Franco v. Lee
| Decision Date | 26 February 2013 |
| Docket Number | 10-CV-1210 (SJF) |
| Parties | BENITO FRANCO, Petitioner, v. SUPERINTENDENT WILLIAM LEE, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner Benito Franco ("petitioner"), proceeding pro se, has filed the instant petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. [Docket Entry No. 1] (the "Petition"). A judgment of conviction was entered against petitioner in the County Court of the State of New York, Suffolk County, upon a jury verdict finding him guilty of (1) murder in the second degree, N.Y. PENAL LAW § 125.25, and (2) robbery in the first degree, N.Y. PENAL LAW § 160.15. Following his conviction, petitioner was sentenced to two (2) concurrent terms of incarceration: (1) an indeterminate term of twenty-two (22) years to life and (2) a determinate term of fifteen (15) years. [Docket Entry No. 5] at ¶ 3. For the reasons that follow, the Petition is denied.
The charges against petitioner arose from a robbery and murder at the Tropical II Bodega in Brentwood, New York on May 20, 2001. Jose Espinal and Jose Aybar, employees of the bodega, testified that they closed the bodega and were walking through the parking lot, along with Jose Bello (Espinal's friend), when two (2) men approached them from behind and one (I) of themen put a gun to the back of Espinal's head. T. 1005-12. While the men forced Espinal, Aybar and Bello into the back of Espinal's van, one (1) of the men stabbed Bello. T. 1015,1108. Bello then refused to give the men a chain around his neck and "jumped on top" of the man with the gun. T. 1016. The man fired several times, killing Bello and wounding Aybar. T. 1016.
Detective Gerard McAlvin, a member of the Suffolk County Police Department's Homicide Squad, conducted the investigation of the robbery and murder. T. 1251. Detective McAlvin testified that the Suffolk County police had no suspects, despite the investigation of numerous leads, until January 2004 when the New York City Police Department provided information indicating the involvement of Jose Vargas and Juan Perez in the robbery. T. 1259-64. Perez was arrested on February 7, 2004, and Vargas was interviewed at Southport Correctional Facility in Elmira, New York, where he was incarcerated on an unrelated charge, T. 1264-69, and each confessed to his involvement in the robbery. T. 1265-66, 67-69. In their statements to police, Perez referred to an "old man" that participated in the robbery, and Vargas referred to a participant known as "Pa," but neither were able to provide the man's identity. T, 1269-70. Vargas and Perez were indicted for felony murder and robbery in the first degree. T. 1265-66, 1271.
Vargas was subsequently transported from Southport Correctional Facility to the Suffolk County Jail. While receiving medical treatment in the infirmary, Vargas recognized another prisoner as the man known to him as "Pa." T. 1271; T2. 20-22. After receiving this information,Detective McAlvin inspected the infirmary log and observed that Vargas was treated in the infirmary at the same time as petitioner, who was incarcerated at the time for drunk driving and violation of his parole. T. 1272-73; T2. 49-52. Detective McAlvin showed a photo array containing a photograph of petitioner to Perez, and Perez identified petitioner as the man who drove him to the bodega on the night of the robbery. T. 1273-74, 1275-77.
On April 2, 2005, after learning that petitioner was living in Charleston, South Carolina, T. 1282-96, Detective McAlvin and Detective Ralph Rivera went to speak with petitioner. T. 1299-1302. Petitioner agreed to accompany the detectives to the police station, believing that they intended to give him money owed to him in connection with the confiscation of a car he owned. T. 1299-1302. After realizing that petitioner was intoxicated, the detectives decided not to interview him about the robbery and returned him to his house. T. 1301-02. The detectives returned the following morning, and petitioner again voluntarily accompanied the detectives to the police station. T. 1303. Detective Rivera read petitioner his rights in Spanish, and petitioner acknowledged in writing his understanding and waiver of those rights. T. 1306-10. Petitioner eventually made various inculpatory statements regarding his involvement in the robbery, T. 1319-37, and, after again being informed of his rights, petitioner signed a written statement, T. 1337-39.
