Geraci v. Senkowski
| Decision Date | 10 September 1998 |
| Docket Number | No. 98-CV-1440 (JG).,98-CV-1440 (JG). |
| Citation | 23 F.Supp.2d 246 |
| Parties | Sammy GERACI, Petitioner, v. Daniel SENKOWSKI, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Joel A. Brenner, East Northport, NY, for Petitioner.
Charles J. Hynes, District Attorney of Kings County, Brooklyn, NY, by Roseann B. MacKechnie Assistant District Attorney.
Sammy Geraci filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking to vacate his 1992 conviction for manslaughter and assault. Thereafter, the respondent moved to dismiss the petition on the grounds that (1) the petitioner failed to commence this proceeding within the period of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA" or the "Act"), 28 U.S.C § 2244(d)(1); and (2) the petitioner has failed to exhaust his state court remedies with respect to all of his claims. For the reasons set forth below, I conclude that the petition was not filed in a timely manner and that, in any event, it lacks merit.
At approximately 1:00 a.m. on April 20, 1990, following an argument in a Brooklyn nightclub, the petitioner stabbed Anthony Granese in the chest, fatally wounding him. As he fled from the scene, the petitioner also stabbed Rocky Giamportone in the arm and leg. The petitioner then entered a getaway car driven by his brother, Frank Geraci. Another of his brothers, Paul Geraci, apparently attempting to assist in his brother's escape, fired a gun into the crowd, hitting Anthony Gallo in the back. Someone called 911 and identified the petitioner as the person who did the stabbing.
Before the grand jury, Peter Terranova testified that he was present in the Brooklyn nightclub on the night of the stabbing and that he had seen the petitioner stab Granese and Giamportone. Thereafter, the prosecutor informed the trial judge that Terranova had stated to the prosecutor that, if called at trial, he intended to testify that he had not seen who stabbed Granese, thereby contradicting his own grand jury testimony. Based upon Terranova's statements, the prosecutor requested a "Sirois hearing" to determine whether the petitioner had been responsible for Terranova's decision to change his testimony and, if so, whether the prosecution should be allowed to introduce Terranova's grand jury testimony as part of its evidence-in-chief at trial. See In re Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591 (2d Dep't 1983). Over the objections of defense counsel, the trial court granted the request for a hearing.
At the hearing, the evidence showed that, on May 24, 1990, Peter Terranova called the 62nd Precinct to inquire about the status of the case. He was instructed to come to the precinct house, where he asked Detective Frank LaBarbera, who was assigned to investigate the homicide, why "nothing" had been done on the case despite the fact that he had called 911 on the night of the incident in order to identify the perpetrator. Terranova thereupon gave a detailed statement to LaBarbera, again identifying the petitioner as the man who stabbed Granese. Later that evening. Terranova gave a sworn audiotaped statement to an assistant district attorney, providing the same detailed account of the events he had given to LaBarbera.
Terranova stated that the incident began as a fist fight. Terranova was fifteen feet away, and observed the petitioner, whom Terranova had known for ten years, stab Granese with an "underneath motion" in the "chest approximately a little towards the left." The petitioner pulled out the knife, and attempted to flee the nightclub, but he encountered Giamportone, the owner of the bar, whom the petitioner stabbed in the leg. The petitioner then left the club and jumped into a white Ford Mustang driven by his brother Frank Geraci. Terranova had also left the nightclub and was approximately thirty feet away from the car as a group of Granese's friends chased the car, throwing bottles at it. At that point, another of the petitioner's brothers, Paul Geraci, came running out the nightclub and fired a shot into the crowd.
A few days before he was scheduled to testify in the grand jury, Terranova met with LaBarbera and the assistant district attorney outside the Wall Street brokerage firm where Terranova worked. Terranova was nervous about the prospect of being seen at the district attorney's office and about testifying in the grand jury. The prosecutor sought to allay Terranova's concerns by explaining the rules of grand jury secrecy and by telling Terranova that he would try to schedule his testimony at an "off time." Terranova appeared in the grand jury on June 19, 1990, and provided the detailed account implicating the petitioner that he had previously provided to LaBarbera and the assistant district attorney. The petitioner was indicted for murder in the second degree and two counts of assault in the first degree.
