Lee v. Ricks

• Decision Date: 08 September 2005
• Docket Number: No. 02-CV-6456.,02-CV-6456.
• Parties: Joseph LEE, Petitioner, v. Thomas RICKS, Superintendent, Upstate Correctional Facility, Respondent.
• Court: U.S. District Court — Western District of New York

388 F.Supp.2d 141

Joseph LEE, Petitioner, v. Thomas RICKS, Superintendent, Upstate Correctional Facility, Respondent.

No. 02-CV-6456.

United States District Court, W.D. New York.

September 8, 2005.

COPYRIGHT MATERIAL OMITTED

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Joseph Lee, Auburn, NY, pro se.

Michael J. Nolan, Rochester, NY, for Respondent.

DECISION AND ORDER

BIANCHINI, United States Magistrate Judge.

Joseph Lee ("Lee") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on charges of robbery, attempted robbery and assault. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The conviction at issue stems from two separate robberies: the robbery of a delicatessen and the attempted robbery of a liquor store both in the City of Rochester on the evening of February 1, 1999, by Lee and his co-defendant, Fred Walker ("Walker"). Lee and Walker were arrested that same night. A Monroe County Grand Jury returned a indictment charging the two men with various counts of robbery, attempted robbery, and assault. The defendants' severance motions were denied, and they were tried jointly in Monroe County Court (Sirkin, J.) before a jury.

At trial, the prosecution presented evidence that at about 7:45 p.m. on February 1, 1999, owner Tanios Sarkis ("Sarkis") was working alone his store, Wadi's Deli, located at 391 Chili Avenue when a black male entered and asked if he had any doughnuts. Seconds later, another black male, carrying a stick, walked in and demanded money. Sarkis informed them that they could take whatever cash was in the register. In response, the second man hit Sarkis with the stick. When Sarkis reached for his shotgun, both men forced him to the ground, kicked him, and beat him with the stick, causing Sarkis to suffer a broken arm. The perpetrators then left the delicatessen with the shotgun. See T.219-34.¹

Officers Swain and Vail of the Rochester Police Department responded to the 911 call and arrived on the scene about 15 minutes later. They interviewed the seventy-year-old Sarkis, who was in considerable pain, and sent him to the hospital. As they were looking for suspects, they received a call about an incident at Henner's Liquor Store at 556 Chili Avenue and went to investigate. T.435-37.

At about 8:20 p.m. that evening, Patricia Martin ("Martin") and Anna Kendrick ("Kendrick") were working at Henner's Liquor Store when two black men entered the store. T.266-69, 280, 300-04, 323. One of the men wore a red scarf partially concealing his face and head. The other man began talking to customer Frances Brown ("Brown") who recognized him as a family friend known to her as "Darnell." At trial, Brown identified Darnell as petitioner Lee. T.268-70, 332. The man in the headscarf remained quiet during Brown's conversations with Lee. T.332-33. Both Kendrick and Martin believed that the men were together because they were conversing with each other as they walked in. T.268-69, 314. Brown testified that Lee walked in first and that the man in the headscarf walked in right after him, but she did not testify that they were speaking to each other. T.345.

Several minutes later, the man in the red headscarf pulled out a shotgun and pointed it at Martin's face. Believing it was a toy, Martin told him, "Don't even play with me like that[,]" and walked away from him. T.270. Kendrick also thought that it was a joke until the gunman told everyone not to move and waved the gun in the air. T.305, 315-17. According to Kendrick, Lee remained calm and continued to talk to Brown while the man in the headscarf pointed the gun at the other customers. When Brown questioned Lee about why he was ignoring the gunman, he replied, "`Well[,] this guy is not going to shoot me.'" T.335-36, 346-47. Brown described the demeanor of Lee as nonchalant and somewhat flirtatious throughout this episode.

Martin ducked into the back room where she called the police. The gunman did not attempt to prevent her from the leaving the front part of the store. T.290-91. When Martin returned to the front of the store, she discovered that the gunman had departed and that Lee was still talking to Brown and trying to ask her out on a date. T.272, 283, 337, 346. Kendrick and Brown both testified that prior to leaving, the gunman had announced, "If I really wanted to rob this place I had a perfect opportunity." T.327, 337. Martin and Brown testified that they accused Lee of knowing the gunman, but he kept insisting that he was not with the gunman and did not even know him. T.273, 284, 338.

