Opinion
15 Civ. 5315 (CS)(AEK)
08-19-2021
Joseph Sain, Petitioner, v. Michael Capra, Respondent.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE United States Magistrate Judge.
On August 25, 2015, the Honorable Cathy Seibel referred this matter to the Honorable Lisa Margaret Smith, U.S.M.J. ECF No. 7. On October 15, 2020, this matter was reassigned to the undersigned.
Currently before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by pro se Petitioner Joseph Sain (“Petitioner”), challenging his judgment of conviction for the crimes of burglary in the second degree and petit larceny. ECF No. 1 (“Petition”) ¶ 5; ECF No. 13 (“Aff. in Opp'n”) at 1. The Petition sets forth six purported grounds for habeas relief: (1) Petitioner was denied his right to a preliminary hearing; (2) the prosecutor allowed false testimony to be presented to the grand jury; (3) Petitioner was denied effective assistance of counsel, and his due process rights were violated, when his assigned counsel notified the prosecutor by voicemail that Petitioner did not wish to testify before the grand jury; (4) the prosecutor accepted the voicemail from Petitioner's counsel stating that Petitioner did not wish to testify before the grand jury; (5) Petitioner's conviction for petit larceny was legally insufficient; and (6) the trial court did not have subject matter jurisdiction over the underlying criminal matter because the foreperson of the grand jury did not sign and verify the indictment. Petition ¶ 12.
For the reasons that follow, I respectfully recommend that the Petition be DENIED in its entirety.
BACKGROUND
The following is a brief summary of facts relevant to Petitioner's state court conviction. Additional facts are discussed elsewhere in this Report and Recommendation as needed for the disposition of Petitioner's claims. A more detailed recitation of facts is set forth at pages 1-10 of Respondent's Affidavit in Opposition to the Petition. See ECF No. 13. Based on the Court's own careful review of the transcripts from Petitioner's underlying criminal case, the Court finds that the Respondent's summary accurately recounts the trial testimony.
On September 9, 2009, Petitioner walked to the rear entrance of the home of Dr. Viji George, president of Concordia College, which was located on the college's campus in Bronxville, New York. Trial Transcript (“Tr.”) at 482. Petitioner testified at trial that he was selling Avon products in the area, heard about a college reception scheduled to take place that evening in Dr. George's home, and thought it would be a good sales opportunity. Tr. at 476-82. According to Petitioner, when he first approached the house, he received permission to enter from a college employee who was waiting outside, but when he entered the house and called out, no one answered. Tr. at 484-85. Petitioner explained that he walked back outside, spoke again with the college employee, and then walked away, before returning a half hour later. Tr. at 48586. When he returned to the house, Petitioner entered through the back screen door into the kitchen and proceeded to the upper floors of the house looking for the party. Tr. at 486-88. Petitioner testified that as he was descending the stairs from the attic, he first ran into Dr.
The transcript of Petitioner's trial was provided to the Court by Respondent, but was not filed electronically on the docket.
George's daughter, Sarah, and then Dr. George's wife, Janet. Tr. at 488. Petitioner further testified that Janet George asked him what he was doing in her house; Petitioner told Janet that he was looking for Emilie (the Georges' other daughter) and that someone had told him there was going to be a party at the house. Tr. at 488-89. According to Petitioner, Janet seemed skeptical and kept looking at the bag he was holding; in an attempt to allay Janet's fears, Petitioner opened his bag to show her the contents, which consisted only of his own property. Tr. at 489. Petitioner testified that he left the Georges' house and crossed the street to a church. Tr. at 491-92. Petitioner denied stopping at the storm drain where coins, jewelry, and other items stolen from the Georges' house were later found, and denied taking anything from the Georges' home. Tr. at 494. Petitioner was the only witness to testify for the defense.
