Martin v. Smith
| Decision Date | 01 February 2013 |
| Docket Number | 09-CV-5515 (SLT) |
| Parties | SYLVAN MARTIN, Petitioner, v. JOSEPH T. SMITH, SUPERINTENDENT, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
On November 22, 2002, pro se petitioner Silvan Martin was convicted in the Supreme Court of the State of New York, Kings County, of second degree murder and second degree menacing. He now petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, his petition is denied.
In the early-morning hours of June 3, 2001, Corey Phillip was shot multiple times during an incident outside of 2109 Regent Place in Brooklyn, New York. (Tr. 131). Hozel Charles, who knew Martin and Phillip, testified that he saw Martin standing over Phillip and shooting as Phillip was shouting. (Tr. 331). Phillip later died of his wounds. Several weeks later, in front of 1593 Prospect Place in Brooklyn, New York, Martin pointed a gun at Garth Wilson and threatened to "hit" Wilson "like Corey." (Tr. 241, 243). Martin was charged with and convicted of Murder in the Second Degree, under N.Y. Penal Law § 125.25[1], and Menacing in the Second Degree, under N.Y. Penal Law § 120.14[1].
The trial commenced on November 13, 2002, before Justice Abraham Gerges, during which about a dozen witnesses testified for the prosecution. The defense called one witness and Martin did not testify.
On November 14, 2002, Justice Gerges heard argument regarding the admission of photographs of Martin from the day of his arrest. (Tr. 175-78). Defense counsel argued that because identification was not at issue - witnesses recognized Martin because they knew him - "really what the People are putting it in for [is] to show . . . he looked like a bad guy in January, 2002, and he tried to alter his appearance today so that the jury will be thinking he's a nice looking guy." (Tr. 177-78). The court denied the request to exclude the photographs. (Tr. 178).
On November 19, 2002, Justice Gerges announced that he had been informed that "one of the jurors feels intimidated by family of the defendant when they meet them in the elevator, et cetera." (Tr. 458). Alternate Juror Number Four, a correction officer, was brought into the courtroom alone and related the following information:
ALT. JUROR FOUR: I have been told by at least three jurors, all three women, that maybe defendant's people is out there, . . . after we were dismissed standing there, just watching them, leering at them, and in one case, juror number ten was in the elevator, and one wom[a]n said to another, but loud enough for her to hear, that she's one of the jurors. . . . It's another one, juror seven, who is like really scared, and I rode home on the train with her . . . because she was really scared because they were out there waiting. . . . She was the last one to come in today. She was really scared last night, petrified.
(Tr. 463-64). Justice Gerges directed Alternate Juror Number Four to leave the courtroom and called in Juror Number Seven for questioning:
(Tr. 466-67). Justice Gerges then spoke with Juror Number Ten and Juror Number Five, separately, each of whom described some contact with Martin's family members, but indicated they were not fearful, would be comfortable having transportation home, and could be fair and impartial. (Tr. 468, 470). Summoned for further questioning, Juror Number Seven affirmed that she would feel more comfortable with car service home and having lunch brought in - and she stated: "Yes . . . I can be fair." (Tr. 473). Justice Gerges then called in and interviewed the rest of the jurors individually. (Tr. 478-96). Most indicated they had heard discussion about the issue from other jurors, but each stated he or she could be fair and impartial going forward. After hearing argument from both counsel, Justice Gerges denied Martin's application for a mistrial. (Tr. 501). He then brought in the jurors and instructed them not to speculate on thereasons for the transportation and in-house lunch, that the case was to be decided on the evidence presented in court, and they should bring any further concerns to the court without discussing it with other jurors. (Tr. 504).
