Rivera v. Collado
| Decision Date | 16 February 2021 |
| Docket Number | 19-CV-11403 (RWL) |
| Parties | MIGUEL RIVERA, Petitioner, v. J. COLLADO, Superintendent of the Shawangunk Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
DECISION AND ORDER: HABEAS PETITION
Miguel Rivera ("Petitioner"), proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for Assault in the First Degree following a jury trial in New York State Supreme Court, Bronx County. Petitioner contends that: (1) the trial court erred in not suppressing identification by a witness who had been subject to an unduly suggestive procedure by police; (2) the trial court improperly admitted a 911 call; (3) the trial court failed to excuse jurors who briefly encountered Petitioner in a courthouse elevator; (4) his sentence was unduly harsh and excessive; and (5) the prosecution failed to meet its burden of proof, or, in the alternative, the verdict was against the weight of the evidence. The first three claims are without merit. The last two claims are both barred from habeas review and without merit. Accordingly, for the reasons set forth below, the petition is DENIED and the case DISMISSED.
On the night of February 28, 2009, witness and complainant Maryidres Rivera attended a birthday celebration held in her honor at the apartment of her sister, Marta Aviles.1 (Tr. 127-29.2) Another sister, Yasmin Ruiz, and others were also in attendance. (Tr. 37, 128-29.) At some point in the evening, Aviles called her then-boyfriend, Petitioner. (Tr. 130-31.) When Petitioner arrived outside of the apartment building, Aviles asked Victim Rivera to tell Petitioner that she was in the hospital, not at home. (Tr. 131.) Victim Rivera proceeded downstairs, through the lobby, and went outside. (Tr. 132-34.) Ruiz, already in the lobby, proceeded outside around the same time as Victim Rivera. (Tr. 72.) Victim Rivera's nephew Gledy Campos was likewise outside of the apartment building. (Tr. 42-43.)
While outside, Petitioner and Victim Rivera engaged in a brief verbal altercation. Victim Rivera noticed the smell of alcohol on Petitioner's breath. They spat at, but not on, each other. Victim Rivera told Petitioner to leave, and Petitioner did so. (Tr. 134-36.)
Shortly thereafter, Petitioner returned, approaching Campos while reaching to the right side of his leg and pulling out a boxcutter. (Tr. 138-40.) Victim Rivera placed herself between Campos and Petitioner, at which point Petitioner cut her three times:once across her right breast, once on her left arm, and once on her left side. (Tr. 152-53, 161.) Petitioner then pushed Victim Rivera against a nearby pole, causing her to sustain an additional bruise. (Tr. 160-61.) Petitioner then returned to his car and drove away. (Tr. 47, 143.)
After the attack, Ruiz took Victim Rivera inside and placed a 911 call. (Tr. 48-50.) After being asked what happened, Ruiz told the dispatcher that her sister's boyfriend, meaning Petitioner, had cut Victim Rivera. (Tr. 119; Call Supp. Hr'g 7.3) Victim Rivera was then taken to St. Barnabas Hospital. (Tr. 304.)
At the hospital, Dr. Blanca Grand, who later testified during the trial as an expert witness, treated Victim Rivera. (Tr. 297, 304.) Dr. Grand treated Victim Rivera's injuries by giving her left upper back, right breast, and left forearm twelve, eight, and three sutures, respectively. (Tr. 305-06.) Victim Rivera later developed an infection following removal of her stitches. (Tr. 238.) At the time of the trial, she still bore visible scarring on her forearm and breast and had endured pain while trying to breastfeed her child. (Tr. 161-63.)
Prior to trial, the court conducted a Rodriguez hearing, relying upon the testimony of Detective Glenn Godino.4 (Rodriguez Hearing ("Rodriguez Hr'g"), Dkt 37, 4.) Godino testified that he used a confirmatory identification procedure consisting of showing a single photo to Victim Rivera. (Rodriguez Hr'g 8.) The court ultimately ruled that Detective Godino's testimony was insufficient and ordered a suppression hearing as a result. (Rodriguez Hr'g 41.)