According to the prosecution, Petitioner unlawfully entered the Georges' home twice on the evening of September 9, 2009, and during his second intrusion stole coins, jewelry, and other items from the upstairs bedrooms. Both Janet and Sarah George interacted with Petitioner while he was in the house; neither was immediately disturbed by his presence, as they were both used to college employees working in their home before school events, but neither recognized Petitioner. Tr. at 192-94; 269-72. Janet eventually called 911 to report that there was a man in her house who was not supposed to be there. Tr. at 202. After Petitioner left the house, Sarah followed him, continued to observe him, and eventually spoke to him about why he had been in the house. Tr. at 276-86. Petitioner was arrested by officers from the Bronxville Village Police Department a short time later, and Janet George recognized Petitioner in a “show up” identification as the man who had been inside her house ten minutes earlier. Tr. at 209-12; 39498. The next day, items belonging to the Georges were found in a storm drain located along the route Petitioner took after he left the Georges' house; the prosecution argued at trial that Petitioner dumped these items in the drain before he was arrested. Tr. at 223-34; 290-93; 33234; 377-80; 442-47. At trial the prosecution called numerous witnesses, including Flladi Kulla, the Concordia College employee who first encountered Petitioner outside the Georges' house; members of the George family; employees at the neighboring church who witnessed Sarah following Petitioner; Police Officer Nicholas DeYoung, who arrested Petitioner on September 9, 2009; and Detective Bart Sandarciero, who investigated the case. See Aff. in Opp'n at 1-8.
Among other things, the prosecution offered evidence that Petitioner told inconsistent stories about why he was at the house. For example, Petitioner told Flladi Kulla and Officer DeYoung that he was at the house for a party, and to see Emilie, but told Janet that he was working on a project for a Concordia employee named “Karl.” Tr. at 140; 195-96; 437. Both of Petitioner's stories were undermined by evidence presented by the prosecution at trial. Emilie George was away at college at the time of the incident and testified that she did not know Petitioner. Tr. at 426-28. In addition, neither of the two Concordia College employees named Karl had seen or spoken to Petitioner before. Tr. at 367-70; 372-73. The prosecution also presented evidence that after Petitioner left the Georges' home, Sarah noticed that her normally full jar of loose change lay empty on her bed, and Janet found that pieces of her jewelry were missing. Tr. at 213-21; 288-89. These missing items corresponded with items that were found in the storm drain. Tr. at 229-33; 290-93.
B. Procedural History
On September 10, 2009, Petitioner was arraigned on a felony complaint in the Village Court of Bronxville on the charge of burglary in the second degree, in violation of N.Y. Penal Law § 140.25(2). Aff. in Opp'n at 8. A felony hearing was scheduled for September 23, 2009. Id. On the same day as the arraignment, Assistant District Attorney (“A.D.A.”) Timothy Ward served notice on Petitioner that the matter was to be presented to the grand jury on September 14, 2009 at 9:00 a.m. Id. The notice of presentation included a waiver of immunity form, to be executed by Petitioner, in accordance with N.Y. Criminal Procedure Law (“C.P.L.”) §§ 190.45, 190.50. Id. This notice also stated that Petitioner would not testify before the grand jury unless the Westchester County District Attorney's Office received an executed copy of the waiver of immunity form on or before September 14, 2009. Id.; see C.P.L. § 190.50(5) (setting forth the requirements that a defendant must satisfy in order to testify before a grand jury). Also on September 10, 2009, A.D.A. Ward sent a subpoena to the Westchester County Department of Corrections for Petitioner to be produced at the Westchester County Courthouse on September 14, 2009 at 9:00 a.m. Id.
As set forth in C.P.L. § 190.45, “[a] waiver of immunity is a written instrument subscribed by a person who is or is about to become a witness in a grand jury proceeding, stipulating that he waives his privilege against self-incrimination and any possible or prospective immunity to which he would otherwise become entitled, pursuant to section 190.40, as a result of giving evidence in such proceeding.”
