St. Rose v. Larkin
| Decision Date | 20 July 2015 |
| Docket Number | 12 CIV. 2336 (ER) (HBP) |
| Parties | GILBERT ST. ROSE, JR., Petitioner, v. LARKIN, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Ramos, D.J.:
Before the Court is the Report and Recommendation ("R&R") of Magistrate Judge Henry B. Pitman in response to a petition by Gilbert St. Rose, Jr. ("Petitioner" or "Rose"), for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). Doc. 1. In the Petition, Rose asks this Court to vacate his November 2, 2006 conviction, following a jury trial, by the Supreme Court of the State of New York, New York County (Berkman, J.) on one count of grand larceny in the first degree, four counts of grand larceny in the second degree, seven counts of grand larceny in the third degree, seven counts of forgery in the second degree, eight counts of criminal possession of a forged instrument in the second degree, six counts of identity theft in the first degree, and one count of scheme to defraud in the first degree. R&R at 1-2.1 On June 18, 2015, Judge Pitman issued his R&R recommending that the Court deny Rose's Petition and notifying Rose that he had fourteen days from service of the R&R to file any written objections. Id. at 3, 36. For the reasons stated herein, the Court ADOPTS the R&R and directs the entry of judgment as recommended.
A district court reviewing a magistrate judge's report and recommendation "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistratejudge." 28 U.S.C. § 636(b)(1)(C). Parties may raise "specific," "written" objections to the report and recommendation "[w]ithin fourteen days after being served with a copy." Id.; see also Fed. R. Civ. P. 72(b)(2). A district court reviews de novo those portions of the report and recommendation to which timely and specific objections are made. 28 U.S.C. § 636(b)(1)(C); see also United States v. Male Juvenile (95-CR-1074), 121 F.3d 34, 38 (2d Cir. 1997). The district court may adopt those parts of the report and recommendation to which no party has timely objected, provided no clear error is apparent from the face of the record. Lewis v. Zon, 573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008).
No party has objected to the R&R. The Court has reviewed Judge Pitman's thorough R&R and finds no error, clear or otherwise. Rather, Judge Pitman reached his determination after a careful review of the parties' submissions. R&R at 3-36. The Court therefore ADOPTS Judge Pitman's recommended judgment for the reasons stated in the R&R. Rose's Petition is DENIED. In addition, as Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c); see also, e.g., Matthews v. United States, 682 F.3d 180, 185 (2d Cir. 2012). Finally, the parties' failure to file written objections precludes appellate review of this decision. PSG Poker, LLC v. DeRosa-Grund, No. 06 Civ. 1104 (DLC), 2008 WL 3852051, at *3 (S.D.N.Y. Aug. 15, 2008) (citing Male Juvenile, 121 F.3d at 38). The Clerk of the Court is respectfully directed to enter judgment, mail a copy of this order to Petitioner, and close the case.
It is SO ORDERED.
Dated: July 20, 2015
New York, New York
/s/_________
REPORT AND RECOMMENDATION
Petitioner, Gilbert St. Rose, Jr., 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 November 2, 2006, after a jury trial, by the Supreme Court of the State of New York, New York County (Berkman, J.), for one count of grand larceny in the first degree, in violation of New York Penal Law Section 155.42; four counts of grand larceny in the second degree, in violation of New York Penal Law Section 155.40(1); seven counts of grand larceny in the third degree, in violation of New York Penal Law Section 155.35; seven counts of forgery inthe second degree, in violation of New York Penal Law Section 170.10(1); eight counts of criminal possession of a forged instrument in the second degree, in violation of New York Penal Law Section 170.25; six counts of identity theft in the first degree, in violation of New York Penal Law Section 190.80(3) and one count of scheme to defraud in the first degree, in violation of New York Penal Law Section 190.65(1)(b). Pursuant to that judgment, petitioner was sentenced as a second felony offender to an aggregate term of imprisonment of fifteen to thirty years. The Appellate Division of the Supreme Court, First Department, reversed and dismissed the conviction for grand larceny in the first degree, but affirmed petitioner's conviction with respect to the remainder of the counts. Petitioner is currently incarcerated pursuant to the judgment for a term of imprisonment of ten to twenty years.2
For the reasons set forth below, I respectfully recommend that the petition be denied.
