Opinion
16-CV-7086 (ER) (OTW)
03-11-2021
RIVIN FAVOURITE, Petitioner, v. JOHN COLVIN, Respondent.
REPORT AND RECOMMENDATION
ONA T. WANG, United States Magistrate Judge
To the Honorable EDGARDO RAMOS, United States District Judge:
I. Introduction
Petitioner Rivin Favourite, proceeding pro se, brings this habeas corpus proceeding in accordance with 28 U.S.C. § 2254 to challenge his December 2009 New York conviction, following a jury trial, for robbery in the first degree and assault in the second degree. (ECF 1, the “Petition”). Petitioner was sentenced to twenty-three years of incarceration. Petitioner challenges his conviction on three grounds: (1) the trial court improperly admitted identification testimony and refused to reopen the Wade hearing; and (2 & 3) Petitioner's trial and appellate counsels provided ineffective assistance of counsel. For the following reasons, I recommend that the Petition be DENIED.
II. Background
The facts here are taken from the trial testimony (“Tr.), ECF 38-2, and the Dunaway/Wade/Mapp hearing testimony (“Wade Tr.”), ECF 38. The Hon. Michael A. Gross presided.
On April 4, 2007, employees at Best Aid Pharmacy - Leonard Weinstein, Alex Maydam, Diana Torres, and Sylvia Cortade - were working and preparing to close for the evening. (Tr. 640-42, 872-73, 1018, 1022). There were no customers at the pharmacy. (Tr. 1023).
Petitioner and Anthony Gilman entered the pharmacy. (Tr. 645). Weinstein witnessed Gilman, who was wearing a stocking over his head, jump the counter. (Tr. 646-47). Gilman then pointed a gun at Weinstein. Torres saw Gilman pointing a gun at Weinstein. (Tr. 688). Petitioner escorted Torres to the pharmacy area and said to her, “Sit down. Put your hands on your knees and don't look at my face.” (Tr. 644). Torres was seated next to Cortade. (Tr. 644).
Maydam, who had been in the pharmacy's rear storage area, stepped out and observed a “guy with his face covered with his hood” (i.e. Petitioner) and a “big built guy” (i.e. Maydam) robbing the store. (Tr. 872-73). Maydam saw the back of a man who was holding a gun to Weinstein's head. (Tr. 872-73). Maydam saw Torres and Cortade on their knees shaking and crying; Maydam also saw Petitioner, who could not see Maydam due to Petitioner's hood. (Tr. 873-74). Maydam slipped out and called 911 and continued to watch the events on a surveillance monitor. (Tr. 876-77).
Gilman searched Weinstein and made Weinstein open the cash registers. (Tr. 877, 102526, 1028). During this time, Petitioner was “arranging” Torres and Cortado, putting them face- to-face and telling them to not worry as long as they complied with his and Gilman's demands. (Tr. 1029-30). Petitioner also searched the pharmacy's drawers for money. (Tr. 651).
NYPD Detective Louis Irizarry arrived at the pharmacy around 6:45 pm. (Tr. 516). Detective Irizarry saw one individual striking another (i.e. Gilman striking Weinstein) and another individual controlling two women in the pharmacy area (i.e. Petitioner with Torres and Cortado). (Tr. 517-19, 524-25).
Detective Irizarry entered the pharmacy followed by at least four other officers. (Tr. 527). Petitioner ran to the storage area followed by Gilman. (Tr. 528). At the direction of the Detective Irizarry, Weinstein, Torres, and Cortade went into the bathroom. (Tr. 528). Later, the NYPD told them to leave the bathroom; they then were placed in a police van and paramedics attended to Weinstein. (Tr. 654-55, 992, 1037).
Detective Irizarry surmised that Petitioner and Gilman had climbed onto the pharmacy's ceiling because of “movement of the [ceiling] tiles” and a foot coming through the ceiling. (Tr. 539, 541). Someone in the ceiling threw a box at Detective Irizarry and his colleague, who were trying to open some of the ceiling tiles. (Tr. 543). After 20 to 25 minutes, members of the NYPD's Emergency Services Unit (“ESU”) relieved the earlier NYPD officers. (Tr. 544-46).