On September 11, 2009, around 12:14 p.m., Petitioner's defense counsel Richard Viviano left a voicemail for A.D.A. Ward stating that Petitioner would not be testifying before the grand jury. Id. A.D.A. Ward presented Petitioner's case to the grand jury as scheduled on September 14, 2009, and that same day, the grand jury returned a true bill-Petitioner was indicted on one count of burglary in the second degree and one count of petit larceny. Aff. in Opp'n at 8-9. On September 23, 2009, Petitioner was brought before a Village Court Judge in Bronxville for an “all purpose action, ” but the proceeding was adjourned because defense counsel was not present in court. Respondent's Memorandum of Law in Opposition (“Resp. Mem of Law in Opp'n”) (ECF No. 14) at 4. The indictment was filed on September 29, 2009. Resp. Ex. 12.
Citations to “Resp. Ex. ” refer to exhibits submitted to the Court by Respondent that comprise the state court and appellate record from Petitioner's criminal case. See ECF No. 14.
On October 14, 2009, Petitioner filed a motion to dismiss the indictment based on C.P.L. § 190.50 and § 210.35. Aff. in Opp'n at 9. Petitioner claimed that he had been deprived of his right to testify before the grand jury and that he was not provided reasonable notice to appear for the grand jury proceeding. Id. After Petitioner fired his attorney, Mr. Viviano, a hearing was held on November 11, 2009, at which Petitioner and Mr. Viviano both testified about their meetings and communications prior to the filing of the indictment. Id. That same day, the court rendered an oral decision denying Petitioner's motion to dismiss in its entirety, finding that Mr. Viviano's testimony was credible and that Petitioner's testimony lacked credibility. Id.
Petitioner's non-jury trial began in Westchester County Court on May 10, 2010. Tr. at 113. On May 17, 2010, Petitioner was found guilty of burglary in the second degree and petit larceny. See Tr. at 564-65. Petitioner filed a motion to set aside the verdict, pursuant to C.P.L. § 330.30, on July 22, 2010, asserting that the trial court lacked jurisdiction to render a verdict based on the indictment because the indictment purportedly was obtained in violation of Petitioner's right to testify before the grand jury. Aff. in Opp'n at 11. The court denied this motion on September 23, 2010, finding that the notice served on Petitioner by A.D.A. Ward on September 10, 2009 provided Petitioner with a reasonable and meaningful opportunity to testify before the grand jury, and that this notice satisfied the requirements of C.P.L. § 190.50(5)(a). Id. Petitioner was sentenced on October 21, 2010, as a persistent violent felony offender, to an aggregate, indefinite term of imprisonment of 16 years to life. Id.
On March 5, 2012, Petitioner filed a direct appeal of his conviction, which was prepared by appellate counsel. See Resp. Ex. 1. Petitioner raised three arguments: (1) the show-up identification of Petitioner was unduly suggestive and should have been suppressed; (2) the verdict was not supported by the credible evidence; and (3) Petitioner's indictment should have been dismissed because his counsel failed to notify the Westchester County District Attorney's Office that Petitioner wished to testify before the grand jury. Id. Respondent filed an opposition brief, see Resp. Ex. 2, and Petitioner's counsel filed a reply brief, see Resp. Ex. 3. On April 6, 2012, Petitioner received permission from the Appellate Division, Second Department, to file a pro se supplemental appellate brief, see Resp. Ex. 4, and he eventually filed that brief on September 14, 2012, see Resp. Ex. 6. Petitioner raised six additional claims in his supplemental brief: (1) Petitioner was deprived of his right to a preliminary hearing; (2) A.D.A. Ward committed prosecutorial misconduct by knowingly allowing false testimony to be given before the grand jury; (3) Petitioner's assigned counsel, Mr. Viviano, violated Petitioner's constitutional right to due process and effective assistance of counsel when he left a voicemail for A.D.A. Ward asserting that Petitioner did not wish to testify at the grand jury; (4) A.D.A. Ward violated Petitioner's right to due process when he accepted the voicemail from Mr. Viviano; (5) the evidence was legally insufficient to support Petitioner's conviction for petty larceny; and (6) the trial court did not have subject matter jurisdiction over the matter because the grand jury foreperson did not sign and verify Petitioner's indictment. See id. Respondent filed an opposition to Petitioner's pro se supplemental brief on January 16, 2013. See Resp. Ex. 7.
