Dearstyne v. Mazzuca
Decision Date | 03 March 2011 |
Docket Number | No. 04–CV–741(FJS/VEB).,04–CV–741(FJS/VEB). |
Parties | Frank W. DEARSTYNE, Petitioner, v. William MAZZUCA, Superintendent, Fishkill Correctional Facility, Respondent. |
Court | U.S. District Court — Northern District of New York |
Frank W. DEARSTYNE, Petitioner,
v.
William MAZZUCA, Superintendent, Fishkill Correctional Facility, Respondent.
No. 04–CV–741(FJS/VEB).
United States District Court, N.D. New York.
Signed March 3, 2011
James V. O'Gara, Kelley, Drye & Warren LLP, New York, NY, Lisa A. Peebles, Office of the Federal Public Defender, Syracuse, NY, for Petitioner.
[48 F.Supp.3d 223]
Paul B. Lyons, Alyson J. Gill, Office of Attorney General, New York, NY, for Respondent.
BIANCHINI, United States Magistrate Judge.
Table of Contents |
I. |
Introduction |
225 |
|
||
II. |
Background |
225 |
A. |
Facts |
226 |
B. |
State Court Proceedings |
226 |
1. |
Pre–Trial Proceedings |
226 |
2. |
Trial Proceedings |
227 |
3. |
Appellate Proceedings |
228 |
C. |
Federal Habeas Corpus Proceedings |
229 |
|
||
III. |
Discussion |
230 |
A. |
Ground One—Speedy Trial |
231 |
1. |
State Court Proceedings |
231 |
2. |
Habeas Review |
233 |
a. |
State Law Claim |
233 |
b. |
Federal Constitutional Claim |
233 |
i. |
Reason for the Delay |
234 |
ii. |
Petitioner's Delay in Asserting Claim |
234 |
iii. |
Lack of Prejudice |
235 |
3. |
Ineffective Assistance of Trial Counsel |
236 |
B. |
Ground Two—Admission of Petitioner's Statement to Police |
238 |
1. |
Factual Background |
238 |
2. |
State Court Proceedings |
240 |
3. |
Habeas Review |
241 |
a. |
Voluntariness of the Confession |
241 |
b. |
Failure to Comply with CPL § 710.60(6) |
246 |
i. |
State Court Proceedings and Rulings |
246 |
ii. |
The Trial Court's Failure to Adjudicate the Voluntariness Issue Was an Unreasonable Application of Clearly Established Supreme Court Law, Jackson v. Denno |
248 |
C. |
Ground Three—DNA Evidence |
252 |
1. |
Factual Background |
252 |
2. |
Habeas Review |
253 |
a. |
Brady Violation |
253 |
i. |
Exhaustion and Procedural Default |
253 |
ii. |
Merits Analysis |
255 |
b. |
Requests for DNA Testing |
262 |
c. |
Ineffective Assistance of Counsel—Failure to Seek Forensic Testing of the Fluid Sample |
267 |
d. |
Ineffective Assistance of Counsel—Failure to Object to Dr. Close's Testimony |
269 |
D. |
Ground Four—Alleged Bias of Appellate Justice |
269 |
1. |
Factual Background |
269 |
2. |
State Court Proceedings |
270 |
3. |
Habeas Review |
270 |
a. |
Judicial Bias |
270 |
b. |
Ineffective Assistance of Appellate Counsel |
272 |
E. |
Ground Five—Prosecutorial Misconduct |
272 |
1. |
Prosecution's Failure to Call H.O., T.O.'s Father |
272 |
2. |
Trial Counsel's Failure to Request Missing Witness Charge as to H.O. |
274 |
3. |
The Prosecution's Failure to Present Testimony of Expert Medical Witnesses |
277 |
4. |
Ineffective Assistance of Trial Counsel—Failure to Request Missing Witness Charge Regarding Medical Witnesses |
278 |
5. |
Violations of the Prosecution's Duty to Disclose Brady and Rosario Material |
278 |
a. |
Prosecution's Failure to Disclose Fluid Sample from T.O. |
279 |
b. |
Ineffective Assistance of Trial Counsel |
279 |
6. |
Lack of Specificity Regarding Date of Offenses |
280 |
a. |
Factual Background |
280 |
b. |
State Court Proceedings |
281 |
c. |
Habeas Review |
281 |
7. |
Presentation of False Testimony |
283 |
8. |
Improper Summation Comments |
285 |
a. |
Factual Background |
285 |
b. |
State Court Proceedings |
286 |
c. |
Habeas Review |
287 |
9. |
