Rosario v. Burgee
| Decision Date | 27 March 2008 |
| Docket Number | No. 07 Civ. 5907(VM).,07 Civ. 5907(VM). |
| Citation | 542 F.Supp.2d 328 |
| Parties | Alex ROSARIO, Petitioner, v. John BURGEE, Superintendent, Elmira Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Alexy Rosario, Attica, NY, pro se.
Frederick Hongyee Wen, Attorney General of the State of New York, New York, NY, for Respondent.
DECISION AND ORDER
Pro se petitioner Alexy Rosario ("Rosario") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2006). Rosario was convicted in New York State Supreme Court, New York County (the "Trial Court"), of burglary in the second degree in violation of New York Penal Law § 140.25(2), grand larceny in the third degree in violation of New York Penal Law § 155.35, criminal possession of stolen property in the third degree in violation of New York Penal Law § 165.50, and possession of burglar's tools in violation of New York Penal Law § 140.35 (collectively, the "Offenses"). Rosario was sentenced to imprisonment for a determinate term of twelve years. In his petition, Rosario asserts the following grounds as bases for habeas relief: (1) his statements to the police were the result of an unlawful arrest and therefore improperly admitted at trial; (2) he was deprived of due process because of the Trial Court's failure to grant a continuance in order to allow Rosario to produce a witness at trial; (3) the Trial Court erred in failing to properly conduct a Batson hearing upon the Rosario's objection to the prosecutor's use of peremptory strikes; and (4) the Trial Court failed to properly charge the jury on the government's burden to disprove Rosario's alibi defense. For the reasons set forth below, Rosario's petition is DENIED.
At approximately 3:00 a.m. on March 20, 2003, three plainclothes police officers (the "Officers") were patrolling in an unmarked car near First Avenue and East 119th Street in Manhattan, New York. The Officers initially noticed Rosario and Clarence Jones ("Jones") walking north on First Avenue because each man resembled the general description of a suspect2 in a series of reported burglaries and robberies in the area, and at the time, Jones was carrying a large black trash bag, adding to the suspicion.
After driving past Rosario and Jones, the Officers turned on their rear flashing lights. Upon seeing the police, Rosario and Jones abruptly turned onto East 119th Street. The Officers backed up, turning onto East 119th Street to follow Rosario and Jones. When the Officers caught up with the two men, Jones was no longer carrying the large black bag. The Officers tapped their siren, causing Rosario and Jones to stop, and the Officers got out to question them.
Rosario provided identification upon request and stated that he and Jones were coming from the apartment of Rosario's girlfriend, although the girlfriend's address was in the opposite direction from which they were headed. Jones stated that his identification was in his car, which the two men had walked past. The Officers noticed that Jones was sweating and appeared nervous, prompting an Officer to pat down Jones, which resulted in the recovery of burglar's tools. One of the Officers saw the black trash bag with its contents exposed in Jones's car, with numerous phone cards, two crowbars, and an ATM box visible.
An Officer searched for signs of a break in on First Avenue, discovering a bodega roughly forty feet south of the spot where the Officers first noticed Rosario and Jones. The store's front gate was raised, its front door broken into, and the contents of its ATM removed. After discovering the bodega break-in, the Officers arrested Rosario, peaceably, and Jones, after a brief flight.
After Rosario was placed in custody, a detective read Rosario a printed Miranda warning and Rosario responded that he understood his rights. Rosario agreed to answer questions and provided a signed statement that he had assisted Jones in burglarizing the bodega.
By New York County Indictment Number 1672/03, filed on April 4, 2003, Rosario and Jones were charged with the Offenses.
Rosario moved to suppress the physical evidence collected after his arrest, as well as his statement to police, on the grounds that the police lacked probable cause to arrest him. After a hearing on the matter, the Trial Court denied Rosario's request, finding sufficient probable cause to justify Rosario's arrest.