The Appellate Division, Second Department affirmed Petitioner's conviction on November 27, 2013. People v. Sain, 111 A.D.3d 964 (2d Dep't 2013) (“Sain I”); see Resp. Ex. 8. Petitioner's counsel thereafter filed an application for leave to appeal to the New York Court of Appeals, see Resp. Ex. 9, which Respondent opposed, see Resp. Ex. 10. The New York Court of Appeals denied leave to appeal on May 6, 2014. People v. Sain, 23 N.Y.3d 967 (2014); see Resp. Ex. 11.
Pursuant to the prison mailbox rule, see Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) (habeas petition is deemed filed as of the date it was given to prison officials for mailing), Petitioner filed the instant Petition on June 26, 2015. See Petition at 19 (under the statement that the Petition “was placed in the prison mailing system on . . ., ” Petitioner signed the Petition and dated it “June 26, 2015”). Respondent filed opposition papers on January 8, 2016. ECF Nos. 13-14. Petitioner's reply papers were docketed on January 27, 2016. ECF No. 15.
The Petition makes reference to an Article 78 proceeding that Petitioner commenced in Westchester County Supreme Court on or about March 3, 2015, shortly before he filed the instant action, on the ground that he “was not arraigned in Bronxville upon [his] arrest on September 9, 2009.” See Petition at 5-6. According to Petitioner, he was “denied poor person status” on or about May 5, 2015, and re-applied for “poor person status” on or about June 18, 2015. Petitioner has not provided any further updates to the Court about this Article 78 proceeding during the pendency of his habeas petition in federal court, and the Court has not located any published decision on this matter. Even if Petitioner's 2015 Article 78 proceeding was substantively adjudicated in some form, the outcome of that proceeding would not affect the analysis in this Report and Recommendation.
DISCUSSION
I. Standard of Review
“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). To be granted a writ of habeas corpus from a federal district court, a petitioner must fully and carefully comply with the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254. If a petitioner has met these threshold requirements, a federal district court may hear “an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court” only if the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The court must then determine the appropriate standard of review applicable to the petitioner's claim(s) in accordance with 28 U.S.C. § 2254(d).
Generally, a state prisoner has one year from the date his or her conviction becomes final to file a habeas petition in federal court. 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Here, the New York Court of Appeals denied Petitioner's application for leave to appeal the denial of his direct appeal on May 6, 2014. Because Petitioner did not file a petition for certiorari seeking review of the New York State court decisions in the United States Supreme Court, his conviction became final on July 4, 2014, 90 days after the order denying his application for leave to appeal to the New York Court of Appeals. See McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. 2003). Accordingly, Petitioner had until July 4, 2015 to file his habeas petition based on the date his direct appellate review was completed. By operation of the prison mailbox rule, the Petition is deemed filed on June 26, 2015, and therefore the Petition is timely. Respondent does not dispute that the Petition was timely filed. See Aff. in Opp'n at 13.
Under AEDPA, all state court remedies must be exhausted before a federal court may consider a state prisoner's petition for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1)(A); see also Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). In the interests of comity and expeditious federal review, “[s]tates should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights.” See Coleman v. Thompson, 501 U.S. 722, 731 (1991); see also Daye v. Attorney Gen. of the State of New York, 696 F.2d 186, 190-91 (2d Cir. 1982).
