "went into the camera room" shortly after April 21 "and asked Wilson [Rivera] do we have footage from the other day." (Tr. 703-04.) The answer was apparently negative: "If we had footage we would have put it in and that's it." (Id.) Rivera himself did not recall conducting any "investigation" into whether there was video of petitioner in Macy's on April 21, but he "could have." (Tr. 182.) Asked for the result of his investigation, Rivera stated, (Id.)
Security director Klock testified that he personally reviewed "approximately five cameras in the vicinity" of where the April 21 in-store incident occurred, including "every camera there was that might have been zoomed in over that area" (Tr. 271-72.) Klock said he chose not to save any of that footage after determining that the cameras were all "zoomed in on the ceiling and on the floor, and one was zoomed against the wall." (Tr. 272-73, 308.) Under cross-examination, Klock testified that the images he reviewed could no longer be retrieved, because the system automatically deleted footage after 30 or 40 days unless it was recorded onto a CD, which he did not do. (Tr. 273-74, 298, 341-42.) Klock did not show any of the April 21 footage to the NYPD or to other Macy's personnel before deciding not to save it. (Tr. 274-75.) Neither Klock nor his staff reviewed any April 21 footage from "the entrance and exits of Macy's," which might have shown petitioner entering or leaving the store that day. (Tr. 276-77.)
There was also testimony concerning the lack of footage showing petitioner exiting the store or interacting with Klock or Gutic on April 12. Rivera, who tracked petitioner through the surveillance cameras that day, last saw him on video when he was "going down the escalator." (Tr. 155.) Thereafter, Rivera tried to follow petitioner "on the outside camera," but "did not see him." (Tr. 155, 158.) Officer Rubenstein "went into the camera room" on April 12, and helped Rivera "rewind the tape," looking for video of petitioner's encounters with Klock and Gutic. (Tr. 700-02.) He found none. (Id.) Rubenstein noted that the cameras near the door through which petitioner exited were moveable cameras, such that "if they're not fixed on that door they won't see the door." (Tr. 702-03.) Klock could not recall whether he reviewed any video footage with regard to the events of April 12. (Tr. 279.)
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