When Officer Swain and his partner arrived at Henner's Liquor Store, they encountered Lee, who informed them, "I'm not the one, the guy went out the store [sic]." T.340. The police took off in pursuit and headed north down Gardiner Avenue. As they approached West Avenue, they were waved down by a man who identified himself as Alvin Davis ("Davis") and who purported to have information concerning the robbery at Wadi's Deli. After a brief conversation, they took Davis with them in the patrol car and headed back toward Henner's Liquor Store. Upon seeing Lee standing on the sidewalk, Davis pointed at him, indicating that Lee had been involved in the robbery of Henner's Liquor Store. The officers then placed Lee in the patrol car and brought him over to the hospital to perform a show-up.

In the meantime, at 8:27 p.m., Officer Jeroy of the Rochester Police Department received a police broadcast which led him to turn onto Fillmore Avenue. There he observed a black man, carrying a long gun and clad in red clothing, walking through the backyards. T.376-77. Officer Jeroy stopped his car, got out, and ordered the man to put up his hands and drop the gun. T.379. Officer Jeroy handcuffed the man and brought him over to the hospital (where Officer Swain was waiting with Lee) to do a show-up identification. Officer DiVincenzo facilitated separate show-ups of Lee and Walker at the hospital with Sarkis. The procedures followed during both show-ups were the same: First, the officers removed the defendant from the patrol car. Then, they faced the defendant toward Sarkis and had the defendant turn to his right, turn to his rear, turn to his right again, and then turn fully around. T.466-67. The show-ups lasted for about two minutes each, and the area outside the emergency was brightly lit. T.439-45. Sarkis did not receive any pain medication until after conducting the show-up procedures. T.469. Sarkis identified the first handcuffed man (i.e., Walker) as the person who had carried the stick and the second handcuffed man (i.e., Lee) as the person who had asked for a doughnut. T.236-37, 248-49, 261-63. He identified both men as the ones who had beaten him. After the gun was retrieved following Walker's apprehension, Sarkis identified it as his stolen shotgun. T.237-38, 421.

Lee and Walker then were brought to Henner's Liquor Store to do a show-up identification. Martin identified Walker as the person who held the gun in her face and Lee as the man who was talking to Brown during the incident. T.275-76. Kendrick also identified Lee and Walker during the show-up. T.312-13.

Lee and Walker were tried jointly before a jury. At trial, the victims of the attempted robbery of the liquor store were able to identify Lee and Walker as the perpetrator, but Sarkis, the victim of the deli robbery, was unable to identify the two perpetrators. T.258, 372-81. After the prosecution rested, Lee's defense counsel moved to dismiss the indictments, but this motion was denied. T.492. Lee did not testify. Walker, however, took the stand and denied going into Wadi's Deli, stealing the shotgun, or injuring Sarkis. T.514-19. Walker admitted that he knew Lee, who lived next door to him. Walker related that he had been attacked by two black males earlier in the evening. He explained that he found an abandoned shotgun next to a dumpster and went into Henner's Liquor Store alone with the gun to find his assailants. T.497-99, 501-12, 539. Walker testified that he did not have any intent to rob the liquor store that night.

The jury returned a verdict convicting Lee and Walker of all counts in the indictment. Lee was sentenced as a second violent felony offender pursuant to New York Penal Law § 70.04. On the first seven counts relating to the robbery and assault that occurred at Wadi's Deli, Lee was sentenced to concurrent determinate terms of imprisonment, the longest of which was 20 years. Lee received a five-year term of imprisonment on both the eighth and ninth counts, which stemmed from the attempted robbery of Henner's Liquor Store. The sentences on counts eight and nine were set to run concurrently with each other but consecutively to the sentences imposed for counts one through seven. See December 17, 1999 Sentencing Transcript at 4-5.

On direct appeal, Lee argued that his conviction should be overturned because (1) the court abused its discretion in declining to give an expanded identification charge; (2) the attempted robbery conviction was based on legally insufficient evidence; (3) the court erroneously admitted evidence from the show-up conducted at the hospital with Sarkis; (4) the court erroneously denied defendant's request to call the complainant, Sarkis, as a witness at the hearing to suppress the identification evidence; (5) the court improperly denied defendant's severance motion; and (6) the sentence was harsh and excessive. Lee submitted a pro se supplemental brief arguing several additional points; the prosecution urged that the brief be rejected as untimely. The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed his conviction on June 8, 2001. People v. Lee, 284 A.D.2d 943, 725 N.Y.S.2d 910 (4th Dept.2001). The New York Court of Appeals denied leave to appeal on August 17, 2001. People...