Guardino v. Sabourin
| Decision Date | 03 December 2012 |
| Docket Number | 11 Civ. 6906 |
| Parties | ANTHONY GUARDINO, Petitioner, v. JOHN SABOURIN, Superintendent, Bare Hill Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
APPEARANCES:
Attorneys for Petitioner
PELUSO & TOUGHER
By: David Touger, Esq.
Attorneys for Respondent
N.Y.S. Office of the Attorney General
120 Broadway
New York, NY 10271
By: Lisa E. Fleischmann, Esq.
Anthony Guardino ("Guardino" or the "Petitioner") filed a petition seeking habeas corpus relief pursuant to 28 U.S.C. § 2254 to vacate his conviction entered on February 6, 2007, in New York State Supreme Court, New York County (the "Trial Court"}, convicting him, after a jury trial, of Enterprise Corruption (N.Y. Penal Law § 460.20(1)(a)), Combination in Restraint of Trade and Competition (General Business Law §§ 340, 341), 13 counts of Bribe Receiving by a Labor Official (N.Y. Penal Law § 180.25) and seven counts of Grand Larceny in the Third Degree by Extortion (N.Y. Penal Law § 155.35). The Trial Court sentenced the Petitioner to an aggregate prison term of 6 to 18 years.
In the alternative, the Petitioner requests that this Court order a reconstruction hearing to enable the prosecution (the "Prosecution" or the "People") to provide neutral reasons for its peremptory changes.
Based upon the conclusions set forth below, the petition is denied.
On July 15, 2004, a New York County grand jury returned a 54-count indictment against the Petitioner, John Barbato ("Barbato"}, Michael Verdi ("Verdi"), Sebatino Russo ("Russo"), John Esposito ("Esposito"), Donna Catalano ("Catalano"), Michael Errante ("Errante"), Joseph Garito ("Garito"), and Local Union No. 8 of the United Union of Roofers, Waterproofers and Allied Workers (the "Local") (collectively the "Defendants"). Indictment No. 3491/04. The indictment charged the Defendants with enterprise corruption and combination in restraint of trade, as well as related crimes that included multiple counts of grand larceny by extortion and bribe-receiving by a labor official. Prior to trial, Russo, Barbato, Verdi, and the Local entered guilty pleas and Catalano entered a plea and cooperation agreement, pursuant to which she testified at trial.
On October 16, 2006, the Petitioner, Garito, Errante, and Esposito proceeded to trial before the Honorable Robert H. Straus and a jury in the Trial Court. Errante and Garrito were acquitted on all counts. Esposito was acquitted of some counts but convicted of bribe-receiving. The Petitioner was acquittedof some counts but convicted of enterprise corruption and other counts.
On October 23, 2006, several panels of prospective jurors were asked to complete questionnaires, and then examined in connection with challenges for cause (Voir Dire Volume 1: 10/16/06 to 10/23/06). The Prosecution and defense were given time to review the questionnaires and to make motions to the Trial Court to dismiss those jurors that they felt would be unable to be fair and impartial (A. at 1-79).
From the remaining venire, 26 remaining jurors were chosen to be orally questioned (Id. at 97-99). The parties questioned the prospective jurors and the Trial Court excluded one prospective juror for cause. (Id. at 202-03). The Trial Court described the challenging procedure and Garrito's counsel, David Touger, Esq. ("Touger"), was elected to exercise peremptory challenges for all of the defendants, including the Petitioner. (Id. at 207).
The Trial Court entertained challenges to jurors forcause from the Prosecution and each defense counsel individually. (Id. at 212-14). The parties were then asked for their peremptory challenges. At the end of the first panel, eight jurors were selected, none of whom were African-American females.
A second panel of 26 jurors was then questioned. (Id. at 220-341). The Trial Court excused one prospective juror for cause. (Id. at 361). After a set of peremptory challenges from the parties, Dolcine Monk ("Ms. Monk"), a South American woman from Suriname, was seated on the jury. (Id.). The Prosecution then challenged April Curry ("Ms. Curry"), the last African-American female remaining in the venire. (Id. at 369).
