Crispino v. Allard
| Decision Date | 21 July 2005 |
| Docket Number | No. 04 CIV. 0343(RWS).,04 CIV. 0343(RWS). |
| Parties | Domenick CRISPINO, Petitioner, v. Michael J. ALLARD, Superintendent of Franklin Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Domenick Crispino, Malone, NY, Petitioner Pro se.
Eliot Spitzer, Attorney General of the State of New York by Luke Martland, Esq., Assistant Attorney General, New York City, for Respondent.
Domenick Crispino ("Crispino" or the "Petitioner"), appearing pro se, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is being held in state custody in violation of his constitutional rights. The respondent Michael J. Allard, Superintendent of Franklin Correctional Facility (the "Superintendent" or the "State") has opposed the petition. For the reasons set forth below, the petition is denied. Furthermore, Crispino's February 28, 2005 letter motion for leave to demand documents is also denied.
Three judgments were entered against Crispino on January 9, 2001, in New York State Supreme Court, New York County. By the first judgment, Crispino was convicted, after a jury trial, of the following charges contained in New York County Indictment Number 8550/98: one count of grand larceny in the second degree (N.Y. Penal Law § 155.40(1)); two counts of grand larceny in the third degree (N.Y. Penal Law § 155.35); and two counts of criminal possession of a forged instrument in the second degree (N.Y. Penal Law § 170.25). Crispino was sentenced under the first judgment to an indeterminate prison term of five to fifteen years on the second-degree grand larceny charge, and he was also sentenced to four concurrent prison terms of two to six years on the remaining charges. The latter four terms ran consecutive to the term imposed on the second-degree grand larceny charge.
By the second judgment, Crispino was convicted upon his plea of guilty of the following charges contained in New York County Indictment Number 4090/99: one count of criminal possession of stolen property in the second degree (N.Y. Penal law § 165.52), two counts of grand larceny in the third degree, six counts of forgery in the second degree (N.Y. Penal Law § 170.10(1)) and three counts of criminal possession of a forged instrument in the second degree. On this judgment, Crispino received an indeterminate prison term of five to fifteen years on the second-degree possession of stolen property charge, and he received eleven concurrent two to six year terms on the remaining counts. The eleven concurrent terms ran consecutive to the term imposed on the second-degree possession of stolen property charge.
By the third judgment, Crispino was convicted upon his plea of guilty of the following charges contained in New York County Indictment Number 8223/99: four counts of grand larceny in the second degree, four counts of criminal possession of stolen property in the second degree, ten counts of grand larceny in the third degree, ten counts of criminal possession of stolen property in the Third Degree (N.Y. Penal Law § 165.50), and forty-one counts of criminal possession of a forged instrument in the second degree. On this judgment, Crispino was sentenced to concurrent indeterminate prison terms of five to fifteen years on the four second-degree grand larceny counts. Consecutive to these four concurrent terms, Crispino was sentenced to sixty-five concurrent indeterminate terms of two to six years on the remaining counts.
The aggregate sentences on all of the indictments were to run concurrently.
Crispino's convictions were affirmed by the Appellate Division, First Department, and leave to appeal to the New York Court of Appeals was denied on March 12, 2003. People v. Crispino, 298 A.D.2d 220, 748 N.Y.S.2d 718 (1st Dep't 2002), leave denied, 99 N.Y.2d 627, 760 N.Y.S.2d 108, 790 N.E.2d 282 (2003). Crispino is currently incarcerated at Franklin Correctional Facility in Malone, New York as a result of the judgment of conviction.
Crispino filed his petition for a writ of habeas corpus on January 15, 2004. In his petition, Crispino stated that: (1) the trial judge wrongfully precluded him from raising and pursuing a defense attacking the motives of the complainant and the prosecution after he outlined this defense in his opening statement and the People had failed to object; (2) by two comments made during Crispino's closing argument, the trial judge improperly shifted the burden of proof; (3) the trial judge improperly excluded relevant and exculpatory evidence; (4) the state courts failed to give him a full and fair opportunity to litigate his Fourth Amendment claims; (5) the Appellate Division wrongfully held that his guilty pleas waived his geographical jurisdictional challenge; (6) the trial judge erred in the charge to the jury; and (7) his conviction was not supported by legally sufficient evidence.
