Cruz v. Coveny
| Decision Date | 01 June 2022 |
| Docket Number | 18-CV-10713 (AT)(SN) |
| Parties | JAMES CRUZ, Petitioner, v. RAY COVENY, Superintendent of the Elmira Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
TO THE HONORABLE ANALISA TORRES:
James Cruz, proceeding pro se, petitions for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. After a jury trial in New York Supreme Court, Bronx County Cruz was convicted of second-degree murder, pursuant to N.Y Penal Law § 125.25[1].
Cruz raises two grounds for habeas relief: (1) the admission of recorded phone calls to friends and family made while he was a pretrial detainee infringed on his right to counsel; and (2) the admission of the phone calls, a photograph of the victim, testimony regarding third-party threats, and evidence of his nickname “Krime” violated his fundamental right to a fair trial. I recommend that the petition be DENIED.
On November 13, 2010, Humberto Martin Palacios was shot and killed while sitting on the building stoop at 1148 Bryant Avenue in the Bronx (hereinafter “1148”).
NYPD detectives arrived shortly after the shooting and recovered ballistic evidence and the blue baseball cap Palacios was wearing at the time of his death. Detective David Dreyer spoke to the people at the scene, but no one provided any information. Other detectives told him that shots had been fired in another incident shortly before the shooting and that the superintendent of the building at 1148 “Rolando,” and his nephew “Tato” had been involved.
Detective Dreyer subsequently obtained surveillance footage from 1138 Bryant Avenue (hereinafter “1138”) showing the prior incident and the moments leading up to and immediately following the shooting. Dreyer recognized a man in the video whom he had spoken to at the scene but who denied any knowledge. Rolando later identified him as Cesar Montano. When confronted with the video footage, Montano agreed to cooperate with the investigation.
Police arrested Cruz at his grandparents' home. As he was being taken into custody, he told them to “call Macho.” Cruz was brought to the police precinct for a line-up where Montano identified him as the shooter. Cruz was subsequently indicted and charged with two counts of second-degree murder, first and second-degree manslaughter, and two counts of second-degree criminal possession of a weapon.
Cruz's first trial ended in a hung jury, with seven jurors voting to acquit. At Cruz's second trial, the prosecution introduced the surveillance footage from 1138. The footage included video from four different surveillance cameras and showed both the earlier incident and the shooting itself. The footage of the first incident shows a small group of men, women, and children sitting outside 1138. A man wearing a white shirt and a baseball cap, who was later identified by Montano as Cruz, passes the group, turning his head towards them as he walks. One of the men, identified as Rolando by both Detective Dreyer and Montano, jumps up and appears to chase him. A third man, identified as Tato, follows them. The three men disappear from view.
The remaining people on the steps also leave. Approximately 30 seconds later, Rolando returns, arriving back at the stoop as a man in a light blue hoody approaches from the opposite direction. Montano identified the second man as “Little Macho.” Rolando, who carries a black object in his hand, punches Little Macho, dropping the black object on the sidewalk. Little Macho stumbles and then flees. Rolando and Tato remain on the sidewalk briefly before turning and walking up the block.
The footage picks up an hour later. The external cameras show a man in a turquoise hoody standing on the steps of 1138. Montano, wearing a dark blue jacket, walks down the block and up the stairs of 1138. A third camera inside the building shows him briefly waiting outside the exterior door, facing inward. Within seconds, a man runs down the block from the opposite direction, his arm outstretched, passing 1138. At trial, Montano identified the shooter as petitioner. The second man on the stoop immediately drops to the ground, and Montano briefly disappears from the door on the interior camera. The exterior cameras appear to show him pivoting to face the street as the running figure passes 1138, pauses, turns, and runs back the way he came. Montano then opens the door to 1138 and runs up the stairs.
