Romero v. Napoli, 08 Civ 8380 (PAE)(HBP)
| Decision Date | 15 July 2013 |
| Docket Number | 08 Civ 8380 (PAE)(HBP) |
| Parties | UBALDO ROMERO, Petitioner, v. DAVID NAPOLI, Superintendent of the Southport Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND
RECOMMENDATION
Petitioner, Ubaldo Romero, seeks, by his pro se petition, a writ of habeas corpus pursuant to 28 U.S.C. § 2254 vacating a judgment of conviction entered on March 12, 2002, after a jury trial, by the Supreme Court of the State of New York, New York County (Snyder, J.), for two counts of murder in the second degree, in violation of New York Penal Law Section 125.25(1). Pursuant to that judgment, petitioner was sentenced to two consecutive indeterminate sentences of twenty-five yearsto life. Petitioner is currently incarcerated pursuant to that judgment.
For the reasons set forth below, I respectfully recommend that the petition be denied.
Petitioner's conviction arises out of the slaying of Etienne Adorno and Demetrio Flores on November 1, 1990. On the evening of that day, petitioner and several other individuals approached a car parked on First Avenue in Manhattan between East 117th and East 118th Streets in which Adorno and Flores were sitting. Petitioner and his accomplices riddled the car with bullets, inflicting a total of 21 gunshot wounds on Adorno and 8 on Flores. The evidence at trial demonstrated that petitioner, a drug trafficker, and his conspirators shot Adorno and Flores because they were believed to be in the neighborhood to rob petitioner or his crew of narcotics or narcotics proceeds.
In 1990, petitioner's brother, Robert Romero, was living with his paramour, Maria Martinez, in a third floor apartment located on First Avenue between 117th and 118th Streets(Tr.1 445-46). Martinez testified that Robert managed several individuals who sold crack cocaine in the vicinity of 117th and 118th Streets (Tr. 450, 451, 457). She also testified that petitioner participated in the operation by supplying the street dealers with drugs (Tr. 446, 457-58). Several times a week, Martinez accompanied Robert to an abandoned apartment on 117th Street and First Avenue (the "Stash Apartment") where she helped Robert package crack for retail sale (Tr. 455-57). The other individuals who participated in the narcotics operation included Wilson Cruz (Tr. 452, 1950-55, 2032), Frederick McBean (Tr. 1242-44, 1255) and Raymond Alvarez (Tr. 1620-35, 1637-40, 1642, 1652).
Also in 1990, Rafael Baez and Adorno began committing robberies in the East Harlem area of Manhattan (Tr. 724-26, 897). The two targeted drug dealers because they carried the most money (Tr. 726-28). In the fall of 1990, Flores joined the robbery crew (Tr. 732-36). Petitioner and his brother were aware that drug dealers in the neighborhood were being robbed, but were apparently unable to identify the robbers (Tr. 1689-92).
During the late afternoon on November 1, 1990, Baez, Adorno and Flores met for the purpose of robbing the individuals who were openly selling drugs in the vicinity of 118th Street andFirst Avenue (Tr. 736-37). The three drove to the area in Adorno's car, with Adorno and Flores in the front, Baez in the rear (Tr. 738-39, 811). Baez was armed with a .380 semi-automatic pistol, Flores carried a fake .357 revolver and Adorno was unarmed (Tr. 740-41, 788-89, 818-22). Their plan was to sit in the car and wait until they observed a drug dealer carrying a bag of either drugs or money; Baez would then use his loaded gun to perpetrate the robbery, while Flores, armed with his fake gun, would act as back up (Tr. 817-20, 825). After waiting in the car for a few minutes, Baez got out of the car and walked to a gas station 50 to 100 feet away to call his girlfriend (Tr. 746, 748). He could not see Adorno's car from the gas station (Tr. 746-49).
Sometime later that evening, the murders occurred. Each of the prosecution's percipient witnesses offered a different version of the shootings which cannot be melded together into a consistent narrative. I shall, therefore, summarize the testimony of each separately.
Cruz, who had pled guilty and testified pursuant to a cooperation agreement, testified that he met with petitioner, Robert and their two brothers at a restaurant in the vicinity of118th Street and First Avenue at 6:30 or 7:00 p.m. during the evening of November 1, 1990 (Tr. 1973, 1977, 2187). Cruz asked Robert why he was crying and petitioner stated that his mother had just died and that "'those mother fuckers are going to pay'"2 (Tr. 1973, 2188). Petitioner then told Cruz that he would give Cruz a gun and that petitioner wanted Cruz "to shoot these mother fuckers" (Tr. 1974, 2188).
