Cox v. Bradt

• Decision Date: 15 June 2012
• Docket Number: 10 Civ. 9175 (CM) (JLC)
• Parties: KEITH COX, Petitioner, v. MARK BRADT, Respondent.
• Court: U.S. District Court — Southern District of New York

KEITH COX, Petitioner, v. MARK BRADT, Respondent.

10 Civ. 9175 (CM) (JLC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

June 15, 2012

REPORT AND RECOMMENDATION

JAMES L. COTT, United States Magistrate Judge.

To the Honorable Colleen McMahon, United States District Judge:

Prose petitionerKeith Cox seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging his June 8, 2007 conviction and sentence in New York State Supreme Court, New York County.Cox was convicted of burglary in the third degree under New York Penal Law § 140.20.The Court found Cox to be a second felony offender and sentenced him to a prison term of three and one-half to seven years.In his Petition, Cox alleges that the admission of seven trespass notices into evidence at trial violated his right to confrontation and due process; the prosecution's remarks during its opening statement and summation violated his right to a fair trial; his trial counsel provided ineffective assistance; and the trial court lacked jurisdiction and denied him a speedy trial.For the reasons stated below, I recommend that the Petition be DENIED.

I.BACKGROUND

The following facts are drawn from the record of proceedings before the state trial court.In view of Cox's conviction, the evidence presented at trial is summarized in the light most favorable to the verdict.SeeGarbutt v. Conway, 668 F.3d 79, 80(2d Cir.2012)(citation omitted).

A.The Evidence Presented at Trial

1.The Prosecution's Case

On October 20, 2006, at approximately 6:40 p.m., Keith Cox entered a Duane Reade drugstore located at 4 Times Square in Manhattan.(Trial Transcript Volume II 46:10-47:15).¹Izri Marrero, a plain-clothed loss prevention officer at Duane Reade, observed Cox enter the multi-level store and take the escalator to the lower level.(Tr. II 42:11-12, 45:19-24, 47:4-48:13, 48:18-20).Marrero followed Cox to the lower level and, while he was still on the escalator about two feet from Cox, observed Cox "stuffing" cameras from a display into his backpack.(Tr. II 48:11-50:6).Cox then proceeded towards the store exit where Marrero stopped him and requested that he re-enter the store so Marrero could ask him some questions.(Tr. II 51:5-25, 52:1-4).Cox complied.(Tr. II 52:5-7).Marrero opened Cox's backpack and retrieved twelve Kodak cameras.(Tr. II 52:12-53:14).While Marrero believed the cameras he retrieved were the same cameras he had observed Cox stuffing into his backpack, Cox told him that he had stolen the cameras from a Conway store.(Tr. II 53:18-21, 57:19-22).

Cox complied with Marrero's request to accompany him to a stock room on the lower level, where Marrero took Cox's photograph.(Tr. II 57:23-58:11).Marrero asked Cox if he had ever been "caught" shoplifting in a Duane Reade store, and Cox said he had not.(Tr. II 58:24-59:2).Marrero then issued Cox a trespass notice and explained that Cox's privilege to enter any Duane Reade store was thereafter revoked.(Tr. II 59:2-12).Marrero asked Cox to sign the notice, but Cox refused.(Tr. II 60:2-5).Marrero also told Cox that if the total value of the cameras exceeded a certain amount, he would need to call the police to arrest Cox.(Tr. II 59:13-17).Duane Reade employees then confirmed that the twelve cameras were Duane Reade merchandise because they rang up on the store's cash register.(Tr. II 53:18-21).Specifically, the cash registers rang up the cameras as costing $11.99 each, for a total of $155.93 for the twelve cameras including tax.(Tr. II 53:18-55:1).Based on this calculation, a store manager called the police, who arrested Cox.(Tr. II 61:18-24;seealsoTr. II 78:16-22, 79:25-80:7).

William Chalavoutis, a loss prevention auditor responsible for asset protection throughout the entire Duane Reade chain, testified regarding the store's purpose in, and practice of, issuing trespass notices.(Tr. II 14:5-7, 15:5-6).Chalavoutis testified that a trespass notice is issued at the time of a shoplifting incident to notify a purported violator that he is no longer permitted to enter any Duane Reade location.(Tr. II 15:23-16:9).Chalavoutis explained that, according to the store protocol for issuing trespass notices, the Duane Reade employee or store detective who stops a suspected violator will escort the violator to a manager's office or stock area where the employee fills out and issues the trespass notice privately, reads the language contained in the notice to the violator, requests certain identifying information, asks for his signature, and takes his photograph for identification purposes.(Tr. II 16:15-17:24, 18:8-21,19:10-16).The completed trespass notice is then sent to the main Duane Reade office.(Tr. II 19:17-19).