Around 7:30 pm, officers brought Gilman out of the pharmacy. (Tr. 548). When prompted by NYPD Officer Jose Ramos “[d]o you recognize that guy,” Torres responded that she recognized Gilman as “one of the guys that were inside the pharmacy.” (Tr. 656).
The ESU officers used a camera on a pole to find Petitioner, who was in the gap between the walls. Petitioner eventually extricated himself and was arrested, handcuffed, and “escorted out by officers.” (Tr. 548, 754). When prompted by Officer Ramos if she recognized Petitioner, Torres responded that she recognized Petitioner as “the second guy that was in the pharmacy.” (Tr. 656, Wade Tr. 247-48). Torres testified that the lighting conditions were good at the time of the identification and there was nothing obscuring her view. (Tr. 656-57).
After Petitioner and Gilman were out of the pharmacy building, the ESU team continued to search the ceiling and walls for any additional people and weapons. (Tr. 754). No additional person was found, but the ESU team found a handgun. (Tr. 754-56). This gun was later identified by Torres and Weinstein as the gun used by Gilman. (Tr. 669, 1040-42).
B. Procedural History
On December 21, 2019, a jury in New York Supreme Court, Bronx County, convicted Petitioner of first-degree robbery and second-degree assault. (ECF 1-1 at 22). Petitioner was sentenced as a second violent felony offender to a total of twenty-three years of incarceration. Id.
Petitioner timely appealed his conviction to the New York Supreme Court, Appellate Division, First Department arguing that (1) the verdict was against the weight of the evidence, (2) the sentence was excessive, (3) the trial court erred in various respects, including declining Petitioner's request to reopen the Wade Hearing, and (4) Petitioner's trial counsel was ineffective. (ECF 36 ¶¶ 12-13 (citing ECF 36-1, ECF 36-4)). The First Department unanimously affirmed the conviction and sentence. People v. Favourite, 98 A.D.3d 922 (1st Dep't 2012). The New York Court of Appeals denied leave to appeal on September 27, 2012. People v. Favourite, 988 N.Ed.2d 532 (2013).
Petitioner's appellate counsel filed one brief (ECF 36-1), making the first two arguments, and Petitioner also filed a pro se supplemental brief (ECF 36-4), making the latter arguments.
The First Department considered both the counsel and pro se arguments. See 98 A.D.3d at 922.
Petitioner subsequently moved of a writ of error coram nobis on January 22, 2014. (ECF 36-5). The First Department denied that petition, and the Court of Appeals denied leave to appeal on June 5, 2014. People v. Favourite, 24 N.Y.3d 960 (2014).
Petitioner moved under New York Crim. Proc Law (“CPL”) § 440.10 to vacate his conviction on January 7, 2015. (ECF 36-6). The trial court denied that petition. (ECF 36-7). The First Department denied leave to appeal on April 14, 2016. (ECF 36-9).
Petitioner filed the instant Petition on September 7, 2016. The Hon. Katherine B. Forrest denied the Petition as time-barred because Petitioner did not file the Petition within the one-year period of limitation in 28 U.S.C. § 2244(d)(1)(A). (ECF 21; see also 2017 WL 4081909). Judge Forrest did not find that there was any equitable tolling. (ECF 21). The Second Circuit vacated Judge Forrest's decision on the grounds that there were extraordinary circumstances warranting equitable tolling and that Petitioner demonstrated reasonable diligence during the period of equitable tolling. (ECF 30; see also 758 Fed.Appx. 68 (2d Cir. 2018)). Upon remand from the Second Circuit, the case was reassigned to Hon. Edgardo Ramos upon Judge Forrest's retirement. The Petition was then referred to me for a report and recommendation. (ECF 29).
III. Analysis
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), there are three sets of circumstances under which a federal court may grant a writ of habeas corpus to a state prisoner: (i) if the state court's denial of relief “resulted in a decision that was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States;” (ii) if the state court's denial of relief “resulted in a decision that . . . involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States;” or (iii) if the state court's denial of relief “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The phrase “clearly established Federal law, as determined by the Supreme Court of the United States” limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000); Leslie v. Artuz, 230 F.3d 25, 32 (2d Cir. 2000).
