Nunez v. Conway, 10 Civ. 0060(JGK).

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: JOHN G. KOELTL
• Citation: Nunez v. Conway, 923 F. Supp. 2d 557 (S.D. N.Y. 2013)
• Decision Date: 14 February 2013
• Docket Number: No. 10 Civ. 0060(JGK).,10 Civ. 0060(JGK).
• Parties: Marcos NUNEZ, Petitioner, v. T. CONWAY, Respondent.

923 F.Supp.2d 557

Marcos NUNEZ, Petitioner,

v.T. CONWAY, Respondent.

No. 10 Civ. 0060(JGK).

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

Feb. 14, 2013.

Marcos Nunez, Alden, NY, pro se.

Leilani Julia Rodriguez, New York State Attorney General's Office, Poughkeepsie, NY, for Respondent.

OPINION AND ORDER

JOHN G. KOELTL, District Judge.

The petitioner, Marcos Nunez, brings this pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254. After a jury trial, the petitioner was convicted of two counts of robbery in the first degree in violation of N.Y. Penal Law § 160.15(1), two counts of robbery in the second degree in violation of N.Y. Penal Law § 160.10(2)(a), and one count of burglary in the first degree in violation of N.Y. Penal Law § 140.30(2). The sentencing court imposed an aggregate sentence of thirty years imprisonment. The petitioner's conviction was affirmed on appeal by the Appellate Division, First Department, of the New York State Supreme Court, and leave of appeal to the New York Court of Appeals was denied.

The petitioner asserts that a writ of habeas corpus should be issued for four reasons. First, he argues that the evidence at trial was legally insufficient to prove the physical injury component of the crime of second degree robbery. Second, he claims that the police violated his Fourth Amendment right to be free from unreasonable searches because the police lacked probable cause to arrest him. Third, he asserts that the prosecutor introduced improper rebuttal testimony unrelated to a core fact of the case. Fourth, the petitioner claims that his thirty-year sentence based on his second violent felony offender status violated his Sixth Amendment right to factual findings by a jury. For the reasons explained below, the petition for a writ of habeas corpus is denied.

I.

The evidence at trial established that the petitioner perpetrated a string of robberies against elderly citizens in July of 2006. (Trial Tr. (“Tr.”), 41–42, 52–53, 82–83, Feb. 6, 2007.) The first robbery occurred on July 10, 2006. (Tr. 52.) Melinda Hughes, who was about 80 years old and five feet tall at the time of the robbery, was returning to her apartment when she noticed the petitioner sitting on the steps of the building where she lived. (Tr. 52–53.) The two spoke briefly; then the petitioner opened the door to Ms. Hughes's building and followed her into the elevator. (Tr. 53–54.) Ms. Hughes exited the elevator at the sixth floor. (Tr. 55–56.) She testified at trial that the petitioner followed her out of the elevator, struck her several times, snatched her chain and earrings, and went through her purse. (Tr. 55–56.) The attack left Ms. Hughes on the floor and unable to move. (Tr. 58.) Her son found her approximately ten minutes after the attack and called 911. (Tr. 58, 62–63.) Ms. Hughes was admitted into Mt. Sinai Hospital where doctors diagnosed her with a pelvic fracture. (Tr. 59.)

The petitioner committed the second robbery on July 12, 2006. (Tr. 40.) Felicia Baez, who was around 73 years of age and four feet eleven inches tall, was walking down Park Avenue near 102nd Street around 2:00 P.M. when she noticed the petitioner. (Tr. 40–41, 50.) The two spoke about the weather. (Tr. 41.) Ms. Baez noticed that the petitioner had a tattoo on his right leg. (Tr. 40–41.) Moments later, the petitioner put his hands on Ms. Baez's chest, hit her once with a closed fist underneath her chin, and scratched her chest. (Tr. 42, 45.) He then hit her hand, knocking it out of the way, so he could grab her jewelry. (Tr. 42–43.) Ms. Baez went to the doctor for a scheduled mammogram a week after the incident and her doctor biopsied a stain on her left breast. (Tr. 45.) She said the stain was “part of the blow that [the petitioner] gave [her].” (Tr. 45.) The scratches remained on Ms. Baez's chest after the mammogram visit, and her chest was “a little bit like sore” for a few weeks subsequent to the robbery. (Tr. 45.)

The third robbery occurred on July 21, 2006. (Tr. 82–83.) Rafael Santiago, who was around 73 years of age at the time, was entering his apartment building around 12:30 P.M. when he noticed the petitioner knocking on the door. (Tr. 81–83.) Mr. Santiago let the petitioner in and they proceeded to the elevator. (Tr. 83, 93.) In the elevator, the petitioner struck Mr. Santiago in the head with a heavy object and then took Mr. Santiago's two chains and a bracelet. (Tr. 85, 95–97.) The encounter left Mr. Santiago with two bumps on his head, causing headaches and dizziness, for which he used ice and Tylenol. (Tr. 85.) Mr. Santiago stated that this pain lasted about three weeks “because the blow was very hard, the pain.” (Tr. 85.)