The State filed its opposition on June 10, 2004, and Crispino filed his reply on July 6, 2004, at which time the petition was marked fully submitted.
The State has conceded that the petition is timely and that Crispino has exhausted his claims.
By New York County Indictment Number 8550/98, filed on October 21, 1998, Crispino, an attorney with offices in Manhattan, was charged with one count of grand larceny in the second degree, two counts of grand larceny in the third degree, one count of criminal possession of stolen property in the second degree, two counts of criminal possession of stolen property in the third degree, and two counts of criminal possession of a forged instrument in the second degree arising out of Crispino's conduct as an attorney.
By New York County Indictment Number 4090/99, filed on June 16, 1999, Crispino was charged with one count of criminal possession of stolen property in the second degree, two counts of grand larceny in the third degree, six counts of forgery in the second degree, and three counts of criminal possession of a forged instrument in the second degree in connection with his thefts from clients Kevin Fuseyamore and Felipe Pena.
By New York County Indictment Number 8223/99, filed on November 1, 1999, Crispino and Cel Stuart, his associate, ("Stuart") were each charged with single counts of grand larceny in the first degree (N.Y. Penal Law § 155.42) and criminal possession of stolen property in the first degree (N.Y. Penal Law § 165.54), seven counts each of grand larceny in the second degree and criminal possession of stolen property in the second degree, and 41 counts of criminal possession of a forged instrument in the second degree, in connection with the settlement of litigation for 14 disabled and injured clients against J.G. Wentworth, a specialty finance company.
Subsequently, on Crispino's motion to inspect the grand jury minutes for Indictment Number 8223/99, the count of first-degree grand larceny was reduced to second-degree grand larceny and the count of first-degree possession of stolen property to second-degree possession. Four counts of second-degree grand larceny were also reduced to third-degree grand larceny and four counts of second-degree possession of stolen property were reduced to third-degree possession. On June 30, 2000, Stuart pled guilty to one count of grand larceny in the second degree, and on October 20, 2000, he was sentenced to an indeterminate prison term of one to three years.
Prior to trial on Indictment Number 8550/98, Crispino moved to suppress documents and records that he claimed had been improperly obtained. After hearings on August 7, 2000 and September 22, 2000, the motion judge denied Crispino's motion and on September 22, 2000, Crispino proceeded to trial on Indictment Number 8550/98.
Unless otherwise noted, the following facts are drawn from the trial transcript.
At the trial, Florence Furino ("Furino") testified that she retained Crispino to represent her on the appeal of a judgment rendered against her in Queens, New York in connection with a real estate transaction and agreed to pay Crispino a flat fee of $2,500 to represent her. In order to prevent her adversary from satisfying the judgment while the appeal was pending, Furino was required to purchase a bond. Accordingly, on September 23, 1996, Furino's daughter gave Furino a check for $25,000. Furino made the check payable to "Domenick Crispino as attorney," and it bore the notation, "Partial Escrow for Tepper," who was the person to whom Furino owed the judgment. Crispino promised to keep the $25,000 check in his Interest On Lawyer Account (the "IOLA account"),1 and if she lost her appeal, to apply the money and the interest against the judgment. Crispino stated that if Furino prevailed on appeal, he would return the money to her.
Crispino filed an appellate brief and a reply brief on Furino's behalf and told Furino that he would orally argue the case in May 1997, although no decision was likely to be rendered until November or December. At some point in the spring of 1997, Crispino told Furino that he had missed the oral argument date, but that he would make a motion to reargue.
In October 1997, Furino received a bill from the bonding company for their yearly fee and tried to contact Crispino to find out what to do. In October and November 1997 and again in January 1998, Furino called Crispino numerous times (eventually up to twenty times a day), leaving messages on Crispino's answering machine or with whomever answered the telephone, but Crispino never returned any of her calls. At some point, Furino called "the court" and learned that her appeal was no longer pending and that the motion to reargue had been denied in June 1997. She twice wrote Crispino, telling him that she knew that her case had been lost and asking what would happen with the bond.
In January 1998, Crispino telephoned Furino and assured her that they would prevail on a new motion that he planned to...
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