A state court decision is “contrary to” clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court on a materially indistinguishable set of facts. Williams, 529 U.S. at 405. The “unreasonable application of federal law” clause is independent of the “contrary to” standard and means more than simply an erroneous or incorrect application of federal law. See id. at 411; see also Henry v. Poole, 409 F.3d 48, 68 (2d Cir. 2005). Under this clause, a federal court may grant a writ of habeas corpus “if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413; see also Henry, 409 F.3d at 68. A federal court reviewing a habeas petition “may permissibly conclude that the federal law has been unreasonably applied by the state court even though not all reasonable jurists would agree that the state court's application was unreasonable.” Henry, 409 F.3d at 68 (citing Williams, 529 U.S. at 409). Ultimately, the inquiry is whether the state court's application was “objectively unreasonable,” Williams, 529 U.S. at 409, a standard that falls “somewhere between merely erroneous and unreasonable to all jurists.” Henry, 409 F.3d at 68 (internal quotation marks and citation omitted).
Reliability is the touchstone for the admission of eyewitness identification testimony pursuant to the Due Process Clause of the Fourteenth Amendment. See Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001). In Raheem, the Second Circuit stated that the reliability of eyewitness identifications proceeds in two stages:
The court must first determine whether the pretrial identification procedures unduly and unnecessarily suggested that the defendant was the perpetrator. If the procedures were not suggestive, the identification evidence presents no due process obstacle to admissibility; no further inquiry by the court is required, and the reliability of properly admitted eyewitness identification, like the credibility of the other parts of the prosecution's case is a matter for the jury. If the court finds, however, that the procedures were [unnecessarily] suggestive, it must then determine whether the identification was nonetheless independently reliable. In sum, the identification evidence will be admissible if (a) the procedures were not [unnecessarily] suggestive or (b) the identification has independent reliability.Id. (internal citations, quotation marks and alterations omitted); see also id. at 134 (discussing whether evidence was “unduly” or “unnecessarily” suggestive).
Under the first step of this analysis, an identification procedure may be deemed unduly and unnecessarily suggestive if it is based on police procedures that create “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968). Although a “showup” procedure is inherently suggestive because it involves the presentation of a single suspect to a witness by the police (as opposed to a lineup, in which several individuals are presented to the police, only one of whom is the suspect) and has accordingly been “widely condemned,” “a claimed violation of due process in the conduct of a confrontation depends on the totality of the circumstances surrounding it.” Stovall v. Denno, 388 U.S. 293, 302 (1967). Accordingly, a showup identification violates due process only if it is an “unnecessarily suggestive” procedure. Id. (emphasis added); Neil v. Biggers, 409 U.S. 188, 198 (1972) (a showup “without more” does not violate due process).
A. The Trial Court Properly Admitted Identification Testimony and Refused to Reopen the Wade Hearing
Petitioner argues that the “court improperly admitted identification testimony and denied reques[t] to reopen [the] Wade hearing.” (ECF 1 at 2). The Appellate Division denied these claims on direct appeal. 98 A.D.3d at 922. Petitioner was identified by Torres in an on-the-scene showup, and Petitioner argues that this identification “was impermissibly suggestive where it was conducted two hours after the crime, and where [civilian] witnesses observed police physically removing petitioner from the scene.” (ECF 1 at 7).