At trial, Montano testified that he had previously purchased marijuana from Cruz, who he knew by his street nickname “Krime,” and regularly saw him in the neighborhood, where he had lived for four years. An hour before the shooting, he observed Rolando chasing Little Macho down the block. Montano saw a gun fall and Rolando pick it up, followed by a gun shot. Little Macho ran away. Montano did not see Cruz at that time. At 6:30 p.m., Montano was sitting on the steps of 1148 when he got a call that weed was available for purchase in 1138. Montano got up and walked the short distance to 1138. He saw Cruz approaching from the opposite direction, but Montano walked up the steps and pressed the buzzer. While he was waiting to be admitted, he heard gunshots. Montano testified that he turned to face the street and made eye-contact with Cruz as he ran away from the scene, his hoody falling away from his face. Throughout his testimony, both Montano and the prosecutor referred to Cruz by his nickname Krime.[1]
After Montano identified Cruz in the line-up, he left the police precinct and ran into “Big Macho” near a bodega. Big Macho was accompanied by another man, and both were carrying knives. Big Macho ordered Montano to enter a nearby apartment building, where the men demanded to know why he had been picked up by the police. Montano responded that he had an outstanding warrant. Although Big Macho and his companion professed not to believe Montano's story, he eventually persuaded them that he had no intention of cooperating with police in the investigation. As a result of the incident, Montano and his family were relocated. The Court then delivered a limiting instruction that this testimony was offered “to complete the narrative” and for “consciousness of guilt.”
Haydee Bueso, Palacios's widow and the mother of his six-year-old child, also testified at trial. Bueso authenticated a photo of Palacios taken before his death, which was then shown to the jury. The photograph shows Palacios sitting in a chair, smiling for the camera. Bueso became emotional after viewing the photograph but composed herself and continued to testify.
Over objections from the defense, the prosecution introduced six recordings from phone calls Cruz made to friends and family while detained at Rikers Island. The calls generally revealed Cruz's then lawyer's view of the strength of the video evidence. In the first call, Cruz said he was “going through it” because his lawyer told him he had seen a video of the shooting. He added that his lawyer was planning to come see him the following Sunday. Cruz's friend asked, “so they got one?” and Cruz responded “yeah.” When the friend expressed disbelief, Cruz told him “dead ass, bro.” In another call, Cruz told a friend that his lawyer saw the video and “they got me on the video.” The friend asked if it was “bad” and Cruz responded “yeah, man.” In a third call, Cruz told his mother that it was “over” because “[t]hey got [him] on camera.” She responded: “But not you?” Cruz answered: “Yeah, me, me.” His mother reassured him that the police would “catch the guy.” In another call, Cruz told the caller that “they got [him] on video.” When asked if he had seen the video, Cruz responded that only his lawyer had seen it.
In the final call, Cruz complained that “Mach” had not sent any money to his account, noting that when “Mach” was incarcerated Cruz had made weekly deposits. “I used to make like $300 to $400 a day selling bud,” he continued.
After the calls were played, the parties stipulated that current counsel was not Cruz's attorney at the time the calls were recorded.
Following two days of deliberations, during which the jurors asked to view the surveillance footage, listen to the recordings of the phone calls, and read transcripts, the jury convicted Cruz of second-degree murder. He was sentenced to the maximum sentence of 25 years to life imprisonment. Cruz is currently incarcerated.
Cruz filed two motions to vacate the judgment, through counsel and on his own. Counsel argued that the prosecution had failed to prove that Cruz possessed the requisite intent, pointing out that the shooter in the surveillance footage appears to be firing randomly rather than aiming. In his pro se brief, Cruz argued that the trial court had failed to give a missing witness charge, double jeopardy attached upon declaration of a mistrial in his first trial, the verdict was repugnant, and the People had changed their theory of prosecution. The Court denied both motions, reasoning that counsel's motions for a trial order of dismissal at the close of the prosecution's case and again at the close of evidence were insufficiently specific to preserve the issues for appellate review. The Court added that the claims Cruz raised in his pro se motion did not satisfy the statutory criteria in CPL § 330.30.
On appeal, Cruz's counsel argued: (1) the conviction was against the weight of the evidence because the prosecution had failed to prove that Cruz was the shooter and that the death was intentional; (2) the recordings of the Rikers Island calls were...
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