Delesline v. Conway

Decision Date13 December 2010
Docket NumberNo. 10 Civ. 0055(VM).,10 Civ. 0055(VM).
Citation755 F.Supp.2d 487
PartiesJomo DELESLINE, Petitioner,v.James T. CONWAY, Superintendent of Attica Correctional Facility, Respondent.
CourtU.S. District Court — Southern District of New York


Richard M. Greenberg, Office of the Appellate Defender, New York, NY, for Petitioner.


VICTOR MARRERO, District Judge.

Petitioner Jomo Delesline (Delesline), currently incarcerated at Attica Correctional Facility in New York (“Attica”), brings this amended petition (the “Petition”) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (§ 2254) against James T. Conway, the superintendent of Attica (Respondent). Delesline was convicted in New York State Supreme Court, Bronx County (the Trial Court), of three counts of attempted murder in the second degree, in violation of New York Penal Law (“NYPL”) § 110/125.25(1). The Trial Court sentenced Delesline to three concurrent terms of twenty-five years imprisonment and five years of post-release supervision.

In the Petition, Delesline asserts three federal constitutional claims as grounds for habeas relief. First, Delesline argues that post-arrest statements he made while in police custody were improperly admitted as evidence because they were involuntary and obtained without the warnings specified by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ( “ Miranda ”). Second, Delesline argues that the testimony of a prosecution witness was inflammatory and prejudicial and thereby denied him the right to a fundamentally fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment (“the Due Process Clause”). Third, he argues that this testimony was composed partially of inadmissible hearsay, thus violating Delesline's rights under the Confrontation Clause of the Sixth Amendment (“Confrontation Clause”). For the reasons discussed below, the Court DENIES Delesline's Petition.



Delesline's convictions arise out of the shooting of Daniel Gonzalez (“Gonzalez”), Luis Cartagena (“Cartagena”), and Tijuanna Mimms (“Mimms”) on February 10, 2004. At approximately 11:30 p.m., near 610 Castle Hill Avenue in the Bronx, a group of four men approached Gonzalez, Cartagena, and Mimms. Without warning, one of the four men extended his arm and several gunshots were fired. Mimms was shot in both of her legs, Cartagena was shot in his heel, and Gonzalez was shot in the back, rendering him paralyzed. Although Delesline was not alleged to have fired any of the shots, he was charged with participating in the shooting.

The police officers who responded to the scene received several descriptions of the shooters and followed their reported direction of flight. Delesline matched the general description of the shooters and two police officers apprehended him in front of 2280 Randall Avenue, about 75 to 100 yards from the crime scene. The other participants were never arrested or identified. After handcuffing Delesline, the officers recovered an inoperable .32–caliber revolver from his pants pocket. A shopping bag containing a Tec–9 semiautomatic weapon and several hats and bandanas was also recovered from the area.

The police then brought Delesline back to the crime scene for two eyewitnesses to determine whether or not Delesline was the shooter. Neither of the eyewitnesses identified Delesline as the shooter in the so-called “showup procedure.” Delesline was brought to the 43rd Precinct stationhouse and transported to Lincoln Hospital in the Bronx at approximately 2:45 a.m. for medical attention to several scratches and a dry cut on the back of his head. Detective Michael Tozzi (“Detective Tozzi”) questioned Delesline at the hospital, without providing Miranda warnings beforehand, about his presence at the scene of the shootings. Delesline reportedly responded that he had been at the scene of the shooting to “buy weed” (the “Lincoln Hospital Statements”). The police also seized Delesline's clothing to test for gunpowder residue, but none was found.

After receiving treatment, Delesline was brought back to the 43rd Precinct stationhouse at approximately 5:00 a.m. on February 11, 2004. By then, Detective Tozzi had obtained surveillance footage from 2280 Randall Avenue, but the footage was recorded in a format that could be decoded and displayed only with a particular surveillance system that was not available at the stationhouse. The decoder at 2280 Randall Avenue was broken, and Detective Tozzi had difficulty finding another location to display the footage. He instructed officers at the stationhouse not to transport Delesline to Central Booking for arrest processing until Detective Tozzi was available to do so. Detective Tozzi slept in the stationhouse from 6:30 a.m. until 9:30 a.m. and then attempted to find a location where he could view the footage. He ultimately was not able to view the footage until approximately 2:00 p.m. in Queens.