A few minutes later, petitioner left to meet with the driver of a car that had pulled up outside the restaurant (Tr. 1975). Petitioner then re-entered the restaurant and told Cruz to meet with the driver of the car in front of the building in which the Stash Apartment was located (Tr. 1975-76). Cruz went to the designated location, and the driver handed Cruz a heavy bag; Cruz carried the bag into the Stash Apartment in which Martinez was present (Tr. 1978-79). When he got to the Stash Apartment, Cruz opened the bag and found between three and five guns in the bag, one of which looked to Cruz like a machine gun (Tr. 1980). About ten minutes later, petitioner and his three brothers arrived at the Stash Apartment (Tr. 1985). Robert grabbed a gun, had an argument with Martinez and left the apart-ment (Tr. 1985-87, 2189). Petitioner then took a gun and handed one to each of his brothers and to Cruz (Tr. 1987, 2068-69, 2189). Petitioner, his brothers and Cruz then followed Robert out of the apartment and towards 118th Street and First Avenue (Tr. 1989-91). Robert approached a double-parked car containing two occupants and began shooting at it (Tr. 1990-94, 1997, 2190). Cruz also approached the car and shot at the driver's side (Tr. 1992, 1995, 1997). Petitioner shot at the car from a distance of about 17 feet (Tr. 1993-94, 1997). Cruz did not recall any of the occupants of the car shooting back (Tr. 2168).
Martinez testified that on the afternoon of November 1, 1990, she and Robert learned that Robert's mother had died (Tr. 462-64, 700). She went to another room in their apartment, and heard Robert and other male voices in the living room having a heated discussion (Tr. 485, 488). Among other things, she heard one of the voices say that someone was trying to "take over the business" (Tr. 487). She also heard Robert say "'Let's get the jammie,'" a term which she understood to mean a gun (Tr. 468, 487).
Martinez subsequently saw Robert, petitioner, Cruz and two other men "going through" a duffel bag in the hallway of herapartment; she knew the bag contained guns (Tr. 470-71, 490-92). When Robert saw that she was watching, he angrily told her to leave and she went back inside her bedroom (Tr. 492-94). After hearing Robert and the others leave the apartment, Martinez looked out her bedroom window and saw Robert, petitioner and Cruz standing on the steps of her building; she could also see the duffel bag and could see guns within it (Tr. 494-98). Martinez yelled out to Robert, and he brandished a gun at her and told her to "[G]et the fuck back inside" (Tr. 498).
Shortly thereafter, Martinez heard shooting, looked out the window and saw Robert running toward a parked car, firing a gun in the direction of the car (Tr. 499-500, 555). She also observed petitioner running toward the car, but did not see anything in his hand (Tr. 671). She also saw Cruz and another man running toward the car (Tr. 501-02, 556-57). She could also see the person in the driver's seat of the car who appeared to be "jumping up and down" as the shots were fired (Tr. 504).
Rich did not offer testimony concerning the events leading up to the shootings. Rather, he testified that on the evening of November 1, 1990, he had been smoking marijuana in the vicinity of 118th Street and First Avenue when he heard what hebelieved to be gun shots from a semiautomatic machine gun (Tr. 1088-89, 1100-01, 1173, 1177-78). He saw two men running across First Avenue; he recognized petitioner as one of the men (Tr. 1090-91, 1126-27). Petitioner was holding something with both hands which Rich believed to be a machine gun (Tr. 1091-95, 1112-13, 1117, 1128, 1152, 1184-86).
Alvarez testified that on November 1, 1990 he saw Robert and his brother, Julio, firing shots into the blue car occupied by Adorno and Flores (Tr. 1647-48). Alvarez hid in a store while the shooting was occurring and when the shooting stopped, he saw Robert, Julio and petitioner get into a burgundy colored car (Tr. 1647-49). Alvarez did not testify that petitioner fired any shots (Tr. 1648-49).
Baez testified that while he was on the telephone, he heard "loud and rapid" gunshots and saw two men firing at Adorno's car (Tr. 750-52). He recognized one of the shooters as Cruz (Tr. 752-53). Baez believed the second shooter was using a gun that could fire rapidly and continuously (Tr. 828-32). Baezfired several shots at the individuals firing at Adorno's car and then fled from the scene (Tr. 751-52, 761, 832-34, 965-66).
McBean testified that during the afternoon of November 1, he had been in his apartment which was adjacent to the Stash Apartment (Tr. 1269-72). McBean heard a loud knock at the door of the Stash Apartment, and through the peephole in his door, he saw petitioner's brother, Julio, standing at the door of the Stash Apartment (Tr. 1273-04, 1504). Petitioner opened the door of the Stash Apartment, and Julio told him that "some people" with whom they had had problems were downstairs; Julio then entered the Stash Apartment and the door closed (Tr. 1274, 1504-05).
McBean...
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