Dearstyne v. Mazzuca

Decision Date03 March 2011
Docket NumberNo. 04–CV–741FJS/VEB.,04–CV–741FJS/VEB.
Citation48 F.Supp.3d 222
PartiesFrank W. DEARSTYNE, Petitioner, v. William MAZZUCA, Superintendent, Fishkill Correctional Facility, Respondent.
CourtU.S. District Court — Northern District of New York

James V. O'Gara, Kelley, Drye & Warren LLP, New York, NY, Lisa A. Peebles, Office of the Federal Public Defender, Syracuse, NY, for Petitioner.

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

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 details are set forth in the discussion of Petitioner's claims for relief.

A. Facts

On 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 Proceedings

Petitioner 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 the indictment under their first names, but will be identified in this report and recommendation as “T.O.”, “C.C.” and “E.C.”. Petitioner was arraigned on November 24, 1987.

On May 9, 1990, the Rensselaer County Court dismissed the indictment. As discussed in greater detail below, although the grand jury proceedings included videotaped testimony from two of the alleged victims, the prosecution never had that testimony transcribed by a stenographer, as required under § 190.32(6) of the New York Criminal Procedural Law (“CPL”). The court dismissed the indictment due to the prosecution's failure to comply with CPL § 190.32(6).3

On May 18, 1990, Petitioner was re-indicted when a Rensselaer County Grand Jury returned sealed Indictment Number C–8138, charging Petitioner with ten (10) crimes against the three (3) victims. With respect to...

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