Exigent circumstances generally weigh in favor of concluding that a showup identification procedure was not unnecessarily suggestive, because a showup procedure may be necessary in such circumstances to quickly confirm the identity of a suspect, or to ensure the release of an innocent suspect. See, e.g., Biggers, 409 U.S. at 197-98 (concluding that suggestive showup identification procedure did not violate due process because sole eyewitness to crime was at risk of dying and was unable to travel from her hospital bed to police station for lineup); United States v. Bautista, 23 F.3d 726, 730 (2d Cir. 1994) (“[A] prompt showing of a detained suspect at the scene of arrest has a very valid function: to prevent the mistaken arrest of innocent persons.” (internal quotation marks omitted)). Thus, where an officer has “or should have doubts whether a detained suspect is in fact the person sought, the officer must make ‘immediate reasonable efforts to confirm the suspect's identity,'” Id. (quoting United States v. Valez, 796 F.2d 24, 27 (2d Cir. 1986)), and courts have held that where identification evidence from showups is held in close temporal and geographic proximity to the crime scene it may be admitted, see, e.g., Bautista, 23 F.3d at 730; United States ex rel. Cummings v. Zelker, 455 F.2d 714, 716 (2d Cir. 1972) (holding that showup procedure was necessary to insure “the immediate release of an innocent suspect and at the same time to enable the police to resume the search for the fleeing culprit while the trail [was] still fresh”).
Even if an identification procedure is unduly suggestive, the out-of-court identification may nonetheless be admissible if other factors indicate that the identification is independently reliable. To ascertain whether an identification “has reliability independent of the unduly suggestive identification procedures,” Raheem, 257 F.3d at 135, courts generally look to five established factors, first set forth in Biggers:
(1) the opportunity of the witness to view the criminal at the time of the crime,
(2) the witness' degree of attention,
(3) the accuracy of the witness' prior description of the criminal,
(4) the level of certainty demonstrated by the witness at the confrontation, and
(5) the length of time between the crime and the confrontation.409 U.S. 199-200; see also Manson v. Brathwaite, 432 U.S. 98, 114 (1977). None of these factors standing alone is dispositive of the existence of independent reliability; instead, reliability is assessed “in light of the totality of the circumstances.” Raheem, 257 F.3d at 135.
1. The Showup Identification Was Not Unnecessarily Suggestive
An examination of the record shows that the showup identification was not unnecessarily suggestive and there were no procedures that created “a very substantial likelihood of irreparable misidentification.” Simmons, 390 U.S. at 384. The on-the-scene showup identification was conducted in “close temporal and geographic proximity to the crime,” which, if anything, highlights the advantages of a showup identification, such as “allowing for identification while the mental picture is fresh in [a] witness's mind.” Francischelli v. Potter, No. 03-CV-6091 (ENV), 2007 WL 776760, at *5-6 (E.D.N.Y. Mar. 12, 2007) (denying petitioner's argument that the lineup was unduly suggestive). “[I]t is now settled law that prompt on-the-scene confrontation is ‘consistent with good police work.'” Id. (quoting Zelker, 455 F.2d at 716).
Here, the showup identification was carried out soon after the police, using a camera, captured Petitioner, who had attempted to hide between the building's wall and the pharmacy's drywall. (Tr. 752-53). After Petitioner was eventually removed and escorted out by ESU, he was identified by three witnesses: (1) Cortade, who was in a police car with Officer Baumann (Wade Tr. 95-96); (2) Torres, who was inside a police car with Officers Ramos and Reyes, standing nearby (Wade Tr. 247-48, 256); and (3) Detective Irizarry, who was “[o]utside the front of the store” with Chief Monaghan (Wade Tr. 17-19). Although Petitioner was escorted by ESU, that does not render the identification inadmissible. See Bautista, 23 F.3d at 730 (“The fact that the suspects were handcuffed, in the custody of law enforcement officers, and illuminated by flashlights also did not render the pre-trial identification procedure unnecessarily suggestive.”). There was also no other individual other than Gilman and Petitioner found on the scene. (Tr. 754). Accordingly, I find that the showup identification was not unnecessarily suggestive.
2. The Showup Identification Was Independently Reliable
Even assuming arguendo that the showup identification was unnecessarily suggestive, the showup was independently reliable under the Biggers factors. Examining the first and second factors, both witnesses, Cortade and Torres, held captive by Petitioner in the pharmacy, had the opportunity to view Petitioner. (Tr. 517-19, 524-25). Third, although there was not a prior description of Petitioner provided, this was not necessary given that Detective Irizzary also viewed Petitioner and the close temporal proximity between the showup and the incident, see infra. Fourth, Torres testified that the light conditions during the showup were good, the distance between her and the Petitioner was not far, and that she did not have an obstructed view. (Tr. 656-57). Fifth, the showup identification took place less than two hours after the incident and right outside the scene of the crime. (Wade Tr. 266). Accordingly, I find that the showup identification was independently reliable.