On November 20, 2002, defense counsel renewed his application for a mistrial, arguing that the measures undertaken by the court to assuage discomfort "corroborates the jurors' own belief that they have something to be afraid of concerning this defendant or his family and I don't see how that prejudice can be undone." (Tr. at 580). The court again denied the application. (Tr. 581). Defense counsel then requested that the court replace only Juror Number Seven because "although her final answer said yes," she could be fair, she was initially "equivocal." (Tr. 583). The court also denied this application. Having reviewed Juror Number Seven's responses on the record, the court determined that based on the way the juror spoke, the tone of her voice, and her demeanor, she could be fair and impartial. (Tr. 623).
On November 22, 2002, the jury returned a verdict, convicting Martin of second degree murder and second degree menacing. (Tr. 755).
On December 3, 2002, Martin moved pursuant to CPL § 330.30 to set aside the verdict and for a hearing "as to improper juror conduct or discussions prior to the deliberation process." (Resp. Appx. A-46). Defense counsel stated in his affirmation that several days after the verdict, he "received a telephone call from alternate juror number 2," who "indicated that she believed that several of the jurors had improperly discussed their feelings and concerns involving the trial prior to the commencement of the deliberation process." (Resp. Appx. A-49-50). According to that woman's affidavit, the discussions concerned the fears regarding Martin's family expressed by juror number seven and comments from alternate juror number four, some of which took place after the court interviews and instructions to the jury. (Resp. Appx. A-51 -52). The Peopleopposed the motion, arguing that the affidavit merely reiterated information already investigated at trial and that "defense counsel seeks to relitigate the issue without bringing any new evidence." (Resp. Appx. A-54).
On December 19, 2002, Justice Gerges heard argument on the motion. Defense counsel conceded that "I don't have evidence to put forth in my affidavit or motion papers to indicate if there was actual impact that I can speak of," but argued that he had a "good faith basis" to contact the other jurors, make a record of their responses, and hold a hearing on the issue. (S. 5). The court denied the motion for a hearing in light of the hearing that took place at trial. (S. 6). The court thereupon sentenced Martin to concurrent prison terms of twenty-five years to life on the murder conviction and one year on the menacing conviction. (S. 20).
On the day of sentencing, Martin's trial attorney prepared a notice of appeal as he had promised his client, but failed to address the envelopes properly. On June 3, 2004, unaware that a notice of appeal had not been properly filed on Martin's behalf, defense counsel attempted to file a brief but the appeal was rejected by the Appellate Division, Second Department (the "Appellate Division"). On June 7, 2004, defense counsel filed a motion to extend the time to make an appeal and to file a late notice pursuant to CPL § 460.30. On July 1, 2004, the Appellate Division denied the motion. Martin thereafter retained a new attorney who, on August 9, 2004, filed a writ of error coram nobis, alleging ineffective assistance of counsel for failure to secure Martin's right to appeal. The People did not oppose the application, but the Appellate Division denied the motion, construing it as a renewed motion to extend his time to take an appeal. On January 5, 2005, the New York Court of Appeals dismissed Martin's application for leave to appeal. People v. Martin, 4 N.Y.3d 765 (N.Y. 2005).
On December 20, 2005, Martin filed a petition in this Court for a writ of habeas corpus ("2005 Petition"), claiming ineffective assistance of counsel for failure to file a notice of appeal. Martin v. Smith, 05-cv-5956 (DGT) ("Martin I"). Respondent filed a response agreeing with Martin's petition and on November 30, 2006, Judge David G. Trager granted a conditional writ, ordering that Martin "be permitted to initiate and prosecute a direct appeal from his conviction within a reasonable period of time." (Martin I, Docket No. 5 at 2).
Following Judge Trager's decision, the Appellate Division granted Martin's motion to reargue for an extension. Martin's appellate counsel perfected Martin's direct appeal, arguing that (1) the trial court improperly refused to declare a mistrial after jurors indicated fear of Martin's family and supporters; (2) the trial court's denial of Martin's post-trial motion for a hearing was an abuse of discretion; (3) the trial court improperly admitted Martin's arrest photograph; (4) the prosecutor made...
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