According to petitioner's written statement, which was read into the record at trial, he "got together with some other people from Queens to do a robbery out on Long Island," including his son, Benito, Benito's girlfriend, Veronica Diaz ("Diaz"), a man known as "Flaco" (later revealed to be Vargas), and Flaco's friend (later revealed to be Perez). Petitioner picked up Vargas and Perez in petitioner's car and told Vargas that there was a bodega on Long Island that he could rob. T. 1345-46. Petitioner drove to the bodega, went inside, and reported to Vargas that the owner ofthe bodega and another person were inside. T. 1346-47. Vargas and Perez went across the street to wait for the men inside to close the bodega, and petitioner drove away with Benito and Diaz. T. 1347. About thirty (30) minutes later, Benito received a call from Vargas, who said he had shot someone and asked petitioner to come back and pick him up. T. 1347. Petitioner picked up Vargas and Perez and drove everyone back to Queens. T. 1344-48.
Three (3) of the other participants in the robbery testified at trial, each consistently describing the details of the robbery and petitioner's actions. Perez testified that on the night of May 20, 2001 Vargas (known by Perez at the time as Flaco) and petitioner (identified by Perez at trial) picked him up in a car driven by petitioner and told him that they were going to do a robbery. T. 1128-1132, 1145. Petitioner gave Perez a knife, telling him that he needed a weapon to scare people in the bodega. T. 1132-35-36. After parking in the lot next to the bodega, petitioner went to see how many people were inside. T. 1138-40. When petitioner returned, he told Perez and Vargas to wait until the employees closed for the night, and Perez and Vargas went to wait in the woods nearby. T. 1139-40.
When the employees walked out of the bodega, Vargas and Perez approached them and told them not to move. T. 1140. One (1) of the men moved, and Perez stabbed him. T. 1140-41. Vargas told the men to get into the van and face the floor. T. 1141. When one (1) of the men tried to grab Vargas' gun, Vargas shot him. T. 1141. Perez and Vargas then ran and hid under a car until petitioner picked them up and drove everyone back to Queens. T. 1142-43.
Vargas testified that it was petitioner's idea to rob the bodega. T2. 6-7. On the night of the robbery, petitioner, Benito and Diaz picked up Vargas at his house. T2. 9-11. Vargas recruited Perez to help with the robbery. T2. 11-12. Benito gave Vargas a gun, and Vargas gavePerez a knife. T2. 13, 17. Petitioner went inside the bodega to "see if there were a lot of people in there, see if they were going to get ready to close." T2. 15. Petitioner returned and told Vargas and Perez to go hide behind the bodega until the employees came outside. T2. 15-16. Three (3) men walked out of the bodega, and Vargas and Perez "told [them] to get into the van" and demanded money. T2. 17. After "a little fight," Vargas shot Bello. T2. 18.2
Diaz testified that she and Benito got into a car driven by petitioner and that there was a "light-skinned Dominican" in the front seat, who Diaz identified at trial as Vargas. T. 1192-97, 1217. She did not remember whether anyone else was in the car but testified that it was "really tight" in there, T. 1197, 1212, 1224, and recalled that there was a discussion during the ride to Long Island between petitioner and Vargas about a knife. T. 1198-1201,1220. After arriving at the bodega, petitioner went inside to "check if they have any cameras and who was there and to see if they were about to close and stuff like that." T. 1201. When he returned, petitioner said that there were three (3) people inside and that they were getting ready to close for the night. T. 1202. Petitioner also said that there was money in the van parked next to the bodega. T, 1203. After Vargas walked toward the bodega, Diaz heard gunshots and petitioner drove away. T. 1203-04. Benito received a phone call on his cell phone, and petitioner returned to pick up Vargas. T. 1204.
Petitioner testified at trial and denied that he was involved in the robbery. T2. 47. Petitioner testified that he first met Vargas and Perez in 2004 while he was incarcerated in the Suffolk County Jail for drunk driving and violation of his parole. T2.49-52. With respect to his statements to Detectives McAlvin and Rivera, petitioner testified that he was intoxicated duringthe interrogation and that the detectives coerced him into making the statements. Petitioner testified that he "started drinking Friday night, Saturday in the daytime, Saturday night" and that he was very drunk when the detectives arrived on April 2, 2005. T2. 60. After the detectives returned him to his home that night, he drank "[a]Il night" and was still drunk when the detectives returned the next morning because he "didn't stop from [drinking] [since] the time they brought [him] back." T2. 62-64. Petitioner testified that during the interrogation the officers "pushed [him] back" and "were going to hit [him]" and that "[a]fter all of them got up to me, [] [he] ha[d] to do whatever they want[ed] because [he] was drunk and they were about to hit [him] and [he] wanted to go to the bathroom." T2. 66-68.
Petitioner testified that he did not understand the documents that he signed and that the officers "took [his] hand so [he] could sign[ because] [he] was drunk and [] so...
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