Occhione v. Capra

• Decision Date: 24 June 2015
• Docket Number: No. 14–CV–3637.,14–CV–3637.
• Citation: 113 F.Supp.3d 611
• Parties: Joseph OCCHIONE, Petitioner, v. Michael CAPRA, Superintendent of Sing Sing Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

113 F.Supp.3d 611

Joseph OCCHIONE, Petitioner,

v.Michael CAPRA, Superintendent of Sing Sing Correctional Facility, Respondent.

No. 14–CV–3637.

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

Signed June 24, 2015.

Jeffrey G. Pittell, Maher & Pittell, LLP, Great Neck, NY, for Petitioner.

Daniel Stephen Bresnahan, Office of the District Attorney, Queens County, Kew Gardens, NY, for Respondent.

MEMORANDUM & ORDER

JACK B. WEINSTEIN, Senior District Judge:

Table of Contents

I.	Introduction	615
II.	Crime of Conviction	615
III.	Procedural History	617

A.	Grand Jury Indictment	617
B.	Arraignment, Pre–Trial Applications and Dispositions	617
C.	Pretrial Hearings	618

1.	Dunaway Hearing	618
2.	Huntley Hearing	618
3.	Sandoval Hearing	619

D.	Jury Selection	619
E.	Trial and Sentencing	620
F.	Direct Appeals	621
G.	Motion to Vacate Conviction	622
H.	Instant Petition	623

IV. Applicable Standard of Review 623

A. Antiterrorism and Effective Death Penalty Act 623

1.	"Contrary to" Clause	624
2.	"Unreasonable Application" Clause	624

B.	Deference to State Court	625
C.	Harmless Error	626

V. Ineffective Assistance of Counsel 626

A. Law 626

1.	Standard	626
2.	Application of Standard by Court of Appeals for the Second Circuit	628
3.	Application of Standard by District Courts in the Second Circuit	628

B. Application 629

VI. Denial of Right to Testify Before Grand Jury 630

A.	Law	630
B.	Application	631

VII. Reverse Batson Challenge 631

A.	Law	631
B.	Application	633

VIII. Sentencing Persistent Violent Felony Offenders and Apprendi Doctrine 633

A.	Law	633
B.	Application	634

IX. Conclusion 634

I. Introduction

Petitioner Joseph Occhione seeks a writ of habeas corpus. See 28 U.S.C. § 2254(d). It is denied.

He is currently serving a sentence of sixteen years to life, imposed on July 23, 2008, for burglary, criminal mischief, criminal possession of stolen property, resisting arrest, and possession of burglar's tools. He has served some seven years at Sing Sing Correctional Facility.

Asserted are four grounds for relief: (1) ineffective assistance of counsel due to trial counsel's cumulative errors; (2) denial of the right to testify before the grand jury; (3) failure of the trial court to sustain a peremptory challenge to a juror of Indian descent during jury selection; and (4) violation of the right to due process resulting from the trial court's implementation of New York Penal Law's persistent violent felony offender provision during sentencing.

Each of petitioner's claims fail.

II. Crime of Conviction

On May 14, 2007, at approximately 1:00 p.m., in a townhouse located in Flushing, Queens, Bik Ying Chan's lunch was interrupted when she heard a persistent loud noise. See Trial Transcript 437:19–438:22, June 26–July 1, 2008, People v. Occhione, Queens Cnty. Indict. No. 1383/07 (N.Y.Crim.Ct.) ("Occhione I "), ECF No. 8–7 at 72–199, ECF No. 8–8 at 1–191, ECF No. 8–9 1–93 ("Trial Tr."). Looking out of her kitchen window, she saw a bald man setting down a metal grate next to a tree in the backyard. Id. at 439:10–441:2. She recognized the grate as the one covering a bathroom window in her neighbor's house. Id. at 441:5–6. Frightened and concerned, Chan phoned her neighbor, Sandy Shi, at her work. Id. at 443:6–14. Chan had observed the man for only a moment—too quickly to identify him except by his baldness. Id. at 441:3–4.

Shi immediately called 911 to report the potential burglary. Id. at 461:22–462:8. The report was forwarded to Sergeant George Fountaulakis, Officer Jared Rothschild, and Officer McManus, all members of the "Burglary Apprehension Team." Id. at 642:1–7.

Four blocks away from the Shi residence when the notification was received, the officers arrived at 58–27 150th Street in less than sixty seconds. Id. at 539:16–18. Riding in an unmarked police vehicle, the plainclothes officers saw petitioner, a bald Caucasian man in his fifties, on top of Shi's backyard fence. Id. at 644:16–645:7. They watched him dismount the fence and walk to a white SUV parked on the sidewalk. Id. at 645:13–16.

McManus, angling the police car in front of the white SUV, blocked petitioner's escape route. Id. at 578:2–13. As petitioner entered the passenger side of the SUV, Fountaulakis and Rothschild exited the car, calling out, "Police!" Id. at 542:6–8. Petitioner fled. Id. at 542:11–13.

McManus stayed with the SUV as Fountaulakis and Rothschild pursued the petitioner on foot, yelling, "Police! Stop!" Id. at 543:21–544:4, 646:22–24. Nearing petitioner, Rothschild tripped. Id. at 549:4–9. McManus then joined the pursuit. Id. at 592:7–10. In the interim, the SUV departed. Id. at 598:14–18.

