Dayton v. Lavalley

Decision Date29 July 2021
Docket Number11 CV 1261 (DG) (CLP)
PartiesALEX DAYTON, Petitioner, v. THOMAS LAVALLEY, Respondent.
CourtU.S. District Court — Eastern District of New York

Cheryl L. Pollak Chief United States Magistrate Judge.

On March 14, 2011, petitioner Alex Dayton (Petitioner), proceeding pro se petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a judgment of conviction and sentence entered in County Court, Suffolk County (the trial court), for two counts of criminal sexual act in the first degree, in violation of N.Y Penal Law § 130.50; one count of aggravated sexual abuse in the second degree, in violation of N.Y. Penal Law § 130.67; one count of sexual abuse in the first degree, in violation of N.Y. Penal Law § 130.65; one count of endangering the welfare of a child, in violation of N.Y. Penal Law § 260.10; and one count of petit larceny, in violation of N.Y. Penal Law § 155.25.[1]

On January 15, 2014, the Honorable Thomas C. Platt, United States District Judge, issued a Memorandum and Order, denying the Petitioner's claims. On appeal to the Second Circuit, the Court of Appeals dismissed the appeal, finding that the lower court had failed to rule on all of the claims asserted in the petition and thus, the Court of Appeals lacked jurisdiction to consider the appeal. The Court of Appeals remanded the petition to allow the district court to consider the following claims:

1) That petitioner's counsel failed to call an expert witness to testify about petitioner's mental illness and false confessions; 2) that the evidence was insufficient to support the conviction; 3) that petitioner's statements to the police should have been suppressed; 4) that the trial court erred in denying petitioner's motion to sever (framed as an ineffective assistance claim); 5) that petitioner's counsel should have objected to the jury charge; and 6) that the trial court erred in denying petitioner's request for a circumstantial evidence instruction to the jury.

(App. Order[2] at 2).

Having considered the parties' submissions on remand, the Court respectfully recommends that the remaining claims identified by the Second Circuit be denied as either procedurally barred and/or substantively without merit, such that none represent a procedure or decision that was contrary to, or an unreasonable application of, clearly established federal law.


The factual background of the case was set forth more fully in the Memorandum and Order of Judge Platt and only the salient facts relevant to the remaining claims in the petition will be addressed in detail herein.

For purposes of this Report and Recommendation, the evidence introduced at trial demonstrated that Ms. R owned a second-hand store in Patchogue, N.Y. and often brought her youngest son[3] “AR”[4] to work with her. (Tr.[5] at 501, 504, 508-10). Petitioner, a volunteer employee at the store, told a witness, Nancy Pickering, that he had become fond of a little boy named “A” who petitioner knew from where he worked. (Id. at 45-47, 53, 502). Among other inappropriate things, Petitioner told Ms Pickering that he could not keep his hands off A. (Id. at 53).

Another witness, John Metzner, testified that Petitioner told him that he liked children, identifying A and “M, ” and, according to Metzner, Petitioner eventually began talking about A as one adult might describe a relationship with another adult. (Id. at 70-72). Metzner testified that according to Petitioner, he had met A at the store in Patchogue where Petitioner worked and that Petitioner had fondled the child's penis, put his mouth on the child's penis, and put his finger in the child's anus. (Id. at 75-77). Petitioner told Metzner that he engaged in these activities with A in a pup tent outside the store, and that he also cared for another boy, M, whom Petitioner kissed on the lips. (Id. at 77, 92). Although Metzner originally believed Petitioner was simply fantasizing about these boys, Petitioner told him that he could not stop. (Id. at 78, 80, 107-108). After consulting a minister, who was also a police officer, Metzner reported what he knew to Child Protective Services (“CPS”). (Id. at 87-88).

CPS reported it to the police and on October 1, 2005, Detective Kevin Ibanez and a CPS worker went to speak to Ms. R at the store. (Id. at 191-192, 194-97). While there, the detective observed the pup tent described by Metzner. (Id. at 201). The detective asked Petitioner, who was present in the store, to go with him to the station house, where he interviewed Petitioner. (Id. at 202-03, 205).