Even where a timely and exhausted habeas claim is raised, comity and federalism demand that a federal court abstain from its review when the last-reasoned state court opinion to address the claim relied upon an “adequate and independent finding of a procedural default” to deny it. Harris v. Reed, 489 U.S. 255, 262 (1989); see also Coleman, 501 U.S. at 730; Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995). A state court decision is “independent” when it “fairly appears” to rest primarily on state law. Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (citing Coleman, 501 U.S. at 740). A decision is “adequate” if it is “‘firmly established and regularly followed' by the state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).
Provided a claim meets all procedural requirements, the federal court must apply AEDPA's deferential standard of review when a state court has decided a claim on the merits. See Torres v. Berbary, 340 F.3d 63, 68 (2d Cir. 2003). Under AEDPA,
[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that 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).
A state court decision is “contrary to” clearly established Supreme Court precedent “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 has on a set of materially indistinguishable facts.'” Torres, 340 F.3d at 68 (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). “[A]n ‘unreasonable application' of ‘clearly established' Supreme Court precedent occurs when a 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.'” Id. (quoting Williams, 529 U.S. at 413). While
it is clear that the question is whether the state court's application of clearly established federal law was objectively unreasonable, the precise method for distinguishing objectively unreasonable decisions from merely erroneous ones is less clear. However, it is well-established in [the Second Circuit] that the objectively unreasonable standard of § 2254(d)(1) means that petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief.Id. at 68-69 (internal quotation marks and citation omitted).
Under the second prong of § 2254(d), the factual findings of state courts are presumed to be correct. Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
II. Petitioner's Claims for Habeas Relief
A. Denial of Right to Preliminary Hearing (Ground One)
Petitioner asserts that he was denied his right to a preliminary hearing on September 23, 2009, when he was presented at the Village Court of Bronxville for an “all purpose action, ” but his assigned counsel was not present. Petition ¶ 12 (Ground One). Petitioner first asserted this claim, pursuant to C.P.L. § 180.10, in his pro se supplemental brief on direct appeal, where he argued that the denial was a violation of his constitutional right to due process and effective assistance of counsel, and that the “Superior Court” lacked subject matter jurisdiction to render any decision on Petitioner's indictment. Resp. Ex. 6 at 3, 12; see Petition at 3. Respondent argues that these claims are both procedurally barred by the state court and meritless. Resp. Mem. of Law in Opp'n at 2.
Petitioner mistakenly refers to the relevant court as the “Superior Court, ” but in fact Petitioner's criminal trial was conducted in the Supreme Court of the State of New York, Westchester County.
On direct appeal, Petitioner's claim regarding the lack of a preliminary hearing was disposed of within the ambit of the Appellate Division, Second Department's ruling that the “remaining contentions, raised in [Petitioner's] pro se supplemental brief, are unpreserved for appellate review and, in any event, without merit.” Sain 1, 111 A.D.3d at 966. “Under New York statutory law, there are two distinct ways a question of law can be preserved for appeal. The first is through an objection at trial by a party later claiming error. The second is when the trial court makes an express ruling with regard to a particular question.” Garvey v. Duncan, 485 F.3d 709, 714 (2d Cir. 2007) (citing C.P.L. § 470.05(2)) (citations omitted). Here, however, there is no indication in the record that Petitioner ever raised the fact that he did not have a preliminary hearing as an objection either as part of pre-trial motion practice or during the trial itself, and thus there was never any opportunity for the trial court to rule on this point. See Id. Rather, Petitioner raised the issue of the preliminary hearing for the first time in his pro se supplemental brief on direct appeal. Accordingly, as the Appellate Division found, Petitioner did not preserve the preliminary hearing issue for appeal.
As discussed further below, even if Petitioner's counsel had raised this issue, it would have been meritless and would not have had any impact on the proceedings.
