McCray v. Graham

Decision Date03 December 2014
Docket Number14 Civ. 5983 (PKC) (AJP)
PartiesLIONEL MCCRAY, Petitioner, v. HAROLD D. GRAHAM, Respondent.
CourtU.S. District Court — Southern District of New York


ANDREW J. PECK, United States Magistrate Judge:

To the Honorable P. Kevin Castel, United States District Judge:

Pro se petitioner Lionel McCray seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction following a jury trial in Supreme Court, New York County, of two counts of second degree burglary and consecutive sentences of seven and a half years imprisonment for each. (Dkt. No. 1: Pet. at 1-2.)1

McCray asserts that the evidence was legally insufficient to support a finding that the building he burglarized was a "[d]welling" under New York's second degree burglary statute, in violation of his due process rights (Pet. at 5, 16-17), and that his consecutive sentences violated the Fifth and Eighth Amendments to the United States Constitution because he allegedly engaged in a single course of conduct (Pet. at 7, 18-19).

For the reasons set forth below, McCray's habeas petition should be DENIED.


On October 6, 2009, at approximately 10:30 p.m., McCray unlawfully entered theemployee locker room of the Hilton Times Square Hotel at 234 West 42nd Street in Manhattan and fled upon being discovered. (Dkt. No. 13: State Record ("State R."): McCray Ct. App. Br. at 4, 9-11; State Ct. App. Br. at 1-2, 11-12.) Several hours later, at about 1:30 a.m. on October 7, 2009, McCray illegally entered Madame Tussaud's Wax Museum, located in the same building. (McCray Ct. App. Br. at 5-6, 12; State Ct. App. Br. at 2, 14-15.) Shortly after leaving Madame Tussaud's around 4:00 a.m., McCray was arrested while in possession of a hand truck loaded with stolen electronics. (McCray Ct. App. Br. at 4-5, 15; State Ct. App. Br. at 18-19.)

The Trial

On August 3, 2010, McCray's jury trial before Justice Patricia Nunez commenced. (Dkt. No. 13: Trial Transcript ("Tr.") 344.)

The Prosecution Case
The Building at 234 West 42nd Street

234 West 42nd Street in Manhattan is a large high rise building that takes up half the block between Seventh and Eighth Avenues. (Dkt. No. 13: Horniak: Tr. 447, 475; Rainey: Tr. 514, 530-31.) In October 2009, the building housed the Hilton Times Square Hotel and other businesses, including Madame Tussaud's Wax Museum. (Horniak: Tr. 445-48, 471, 473-74; Rainey: Tr. 514-15, 534-36; Bagshaw: Tr. 588.) The Hilton had a ground floor lobby area that ran between its two entrances on 41st and 42nd Streets, a storage room and offices on the second floor, and a main lobby on the fourteenth floor, with 435 guest rooms located on the thirty floors above. (Horniak: Tr. 445-47, 453, 470-73, 497-98.) Madame Tussaud's occupied ten floors below the fourteenth floor. (Horniak: Tr. 445-48; Rainey: Tr. 562-63; Bagshaw: Tr. 617.)

Businesses in the building had separate entrances, but were connected internally via shared emergency stairwells. (Horniak: Tr. 447-48, 470-71, 473-74, 489; Rainey: Tr. 534-36, 540-41, 543-45; Bagshaw: Tr. 618.) The Hilton and Madame Tussaud's shared a connection to stairway D, allowing a person in that stairway potential access to both. (Horniak: Tr. 470-74, 476-79; Rainey: Tr. 516, 544-45, 562; Bagshaw: Tr. 618.) The stairway doors were accessible to the public from the inside as a means of egress but were kept locked from the outside to prevent unauthorized access. (Horniak: Tr. 477-78, 486, 495-96, 512; Rainey: Tr. 516-17, 563-65, 569-71.) Stairway D back into the Hilton, however, is not locked. (Horniak: Tr. 490.)

The building and its tenants had security teams that coordinated with each other. (Horniak: Tr. 444-45, 449-50, 487; Rainey: Tr. 514-15, 534, 538-39.) Andre Rainey handled the building's overnight security. (Rainey: Tr. 514, 538-39.) Frank Horniak performed the same role for the Hilton. (Horniak: Tr. 444-45, 489.) The building's security team was responsbile for securing stairway D and its exit onto 41st Street. (Horniak: Tr. 512-13; Rainey: Tr. 540, 543-45, 548-49.)

Because the stairways linked multiple businesses, the Hilton had "a concern" about "people coming in that don't belong." (Horniak: Tr. 489.) The Hilton had a motion detector on the fourteenth floor of stairway D, where the bulk of the hotel began. (Horniak: Tr. 490-93.) The stairway above the fourteenth floor contained additional security cameras. (Horniak: Tr. 479, 490-93.) A person passing by the motion detector would trigger an alarm in the Hilton security office, where images captured by the surveillance cameras could be reviewed. (Horniak: Tr. 479, 490-93.)

Madame Tussaud's was aware that entry into the museum via the fire exits was possible but usually kept the doors locked. (Bagshaw: Tr. 617-19.) They also hired an outside security firm to check that all fire exit doors were secure at the end of each day. (Bagshaw: Tr. 618-19.) A person, however, could enter Madame Tussaud's from stairway D on the fifth floor. (Bagshaw: Tr. 618-19.) Once in stairway D, a person could enter the Hilton on the fourteenth floor.(Horniak: Tr. 490-91.)