Mr. Santiago reported the crime to the 23rd precinct on July 21, 2006. (Tr. 85.) On July 22, 2006 Mr. Santiago accompanied Detective Munoz to a pawn shop where he identified the two chains and bracelet stolen from him the previous day. (Tr. 87–88, 143–44.) From the pawn shop's records, Detective Munoz learned that the petitioner had pawned Mr. Santiago's property. (Tr. 144.) Detective Munoz arrested the petitioner that day. (Tr. 144–47.)

Before trial, the petitioner brought a motion to suppress on two grounds. (Pretrial Suppression Hr'g (“Hr.”), 73–77, Feb. 2, 2007.) First, he argued that his arrest was unlawful because it was not based on probable cause that he committed the robberies, but on probable cause that he pawned the stolen items. (Hr. 73–75.) He also contended that a photo identification procedure and subsequent lineup were overly suggestive. (Hr. 75–77.) The motion to suppress was denied on February 2, 2007. (Hr. 85–88.)

At trial, the petitioner testified in his own defense. (Tr. 176.) He testified that he often pawned property for others, taking a cut from the sale. (Tr. 176, 181.) The petitioner alleged that on July 10, 2006, he met a man known as “Irv” or “J.B.” at a park at Third Avenue and 103rd Street and agreed to pawn some items for him. (Tr. 177–78.) The petitioner testified that he did the same on July 12, 2006 and July 21, 2006 after receiving calls from Irv. (Tr. 178, 182, 185, 192–98.) While incarcerated, the petitioner provided to the prosecution Irv's NYSID number, the number that identifies New York State arrestees, in hopes that this evidence would confirm his alibi. (Tr. 246.)

Both parties rested their cases on February 7, 2007. On February 9, 2007 the prosecution applied to reopen its case to call a rebuttal witness. (Tr. 239.) The court reopened the case, and Captain James Cavaleri, a shift captain for the Downstate Department of Correctional Services, testified. (Tr. 246.) He produced the personal appearance form that matched the NYSID number that the petitioner had previously provided to the state. (Tr. 256–57.) The form indicated that the inmate had a “GB” tattoo on his left arm and “JA4B” tattoo on his right arm, but there was no recording of a tattoo on his leg matching the description given by Ms. Baez during her testimony. (Tr. 257.)

The jury returned its verdict on February 13, 2007. (Tr. 363.) Five counts were submitted to the jury: count one charged the petitioner with the first degree robbery of Ms. Hughes; count two charged him with the first degree burglary of Ms. Hughes; count three charged him with the second degree robbery of Ms. Baez; count four charged him with the first degree robbery of Mr. Santiago; and count five charged him with the second degree robbery of Mr. Santiago. The jury found petitioner guilty on all five counts. (Tr. 364–65.) The sentencing court classified the petitioner as a second violent felony offender and imposed an aggregate sentence of thirty years imprisonment. (Sentencing Hr'g, (“S.”) 8–9, March 13, 2007.)

The petitioner appealed his conviction to the Appellate Division, First Department, of the New York State Supreme Court. The petitioner asserted reasons for reversal very similar to the reasons presented in this petition, except that petitioner's challenge of his sentence was limited to the claim that the sentence was harsh and excessive. (Br. for Def.-Appellant, People v. Nunez, 61 A.D.3d 409, 875 N.Y.S.2d 484 (2009) (Ex. A to Resp't's Decl. in Opp'n to the Pet. for Writ of Habeas Corpus, ECF No. 8.)). The Appellate Division unanimously upheld the conviction, finding that the “evidence was sufficient to establish the physical injury element of the second-degree robbery convictions.” People v. Nunez, 61 A.D.3d 409, 875 N.Y.S.2d 484, 485 (2008). The court found that the “jury was entitled to credit the victims' descriptions of their injuries and to draw the conclusion that these injuries were more than mere ‘petty slaps, shoves, kicks, and the like.’ ” Id. (citing In re Philip A., 49 N.Y.2d 198, 424 N.Y.S.2d 418, 400 N.E.2d 358 (1980); People v. Chiddick, 8 N.Y.3d 445, 834 N.Y.S.2d 710, 866 N.E.2d 1039 (2007)). The court also held that there was “probable cause for defendant's arrest based on evidence that he had pawned property taken in a robbery,” that the state's “rebuttal evidence clearly tended to disprove defendant's case,” and that the court “perceiv[ed] no basis for reducing the sentence.” Id.

The petitioner requested leave to appeal to the New York State Court of Appeals, which was denied. People v. Nunez, 12 N.Y.3d 927, 884 N.Y.S.2d 709, 912 N.E.2d 1090 (2009).

II.

The petitioner filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is timely. See28 U.S.C. § 2244(d). Because a state court has adjudicated the petitioner's claims on the merits, the claims will be evaluated under the standard of review set forth in 28 U.S.C. § 2254(d). That section provides that an application for a writ of habeas corpus should only issue if adjudication of the claim in state court “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a...