During the suppression hearing, Victim Rivera testified that she knew Petitioner from when "he used to go out with [her] sister Martha Aviles." (Suppression Hearing ("Supp. Hr'g"), Dkt. 37, 48.) On direct examination, Victim Rivera testified that she first met Petitioner at her sister's apartment in January 2009, remaining in the same room as him for no more than twenty minutes. (Supp. Hr'g 49.) She also testified that she met Petitioner a second time while he and her sister Aviles were in a car together, for a similar period of time, and later that same day observed Petitioner and Aviles in the car together. (Supp. Hr'g 50-52.) Victim Rivera identified the person who she spat at, and who spat at her, as the person she had been introduced to before, i.e., Petitioner. (Supp. Hr'g 54-55.) Victim Rivera then testified that before she was attacked, she was less than an arm's length away from Petitioner. (Supp. Hr'g 57-58.) She also described the area of the attack as "bright," identifying lights from a nearby train station and Aviles'apartment building as sources of illumination. (Supp. Hr'g 55-56.) She concluded by making an in-courtroom identification of Petitioner. (Supp. Hr'g 61-62.)
On cross examination, Victim Rivera testified that she had seen Petitioner in January at her sister's apartment because she had picked up her nephew to take him to a test. (Supp. Hr'g 73.) She also testified that she had not given police an oral description of Petitioner's height, but had indicated his height with her hand. (Supp. Hr'g 75.) Following cross examination, the trial court denied Petitioner's motion to suppress. (Supp. Hr'g 99.)
Prior to trial, the court also held a brief hearing on whether the 911 call Ruiz made could be admitted as an exception to the rule against hearsay. (Call Supp. Hr'g 9.) The court ruled that it could be introduced under the excited utterance exception because (Call Supp. Hr'g 2-4, 9.) The court also cited supporting case law. (Call Supp. Hr'g 2-3.)
Three witnesses testified at the trial - Victim Rivera, Ruiz, and Dr. Grand. Petitioner did not testify.
Victim Rivera, on direct examination, largely repeated the testimony that she had provided at the earlier suppression hearing regarding when she met Petitioner, the circumstances surrounding the attack, and the extent of the injuries she sustained. (Tr. 123-63.) She also testified that photographs were taken of her injuries after she was released from the hospital; these photographs were admitted into evidence withoutobjection. (Tr. 154-62.) Victim Rivera once again made a courtroom identification of Petitioner. (Tr. 127.)
On cross examination, Victim Rivera testified that she had been mistaken as to her earlier description of when she met Petitioner - she clarified that she last saw Petitioner not in January but the Halloween before the February incident. (Tr. 182-86.) She explained that (Tr. 182.) She did not, however, remember how long before Halloween she had originally met Petitioner. (Tr. 187-89.) Even so, Victim Rivera testified that the first time she met Petitioner was in her sister's apartment, and the second time was while he and her sister were in the car together. (Tr. 187-95.) Victim Rivera also testified that she had mistakenly told the Grand Jury she had met Petitioner only once before; she explained that (Tr. 198.) Finally, she testified that the lights on the nearby building illuminated the area of the crime. (Tr. 208.)
Ruiz, on direct examination, likewise testified that she was present during the crime. (Tr. 43-47.) She described her presence at the party, how her sister was attacked, and how she called 911. (Tr. 34-50.) The recording of the 911 call was played for the jury and introduced into evidence over the objection of Petitioner's attorney, David Goldstein. (Tr. 49.) Ruiz also testified that she had interacted with Petitioner on numerous occasions and made an in-court identification. (Tr. 34-36.)
On cross examination, Ruiz testified that she was unsure how long Petitioner and her sister had been dating. (Tr. 55.) Like Victim Rivera, Ruiz pointed out that there were exterior lights on the front of the apartment building where the altercation tookplace, but noted that the nearby train station, which also provided lighting, was three hundred feet away. (Tr. 77-79.)
Dr. Grand, as an expert witness, testified about the size and nature of the wounds, saying that they were consistent with a wound by knife or some type of blade, matching the complaint the patient had made. (Tr. 305-08.) Dr. Grand also testified that lacerations of the type Victim Rivera received always leave scars. (Tr. 311-12.)
Petitioner himself did not testify; as would later be discovered, he fled the state in the middle of his trial. (Sentencing Transcript ("Sentencing"), Dkt. 40, 10, 24.)
On Wednesday, September 12, 2012, Petitioner, while on the phone, entered the same elevator as some of the jurors. (Tr. 279, 317.) Juror Gonzalez (Juror Number 11) notified an officer of the court. (Tr. 320.) Two days later, the court held voir dires of Gonzalez, and then the other jurors, to determine whether or not they would be prejudiced against Petitioner as a result of the encounter. (Tr. 316-69.)
The voir dires...
To continue reading
Request your trial