Pearson v. Racette
| Decision Date | 03 August 2012 |
| Docket Number | 11 Civ. 3452 (BSJ)(MHD) |
| Parties | LONNIE PEARSON, Petitioner, v. STEVEN RACETTE, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT & RECOMMENDATION
Petitioner Lonnie Pearson seeks a writ of habeas corpus to challenge his 2008 judgment of conviction in New York State Supreme Court, New York County, on two counts of first-degree robbery, one count of second-degree robbery, two counts of criminal possession of a weapon in the third degree, and one count of menacing in the second degree. The court adjudicated him to be a persistent violent felony offender and sentenced him to concurrent prison terms of twenty-five years to life on the three robbery counts, three-and-a-half to seven years on the criminal-possession counts, and a one-year jail term for menacing, which merged as a matter of law with the state prison sentences. Petitioner is currently incarcerated at Elmira Correctional Facility in Chemung County, New York.
Pearson filed his petition pro se on May 10, 2011. (Petitionfor a Writ of Habeas Corpus by a Person in State Custody ("Pet.") 1). He asserts three grounds in support of his application. First, he argues that the trial judge erroneously deprived him of his "absolute right" to poll the jury. Second, he contends that, in violation of the Fourteenth-Amendment guarantee of due process, he was denied a fair trial when the trial judge refused defense counsel's request to charge third-degree robbery as a lesser-included offense of first-degree robbery. Finally, petitioner asserts that the trial court's refusal to charge third-degree robbery further compromised his constitutional right to a fair trial insofar as its corrosive influence extended beyond the robbery convictions to taint the jurors' approach to the possession and menacing charges in a so-called "spillover effect."
Respondent opposes the petition. Polling the jury, respondent contends, is not a constitutional right and, in any case, this claim is procedurally barred. Respondent also argues that the Appellate Division properly rejected petitioner's lesser-included-offense claims and stresses that, in any event, these claims are not cognizable on habeas review.
For the reasons that follow, we recommend that the writ be denied and the petition dismissed.I. Prior Proceedings
Pearson's conviction stemmed from the robbery of a Duane Reade drugstore on West 23rd Street in Manhattan on May 30, 2007. Two men entered the premises and stole a quantity of wristwatches on sale there, and then fled from the store after threatening two security guards with a knife. Police officers seized petitioner, as the other man fled, and the guards then identified him on the street as the knife wielder.
On June 15, 2007 a New York County grand jury indicted Pearson on two counts of first-degree robbery, one count of second-degree robbery, two counts of third-degree criminal possession of a weapon, and one count of second-degree menacing. The two counts of first-degree robbery stem from two grounds established by New York Penal Law § 160.15:
A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . is armed with a deadly weapon . . . [or] uses or threatens the immediate use of a dangerous instrument.
In delimiting second-degree robbery, section 160.10(1) of New YorkPenal Law provides in relevant part that "[a] person is guilty of robbery in the second degree when he forcibly steals property and when . . . [h]e is aided by another person actually present."
Petitioner's jury trial commenced before the Honorable Edward J. McLaughlin, S.C.J, on December 11, 2007. (Trial Transcript ("Tr.") at 1). At trial, the prosecution called as witnesses the two security guards, the manager of the store, and two police officers. The prosecution also presented footage of the robbery compiled from the security cameras of the store. The defense called no witnesses.
The prosecution called five witnesses: Rubin Espinal and Jairo Polanco, who work as loss-prevention agents for Duane Reade; Arssath Uthumalebbe, who manages the Duane Reade that was robbed; and Police Officers Jose Valentin and Vincent Weiss,1 who responded to the robbery and helped apprehend petitioner Lonnie Pearson.Collectively, the witnesses testified to the following.
On the morning of May 30, 2007, Mr. Espinal and Mr. Polanco were working at the Duane Reade store at 140 West 23rd Street (Tr. at 36:12-22, 78:2-12), as was Mr. Uthumalebbe. (Tr. at 96:16-19). At around 10:50 a.m., Mr. Espinal and Mr. Polanco were at a deli, on a break from work, where the former purchased coffee and the latter procured breakfast. (Tr. at 37:9-18, 78:16-18).
During that time, Mr. Uthumalebbe remained in his office in order to complete payroll for the employees. (Tr. at 96:20-25). Mr. Uthumalebbe's computer sits next to the monitor on which images from the store's security cameras can be viewed. (Tr. at 96:7-15, 97:1). At around 10:50 a.m. Mr. Uthumalebbe noticed something on the security monitor two people were in the cosmetics aisle, trying to break the watch case. (Tr. at 97:2-10).2 The manager suspected that he was witnessing "some kind of theft," and he therefore called both the loss-prevention officers and the police. (Tr. at 97:14-25).
