Valentin v. Mazzuca
| Decision Date | 10 January 2011 |
| Docket Number | No. 05-CV-0298(VEB),05-CV-0298(VEB) |
| Parties | HECTOR L. VALENTIN, Petitioner, v. WILLIAM MAZZUCA, Superintendent, Fishkill Correctional Facility, Respondent. |
| Court | U.S. District Court — Western District of New York |
Acting pro se, Hector L. Valentin ("Valentin" or "Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his detention in state custody as a result of a conviction on charges of robbery in the first degree (display of a deadly weapon, N.Y. Penal Law § 160.15(4)) and robbery in the second degree (N.Y. Penal Law § 160.10(1)). The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1). For the reasons that follow, the petition is granted in part and denied in part.
Valentin's conviction stems from the robbery of a stereo-equipment shop in the northwest area of the City of Rochester in Monroe County. An accomplice, Jose Arroyo ("Arroyo") was indicted separately for his alleged involvement in the robbery. Valentin was indicted under an accomplice theory of liability (N.Y. Penal Law § 20.00).
At approximately 10:30 a.m. on February 29, 2000, John Kemp, was, as was his routine, "hanging out" at Mike's Stereo Shop when an individual (later identified as Valentin) entered the store. Valentin inquired of the store clerk, Terrance McLaurin, if he would be interested in purchasing a DJ mixing-board. After McLaurin indicated his possible interest, Valentin left the store, indicating that he would be right back. Petitioner returned with an accomplice (separately indicted co-defendant Jose Arroyo), carrying both a mixing board and a 9-mm handgun. According to Kemp's testimony at Valentin's trial, Valentin placed the handgun a distance of 6 to 7 inches from McLaurin's head and demanded that the cash register be opened. Petitioner then removed currency from the drawer. In response to Petitioner's subsequent demand for merchandise, Kemp removed speakers from the store's display cases and slid them down the counter toward McLaurin. Kemp recalled that Petitioner was telling his companion to "hurry up" during the incident; the two robbers otherwise conversed in Spanish.
As the robbers quickly took their exit, Kemp saw Petitioner, whom he at this point clarified as being the person who had held the gun during the robbery, driving a "maroonish-colored Grand Am" and pulling out of the parking lot.
Valentin was arraigned on July 19, 2000, and a suppression hearing was scheduled for October 27, 2000. Prior to the hearing, Arroyo's case was dismissed by Justice Kenneth R. Fisher (New York State Supreme Court, Monroe County), after Justice Fisher found that the sole eyewitness, John Kemp ("Kemp"), 1 "did not provide clear and convincing evidence that he hadan independent basis for making an identification of the defendant, Arroyo." Order of Justice Geraci Denying Valentin's Motion to Set Aside the Verdict Pursuant to C.P.L § 330.30 Motion ("the C.P.L. § 330.30). Order") (citing Order of Justice Fisher Denying Arroyo's Motion to Preclude Identification Evidence). As Justice Geraci recounted,
[Justice Fisher] held that, due to his unreliability, the witness, John Kemp, probably should not be sworn to testify at trial. The court found that Mr. Kemp did not give a reasonably accurate account of what he had seen. He could not describe what happened at the site of the robbery with any consistency, and the court had little or no confidence in his reliability as a witness. The witness testified as to suffering a blackout because of the stress of the moment and described a [previous] serious brain injury that he had suffered in a fall.
C.P.L. 330.30 Order at 3 (). The prosecution, unable to proceed without the testimony of McLaurin and Kemp, did not oppose a motion to dismiss the charges against Arroyo. Id. With this development, Valentin was released on bail pending the Huntley hearing.
B. Valentin's Trial
The other eyewitness in addition to Kemp was McLaurin, the employee of the stereo shop. At the beginning of trial, the prosecutor stated to the judge,
Mr. McLaurin left the state and then subsequently left, the country, okay? That's the chronology of his history. In other words, he's not been-he's been available, unavailable, available, and then finally unavailable. And now we have confirmed his whereabouts in the Bahamas, okay?
T.71. Thus, McLaurin did not testify at trial. Trial counsel did not seek dismissal of the indictment based upon McLaurin's non-appearance.