At the precinct, Petitioner waived his Miranda rights (id. at 212-15, 605), and admitted having oral sex with A. (Id.) He was placed under arrest after approximately twenty-five minutes and then waived his Miranda rights a second time. (Id. at 206, 607). He then completed a written statement based on questions asked by Detective Ibanez, in which he confessed to performing oral sex on A “about 15 to 20 times” inside the tent. (Id. at 230-32). After completing the written statement at about 6:30 p.m., Petitioner was given a snack and dinner and allowed to use the phone. (Id. at 237-45). During this time, the Crime Scene Unit collected the pup tent from the store. (Id. at 609-15). Given Petitioner's statements about another child, he was interviewed again and waived his Miranda rights for a third time. (Id. at 616). He then prepared a second written statement in which he admitted kissing MMH, a 1 *A year old child, but denied molesting the child. (Id. at 246-49, 250-52, 254). MMH's mother and grandmother subsequently confirmed that Petitioner had kissed MMH on the mouth and described an incident in which Petitioner had his head in the child's groin area while the child was in a car seat. (Id. at 555-61).

Following the completion of the second written statement, petitioner was subjected to a search, during which Detective Ibanez recovered a diary[6] from Petitioner's front pocket containing references to Petitioner's sexual abuse of AR. (Id. at 274, Ex. 1). He also recovered a photo album[7] containing pictures of Petitioner with AR, including one of Petitioner kissing AR, [8]a flower identified as “from A, ” and a picture of MMH. (Id. at 262-69, Ex. 13). Following the discovery of this evidence, Petitioner was interviewed again, during which time Petitioner admitted having a naked picture of AR and using the picture as visual stimulation. (Id. at 30506). The interview was reduced to writing as the last paragraph of Petitioner's first statement. (Id. at 304).

Petitioner was turned over to a detention attendant (“the Attendant”) to be lodged for the night. (Id. at 285-86). Prior to placing Petitioner in a cell, the Attendant searched Petitioner and discovered additional photographs and negatives in Petitioner's shoe, including a number of photographs of AR. (Id. at 289-92, 296, 314-16, 320-22, 483-89, Exs. 14-16, 17A-F, 18). Petitioner allowed the police to search his rented room where the police discovered more photographs of AR, MMH, and other children and babies. (Id. at 339-43, 346-51, 355-61, Exs. 27-29). After Petitioner was arrested, the landlady cleaned out his room and found more photographs and a diary which she gave to the police. (Id. at 160-165-66, 169-70, Exs. 1-3). AR was physically examined and found to have evidence of trauma to his anus consistent with Petitioner's statement that he had penetrated AR with his finger. (Id. at 653-55, 658-61).

Petitioner called one witness in his defense. The witness, Mr. DiCarluccio, worked with Petitioner at the store and testified that AR was “most of the time” supervised by his mother and that he had never seen AR in the tent area without his mother, had never seen Petitioner act inappropriately with AR, and did not think Petitioner had the opportunity to do what he was accused of having done. (Id. at 752).

Prior to trial, Petitioner was offered several plea bargains, including one for five years and one for 13 years, both of which he declined to accept. (Mem. and Order[9] at 3). The trial court held a Huntley[10] hearing to determine if Petitioner's statements to the police were “knowingly and voluntarily made.” (Id.) The trial court found that they were, and the jury convicted Petitioner of six out of eight charges.[11] Petitioner was sentenced to a total of 50 years imprisonment on all charges. (Id.)

Following his trial and conviction, Petitioner filed an appeal with the Appellate Division, Second Department. The Appellate Division held that the County Court properly denied Petitioner's motion to sever certain counts because the nature of the proof for each of the offenses was material and admissible with respect to the other counts. People v. Dayton, 66 A.D.3d 797, 798, 887 N.Y.S.2d 184, 185 (2d Dep't 2009). The court also held that [v]iewing the evidence in the light most favorable to the prosecution, . . . we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt” and that the verdict was “not against the weight of the evidence.” Id.

The Appellate Division also reviewed Petitioner's claim that a portion of his confession should have been suppressed because his Miranda warnings were not administered immediately prior to his making that statement. Id. The court held that the claim was “without merit” and cited People v. Hasty, 25 A.D.3d 740, 741, 807 N.Y.S.2d 647 (2d Dep't 2006), in which the court held that “it is not necessary to repeat the warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody has remained continuous” and the person in custody has been issued Miranda warnings and knowingly and voluntarily waived his rights. People v. Dayton, 66...

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