Petitioner made an objection to the Trial Court based on Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and stated:
At this point we make a Batson challenge to the People's response. If you go back to the first panel, they bounced every African American female or I shouldn't say -- ethnic female and the only one in this panel that they kept was Ms. Monk. Now we're at Ms. Curry. The first panel there was no outstanding issue that we could find for the reasons they bounced her. I ask that they give a reason for why they're bouncing all the African American females . . . .
Touger narrowed the objection by listing each of the African-American female prospective jurors that the People had challenged. Counsel stated that the "[o]nly one they kept was Dolcine Monk," a sworn juror, whom he characterized as (Id. at 370).
The Trial Court listed the Prosecution's use of peremptory strikes against women in both panels, noting that the People had peremptorily challenged six white females and stated that "there's a certain percentage of challenges that the People have exercised either to black jurors wherever they may come from and an Hispanic female juror." (Id.). The Petitioner's counsel stated, "that's four out of five of the young, younger female blacks, and there's a broader pattern of all females, but certainly is a distinct pattern of female black." (Id.).
The Trial Court then asked if Petitioner's Batson challenge rested on the class of black women, and counsel agreed. (Id. at 371-72). The Trial Court also noted that "thecase law on that subject is interesting," and observed that "it pretty much comes down to exactly what you've alleged with regard to the use of peremptory challenges . . . And I don't believe you have gone." (Id. at 372). Touger then explained that, (Id.). Another defense attorney added that, (Id.). The Trial Court responded:
. . . when you say all of them . . . you have to include then Ms. Christian in seat 4, despite her last name, I wrote, I indicated, at least to me, she's a female Hispanic. She was challenged by the defense peremptorily. Ms. Matos Guzman was challenged by the defense peremptorily. Mr. Cao was a male Asian challenged by the defense peremptorily. He's not a Caucasian; although, he might be classified that way, who knows, by what bureau of the Government, but, could be considered a person not white. Ms. Meyers, female black challenged by the defense peremptorily. I think that's about it.
The Trial Court noted that of the five black females on the panels, the defense removed Mira Meyers ("Ms. Meyers").(Id. at 373). The Trial Court stated that "there have not been presented to me sufficient facts to make out a pattern of the purposeful use of peremptory challenges to which [sic] include a recognizable group." (Id.). Touger explained that Ms. Meyers was stricken because she had worked for the Police Academy. (Id.). The Trial Court told Touger that he did not have to provide any reason for his challenge, but counsel nonetheless continued, "I think the record has to be clear, there was a clear reason why Ms. Meyers was bounced[;] she worked for the Police Academy." (Id. at 373-74).
Petitioner's counsel then reiterated his earlier argument asking for the Prosecutor to provide a race-neutral reason for the peremptory challenges. (Id. at 3 92). The Trial Court responded that "[t]he only reason I went through the rest of the challenges was that one of the defense counsel [ ] made a statement I think that required some explanation for the record in the event the record is later on examined." (Id. at 3 74). None of the defense counsel asked to place any other relevant facts on the record and the Trial Court moved on to conduct the rest of the voir dire. At no later point did the defense raise the Batson issue or seek to supplement their arguments.
At trial, the People presented witnesses and documentary evidence in support of the charges in the indictment. The jury began its deliberations on the morning of December 12, 2006. (Id. at 664). It sent various notes that day seeking instructions. (Id. at 669-72). When the Trial Court excused the jury that day, it had been deliberating for "somewhat over five hours," excluding the time taken for reinstruction. (Id. at 719).
The following day, deliberations were curtailed because the Petitioner went to the hospital. (Id. at 792-99). In the meantime, the jury sent two notes at 1:21 p.m. (Id. at 788). One read: "If we cannot deliberate with a juror or if there was any violation of the laws because quote, that's the way business is done, unquote, do we continue?" (Id. at 788, 795). The other read: "Does juror number three have a right to vote not guilty without being slanderized?" (Id. at 779, 785). Although counsel began to discuss these notes, the matter was tabled until Petitioner returned. (Id. at 778-86). Thus, the jury was excused without any response, after having deliberated for approximately 3 1/2 hours. (Id. at 790).
On December 15, 2006, the Trial Court and counsel discussed the two notes from Wednesday, (Id. at 820-35). Petitioner's counsel stated that ...
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