At the pre-trial conference on December 4, 2003, Rosario's court-appointed counsel ("Rosario's Counsel"), stated that he was not prepared to proceed to trial because he had not yet procured a key witness, Jones, who was incarcerated in a New York State prison at the time. Rosario's Counsel requested the Trial Court to issue an order to produce Jones so that Rosario's Counsel could "get the Co-Defendant down by next week when [he was to] put on [the] Defense case." (Pre-Trial Tr. at 3.) Although the Trial Court issued the order to produce, Jones was never produced as a witness at trial, and Rosario's Counsel did not request a continuance to produce Jones during Rosario's case in chief.
At the end of the third round of jury selection, when ten jurors had been seated, Rosario raised a Batson challenge to the prosecution's (the "Prosecution") use of peremptory challenges. Rosario's Counsel stated that (Voir Dire Tr. at 188.) The Trial Court did not request the Prosecution's justification for its peremptory challenges, instead ruling that "[t]he defense has failed to establish a prima facie case." Id. Rosario did not renew his Batson challenge after the fourth and final round of jury selection.3
During Rosario's trial, the witnesses the Prosecution presented included the Officers, the detective who took Rosario's statement, and the bodega's owner. The Trial Court held a precharge conference to review the jury charge before Rosario called witnesses who would support his alibi defense. At this conference, the Trial Court Judge, the Honorable Philip Grella ("Justice Grella"), declared that:
I'll tell [the jury] that although the alibi was raised, [Rosario] has no burden to prove it. In fact, even if [the jury] find[s] the alibi was false, [the jury] must not, for that reason alone, find [Rosario] guilty, and that the burden of proof never shifts from the People to [Rosario], and I'll go into detail in that regard.
(Trial Tr. at 548-49.) At that point, Rosario's Counsel asked if there was "anything in there that the People must disprove the alibi beyond a reasonable doubt?" (Trial Tr. at 549.) Justice Grella responded that he would instruct the jury that the burden was on the People to prove beyond a reasonable doubt that Rosario "was the person who committed the crime and, therefore, was not elsewhere at the time of its commission." (Trial Tr. at 549.)
Later in the pre-charge conference, Rosario renewed his request for the charge to "be more specific" and, "to make it really clear to the jury," to "adjust one line in there which says that, to the effect that now the defense has raised alibi [sic] ... the People now must disprove the alibi ... beyond a reasonable doubt." (Trial Tr. at 555.) The Trial Court refused to alter the charge despite Counsel's renewed objection.
At the close of Rosario's trial, Justice Grella read the jury charge, which included the following alibi language:
Now the defendant raised an alibi. The defendant contends that the defendant could not have committed the charged crime because he was elsewhere at the time of the commission.
Although the defendant raised the alibi, the defendant has no burden to prove it. In fact, even if you find the alibi is false, you must not, for that reason alone, find the defendant guilty.
To do that would be to shift the burden of proof from the People to the defendant. The People are required to prove beyond a reasonable doubt, on all the evidence presented, that the defendant was the person who committed the crime and, therefore, was not elsewhere at the time of its commission.
To prove that, the People may rely solely upon the evidence they offered to establish beyond a reasonable doubt that the defendant committed the crime.
The People are not required to present additional evidence that independently proves that the defendant was not where he claims to have been at the time of the crime.
If you find from the evidence that the People have proven beyond a reasonable doubt that the defendant committed a crime charged, you may find, from the same evidence, that the People have proven beyond a reasonable doubt that the defendant was not elsewhere at the time of its commission.
(Trial Tr. at 749-51.) After completing the jury charge. Justice Grella asked if there were any objections. Rosario's Counsel replied "No, your Honor." (Trial Tr. at 769.)
The jury returned a verdict convicting Rosario of the Offenses. The Trial Court then sentenced Rosario to a determinate twelve-year sentence, as well as two concurrent three-and-a-half to seven-year terms and one concurrent one-year term.
Rosario appealed his conviction to the New York State Supreme Court, Appellate Division, First Department (the "Appellate Division"). Appellate counsel for Rosario argued that the Trial Court committed reversible error when it: (1) refused to suppress Rosario's statement to the police as the product of an unlawful arrest; (2) denied Rosario's application for adjournment to afford him the opportunity to procure Jones as a witness; (3) ruled against Rosario's Batso...
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