Velazquez v. Fischer
| Decision Date | 28 November 2007 |
| Docket Number | No. 06 CIV. 5537(DC).,06 CIV. 5537(DC). |
| Parties | Jon-Adrian VELAZQUEZ, Petitioner, v. Brian FISCHER, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Jon-Adrian Velazquez, Ossining, NY, pro se.
Robert M. Morgenthau, Esq., District Attorney, New York County, by Christopher P. Marinelli, Esq., Assistant District Attorney, New York, NY, for Respondent.
Pro se petitioner Jon-Adrian Velazquez petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in the Supreme Court of New York, New York County, petitioner was convicted on March 7, 2000 of one count of Murder in the Second Degree (New York Penal Law ("P.L.") § 125.23(3)), one count of Attempted Murder in the Second Degree (Pl. §§ 110.00/125.25(1)), three counts of Robbery in the First Degree (P.L. § 160.15(2)), and one count of Attempted Robbery in the First Degree (P.L. §§ 110.00/160.15(2)). He was sentenced to concurrent indeterminate terms of imprisonment of twenty-five years to life on the murder count, twelve and a half to twenty-five years each on the attempted murder and robbery counts, and seven and a half to fifteen years on the attempted robbery count.
Petitioner contests his conviction on two grounds: (1) insufficiency of evidence, and (2) improper admission of evidence. The Court has reviewed the parties' submissions and the record of the proceedings below. For the reasons that follow, the petition is denied.
The following is a summary of the facts adduced during the trial.
Around noon on January 27, 1998, a man — determined by the jury to be petitioner — walked into a Manhattan social club and asked Robert "Ricky" Jones, one of the club's employees, if he could play a number in the afternoon horse races. (Tr. 467-70, 472, 644-45). Petitioner was later described by witnesses as a "light-skinned Puerto Rican" man, approximately 5'7" tall, with "fresh braids." (Tr. 468, 501, 571-73, 644-45). Jones had a short conversation with petitioner as he took the bet. (Tr. 385, 469, 472). Petitioner left approximately four to five minutes after entering the club. (Tr. 433, 492).
Shortly after 1:00 p.m., petitioner returned to the club and asked to, place another bet, but Jones informed him that all bets were closed. (Tr. 466, 478-80, 737). Petitioner asked if he could wait in the club for the outcome of the number. (Tr. 480). A few minutes later, as the doorbell rang, petitioner pulled a gun on one of the patrons in the club and ordered him to open the door. (Tr. 480-81, 737-38). Derry Daniels then entered the club and told everyone to get on the floor. (Tr. 389, 423-24, 481, 740, 744). Daniels proceeded to bind everyone's wrists and ankles with duct tape, as petitioner demanded money and jewelry from several of the hostages. (Tr. 200, 390, 404, 424, 483, 740, 957).
Approximately ten minutes into the robbery, Al Ward, the club's owner, pulled out his gun, snuck over to Daniels, and threatened to shoot Daniels if he did not get on the ground. (Tr. 200, 485-88, 741). After some confusion, Daniels informed petitioner that Ward had a gun. (Tr. 201, 403, 489-90, 741, 746-47). Petitioner reached over and shot Ward in the face, killing him. (Tr. 201, 403, 489-90, 741, 746-47). Daniels ran out of the club and petitioner slowly backed out the door. (Tr. 201, 320, 322, 490, 577, 742, 777-79, 783, 960). In total, the robbery-homicide took approximately 15 to 20 minutes. (Tr. 206, 493).
Over the course of the next few days, multiple witnesses to the robbery-homicide described the two robbers to police. (Tr. 344, 500, 798, 807, 1037, 1042, 1063-64). Specifically, each of the witnesses described the gunman as a light-skinned Puerto Rican or black man, with braided hair, between 5'6" or 5'10" tall, and approximately 150 to 160 pounds, with a thin moustache, and wearing a "knit" hat. (Tr. 344-47, 356, 359-60, 368, 500-0i, 571, 605-06, 620-21, 807-09, 1042-44, 1063-64). The witnesses also described the other robber as darker-skinned than the gunman, clean shaven, and with a strong build. (Tr. 213, 297, 368-69, 374, 481-82, 498, 574-75, 607-08, 738, 803).
On January 27, 1998, Jones reviewed photographs of "light-skinned Puerto Ricans" at the police station. (Tr. 501-02, 610-11, 625-26). In response to being asked whether he was sure the gunman was Puerto Rican, Jones said that he "might" have been "black, light-skinned," but that the gunman looked Puerto Rican to him. (Tr. 501-02, 610-11, 625-26). After being shown photos of "light-skinned" black men, Jones selected a photo he believed resembled the gunman, but Jones noted that he was "much lighter skinned" than the man in the photograph. (Tr. 611-13, 625-26, 652-55). Jones rated the sketch composed by the police artist as a "six out of ten" for accuracy. (Tr. 503-04, 613-14).