The footage showed Delesline waiving a gun inside an elevator at 2280 Randall Avenue shortly before the shooting. The footage also showed a group of four men walking towards the crime scene shortly before the shooting and running back to the building shortly thereafter. After viewing six tapes of footage, Detective Tozzi returned to the Bronx stationhouse at approximately 6:00 p.m. with still printouts of the footage.

At approximately 8:00 p.m., Detective Tozzi issued Miranda warnings to Delesline and questioned him for one hour. Delesline made several inculpatory statements regarding the shooting and signed a statement that Detective Tozzi wrote summarizing his interrogation (the “Stationhouse Statements”). At approximately 10:15 p.m., an assistant district attorney arrived at the stationhouse, provided Miranda warnings to Delesline again and took a videotaped statement. Approximately twenty-four hours after his initial arrest, Delesline was transferred to Central Booking for arrest processing. While at the stationhouse, Delesline was dressed in a “paper suit” and slippers from the hospital, because his clothing had been seized. The police gave him two bags of potato chips and water and detained him with other prisoners in a holding cell furnished only with a wooden bench.

B. PROCEDURAL HISTORY1. Indictment and Pretrial Hearing

A Bronx County Grand Jury returned an indictment charging Delesline with three counts of attempted murder in the second degree in violation of NYPL § 110/125.25(1). Following a hearing on the legality of the police's stop of Delesline and the subsequent interrogation, the Trial Court, by a decision and order dated June 20, 2005, found that the police had reasonable suspicion to pursue Delesline. The Trial Court suppressed the pre- Miranda Lincoln Hospital Statements, but it determined that the Stationhouse Statements given approximately sixteen hours later were voluntary, the result of a knowing and intelligent waiver of Delesline's Miranda rights, and not tainted by the suppressed Lincoln Hospital Statements.

2. The Trial

At trial, the prosecution theorized that the shootings were committed as part of gang activity and that two of the men seen in the surveillance footage of 2280 Randall Avenue were Delesline's brothers, Randy Hall and Lateef Hall. In his Stationhouse Statements, Delesline referred to one of his accomplices as “OG Up North.” The prosecution contended that Randy Hall was “OG Up North.” At trial, Detective Tozzi testified that Ieshia Hall, the sister of Delesline and Randy Hall, had identified “OG Up North” as being known also as “Ruckus.” Detective Tozzi subsequently determined through a gang intelligence computer system that Randy Hall was “Ruckus.” At trial, however, Ms. Hall denied that she made such statements to Detective Tozzi. Delesline testified that Randy Hall's nickname was “Ruck” but denied that this nickname was short for “Ruckus” or “OG Ruk.”

In order to rebut this testimony and establish that the “OG Up North” in Delesline's Stationhouse Statements was Randy Hall, the prosecution called Detective Sonny Sankhi (“Detective Sankhi”), who was not involved in the investigation of Delesline and had no personal knowledge about the case. Detective Sankhi testified that he had previously interviewed Randy Hall in the course of a separate investigation in October 2004, during which interview Randy Hall informed Detective Sankhi that he was a member of the Crips gang, held the position of “original gangster” or “OG,” and was also known as “Ruk” and “OG Ruk.” According to Detective Sankhi, the term “Up North” refers to someone who has served time in an upstate prison, and Randy Hall had served time upstate before 2004. He identified Randy Hall from two pictures taken from a video called “Slash for Life,” a video about slashing people while in prison. Additionally, Detective Sankhi identified a photograph of burn marks on Delesline's arms and testified that the marks were consistent with gang markings made upon initiation into a gang, indicating that the member had killed someone previously.

Defense counsel objected to this testimony both before Detective Sankhi took the stand and during his testimony. The Trial Court overruled the objections both times, allowing it as rebuttal testimony regarding the nicknames used by Randy Hall and whether he was the person identified in the testimony of other witnesses, including that of Delesline.

3. Verdict and Appeal

On April 5, 2007, a jury convicted Delesline of three counts of attempted murder in the second degree. The Trial Court sentenced Delesline to concurrent prison terms of twenty-five years for each count and five years of post-release supervision.

In April 2008, Delesline appealed his conviction to the New York State Supreme Court, Appellate Division, First Judicial Department (Appellate Division), where he raised four claims. First, he claimed that Detective Sankhi's testimony had been admitted improperly, because it was irrelevant, unfairly prejudicial and...

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