The Burglaries

On October 6, 2009 around 9:30 p.m., Hilton cook Christopher Maine went to the employee locker room. (Dkt. No. 13: Maine: Tr. 580.) Before leaving the building, Maine closed and secured his locker. (Maine: Tr. 580-81.) Around 10:30 p.m., another Hilton cook, Humberto Yepez, observed a man standing in front of Maine's open locker. (Yepez: Tr. 573-78.) When Yepez asked if he was a new employee, McCray left the employee locker room. (Yepez: Tr. 574-75, 577.) Yepez found it unusual that Maine's locker would be open, "put two and two together," and reported what had happened to security. (Yepez: Tr. 575, 578.) Yepez described the man as a young black man wearing a blue sweater and a hat, weighing about 175 pounds and standing five and half feet tall. (Yepez: Tr. 577-78.) Yepez identified McCray at trial as the man he had seen. (Yepez: Tr. 575-76.)

When Hilton security staff investigated the locker room, they found that the locker had been vandalized and the lock broken. (Horniak: Tr. 468-69, 481-82.) Horniak's review of video surveillance footage showed a man wearing jeans, a dark t-shirt and a blue sweatshirt entering the Hilton mezzanine level from emergency stairway E, which ran from the ground floor lobby to the top floor of the Hilton. (Horniak: Tr. 453-55, 459, 477-79, 483-84.) After the man entered the mezzanine level, a camera caught him walking through a corridor heading to the employee locker room. (Horniak: Tr. 453-55, 479-81.) Several minutes later, the camera showed Yepez approaching the locker room from another direction. (Horniak: Tr. 455-56.) Within a minute, the man emerged and returned to stairway E. (Horniak: Tr. 456-57, 480-81.) Yepez identified the man in the video footage as the intruder he had confronted. (Yepez: Tr. 576-79.) McCray was not a Hilton employee and did not have permission to be in the locker room. (Horniak: Tr. 444, 453, 460-61, 485.)

Further review of the surveillance videos showed McCray at around 10:45 p.m. walking across the sixteenth floor of the hotel to stairway D, which led to Madame Tussaud's and an exit to 41st Street. (Horniak: Tr. 458-59, 478-79, 483-84, 487, 490-91.) The surveillance footage also yielded a snapshot of McCray's face. (Horniak: Tr. 457-61; Rainey: Tr. 517-18.) Hilton security, unsure whether McCray had left the building, reported the break-in to Rainey. (Horniak: Tr. 486-87; Rainey: Tr. 517.)

Around midnight, Madame Tussaud's security manager normally clears the museum of guests. (Bagshaw: Tr. 590.) At that point, both the public and employees are barred from the musuem without permission. (Bagshaw: Tr. 589-93.) Nobody had permission to enter the building after hours on October 6 or October 7, 2009. (Bagshaw: Tr. 591-92, 595.)

Around 1:30 a.m. on October 7, 2009, one of Madame Tussaud's security cameras showed McCray entering the fifth floor from stairway D. (Bagshaw: Tr. 594, 618-19.) McCray was wearing the same blue sweatshirt as when he was seen in the Hilton. (Bagshaw: Tr. 598-99.) For over two hours, multiple cameras caught McCray moving throughout Madame Tussaud's fourth, fifth, seventh, eighth and ninth floors. (Bagshaw: Tr. 594-608, 618-22.) These floors included areas not open to the public, such as storage facilities and the "AV control room." (Bagshaw: Tr. 599-608; Whitely: Tr. 630.) McCray was not a museum employee and did not have permission to be there after hours. (Bagshaw: Tr. 591-92, 594-95, 597, 608.)

At approximately 1:45 a.m., a security camera showed McCray in a storage area closed to the public. (Bagshaw: Tr. 600-02.) Similarly, at about 2:45 a.m., McCray was caught on camera rummaging through desks in a private office area. (Bagshaw: Tr. 602-03.) At about 3:00 a.m., cameras captured McCray pushing a large box across a ninth floor gallery, through a door and through the emergency exit to stairway D. (Bagshaw: Tr. 595-96.) At about 3:20 a.m., a cameracaught McCray taking a hand truck from the fifth floor and moving it toward the exit to stairway D. (Bagshaw: Tr. 601-02.)

Horniak met Rainey outside the Hilton entrance on 41st Street shortly before 4:00 a.m., and gave him a copy of the surveillance photograph of McCray's face. (Horniak: Tr. 461, 466, 486-87; Rainey: Tr. 517-18.) Both soon spotted McCray coming out of stairway D's exit onto 41st Street. (Horniak: Tr. 461-62, 468, 495, 503-06, 509; Rainey: Tr. 517-18.) They observed McCray wearing a dark colored Yankees cap, jeans and a black shirt, and pushing a hand truck loaded with two boxes that appeared to contain electronic equipment. (Horniak: Tr. 462, 506-07, 510; Rainey: Tr. 520, 550-52, 555.)

Rainey followed McCray while Horniak remained at the hotel. (Horniak: Tr. 463-64, 507; Rainey: Tr. 520-24, 528.) Rainey flagged down a passing police car on Ninth Avenue. (Rainey: Tr. 524, 557.) Rainey identified himself, alerted the...

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