Failure to File Timely Replies |
289 |
10. |
Failure to Disclose Potential Civil Action |
290 |
F. |
Ground Six—Discovery Manipulation |
291 |
G. |
Ground Seven—Jury Charge |
291 |
1. |
State Court Proceedings |
292 |
2. |
Habeas Review |
293 |
a. |
Clearly Established Supreme Court Precedent on the Definition of “Reasonable Doubt” |
293 |
b. |
Merits Analysis |
296 |
H. |
Ground Eight—Ineffective Assistance of Counsel—Failure to Protect Right to Testify at the Grand Jury |
297 |
I. |
Ground Nine—Improper Joinder and Failure of Trial Counsel to Request Severance |
298 |
1. |
New York Law Regarding Joinder |
298 |
2. |
Habeas Review |
299 |
J. |
Ground Ten—Violation of CPL § 60.20—Lack of Corroboration of the Testimony of an Unsworn Child Witness |
301 |
K. |
Ground Eleven—Ineffective Assistance of Counsel—Failure to Challenge the Indictment |
302 |
1. |
The Indictment |
302 |
2. |
State Court Proceedings |
303 |
3. |
Habeas Review |
304 |
L. |
Ground Twelve—Ineffective Assistance of Counsel—Failure to Present Expert Testimony |
305 |
1. |
False Confessions Expert |
306 |
a. |
State Court Proceedings |
306 |
b. |
Habeas Review |
307 |
2. |
Medical Expert |
308 |
a. |
State Court Proceedings |
308 |
b. |
Habeas Review |
309 |
i. |
The “Performance” Prong of Strickland |
309 |
ii. |
The “Prejudice” Prong of Strickland |
311 |
a. |
Prejudice—Charges Involving T.O. |
311 |
b. |
Prejudice—Charges Involving C.C. |
316 |
3. |
Behavioral/Psychological Expert |
320 |
a. |
State Court Proceedings |
320 |
b. |
Habeas Review |
321 |
4. |
Failure to Seek DNA Testing |
324 |
M. |
Ground Thirteen—Denial of Due Process—Post–Conviction Motions |
324 |
1. |
Subpoenas Duces Tecum |
325 |
2. |
County Law § 722–c Motion |
325 |
N. |
Ground Fourteen—Due Process—Failure to Render Decisions in Accordance with Law |
326 |
1. |
Conclusory Claims |
327 |
2. |
Alleged Errors in Post–Conviction Proceedings |
327 |
3. |
Alleged Violations of State Law |
328 |
4. |
Judicial Misconduct |
328 |
5. |
Restated Claims |
329 |
O. |
Ground Fifteen—Ineffective Assistance of Counsel |
329 |
1. |
Claims Involving Attorney Grimmick |
329 |
a. |
Opening Statement |
329 |
b. |
Reconsideration of Huntley Decision |
330 |
c. |
Alibi Defense |
330 |
d. |
Pre–Trial Investigation |
332 |
e. |
Sufficiency of the Evidence |
332 |
f. |
Attorney Connors |
333 |
g. |
Arraignment |
335 |
h. |
Conflict of Interest |
335 |
i. |
Jury Foreperson |
336 |
j. |
Alibi Defense |
337 |
k. |
Sidebar Conferences |
337 |
l. |
False Testimony |
339 |
m. |
Remittal Hearing |
339 |
n. |
Ineffective Assistance Claims on Appeal |
341 |
o. |
“Extraneous” Issues on Appeal |
342 |
p. |
Federal Laws |
342 |
q. |
Leave to Appeal Application |
342 |
2. |
Claims Involving Attorney Korkosz |
342 |
a. |
Verification |
342 |
b. |
Experts |
343 |
3. |
Claims Involving Attorney Bauer |
343 |
a. |
Recusal of Appellate Justice |
343 |
b. |
Brief and Argument |
343 |
c. |
Application for Leave to Appeal |
344 |
P. |
Ground Sixteen—Request for Leave to Amend |
344 |
|
||
IV. |
Conclusion |
344 |
|
||
V. |
Recommendations |
346 |
[48 F.Supp.3d 225]
I. INTRODUCTION
Petitioner Frank W. Dearstyne (“Dearstyne” or “Petitioner”) is an inmate at the Bare Hill Correctional Facility. In 1991, he was convicted in a New York State court of Attempted Rape in the First Degree, Aggravated Sexual Abuse in the First Degree, and two counts of Endangering the Welfare of a Child. Petitioner contends that his conviction was imposed in violation of his constitutional rights and should therefore be vacated.