When the officers surrounded petitioner, he raised a crowbar above his head.Id. at 647:20–15. They drew their weapons; he then threw the crowbar down and lay on the ground, where he was handcuffed. Id. at 649:18–650:8. A search revealed two pairs of gloves, a cell phone, an envelope filled with Chinese currency, a separate envelope filled with United States currency, and boxes filled with jewelry. Id. at 547:12–548:9.

Racing home from work, Shi arrived at her residence one half hour after the burglar had first been sighted. Id. at 462:12–13. Officer Fountaulakis and a number of other police officers were present. Id. at 462:14–15. Shi let the officers into her home. Id. at 463:7–14.

Shi called her sister, Hao Ting Shi ("Shi's sister"), who lived in the basement apartment. Id. at 465:5–9. An hour later, Shi's sister arrived. Id. at 465:16–18. She discovered that her bedroom had been ransacked. Id. at 494:20–25. Drawers from her dresser and desk had been taken out and flipped over. Id. at 507:5–508:18. Items were strewn all over the bedroom. Id. at 494:20–25. The chaotic state of the apartment made it impossible for her to tell whether anything had been taken. Id. at 495:3–7.

At the police station, Shi's sister identified her cell phone, envelopes of currency, and jewelry, which had been found on petitioner. Id. at 495:10–17. She valued the jewelry at approximately $3,500. Id. at 497:21–24.

Officer Laurendi then promptly began an interrogation of petitioner. Id. at 611:12–23. At first, Laurendi was alone in a room with petitioner; no notes were taken and no record made. Id. at 634:22–635:2. According to Laurendi, petitioner admitted to being in possession of Shi's sister's property and told the officer that when he had tried to enter the SUV, the driver would not let him in. Id. at 619:24–620:9. Laurendi's report of the initial interrogation was written at 4:30 p.m. that afternoon. Id. at 635:22–636:1.

About 7:00 p.m. that evening, Fountaulakis bought sandwiches, sharing them with petitioner. Id. at 661:21–662:6. Initially, their chitchat was about the respective neighborhoods in which each had grown up. Id. at 662:7–11. Steering the conversation to the burglary, Fountaulakis reported that petitioner told him the following:

Mr. Occhione explained that he was in a white SUV with an individual by the nickname of [B]ingo, they were going to target an Asian home. They were driving in the neighborhood of Flushing ... where they observed a female get into her vehicle and back out of her driveway. This female happened to be Asian....

Mr. Joseph Occhione exited that SUV. He rang the doorbell of the house where the woman just came out of[.] [N]o one answered the door. At that point he stated he went over the gate and with a crowbar removed the gate around the window of the bathroom, within fifteen seconds, and entered the residence through that bathroom window.

He stated that he removed some jewelry boxes. He saw some envelopes with money. He wasn't sure of the amount of money or what type of currency. He said he took that and he exited the location and basically we are very lucky we got him.

Id. at 662:21–663:13. The report of the conversation was written four days later, after Fountaulakis had spoken with the Assistant District Attorney. Id. at 680:7–19.

III. Procedural History

A. Grand Jury Indictment

On May 24, 2007, ten days after the burglary, petitioner was indicted on the following nine charges:

• Burglary in the First Degree (two counts), see N.Y. Penal Law § 140.30(2)-(3) ;

• Burglary in the Second Degree (one count), see N.Y. Penal Law § 140.25 ;

• Assault in the Second Degree (two counts), see N.Y. Penal Law § 120.05(2) & (6) ;

• Criminal Possession of Stolen Property in the Third Degree (one count), see N.Y. Penal Law § 165.50 ;

• Criminal Possession of Stolen Property in the Fifth Degree (one count), see N.Y. Penal Law § 165.40 ;

• Criminal Mischief in the Third Degree (one count), see N.Y. Penal Law § 145.05(2) ;

• Resisting Arrest (one count), see N.Y. Penal Law § 205.30 ;

• Possession of Burglar's Tools (one count), see N.Y. Penal Law § 140.35 ; and

• Criminal Possession of a Weapon in the Fourth Degree (one count), see N.Y. Penal Law § 265.01(2).

See Indictment, May 24, 2007, Occhione I , ECF No. 8–2 at 2–9. Petitioner did not testify before the grand jury. See Grand Jury Trial Transcript, May 18, 2007, Occhione I , ECF No. 8–1 at 47–95.

B. Arraignment, Pre–Trial Applications and Dispositions

On June 1, 2007, one week after petitioner had been indicted, he was arraigned. See Web Appearance Detail, n.d., Occhione I , ECF No. 8–2 at 1. He orally objected that he had been denied the right to testify before the grand jury. See Occhione Affidavit in Support of 440 Motion to Vacate Judgment 9, Mar. 11, 2013, Occhione I , ECF No. 8–1 at 139–153 ("Occhione Aff."). A new attorney was appointed by the presiding judge to represent petitioner. Id.

Ten days later, on July 11, 2007, petitioner's counsel sought the following: (1) inspection and release of the grand jury minutes and charge; (2) a bill of particulars; (3) Dunaway, Huntley , and Sandoval hearings, see infra Part III.C; and (4) dismissal of multiple charges, including Criminal Possession of Stolen Property in the Fifth Degree, Burglary in the First Degree, and Assault in the Second Degree. See Petitioner's Notice of Omnibus Motion 1–2, July 10, 2007, Occhione I , ECF No. 8–2 at 20–23; see also Santos...