Mr. Espinal received a call on his cell phone while he and Mr. Polanco were at the deli -- it was from Mr. Uthumalebbe, who informed the two loss-prevention agents that there were "two subjects stealing watches inside the store." (Tr. at 37:19-38:5, 78:19-25). Upon receiving that call, Mr. Espinal and Mr. Polanco returned to the store. (Tr. at 38:6-7, 79:1-4). While Mr. Polanco waited outside, near the left exit (Tr. at 79:8-12), Mr. Espinal entered the store and went to the manager's office to look at the security monitor. (Tr. at 38:6-21). On the live video feed, Mr. Espinal saw that two men were stealing watches from a rack. (Tr. at 38:22-39:24). While Mr. Uthumalebbe remained in the office watching the monitor (Tr. at 99:4-10), Mr. Espinal went back outside the store to wait with Mr. Polanco for the men. (Tr. at 40:1-17).
As Mr, Uthumalebbe was watching, the two men broke into the display case and began to fill a bag with watches. (Tr. at 99:11-15). He then (Tr. at 99:21-25). Mr. Uthumalebbe began to run toward the front of the store, but by the time he arrived the two men had left. (Tr. at 99:25-100:8).
Mr. Espinal testified that during the time between the theftand the men's flight, he saw the man whom petitioner had called his "partner" (Tr. at 46:12-13) approach the front door. (Tr. at 41:18-23). He described the events that ensued as follows: he stopped petitioner's partner; petitioner arrived waving a knife and threatening to kill him; he released the partner and told them that they could go; and petitioner, after lobbing a few more threats, left with his partner. (Tr. at 43:24-44:17, 46:9-14, 47:4-5). Mr. Polanco similarly stated that "[w]hen we apprehended one of them, the other one came out of nowhere, pulled out a knife." (Tr. at 80:4-5). Mr. Espinal described the knife as a "pocketknife" about "four or five" inches big. (Tr. 45:7-18). At trial, both Mr. Polanco and Mr. Espinal identified petitioner as the man who had brandished the knife. (Tr. at 63:4-20, 80:10-23).
The security-camera footage of the encounter apparently does not conclusively demonstrate the presence of the knife. The prosecutor conceded that though the video shows that petitioner's arm was raised in a way that suggests he was holding something, it is impossible to see what he was holding. (Tr. at 212:8-213:6). The prosecutor asserted, however, that although the contours of the object are not discernable, one can easily conclude that the object was a knife by the guards' reaction -- "the 300 pounds, six . . . foot Rubin Espinal" released petitioner and backed away. (Tr. at47:7-12, 213:7-25). Petitioner and his partner left the store, bringing with them the bag of watches. (Tr. at 47:13-18, 57 :20-23).
Officer Valentin, moreover, found a switchblade near the scene of the crime, right next to the bag of watches. (Tr. at 122:22-123:3). He had received a "radio run" directing him to Duane Reade; when he and his partner arrived about two minutes later (Tr. at 116:17), they saw that two other officers were already there -- they had captured petitioner and were in pursuit of his partner. (Tr. at 114:22-115:3, 118:9-119:8, 164:6-13). Officer Valentin joined the officer holding petitioner, and when Mr. Espinal and Mr. Polanco arrived about five minutes later (Tr. 50:2-5) and identified petitioner as "the one that had the knife in his hand," Officer Valentin placed petitioner under arrest. (Tr. at 49:23-50:1, 119:12-20, 131:16-17). Shortly thereafter, Officer Valentin found the bag of watches and the knife approximately fifteen to thirty feet away. (Tr. at 122:22-123:1). Mr. Espinal and Mr. Polanco identified the watches as belonging to Duane Reade and the knife as the one with which petitioner had threatened them. (Tr. at 125:19-126:2).
Mr. Pearson did not call any witnesses at trial. Defense counsel relied on cross-examination of the prosecution witnesses and a pointed summation to present her theory of the case. In her summation, defense counsel offered an extended argument to the effect that the trial testimony did not conclusively connect petitioner to the knife, and that the surveillance video did not show a knife or weapon, nor did it reveal any use of force by petitioner. (E.g., Tr. at 201:3-202:24). Although there may have been "some verbal nonsense," defense argued (Tr. at 201:23), the "evidence adds...
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