It is also worth noting that the delay is attributable to Petitioner hiding in the pharmacy's ceiling/walls. (Tr. 75054).
3. The Trial Court Correctly Refused to Reopen the Wade Hearing
“The purpose of a Wade hearing is to determine [before] the trial whether pretrial identification procedures have been so improperly suggestive as to taint an in-court identification.” Twitty v. Smith, 614 F.2d 325, 333 (2d Cir. 1979) (citing United States v. Wade, 388 U.S. 218 (1967)). New York state law governs the reopening of a Wade hearing. Under CPL § 710.40(4), a trial court has discretion to reopen a Wade hearing if “additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion [to suppress]” (emphasis added).
“[I]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); DiGuglielmo v. Smith, 366 F.3d 130, 136 (2d Cir. 2004) (“State courts are the ultimate expositors of state law; it is not the province of a federal habeas court to reexamine state-court determinations of state-law questions.”) (internal quotations and citations omitted). Thus, violations or errors of state law or procedure, such as reopening a Wade hearing, generally do not constitute grounds for habeas review. Estelle, 502 U.S. at 67-68 (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Pulley v. Harris, 465 U.S. 37, 41 (1984)); Kilpatrick v. Barkley, No. 07-CV-6051 (WHP) (HBP), 2011 WL 1842749, at *16 (S.D.N.Y. Apr. 15, 2011), report and recommendation adopted, 2011 WL 2175834 (May 6, 2011) (denying petitioner's claims concerning the Wade hearing because petitioner's claims did “not invoke any precedent or holding of the Supreme Court, nor any right under the federal Constitution”); Andrews v. LeClaire, 709 F.Supp.2d 269, 279 (S.D.N.Y. 2010) (“The decision by a state court as to whether there is sufficient evidence to warrant a Wade hearing is a question controlled by state law .... [and] a matter of state law and not reviewable by this federal court.”).
For a petitioner asserting a violation of state law, “he must show that any errors of state law - such as the denial of a Wade hearing - 'rendered] petitioner's state trial fundamentally unfair' and thus violated his constitutional due process rights.” Andrews, 709 F.Supp.2d at 279.
From September 16-23, 2009, the trial court held a combined Dunaway/Wade/Mapp pre-trial hearing to determine, inter alia, whether the showup identification of Petitioner was unduly suggestive. (ECF 38, Wade Tr.). Petitioner argues that the trial court “improperly denied counsel's motion to reopen [the] Wade hearing where trial testimony established that nontestifying police personnel communicated with identifying witness immediately prior to the show[]up procedure.” (ECF 1 at 7). As relevant herein, Officer Ramos testified that Torres, who had been held captive in the pharmacy by Petitioner before escaping, was inside a police car, in front of the pharmacy, when officers brought Petitioner outside. (Wade Tr. 248-50; 261-62). Officer Ramos further testified that he and Officer Reyes were standing by the police vehicle when Torres positively identified Petitioner. Id. Officer Ramos testified that although he was “not sure,” Officer Reyes “probably did” asked a question of, or something to, Torres before her positive identification. (Wade Tr. 262). Petitioner's counsel moved to re-open the hearing in order to call Officer Reyes because of a concern that Officer Reyes “may have made an unduly suggestive comment” to Torres. (Wade Tr. 267). After hearing counsels' arguments, the trial court denied the request:
At the hearing, the trial court (1) determined that the showup identification was close in time to the arrest and was not unduly suggestive; (2) Detective Irizarry's testimony was credible and not unduly suggestive; and (3) Cortade's and Torres's identification was not unduly suggestive. (Wade Tr. 286-87).
