Ross v. New York

Decision Date08 August 2019
Docket Number18-CV-7219(JS)
PartiesRAY ROSS, Petitioner, v. PEOPLE OF THE STATE OF NEW YORK, Respondent.
CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

RAY ROSS, Petitioner,



August 8, 2019


For Petitioner:

Ray Ross, pro se
Fishkill Correctional Facility
271 Matteawan Road
P.O. Box 1245
Beacon, New York 12508

For Respondent:

John B. Latella, Esq.
Assistant District Attorney
Nassau County District Attorney's Office
262 Old Country Road
Mineola, New York 11501

SEYBERT, District Judge:

From March 2013 until June 2014, Raymond Ross ("Ross" or "Petitioner") repeatedly sexually abused M.J.,1 a then-twelve-year-old girl. Following a jury trial, Ross was convicted of one count of Course of Sexual Conduct Against a Child in the Second Degree in violation of New York Penal Law § 130.80(1)(b) and two counts of Endangering the Welfare of a Child in violation of New York Penal Law § 260.10(1). Ross's subsequent appeals in New York

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State Courts were unsuccessful, and Ross then filed this pro se Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Pet., D.E. 1.) Ross raises four issues in his Petition: (1) sufficiency of the evidence; (2) ineffective assistance of counsel; (3) failure to disclose a witness's criminal record; and (4) improper preclusion of witness testimony. For the following reasons, the Petition is DENIED in its entirety.


The Court begins its inquiry with a general overview, adding greater detail in the ensuing analysis. As is typical in habeas proceedings, the facts in this case are viewed in the light most favorable to the verdict. See People v. Conway, 668 F.3d 79, 80 (2d Cir. 2012).

I. The Offense Conduct

From March 2013 to June 2014, Ray Ross sexually abused M.J., a twelve-year-old minor. Ross lived with his girlfriend, Tara Johnson ("Tara"), in the upstairs bedroom of a single-family residence in West Hempstead, New York. (Tr. 748-50.)2 At the same time, M.J. lived with her mother and Tara's sister, Sarita Johnson ("Johnson"), and her other siblings on the first floor of the

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house. (Tr. 449:20-22, 515:8-12, 745:3-747:9.) Ross would assist Johnson, who worked odd jobs and relied on child support for income, with paying bills. (Tr. 446:3-15, 519:20-520:4.)

In March 2013, when M.J. was in sixth grade, she began "hanging out" with Ross, who she referred to "Ray Ray." (Tr. 755:1-756:6, 1320:3-7.) Ross was on disability and often remained at home watching television in his room with the only functional television set in the house. (Tr. 448:14-19, 450:12-25, 533:3-9, 888:8-20.) At first, Ross's door remained open while in the company of M.J., but he eventually began closing it during visits. (Tr. 451:1-5.) While clothed in only a t-shirt and boxer shorts, Ross would repeatedly touch M.J.'s breasts and buttocks beneath her undergarments. When M.J. asked Ross what he was doing, he responded "nothing." (Tr. 757:18-758:25). The course of conduct continued "once or twice a week" and intensified as Ross touched M.J.'s vagina and fondled her breasts while masturbating. (Tr. 762:3-765:12.) Throughout the summer of 2013, Ross had M.J. lie face down on his bed with her pants pulled down. He would place his penis on M.J.'s buttocks and ejaculate on her backside (Tr. 776:21-779:2.)

Moreover, on his way home from weekend excursions with M.J. to visit his ex-wife Paula Ross in Brooklyn, Ross would often stop in the parking lot of a West Hempstead store and touch M.J.'s breasts, buttocks, and vagina under her clothing while they sat in

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the back seat of his truck. (Tr. 772:3-773:8.) Ross would pull M.J.'s pants down halfway and then pull his pants down halfway exposing himself to M.J. (Tr. 773:9-16.) M.J. recounts Ross kissing her neck, licking her vagina, and placing her hand on his erect penis to masturbate him until he ejaculated. (Tr. 773:17-774:23, 775:21-776:12.) Ross also told M.J. that he wanted to "smash," a term used to denote the act of sexual intercourse. (Tr. 774:24-775:14.) This conduct continued from September to December 30, 2013, when M.J. turned thirteen. (Tr. 782:3-10, 802:12-803:14.)

During this period, Ross and M.J. exchanged hundreds of calls and text messages on a cellphone Ross had purchased for her in October 2013. (Tr. 783:1-8, 798-801.) After she received the phone, Ross told M.J. via text that he "loves [her]" and that they would someday "live in a house" together and that he would "buy [her] a car." (Tr. 801:4-11.) M.J. also began entering Ross's room almost every day with the door closed when Tara Johnson was not home so that Ross could touch her breasts and vagina. (Tr. 803-06, 821-22.) The sexual abuse continued until June 2014, and M.J. did not tell anyone about Ross's actions because he threatened to call "social services" on Johnson and she wanted Ross to continue paying for things. (Tr. 806:13-23.) Furthermore, Ross continued to take M.J. to Brooklyn almost every weekend and would stop in the parking lot of a different West Hempstead store on the

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way home because there were "too many people" at the old location. Ross repeatedly pulled down M.J.'s pants, touched her breasts and buttocks, licked her vagina, and masturbated. (Tr. 802:3-24, 810:17-25, 817:14-18, 819:2-23.)