After a violator receives the trespass notice, he may be released if the amount of the merchandise involved is below a certain amount or if the incident was free of violent activity.(Tr. II 19:22-20:1).When a violator is apprehended, a Duane Reade employee on site will contact the main office, where the violator's name is checked against a database of prior trespass notices.(Tr. II 20:2-6).If the violator is apprehended after the main office closes, which usually occurs around 5:30 p.m., the Duane Reade employee issuing a trespass notice does not call the main office.(Tr. II 20:2-12).Chalavoutis further testified that it is "the regular course of business for Duane Reade to make and keep these trespass notices"(Tr. II 21:23-25); that the entries on the trespass notices are "made at the time the recorded transaction or events took place or within a reasonable time there[]after"(Tr. II 22:1-4); and that the employee or store detective completing the trespass notice is "under a business duty to do so accurately."(Tr. II 22:5-8).

The evidence at trial established that the October 20, 2006 incident was not the first time that Cox had been issued a trespass notice in a Duane Reade store.Between October 31, 2005 and October 7, 2006, Cox had been issued seven trespass notices for stealing or damaging store property at various Duane Reade locations.(See Declaration Opposing a Petition for a Writ of Habeas Corpus("Opp'n Decl.")(Dkt. No. 15), Exhibit ("Ex.") A (Trespass Notices)).²The notices issued to Cox set forth his name, date of birth, and address.(Tr. II 23:21-24:1, 25:14-19, 27:1-5, 28:9-13, 29:11-13, 30:10-13, 31:9-12).Each contains the following language, or a nearly-identical variation: "I, [Keith Cox] understand that my privilege to enter all Duane Readestores is revoked.I was told that if I re-enter any of these stores, I can be arrested for the crime of Trespass, pursuant to section 140.10 of the New York State penal law and any Other appropriate criminal charge."(Tr. II 24:4-9, 25:20-25, 27:6-8, 28:14-16, 29:14-17, 30:14-16, 31:13-15).Below this statement is a space for the "Signature of the person receiving the notice" along with the date.(Tr. II 24:10-11, 26:6-7, 27:11-13, 28:17-18, 29:18-24, 30:14-14, 31:20-23).Cox's signature appears on six of the seven notices, and the unsigned notice is marked "refused."(Id.).Cox's photograph is attached to several of the seven notices that were admitted into evidence at trial.(Tr. II 26:10-22, 28:1-8, 28:21-29-2, 29:25-30:2, 30:25-31:8, 31:24-7).³

After Chalavoutis testified about the trespass notices, the trial court gave an instruction regarding the limited purpose of the trespass notices as evidence.In particular, the trial court explained to the jury that the trespass notices were "not admitted to show that [Cox] committed other crimes on other occasions and it's no proof whatsoever that he possessed the propensity or disposition to commit the crime charged in this indictment or any other crime.It is not offered for such purposes and must not be considered by you for that purpose."(Tr. II 39:17-24).Rather, the trial court stated that the notices had been offered "solely for the purpose of the defendant[']s intent in this case and his knowledge that he was not to enter any Duane Reade stores and solely is [sic] the contention of the prosecution."(Tr. II 40:1-5).

When his case was presented to the grand jury on December 28, 2006, Cox testified that he sold cameras on the street and that an acquaintance had provided him with the cameras thatwere found in his bag on October 20, 2006.(Tr. II 88:24-90:8(excerpt of Cox's grand jury testimony as read into evidence at trial)).He also identified two of the prior trespass notices (Tr. II 90:10-91:25), and stated that the notices had "probably" been read to him.(Tr. II 91:11-12).

2.Cox's Testimony

Cox was the sole witness in his defense.He testified that on October 20, 2006, he was in midtown Manhattan looking for an acquaintance, Anthony Darden, who owed him money.(Tr. II 101:25-102:12).Cox had done business with Darden for the three previous years, selling cameras on Broadway.(Tr. II 104:15-20, 108:3-13).Earlier that week, Cox had purchased Kodak cameras from Darden but could not sell them so, on October 20, he was looking for Darden to recover his money in exchange for the cameras.(Tr. II 107:23-108:2, 117:14-18).As Cox walked to the subway station located on Broadway between 42nd and 43rd Streets, he suffered from fever-like symptoms caused by an infection on his face.(Tr. II 1021:13-24).He entered what he recognized to be a drugstore, although he did not realize it was a Duane Reade store.(Tr. II 102:18-21, 104:21-23, 110:5-9, 142:1-24).Cox stopped first at the counter to ask where he could find treatment for his face infection.(Tr. II 102:18-24, 111:2-16).He then went downstairs and asked for assistance at the pharmacy and was directed to an aisle containing shampoo.(Tr. II 102:25-103:3).While Cox was looking at the shampoos, a security guard named "Victor" asked him to open his bags, and Cox complied.(Tr. II 103:21-25).After Victor had looked inside Cox's bags, he returned them to Cox and told him "to go about [his] business."(...