On January 30, 2004, Augustus Brown, another witness present during the shooting, reviewed photographs of Hispanic men. (Tr. 1143). After reviewing over 800 photographs, Brown identified petitioner as the gunman. (Tr. 1143, 1221-23, 1239-40). Detective LiTrenta continued to have Brown review photographs, but Brown maintained that petitioner was the gunman. (Tr. 1221-23, 1239-40).
On February 2, 1998, after his mother informed him that officers were looking for him, petitioner went to the 28th precinct with his attorney. (Tr. 905). Detective LiTrenta assembled a line-up with five persons similar in appearance to petitioner. (Tr. 904-05, 1089-90). Petitioner's attorney objected to three fillers, who Detective LiTrenta replaced. (Tr. 1089-90). After petitioner's attorney was satisfied with the line-up, the petitioner chose the second spot in the line-up. (Tr. 911). Each person in the line-up was given a knit hat so that their hairstyles were not revealed. (Tr. 1091).
One-by-one, the witnesses present at the robbery-homicide viewed the line-up in the presence of petitioner's attorney. (Tr. 208, 391-92, 494, 754, 907-08, 969-70, 1158, 1161). Ricky Jones, Phillip Jones, and Augustus Brown immediately identified petitioner as the gunman. (Tr. 210-11, 494-95, 755, 913, 1161). Red Woodford initially stated he could not positively identify petitioner as the gunman. (Tr. 969). Shortly after the line-up, however, he explained to Detective LiTrenta that although he recognized petitioner as the gunman, he thought police had enough evidence without his testimony and was scared to run into petitioner on the street. (Tr. 969-71, 975-76). Dorothy Canaday stated that petitioner looked like the gunman. (Tr. 392-93). As a result of the identifications, Detective LiTrenta arrested petitioner. (Tr. 1092).
On February 11, 1998, a grand jury in the Supreme Court, New York County, charged petitioner with committing murder in the first and second degree, attempted murder in the second degree, robbery in the first degree, criminal use of a firearm in the first degree, and burglary in the second degree.
On October 14, 1999, the jury trial commenced before Justice Jeffrey Atlas. The prosecution presented the testimony of seven eyewitnesses to the robbery-homicide: Ricky Jones, Phillip Jones, Augustus Brown, Red Woodford, Dorothy Canaday, Matty Alex, Joseph Scott, along with the testimony of ten New York City police officers and detectives, two crime scene unit detectives, and the doctor who performed the autopsy on Al Ward. At trial, Brown, Ricky Jones, Philip Jones, and Red Woodford identified petitioner as the gunman. (Tr. 201-02, 219, 493, 739, 812, 956, 1054). Canaday incorrectly identified one of the jurors as the gunman. (Tr. 394). Petitioner, Vanessa "Iris" Cepero (his girlfriend), and Maria Velasquez (his mother) were defense witnesses.
On direct, Cepero testified that she could verify petitioner's whereabouts on the day of the robbery-homicide. Specifically, Cepero told the jury that on the day of the murder, she saw petitioner speak to his mother about arrangements to visit his father's grave, and was in the apartment for several hours thereafter. (Tr. 1335-38, 1353-54). Petitioner used Cepero's testimony to establish his alibi that he could not possibly have been at the scene of the crime because he was home with her.
In response to Cepero's testimony, two New York City police detectives who initially interviewed Cepero took the stand. Both testified that Cepero had told them a different story when she was first interviewed. (Tr. 1555, 1572-74). In direct contradiction to Cepero's trial testimony, they stated that Cepero had previously told them that she had been asleep from 8:00 a.m. to 1:30 p.m., and thus could not account for where petitioner was during the murder. (Tr. 1555, 1572-74).
The jury returned a guilty verdict on March 7, 2000 on one count of Murder, one count of Attempted Murder in the Second Degree, three counts of Robbery in the First Degree, and one count of Attempted Robbery in the First Degree.
D. The Appeals
Petitioner filed a timely notice of appeal to the Appellate Division, First Department. His appeal presented the following claims: (1) the evidence presented at trial was insufficient to prove petitioner's guilt beyond a reasonable doubt, and (2) the trial court erred in permitting the People to improperly introduce collateral alibi rebuttal evidence. On December 16, 2004, the First Department unanimously affirmed petitioner's conviction. People v. Velazquez, 13 A.D.3d 184, 785 N.Y.S.2d 914 (1st Dep't 2004). The court ruled that the verdict was "based on legally sufficient evidence and was not against the weight of the evidence." Id. (citing People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 (1987)). Additionally, the court found that the jury properly credited the four eyewitnesses'"highly reliable identifications" over the "defendan...
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