I'm persuaded there is absolutely no basis for the request for reopen the [Wade] hearing. [Petitioner's counsel] when he chose to rest some minutes ago, was aware of the full scope of Officer Ramos' testimony.... Counsel chose not to make any further inquiry as to the nature of what may have been said. And counsel chose not to, at that time, call the officer as a witness. Accordingly, the application to reopen the hearing, to call a witness even for the brief inquiry that he has requested, is denied.(Wade Tr. 271). This argument does not raise any constitutional due process rights, and should be denied because there are no grounds for federal habeas review.
Even assuming that Plaintiff properly raised a constitutional claim, Plaintiff has not shown the denial rendered his trial fundamentally unfair. The record shows that Officer Ramos was cross-examined on Torres's identification, (Wade Tr. 262), and Torres was crossed-examined at trial about events after she evacuated the pharmacy, (Tr. 702-04). See Andrews, 709 F.Supp.2d at 279 (“Federal constitutional law does not warrant granting a habeas petition on the basis of denial of a pre-trial hearing where [p]etitioner had the opportunity to crossexamine the witness on the identification issue.” (quoting Garcia v. Kuhlmann, 897 F.Supp. 728, 730-31 (S.D.N.Y. 1995))). There was also other evidence at the Wade hearing to support the trial court's findings, including two other positive on-the-scene identifications of Petitioner. See supra §§ III.A.1-2 (reliability of the showup identification). Accordingly, the trial court's decision not to reopen the Wade hearing did not render the trial fundamentally unfair, and any claim for habeas relief should be denied.
B. Neither Petitioner's Appellate Counsel Nor His Trial Counsel Was Ineffective
Petitioner raises a Sixth Amendment ineffective assistance of counsel claim premised on his trial counsel's purported failure to: (1) discuss with him in detail a proposed plea deal; and (2) ask the trial court for a missing witness charge with regard to Cortade. (ECF 1 at 8). The first claim was rejected by the trial court in response to Petitioner's CPL § 444.10 motion, and the second claim was rejected by the Appellate Division on direct appeal. (ECF 36-7, ECF 36-9).
Ineffective assistance of counsel claims are “squarely governed [the Supreme Court's] holding in Strickland v. Washington.” Williams v. Taylor, 529 U.S. 362, 390 (2000) (citing Strickland v. Washington, 466 U.S. 668 (1984)). Under Strickland, there is a two-prong test - (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense - to determine whether a defendant's Sixth Amendment right to effective counsel has been violated. Strickland, 466 U.S. at 668.
First, under the performance prong, there is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 669. In determining whether counsel's performance fell below an objective standard of reasonableness, “a court must bear in mind both that counsel ‘has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process,' and that counsel must have ‘wide latitude' in making tactical decision.” Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 688-89). Thus, the court must have “every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 669.
Second, under the prejudice prong, the petitioner must prove that there is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694 (emphasis added). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “It is not enough for the defendant to show only that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. On the other hand, it is not necessary to establish that the outcome of the case “more likely than not” would have been different.” Id.
1. Petitioner's Trial Counsel Did Not Fail to Discuss a Proposed Plea Deal with Him
An examination of the record shows that Petitioner was clearly informed about the proposed plea deal and the consequences of declining one and going to trial. On September 10, 2009, the trial court informed Petitioner that despite Petitioner's “fairly lengthy criminal history including violent felonies,” it would impose a “determinate term of incarceration of fifteen years upon a plea of guilty.” (ECF 36-7 at 1-2). The trial court then adjourned the case to September 14, 2009, so that Petitioner's trial counsel could discuss the case with him. (ECF 36-7 at 2). On September 14, 2009, counsel stated that he had “further conversations with both [Petitioner] and his mother, who was present in court about the plea offer.” (ECF 36-7 at 2). Counsel further stated that he had “explained everything” to Petitioner.” (ECF 36-7 at 2). The trial court also observed that counsel's conversations with Petitioner were ongoing and further adjourned the case to September 16, upon counsel's request that Petitioner wanted to consult with his family and godfather before pleading guilty. (ECF 36-7 at 3). On September 16, 2009, prior to the start of pretrial hearings, counsel stated on the record: “I discussed with [Petitioner], again, at great length, the case and asked him - I consulted with his mother and others, and asked him to consider the Court's offer of 15 years and whether I should pursue further discussions at this time of disposition. I explained the various circumstances about the hearing to him, and my understanding is that he is respectfully declining it at this point.” (Wade Tr. 3). The trial court responded, “I think Mr. Favourite has had the opportunity to, to consult [with counsel] over the last 28 or 29 months, some disposition. And it's fine that he is choosing to go to trial, but that is the choice I will enforce from this point on.” (Wade Tr. 3). Given this record of counsel discussing with Petitioner the proposed plea deal, I find that the first prong of Strickland - deficient performance - is not met.
