Nedd v. Bradt

• Decision Date: 14 May 2019
• Docket Number: 13 CV 5569 (CLP)
• Parties: JOYETTE NEDD, Petitioner, v. MARK L. BRADT, Superintendent of Attica Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

JOYETTE NEDD, Petitioner,
v.
MARK L. BRADT, Superintendent of Attica Correctional Facility, Respondent.

13 CV 5569 (CLP)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

FILED: May 15, 2019
May 14, 2019

MEMORANDUM AND ORDER

POLLAK, United States Magistrate Judge:

On October 3, 2013, petitioner Joyette Nedd, proceeding pro se, filed this Petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, raising seven claims. (Pet.¹). On September 16, 2016, petitioner filed an Amended Petition, adding six additional claims and removing two. (Am. Pet.²). On April 2, 2019, the Petition was referred to the undersigned to prepare a Report and Recommendation. Thereafter, the parties consented to the undersigned for all proceedings in this case.

For the reasons set forth below, the Court denies the Amended Petition in its entirety.

FACTUAL BACKGROUND

The charges in this case stem from the attempted shooting of Elsworth George ("George") on October 16, 2006. The facts set forth below are derived from the testimony presented during petitioner's trial, which commenced on January 7, 2009 in Kings County

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Supreme Court.

A. Elsworth George's Testimony

At trial, Elsworth George testified that on October 16, 2006, he was sitting in his car at the corner of Nostrand Avenue and President Street in Brooklyn, New York when he saw petitioner standing in front of his car. (Tr.³ at 185-86). George, a 48-year old certified nursing assistant and former police officer in Antigua, testified at trial that he knew petitioner as "Rafie" and had known him for about two years at the time of the incident.⁴ (Id. at 177, 178, 181-82). According to George, he had a friend who lived near Nostrand Avenue and he would see petitioner approximately three or four times a week by the building located at 864 Nostrand Avenue, where George's friend, Trevor, lived. (Id. at 182). George testified that on two occasions, when female students came home from school, he heard petitioner make disrespectful remarks towards them, and George told him that it was not nice to speak to them in that way and petitioner should respect them. (Id. at 182-83). According to George, petitioner responded by telling George that he was a "faggot" and to "shut the f. . . up." (Id. at 183).

On October 16, 2006, at approximately 1:46 in the afternoon, George was sitting in his car after buying some juice in a nearby store, when he looked up and saw petitioner standing in front of him with a gun. (Id. at 185-86, 237). Petitioner asked George if he remembered petitioner, at which time George asked petitioner if he "was stupid." (Id. at 186). Petitioner pulled the trigger on the gun, but nothing happened; the gun jammed.⁵ (Id. at 186-87). George

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then used this opportunity to get out of his car because he was "going to stop him [petitioner] from killing me." (Id. at 187). George testified that when he got out of the car, petitioner was at the front passenger side door, and as George reached the front of the car by the license plate, he realized that petitioner had gotten the gun to work and he heard a "pow." (Id. at 187-88, 191). At that point, George ran back towards the rear left side of his car and petitioner shot at him again. (Id. at 188, 191). George testified that the two of them kept running around the car, with petitioner shooting at him several times. (Id. at 189, 191). One bullet went into the door post of the car, and another bullet - shot at George when he was at the rear of the car - went into the windshield. (Id. at 192). George then ran behind the car to the rear passenger side and petitioner, who was at the left driver's side, shot at George again. (Id.) That bullet broke George's back passenger window. (Id. at 193). They continued to run around the car, with petitioner shooting at George five or six times. (Id.) The witness was shown various photographs and identified the damage to the car. (Id. at 198-99; People's Exs. 2, 3).

George testified clearly that the person he knew as "Rafie" was the one firing the shots, and that there was no one else close by when the shots were fired. (Tr. at 200-01). At some point, petitioner stopped shooting and started running down President Street. (Id. at 201). George explained that petitioner tried to go into a building, but it was locked, at which time petitioner ran back up President Street and turned left onto Nostrand Avenue. (Id. at 202). George attempted to follow him but his car was blocked in by another vehicle behind him, so he drove around the corner back onto Nostrand Avenue and called the police. (Id.)