At trial, John Kemp testified that he was thirty-seven-years-old and had been working as a janitor at the Kodak Office building for about five months as of time of trial. When the robbery occurred, on February 29, 2000 about a year ago, Kemp was on disability due to a brain injury caused by a fall from a ladder. Kemp would go to Mike's Stereo Shop "basically every day" to hang out at the store, which sold stereo equipment for cars, homes, TVs, VCRs, mixing boards, turntables, and so forth. At about 10:30 a.m. on February 29, 2000, McLaurin was working at the store. Kemp had known McLaurin for about 3 to 4 months and said that they were "like friends". T.242. Kemp stated that he used to go in to give McLaurin a "helping hand" and "basically hangout, have somebody to talk to."
At about 12:15 that day, Kemp recalled, T.242.
What led Kemp to believe there was a robbery occurring was "when [he] seen [sic] the pistol." When asked what kind of pistol it was Kemp stated, "if I had to-a black pistol, maybe a 9-millimeter?" T.243. Kemp testified that it was being pointed at McLaurin's head. From about "[s]ix/seven inches away. T.2543. When Kemp turned and saw this pistol, he said he was "about as close as we are right now", meaning the distance between him and Terrance wasapproximately 10 to 12 feet. T. 244. He described the lighting conditions as "very well lit" as the store had fluorescent lights in the ceiling. The front of the store was glass windows and a glass door. Inside the store looking out he could see the street. T.244.
Kemp testified T. 245.
Kemp did not know either of the men previously, but he assumed that they were friends. The first man that came in, Kemp described as as "[s]tocky" "Hispanic kid." Kemp testified that he was wearing a black leather coat. Keep your 245 when they came it "back into the store, the first kid that came in, the stocky kid had the mixing board in his hands" T. 246. Ask for a general description of what the second man look like, Kemp said, "thin built, Chinese eyes" and also Hispanic. He estimated their age as in their mid-20s. The first man had the gun pointed at Terrance's head.
When asked where the second man was and what he was doing, Kemp testified that when he turned around he thought they had made a deal, "so they were both standing right next to Terrance but when they made their-when they came up towards the cash register-the person who had the gun had [sic] it to Terrance, then the other kid was standing right next to me." T. 247, Kemp testified that he had an opportunity to look at the face of the first man. It was not obstructed by any kind of hat or mask or glasses.
When the second man came in with the first man, Kemp testified that the second man was not holding anything. When asked for the exact words he heard from the first man towards Terrance, he said "I know they were talking about the mixing board so I thought they made a deal he said give up the money so I just thought they made a deal you know, until I realized what washappening." T.248. While the first man had a gun pointed at McLaurin's head, he told McLaurin "to open the fucking register." T.248. McLaurin replied, "you open it." T. 249. The first man then opened the register, "took a few bucks out, and then said give up the merchandise." While this was occurring he still had the pistol. Kemp then walked around behind the counter, opened up the case, and took car amplifiers out (about four or five), and a car stereo, and slid them down the counter. McLaurin gave them to the first man. T.249-250.
Kemp identified the "first man", the man who had the gun, as Valentin. T.254-55. Kemp testified that the first man took the merchandise and gave it to person number two. T.250. Kemp related, "Number one was saying to number two to hurry up, hurry up something like that, come on, come on." T.251 The pistol was still being pointed by person number one (Valentin) at McLaurin. Then the two men began talking in Spanish so Kemp could not understand what they were saying.
Almost immediately after that they turned around and "walked pretty fast, " T.253, out of the store. The number two robber left first with number one right behind him. T.252 Kemp recalled that when they "exited the store they made a right to the parking lot." T.252. The parking lot was on the same side of the street as the stereo shop. Kemp observed the first man, whom he identified as Valentin, driving a "maroonish-colored Grand Am" and pulling "[v]ery, very fast" out of the parking lot. T.255.
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Valentin v. City of Rochester
...the decision granting Valentin's petition for a writ of habeas corpus and ordering the expungement of his conviction, Valentin v. Mazzuca, 2011 WL 65759 (W.D.N.Y. 2011). See, e.g., Smith v. Gonzales, 222 F.3d 1220, 1222 (10th Cir. 2000) (statute of limitations accrued on date court issued w......