Forino v. Lee
| Decision Date | 19 December 2016 |
| Docket Number | 10-CV-5980 (MKB) |
| Parties | JOSEPH FORINO, Petitioner, v. WILLIAM LEE, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner Joseph Forino, proceeding pro se, brings the above-captioned petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his federal constitutional rights. (Pet. for Writ of Habeas Corpus ("Pet."), Docket Entry No. 1.) Petitioner's claims arise from a 2009 judgment of conviction entered in the New York State Supreme Court, Nassau County, following a jury verdict convicting Petitioner of attempted burglary in the second degree. (Id. at 2.) Petitioner was adjudicated a persistent, violent felony offender and sentenced to an indeterminate prison term of twelve years-to-life. (Id. at 1-2.) Petitioner appealed his conviction to the New York State Supreme Court, Appellate Division, Second Department (the "Appellate Division"). By decision dated September 22, 2009, the Appellate Division unanimously affirmed Petitioner's conviction. People v. Forino, 887 N.Y.S. 2d 114 (App. Div. 2009). On December 14, 2009, the New York Court of Appeals denied Petitioner's application for leave to appeal. People v. Forino, 13 N.Y.3d 907 (2009). Petitioner timely filed the instant petition for a writ of habeas corpus on December 20, 2010, and subsequently filed an amended petition on May 21, 2012.1 (Pet.; Am. Pet. for Writ of Habeas Corpus ("Am. Pet."), Docket Entry No. 22.) Petitioner asserts that he was: (1) denied his right to an impartial jury by the state court's improper denial of his for-cause challenges to prospective jurors; (2) denied due process and the right to a fair trial by the state court's failure to issue or repeat instructions concerning circumstantial evidence, a renunciation defense and Molineux2 evidence; (3) denied due process and the right to a fair trial by the state court's dismissal of a juror during trial; (4) denied his right to an impartial jury by the state court's failure to hold a preclusion and Ventimiglia3 hearing before admitting certain evidence; and (5) denied due process and the right to a fair trial because the evidence at trial was legally insufficient and the verdict was against the weight of the evidence. (Am. Pet. at 15-16.)4 For the reasons set forth below, the amended petition is denied.
On September 1, 2005, a resident of Oceanside, Nassau County observed Petitioner as he tried to open the front doors, looked into windows and walked into the yards of a number of houses in a residential neighborhood. (T. 313-17, 319-36.)5 After following Petitioner, the resident called the police and identified Petitioner to the responding officer. (T. 326-28.) The officer subsequently observed Petitioner stop at the home of Robert and Marie Paul, put on a pair of gloves, open the gate to the side yard and approach the locked sliding glass doors on the side of the house. (T. 434-37, 449, 484-85.) Petitioner opened the exterior screen door and tugged repeatedly on the interior sliding glass door. (T. 438-39, 454-55, 485.) Petitioner failed to gain entry to the house and returned to the street, where he was arrested by the responding officer. (T. 442-43.) Petitioner was charged with attempted burglary in the second degree. (Am. Pet. 1.)
During voir dire, defense counsel's objections to four prospective jurors "for cause" were each denied and defense counsel used peremptory challenges to strike the first three prospective jurors but could not exercise a peremptory challenge as to the fourth juror because he had exhausted his peremptory challenges at that point. (T. 260-61.) The fourth juror indicated that he was familiar with the neighborhood where the crime took place, and that it might be possiblethat he would recognize one of the testifying police officers by sight and that some of the names sounded familiar. (T. 252-54; 260.) When asked if his knowledge of the neighborhood or potential familiarity with police officers would prevent him from sitting as a fair and impartial juror, the juror replied, "I don't think so." (T. 254.) After indicating that he would accept or reject police testimony as he would any other witness, defense counsel asked the juror whether he would give a police officer he knew "a little more credence" than one he did not know. (Id.) The juror replied, "It's possible." (Id.) The trial judge denied defense counsel's request to strike the juror "for cause" based on these answers. (T. 260-61.) The juror was seated on the jury. (T. 260-61.) Counsel continued voir dire until the trial judge indicated "time's up" right after defense counsel questioned the prospective first alternate juror about her familiarity with the neighborhood where the crime occurred. (T. 255-56.) Defense counsel asked for "a little more time" but the trial judge denied the request. (T. 256.) Defense counsel did not object to that juror's selection as an alternate juror. (T. 262.)