When the police arrived approximately five to ten minutes later, George told them that he had been the person who reported the shots fired and that "Rafie" was the one who shot at him. (Id. at 203-04). George indicated the direction in which petitioner had run, and the officers went

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looking for him but did not find him. (Id. at 204). George then got into the uniformed officer's police car and drove around looking for Rafie, but they did not see him. (Id. at 205-06). After that, the police took George to the 71st Precinct, where he spoke to Detective Charles Arnao. (Id. at 206). At that time, George gave the detective the other name by which he knew petitioner - "Joyette." (Id. at 207). He did not know petitioner's last name, but he made a phone call to petitioner's cousin, who told George that petitioner's last name was Nedd. (Id. at 208). George also gave the police a description of petitioner as about five foot, five inches, light skin, and slim build. (Id.) George testified that he was not hurt in the incident; there was just damage to his vehicle, which he paid $3,000 to repair. (Id. at 209).

On cross examination, counsel for petitioner questioned George extensively about why he was in the vicinity of Nostrand Avenue and President Street on October 16, 2006, pointing out that even though George had testified that he went there to visit a friend, he did not actually see his friend on that day. (Id. at 213). George explained on redirect that he had not gotten a chance to see his friend because he got "shot at." (Id. at 237).

Counsel asked if the witness and petitioner had a dispute because petitioner accused George of cheating at gambling, but George denied that he was gambling or was in a gambling house shortly before the incident. (Id. at 229-231). He denied that he had ever gambled with petitioner, but he admitted that he was angry because petitioner had failed to show him respect. (Id. at 231, 236). When counsel asked if George had gotten a machete out of his car during a prior dispute and chased petitioner, George denied that he ever chased petitioner. (Id. at 229-31).

Counsel also questioned George about where he drove with the police after the incident and for how long they drove around. (Id. at 217). Counsel asked if George told the police that the person who was shooting at him was shooting from a green Mercedes Benz, which the

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witness denied. (Id.) George was also cross examined about his own past criminal history, which the prosecution had elicited on direct as having involved a conviction in August 1995 for driving a vehicle with a suspended license, and in February 2001 for bail jumping. (Id. at 178-180, 220, 223-24). On the latter occasion, George explained that he had been arrested for fighting with his girlfriend, and then he failed to appear in court because his father had died and he had gone to the Caribbean for the funeral. (Id. at 178-80, 220, 223-26).

B. Detective Charles Arnao's Testimony

Detective Charles Arnao also testified for the prosecution. He testified that he had been a detective in the 71st Precinct for 11 years and had been a police officer for 16 to 17 years. (Id. at 240). He testified that at 1:46 p.m. on October 16, 2006, he received a call of a shooting at the corner of President Street and Nostrand Avenue. (Id. at 242). When he arrived at the scene, he observed crime scene tape, four spent shells, and two live rounds from a handgun. (Id.) He also saw the vehicle belonging to George with damage in the windshield and holes in the car. (Id.) He spoke to George briefly on the corner, and George told him that he could identify the person who shot at him because he had known the individual for approximately three years. (Id. at 243-44). George provided the detective with personal information about petitioner, and then the detective had George taken to the 71st Precinct. (Id. at 244). Other detectives were speaking to store owners and canvassing for witnesses, but no one was able to provide information as to what had happened. (Id. at 245). Nor was there any video surveillance that recorded the incident. (Id.)

Detective Arnao spoke to George again at the Precinct, and George gave the detective petitioner's "street name" as well as his first name. (Id. at 246). According to the detective, George then made a call and learned that petitioner's full name was Joyette Nedd. (Id. at 247).

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The detective performed some computer checks and then attempted that day to locate petitioner at the address that the police had on file for him. (Id.)

The police finally located petitioner on December 27, 2006,⁶ at which time Detective Arnao placed petitioner under arrest. (Id. at 248). After petitioner was arrested, George was shown a polaroid photograph of petitioner, and he identified petitioner as the shooter. (Id. at 212-213, 249). The detective also obtained certain pedigree information from petitioner, including his age, which was 22 at the time, his height, which was five foot, six inches, and his weight, which was between 150 and 160 pounds. (Id. at 250-51).

C. Police Officer Daniel Domarecki's Testimony

Police Officer Daniel Domarecki also testified as a witness for the prosecution. (Id. at 266). He testified that on October 16, 2006, he and his partner Officer Dranteyva were assigned to the 71st Precinct to transport prisoners to Brooklyn Central...