The Honorable Norman A. Mordue, Chief United States District Judge, referred this matter to this Court for issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) regarding the disposition of Dearstyne's petition. (Docket No. 67). For the reasons that follow, it is recommended that the petition be granted in part and denied in part.
The factual and procedural history of this matter is lengthy and complex. The following is a brief summary. Further
[48 F.Supp.3d 226]
details are set forth in the discussion of Petitioner's claims for relief.
A. FactsOn June 13, 1987, M.O.1 discovered blood in the underwear of her three-year old daughter, T.O. (TT Vol. 2, at 252).2 T.O. was examined later that day by her pediatrician, Dr. Theodore Close. (TT Vol. 2, at 258). Following his examination, Dr. Close referred T.O. to the Child Sexual Abuse Clinic at the Albany Medical Center in Albany, New York. (TT Vol. 2, at 391–392). After examining T.O., the staff at the Albany Medical Center concluded that she had been sexually abused and contacted the Rensselaer Police Department. (TT Vol. 2, at 263).
Detective Frank Petrucci of the Rensselaer Police Department was assigned to investigate the case. (TT Vol. 2, at 23–24). Based upon interviews with T.O. and her family, Detective Petrucci, working with Patricia Donovan, a New York State Trooper assigned to a special rape task force, concluded that Petitioner, the sixteen-year-old son of T.O.'s babysitter, was the prime suspect. (TT, Vol. 2 at 86).
On June 19, 1987, Detective Petrucci and Trooper Donovan made arrangements to interrogate Petitioner at the state police barracks in Loudonville, New York. (TT, Vol. 2 at 51–52, 88, 130). After speaking with Petitioner's mother and obtaining her permission to speak with Petitioner, Petrucci and Donovan located Petitioner at the home of a family friend and transported him to the police barracks. (TT Vol. 2, at 34, 41).
Petitioner was interrogated at the Loudonville barracks by Trooper Donovan and Investigator Edmond W. Girtler. As discussed in detail below, the participants offer dramatically different accounts concerning the nature and conduct of the interrogation.
However, it is undisputed that, at the conclusion of the interrogation, Petitioner signed a written confession, in which he made a series of statements admitting sexual contact with T.O. (TT, Vol. 2 at 145, 168). Petitioner was arrested and charged with various sexual crimes involving T.O. (TT, Vol. 2 at 88–91, 122–23, 158).
Subsequent investigations and interviews led the police to conclude that Petitioner had sexually abused two other girls whose parents also used Petitioner's mother as a babysitter during the spring months of 1987—C.C., who was two years-old at the time, and her four-year-old sister, E.C.
B. State Court Proceedings 1. Pre–Trial ProceedingsPetitioner was arrested following his interrogation on June 19, 1987, and charged via felony complaint with Rape in the First Degree and two (2) counts of sexual abuse for crimes allegedly committed against T.O. On November 18, 1987, a Rensselaer County Grand Jury returned a ten-count indictment, charging Petitioner with sex-related offenses against the three victims, who were identified in...
To continue reading
Request your trial