Mackenzie v. Portuondo, s. 99-CV-4659 ADS, 99-CV-4660, 99-CV-4661.
| Decision Date | 20 May 2002 |
| Docket Number | Nos. 99-CV-4659 ADS, 99-CV-4660, 99-CV-4661.,s. 99-CV-4659 ADS, 99-CV-4660, 99-CV-4661. |
| Citation | 208 F.Supp.2d 302 |
| Parties | Edward MACKENZIE, Petitioner, v. Leonard A. PORTUONDO, Warden, Shawangunk Correctional Facility, and the State of New York, Respondents. |
| Court | U.S. District Court — Eastern District of New York |
Edward Mackenzie, Wallkill, NY, Petitioner pro se.
Denis Dillon, District Attorney of Nassau County, by Tammy J. Smiley and Bruce E. Whitney, Asst. District Attorneys, Mineola, NY, Attorneys for Respondent.
Edward MacKenzie ("Petitioner") seeks a writ of habeas corpus with regard to his 1994 conviction in Nassau County Court for Kidnapping in the Second Degree (N.Y. Penal Law § 135.20), two counts of Robbery in the Third Degree (N.Y. Penal Law § 160.05), and Unauthorized Use of a Motor Vehicle in the First Degree (N.Y. Penal Law § 165.08).
In the afternoon of August 5, 1992, Trisha Krajci walked from her job at Service Merchandise on Hempstead Turnpike, East Meadow, to her car, which she parked in a lot adjacent to the store. Ms. Krajci was on her way to Price Club to buy diapers for her infant son. She entered her vehicle and sat in the driver's seat for a moment while searching through her purse to locate her Price Club shopper's card. After Ms. Krajci started the engine, the Petitioner opened the driver's side door and pushed his way into the car. Ms. Krajci repeatedly told him to get out. The Petitioner claimed to have a gun and told her he would kill her if she continued to resist. He demanded that she move over to the passenger's seat. Ms. Kracji cried and pleaded with the Petitioner to release her and take the car. She told him that she had an infant son and that her husband was a police officer. The Petitioner yelled at Ms. Kracji, "shut up, I have a gun, I'll fucking kill you." The Petitioner took the driver's seat, forced Ms. Krajci to lay on the floor, and drove away.
Eventually the Petitioner allowed Ms. Krajci to sit upright in the passenger's seat, and she observed they were traveling on the Southern State Parkway. The Petitioner then forced Ms. Krajci to turn over her bank card and personal identification number. He drove to a Dime Savings Bank ATM machine in North Bellmore and withdrew three hundred dollars ($300.00) from her account.
After obtaining money from Ms. Krajci's bank account, the Petitioner drove into Manhattan. He demanded that Ms. Krajci lie down on the seat again, and this time forced her to remove her shoes. At some point, he stopped the car, got out, and demanded that Ms. Krajci remain in the car. He locked the doors, took the keys with him, reminded Ms. Krajci that he had a gun, and told her he would be able to see her if she tried to escape. When the Petitioner returned, Ms. Krajci saw that two brown paper bags and two cans of beer. He threw one of the cans at her and ordered her to open it. He drank the beer while he drove. The Petitioner took a glass vial from one of the brown bags, and used a pen from Ms. Krajci's purse to smoke the vial's contents.
After driving around for approximately fifteen minutes, the Petitioner stopped the car again. He called out to several men standing in the street and asked them where he could buy drugs. Two men entered the back seat of the car and spoke with the Petitioner for several minutes about where he could purchase drugs. The Petitioner gave money to one man, who returned shortly, having been unable to buy anything.
The Petitioner resumed driving around the area, hit another car, but did not stop. Next, Petitioner parked Ms. Krajci's car in a public garage near Times Square. The Petitioner forced Ms. Krajci out of the car and into the street, walking behind her toward the corner of 8th Avenue and 42nd Street. Three uniformed New York City Police Officers who were standing on that corner, reported that, at approximately 4:45 p.m., Ms. Krajci frantically ran up to them. She was crying hysterically and grabbed one of the officer's by the arm, yelling, When the officers asked Ms. Krajci to point out her abductor, she pointed to Petitioner, who was standing approximately five to ten feet away, stating,
Two of the officers, Philip Repaci and James Fogarty, approached the Petitioner and asked him to stand with his hands against a nearby wall. Officer Repaci removed a crack pipe from the Petitioner's left hand. His pat-down search revealed that the Petitioner carried 69 vials of crack, four decks of heroin and two shotgun shells in his pocket. After discovering these items, Officer Repaci told the Petitioner he was under arrest, and handcuffed one of his hands. Before Officer Repaci could restrain the Petitioner's other hand, the Petitioner swung around, hit Officer Repaci with the dangling cuff, and attempted to flee. Officer Fogarty and several back-up police officers struggled with the Petitioner and eventually subdued him.