Eventually in August 2014, Johnson observed Ross and M.J. together on the bed in Ross's room, confiscated M.J.'s cellphone, and contacted the Nassau County District Attorney's Office. (Tr. 472:5-474:3, 482:3-483:12, 566:18-572:11.) Johnson forbade M.J. from further contact with Ross, but Ross purchased M.J. a second phone in October 2014 and continued to visit, text, and call her on a frequent basis. (Tr. 842:15-23, 852:1-19, 912:5-7, 949:5-11, 968:15-19.) After Johnson discovered M.J.'s second phone that month and reviewed disturbing text messages exchanged between Ross and M.J., Johnson took M.J. to the District Attorney's Office and sought orders of protection against Ross in Family Court. (Tr. 484:14-22, 492:2-493:6, 501:5-502:1, 621:21-23, 622:20-24, 853:19-24, 854:1, 863:23-864:1, 898:4-14, 937-41.) Ross then moved out of the family home. (Tr. 863:8-22.)

On December 10, 2014, M.J. and Johnson spoke with Nassau County Police Detective Rhubens Toussaint in his vehicle down the street from the Johnson residence. (Tr. 503:11-22, 577:19-582:12, 629:10-630:23.) That same night, Detective Toussaint received a signed statement from both M.J. and her mother. (587:7-588:19, 653:21-654:21, 910:5-911:1-10.) He also collected the two cell

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phones which contained 520 pages of records showing calls and text messages between Ross and M.J. (Tr. 632:8-12, 678:13-19, 724:17-18, 788:21-23, 867:10-19.) Ross surrendered to authorities thereafter (Tr. 656:17-658:6) and was charged with Course of Sexual Conduct Against a Child in the First and Second Degrees (New York Penal Law §§ 130.75(1)(b), 130.80(1)(b)), and two counts of Endangering the Welfare of a Child (New York Penal Law § 260.10(1)) for conduct that occurred from March 1, 2013 through December 29, 2013 and December 30, 2013 through October 17, 2014, respectively (see Aff., D.E. 7-6).

II. The Jury Trial

A. Summary of Proceedings

The jury trial began on February 4, 2016, in the Supreme Court of the State of New York, County of Nassau, before Justice Terrence P. Murphy. (See Tr. at 1.) Witness testimony commenced on February 9. (Tr. at 354.) The prosecution called five witnesses: Sarita Johnson (Tr. 437-625), Nassau County Police Detective Rhubens Toussaint (Tr. 626-688), Sprint Records Custodian Kelly Walker (Tr. 695-735), M.J. (Tr. 744-993), and Nassau County Child Advocacy Center Director Joshua Hanson (Tr. 994-1030). Ross called seven witnesses: Rafael Mickens (Tr. 1068-1086), George Mickens (Tr. 1092-1102), Paula Ross (Tr. 1103-1131), Jasmyn Ross (Tr. 1146-1160), Justyn Ross (Tr. 1161-1172), Tara Johnson (Tr. 1195-1259), and Ray Ross (Tr. 1263-1324). Upon

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completion of closing statements, the jury was instructed on the applicable law.

On February 23, 2016, after three days of deliberation, the jury convicted Ross of Course of Sexual Conduct Against a Child in the Second Degree, and two counts of Endangering the Welfare of a Child. (Tr. 1473-75.) On June 30, 2016, Ross was sentenced to three years in prison followed by five years of post-release supervision for the Course of Sexual Conduct Against a Child conviction, as well as one year in prison on each of the Endangering the Welfare of a Child convictions. The court directed that Ross's sentences run concurrently and imposed a lifetime order of protection in favor of M.J. (Sentencing Tr. 25-26.)

B. Pertinent Arguments

At trial, defense counsel strenuously attempted to discredit M.J.'s and Johnson's testimony. The court denied counsel's request for a copy of Johnson's NYSIS record and precluded a defense witness from testifying on a collateral matter. Specifically, while the parties were still selecting a jury, Johnson informed the prosecutor that she had been arrested for shoplifting in 2014 and had been granted an adjournment in contemplation of dismissal ("ACD") to resolve the case. (Tr. 229:10-230:12.) Upon receiving this information, defense counsel requested that the prosecutor conduct a complete search of Johnson's criminal background and turn the report over pursuant to

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Brady and Giglio.3 (Tr. 229:18-236:25.) However, the prosecutor had already searched Johnson's criminal history and informed the court that any records relating to the adjournment in contemplation of dismissal would be sealed and therefore inaccessible. (Tr. 230:8-12.) The court inspected Johnson's NYSIS record and determined it was blank, but still instructed the prosecutor to "gather as much information as possible" regarding the 2014 incident. (Tr. 233:7-10, 289:20-23, 291:13-16.)

Upon further examination, the prosecutor learned that there was "only one record of any criminal matter," namely, Johnson's guilty plea for disorderly conduct in relation to a petit larceny charge in...

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