Petitioner's conviction arises out of two identity theft, fraud and larceny schemes planned with accomplice Curtis Hinds and executed, along with other accomplices, between April 9, 2005 and October 18, 2005 (T.3 17-18). In summary, petitioner and his conspirators stole the identities of several individuals. The conspirators used their victims' social security numbers and forged drivers licenses to open fraudulent bank accounts in the victims' names. Through a series of misrepresentations and forgeries, the conspirators then added the victims, who were holders of legitimate accounts, as cosigners to the fraudulentlyopened accounts. This was done without any of the victims' knowledge and permitted a victim's actual bank accounts to be linked to the account that was fraudulently opened in that victim's name. The conspirators were then able to transfer funds from the victims' actual bank accounts to the fraudulently opened accounts, from which the funds were then withdrawn. A second aspect of the scheme involved the fraudulent opening of a bank account in the name of a Manhattan advertising agency into which the conspirators deposited stolen checks payable to the agency. Through these scams, petitioner and his accomplices were able to steal a total of $1,027,950.20 (T. 17-18).
Petitioner asserts only two claims here: (1) that the Trial Court violated his Fourth Amendment rights when it denied his motion to suppress the products of a search warrant that petitioner claimed was based on unreliable information and (2) that his Due Process rights were violated when the Trial Court conducted part of the proceedings in his absence. Because the petition is limited to these two claims, I omit a detailed discussion of the execution of the schemes and the evidence against petitioner.
Detective Robert Muldoon, a member of the Manhattan District Attorney's Office Detective Squad in the Identity Theft Unit, led the investigation into the conduct of petitioner and his conspirators (T. 1635-39). In November 2005, Curtis Hinds, one of petitioner's conspirators, lived at 108-33 Seaview Avenue, Apartment 34-D, Brooklyn, New York while petitioner lived at 569 East 84th Street, Brooklyn, New York (T. 25, 1656, 2617). Detective Muldoon surveilled Hinds and petitioner's residences and vehicles, as well as a branch of Washington Mutual Bank ("WaMu") where several fraudulent withdrawals had been made (T. 1659-50, 1866). Detective Muldoon determined the locations of Hinds and petitioner's residences, that Hinds drove a black Dodge Magnum with New Jersey license plates and that petitioner drove a black BMW sports utility vehicle ("SUV") with Pennsylvania license plates (T. 1649-50).
On November 28, 2005, the Honorable Deborah Kaplan of the Criminal Court of the City of New York issued a warrant to search both petitioner and Hinds' residences and vehicles for computers and related equipment, cell phones, bank records, other persons' identifying information, cash, stocks, bonds, bills, sales receipts, real estate deeds and automobile titles (Brieffor Defendant-Appellant, dated November 2009 ("Pet.'s App. Div. Br."), at 119, annexed as Exhibit A to Gill Decl.; Brief for Respondent, dated February 2010 ("Resp.'s App. Div. Br."), at 88-89, annexed as Exhibit B to Gill Decl.).4 The warrant was issued based on Detective Muldoon's affidavit in which he stated that he had been advised by the senior investigator at Commerce Bank ("Commerce") that numerous fraudulent Commerce accounts had been opened between February 1, 2004 and October 18, 2005 using fake Virginia or Ohio drivers licenses, fake Verizon phone bills and forged Social Security cards, resulting in a loss of over $500,000 through teller withdrawals, ATM withdrawals and debit card purchases (Affidavit in Support of Search Warrant, dated November 28, 2005 ("Muldoon Aff."), ¶¶ 6(i)-(iii), annexed as Exhibit F to Gill Decl.). Detective Muldoon also recounted that he had learned from Nabela Abed, one of the participants in the conspiracy who subsequently cooperated with law enforcement, that Abed had opened approximately seven fraudulent accounts, with-drawing several thousand dollars after Hinds and petitioner recruited her and provided her with the necessary forged documents to open the accounts (Muldoon Aff., ¶¶ 6(iv)-(v)). Judge Kaplan also questioned Detective Muldoon and another witness before issuing the search warrant (Resp.'s App. Div. Br., at 91).
The search warrant was executed on November 29, 2005 (T. 1662-66). Detective Muldoon and other officers searched Hinds' apartment (T. 1666). They recovered fake drivers licenses, utility bills, an envelope from one of the entities that had written a check to the advertising agency for which the conspirators had opened a fraudulent account and the agency's debit card, Commerce banking documents...
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