The Petitioner was taken to Roosevelt Hospital for injuries he sustained while resisting arrest. New York City Detective Robert Fleming entered the Petitioner's hospital room and read the Miranda rights to him. The Petitioner indicated that he understood his rights, and he was willing to speak with the detective. The Petitioner identified himself as Robert Burns, and claimed to have met Ms. Krajci at a night club several week earlier and got together with her at a Burger King restaurant a few days before this incident. The Petitioner claimed that Ms. Krajci consented to the entire day. The Petitioner stated that he and Ms. Kracji met in Foodtown that afternoon, and she agreed to drive him into Manhattan to purchase drugs. He claimed that Ms. Kracji withdrew money from a bank. The Petitioner also admitted that he purchased sixty vials of crack for $180 and smoked several vials while driving around Manhattan.
Later that evening, Nassau County Detective John Kouril attempted to question the Petitioner. Detective Kouril entered the Petitioner's hospital room, introduced himself, and told the Petitioner he was investigating a kidnapping. He read the Miranda warnings to the Petitioner and asked him if he understood his rights. The Petitioner did not respond. Detective Kouril asked the Petitioner if he would sign the rights card and answer questions without consulting an attorney. The Petitioner refused, and told Detective Kouril twice to "get out [his] fuckin' face." Detective Kouril told the Petitioner that he would return for him, and the Petitioner responded,
On March 23, 25, and 26, 1993, the court held a suppression hearing and determined that the Petitioner's statements to Detective Kouril were admissible at trial. See Order dated May 26, 1993, of Supreme Court, Nassau County (Goodman, J.) at 1-5.
On January 14, 1994, the Petitioner's jury trial began in Supreme Court, Nassau County (Goodman, J.). The Petitioner represented himself throughout the trial. The jury convicted the Petitioner of Kidnapping in the Second Degree, Robbery in the Third Degree, and Unauthorized Use of a Motor Vehicle in the First Degree. On March 16, 1994, Justice Goodman sentenced the Petitioner, as a persistent felony offender, to four concurrent indeterminate terms of twenty-five years to life.
The Petitioner directly appealed his conviction to the Appellate Division, Second Department, alleging ten points of error: (1) the trial court erred in denying the Petitioner's motion for dismissal of the indictment; (2) the Petitioner's conviction should be vacated because he was forced to testify before the Grand Jury wearing his prison uniform; (3) the prosecution failed to provide race-neutral reasons for its Batson challenges; (4) the prosecution failed to disclose Rosario material at the suppression hearing; (5) the trial court erred in admitting evidence of the crack vials and heroin decks; (6) the trial court's denial of the Petitioner's motion for a bill of particulars prevented him from preparing a defense and deprived him of a fair trial; (7) the trial court erred in not applying the "merger doctrine" to dismiss the Kidnapping charge; (8) the trial court erred in admitting the Petitioner's statement; (9) the verdict was against the weight of the evidence; and (10) the Petitioner's sentence was harsh and excessive.
On September 30, 1996, the Appellate Division, Second Department remitted the matter to the trial court for a hearing on the Petitioner's speedy trial and Batson claims. See People v. Mackenzie, 231 A.D.2d 740, 741, 647 N.Y.S.2d 825 (2d Dept.1996). After a hearing in Supreme Court, Nassau County, Justice Goodman found that the Petitioner's speedy trial rights had not been violated, nor had the prosecutor used his peremptory challenges based on race. See Order dated December 4, 1996, of Supreme Court, Nassau County (Goodman, J.) at 1-3.
On September 29, 1997, the Appellate Division, Second Department, affirmed the Petitioner's conviction, finding that the record supported the trial court's determination that a Batson violation had not occurred; that the trial court properly denied Petitioner's motion to dismiss the indictment on speedy trial grounds; and that the remaining issues were without merit. See People v. MacKenzie, 242 A.D.2d 739, 740, 664 N.Y.S.2d 947 (2d. Dept.1997). On June 2, 1998, the Court of Appeals denied leave to appeal. See People v. Mackenzie, 92 N.Y.2d 855, 677 N.Y.S.2d 86, 699 N.E.2d 446 (1998).
On December 22, 1998, the Petitioner moved to vacate the judgment of conviction, pursuant to N.Y.Crim. Proc. Law § 440.10(h), alleging that he was...
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