On the first day of trial one of the selected jurors told the court that she had been in a car accident that day and requested a special chair. (T. 271.) The juror asked to go home early that day, but the trial court persuaded her to stay for the full day. (T. 418.) The next day, the juror called and told the court clerk that she was in pain and that she had an appointment to see a doctor later that day. (T. 417, 419.) Over Petitioner's objection, the juror was excused and replaced with an alternate juror. (T. 426-27.)
At trial, the responding officer testified that he observed Petitioner walk up to a house, put on a pair of gloves, open a screen door, go into the side yard and attempt to open a locked glass door. (T. 434-37, 449, 484-85.) An eyewitness testified that she observed Petitionerlooking into her neighbor's windows and trying to open doors prior to committing the underlying offense. (T. 313-17.) Defense counsel objected to the inclusion of this evidence without a Molineux hearing but the trial judge overruled the objection. (T. 695-96.) Defense counsel also objected to testimony by the same eyewitness concerning the eyewitness' out of court identification of Petitioner because he was not given notice of the identification. (T. 370-73, 401-15.)
Prior to summation, Defense counsel requested jury charges on circumstantial evidence, renunciation and Molineux evidence. (T. 681-82, 686-89, 694-95, 697-98.) Defense counsel argued that the circumstantial evidence charge was proper for the following reason:
[T]here's no direct evidence of attempted burglary meaning there is no evidence whatsoever of any intent to commit a crime therein and there really isn't any direct evidence of the fact that he attempted to enter unlawfully knowing more than as I said that he really trespassed on the open area.
(T. 697-98.) Defense counsel argued that the renunciation charge was proper because the responding officer testified that Petitioner "went up to the door and then left . . . the property solely" establishing that Petitioner renunciated the crime. (T. 682.) Defense counsel argued that a Molineux charge would be proper to "minimize" the Molineux evidence which he maintained was improperly admitted without a hearing. (T. 681.) The trial court denied each request. (T. 695-98.)
On March 1, 2007, the jury convicted Petitioner of attempted burglary. (T. 777-781.) Petitioner was adjudicated to be a persistent violent felony offender and sentenced to an indeterminate term of imprisonment of twelve years to life. (S. 5, 12-13.) The court also imposed a fine of $1,000.00, as well as applicable fees and surcharges totaling $320.00. (S. 13.)
Petitioner appealed his sentence to the Appellate Division on the grounds that the trial court: (1) improperly refused to exclude certain prospective jurors; (2) failed to issue jury instructions concerning circumstantial evidence, a renunciation defense and evidence of Petitioner's prior conduct; (3) erred in discharging and replacing an injured juror; (4) improperly imposed time limits on voir dire; and (5) improperly allowed certain identification and prior-act testimony without proper hearings. (Am. Pet. 2, 15-16.) On September 22, 2009, the Appellate Division affirmed Petitioner's conviction. Forino, 887 N.Y.S.2d at 114. The Appellate Division determined that the verdict was not against the weight of the evidence and the trial court: (1) did not "improvidently refuse to excuse certain prospective jurors" because all the challenged jurors indicated they would be able to follow the law and none of their responses rose to the level of actual bias; (2) properly refused to issue (a) a circumstantial evidence charge because the evidence against Petitioner was both direct and circumstantial, (b) a Molineux charge because the evidence of defendant's guilt was overwhelming and there was no evidence that the error contributed to Petitioner's conviction, and (c) a renunciation charge because no "reasonable view of the evidence support[ed]" a finding of the affirmative defense of renunciation; (3) properly discharged and replaced the injured juror but, as a threshold matter, Petitioner's contention was unpreserved for appellate review because Petitioner did not seek to exercise a challenge against the alternate juror at trial; (4) properly set time limits for voir dire; and (5) committed harmless error when it "failed to give the defendant statutory notice of a police-arranged showup identification." Forino, 887 N.Y.S.2d at 115-17. On December 14, 2009, the New York Court of Appeals denied Petitioner's application for leave to appeal. Forino, 13 N.Y.3d at 907.
On April 21, 2010, Petitioner filed a motion pursuant to New York Criminal ProcedureLaw ("NYCPL") section 440.20 to set aside his sentence on the grounds that it was unauthorized,...
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