Respondent notes that the “People were unable to obtain a copy of the transcript [for the Wade/Dunaway/Mapp hearing] prior to September.” ECF 12 at 21 n.4. The citations for proceedings prior to September 16 are from the decision dated June 10, 2016 denying Petitioner CPL § 440.10 motion. See ECF 36-7 (Gross, J.).
2. Petitioner's Trial Counsel Did Not Fail to Request a Missing Witness Charge
Plaintiff's arguments for failing to request a missing witness charge for Cortade also fails. Although Cortade did not testify, Torres did. (Tr. 639-71). During the robbery, Torres and Cortade were seated next to each other when Petitioner maintained control over both by pretending to have a gun inside his clothes; the two women were seated next to each other. See, e.g. Tr. 644. Given that they had the same observations within the pharmacy, Cortade's testimony would be cumulative, and under New York law, a missing witness charge would not be successful. See, e.g., People v. Edwards, 14 N.Y.3d 733 (2010) (missing witness charge not warranted where defendant failed to show that witness's testimony would have been non-cumulative); People v. Ortiz, 83 N.Y.2d 989, 990 (1994) (request for missing witness charge properly denied where “nontestifying undercover officer's testimony would have added only cumulative evidence”); see also Blazic v. Henderson, 900 F.2d 534, 541 (2d Cir. 1990) (“Due process does not require the giving of a jury instruction when such charge is not supported by the evidence.”). I find that Petitioner does not establish that his counsel's performance was deficient for not requesting a missing witness charge for Cortade.
3. Petitioner's Appellate Counsel Did Not Provide Ineffective Assistance of Counsel
Petitioner argues that his appellate counsel, Bruce D. Austern, Esq. at the Center for Appellate Litigation, provided ineffective assistance counsel by retracting his originally filed brief and resubmitting another one, correcting an error made in the first. (ECF 1 at 6).
A claim for ineffective assistance of appellate counsel is reviewed under the same Strickland standard as that for trial counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992) (“Although Strickland addressed the constitutional standard for ineffective assistance of counsel in the trial counsel context, our Circuit has also adopted the Strickland two-prong test in assessing the effectiveness of appellate counsel.”) (citing Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990)).
The first appellate brief made an argument that Petitioner's right to be present at all material stages in his trial was violated when the trial court reinstructed the deliberating jury and performed a read back, in Petitioner's absence. It read:
Appellant was not present, and the record in his absence is clear, The court stated on the record. “Mr. Favo[u]rite hasn't been brought to the courtroom by the court staff. He is not available for the parties” (Trial: 1086). The court then asked
defense counsel, “Are you prepared to waive your client's production?” (Id.). Counsel replied, “For this legal proceeding” (Id.). Counsel replied, “For his legal proceeding” (Id.). The court then proceeded, after a discussion with the parties, with the requested re-instruction and the read-back (Trial: 1099-1106).(ECF 36-1 at 22). What appellate counsel overlooked initially was that on the very the next page of the trial transcript read that “[t]he record will reflect the defendant has now been produced in court.” (Tr. 1087). Upon being made aware of this oversight by the People, appellate counsel withdrew the original brief and submitted a new brief arguing that the verdict was against the weight of the evidence. (ECF 11-2). I find that there was no prejudice, and, appellate counsel's actions were proper in light of his professional ethical obligations.
IV. Conclusion
For the reasons stated above, I recommend that the Petition be DENIED.
V. Objections
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable Edgardo Ramos, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Ramos. If Petitioner wishes to review, but does not have access to, cases cited herein that are reported on Westlaw, he should request copies from Respondent. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the pro se Petitioner.