In November 1991, the assistant district attorney discovered that the grand jury minutes were missing. He contacted Terranova (who had had limited contact with law enforcement since his grand jury appearance five months earlier), who reported that the petitioner had recently encountered him on the street and asked him to meet with the petitioner's attorney. Terranova reported that he had declined that request, stating that he did not want to get involved.
On January 13, 1992, shortly before the petitioner's trial was scheduled to start, Terranova left his well-paying job at the brokerage firm without notice. His mother later told the firm that he would not be returning and not to ask any questions about him. One week later, Terranova fied the jurisdiction and could not be found despite extensive efforts by the prosecutor.
On February 5, 1992, LaBarbera and the assistant district attorney questioned Terranova's mother about his whereabouts. She would not reveal any information, and apparently was threatened with prosecution for obstructing justice. Thirty minutes after she left the precinct house, Terranova called the detective and prosecutor from Florida. During the conversation which ensued, a conversation which was taped, Terranova asked how "they" found about him. He stated that, in January, he had been asked to meet with an individual who showed him his testimony, and that he feared for himself and his family. According to Terranova, he was told that if he stayed away until the trial was over, neither he nor his family would be hurt. He stated that, if he was called to the stand, he would lie; he further stated that he hated the petitioner.
On March 5, 1992, Terranova was picked up by the police and brought to the assistant district attorney's office. He stated, again, that he had been shown his testimony. The next day he informed the prosecutor that he had received money from "them" and that a friend of his had gone to Harlem to see the petitioner's uncle. That evening, he took the detective aside and stated that he had not in fact seen the stabbing because he had been in the parking lot during the incident.
At the hearing, Terranova stated that he had been inside the nightclub at the time of the stabbing, but that he could not identify the perpetrator. In order to explain the discrepancy between his prior statements and his current account, Terranova stated that he was unsure about the accuracy of his prior statements because the nightclub was crowded and dark and he had been drinking. He denied calling 911, but admitted he told the detective he had done so. He also admitted that, when he met with the detective and prosecutor outside his place of business in June of 1990, he expressed concern about being seen testifying before the grand jury. He further conceded that he left his job and the jurisdiction to avoid testifying at trial, but stated that he did so because he was unsure of what he saw on the night of the incident. Terranova confirmed that the audiotaped phone conversation, which was admitted at the hearing, reflected the conversation he had with the detective and prosecutor on February 5, 1992. He denied speaking to the defendant about the case, and claimed that his only fear was that he would be prosecuted for perjury.
After conducting the foregoing hearing, the trial court issued a memorandum decision. See Respondent's Exhibit B. In that decision, the trial court, after setting forth the foregoing facts, found that the prosecution had proven by clear and convincing evidence that the petitioner had threatened Terranova and that if Terranova were allowed to testify at trial, he would testify falsely. Based upon the foregoing, the court ruled that Terranova was "practically unavailable" to testify and that, accordingly, the prosecution could introduce Terranova's grand jury testimony as part of its case-in-chief. The trial court also held that the People did not have to call Terranova to the witness stand. Respondent's Exhibit B at 17 ().
At trial, the prosecution called, inter alia, Katherine Citarrella, who testified that one week before the night of the fatal stabbing, she had been in a bar and had seen two groups of men engaged in a fight. She testified that she had seen the petitioner, who was in one group, hit Granese, who was in the other group. In addition to Citarrella, the prosecution also called several employees and patrons of the Brooklyn nightclub. Although they all had been present at the time of the stabbing, they testified that they had not seen who stabbed Granese. The prosecution also introduced Terranova's grand jury testimony, which was read into the record by a court reporter.
After the prosecution rested, the defense called Vincent Michelino. Michelino stated that Terranova had been outside the bar at the time of...
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