The Supreme Court has held that the independent and adequate state ground doctrine bars federal habeas review when a state court declined to address a prisoner's federal claims because the prisoner failed to meet a state procedural requirement. Coleman, 501 U.S. at 729-30; Cone v. Bell, 556 U.S. 449, 465 (2009) (“Refusal by a state court to consider a petitioner's claim because he failed to satisfy a state's procedural rules is an independent and adequate state ground, precluding review by a federal court sitting in habeas review.”). The Appellate Division's determination that Petitioner's claim regarding the purported denial of his right to a preliminary hearing was “unpreserved for appellate review” constitutes a state law procedural ground for denial of the claim, “and that ground is both independent of any federal question and adequate under firmly established and regularly followed state law ....” Garvey, 485 F.3d at 720; see Sanabria v. Martuscello, No. 15-cv-1705 (NSR) (JCM), 2019 WL 2528376, at *8 (S.D.N.Y. Feb. 8, 2019), adopted by 2019 WL 1450747 (S.D.N.Y. Apr. 2, 2019) (state court's finding that a claim is unpreserved for appellate review is an independent and adequate state ground that bars a federal court from granting habeas relief). Moreover, the application of the firmly established and regularly followed New York procedural rule in this case is not “exorbitant” based on the considerations set forth in Lee v. Kemma. 534 U.S. 362, 376 (2002). Petitioner entirely failed to raise this issue before the trial court; there was no sudden or unanticipated event that led to Petitioner's failure to raise the issue; and demanding compliance with § 470.05(2) serves a legitimate governmental interest in this case. See Garvey, 485 F.3d at 718-20 (applying Lee factors). Thus, the Appellate Division's rejection of Petitioner's preliminary hearing claim rests on an independent and adequate state ground, and habeas review is precluded.
In accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) and Local Rule 7.2 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, copies of this case and other cases, infra, that are unpublished or only available by electronic database shall be simultaneously delivered to pro se Petitioner along with this Report and Recommendation.
The Appellate Division's alternative, merits-based determination-describing this and other claims in Petitioner's direct appeal as both unpreserved “and, in any event, without merit”-does not permit this Court to reach the merits of this claim. Federal habeas review of a claim is precluded, even though a state has considered the merits of a claim, “as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision.” Harris, 489 U.S. at 264 n.10; see also Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (“[F]ederal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim.”). “Once a claim is procedurally defaulted, habeas review is blocked unless the petitioner can show both cause and prejudice or a fundamental miscarriage of justice.” Johnson v. Miller, No. 19-cv-0516 (AJN) (RWL), 2020 WL 5754794, at *15 (S.D.N.Y. June 9, 2020) (quotation marks omitted). Here, Petitioner has failed to allege, let alone establish, cause for this procedural default and prejudice arising therefrom, or that a fundamental miscarriage of justice will occur if this Court fails to consider this claim. See Coleman, 501 U.S. at 750.
Even if Petitioner's claim regarding the lack of a preliminary hearing in his case were not procedurally barred, Petitioner would not be entitled to habeas relief on the merits. As Petitioner noted in his own pro se supplemental brief on direct appeal, there is no constitutional right to a preliminary hearing. Resp. Ex. 6 at 13; see also Blume v. Martuscello, No. 13-cv-4310 (KMK) (PED), 2016 WL 1070847, at *8 n. 8 (S.D.N.Y. Mar. 15, 2016). C.P.L. § 180.10 provides a defendant, upon arraignment on a felony complaint, with “a right to a prompt hearing upon the issue of whether there is sufficient evidence to warrant the court in holding him for the action of a grand jury ....” C.P.L. § 180.10(2). But the Practice Commentaries to § 180.10 note that this “right” is “illusory, as the People can (and frequently do) avoid the hearing by presenting the charge to a Grand Jury. Indictment by a Grand Jury terminates proceedings in the local criminal court-including the ‘right' to a hearing-and thus once an indictment has been voted the right to a hearing is moot.” Id. Thus, “the State, by presenting the case to a Grand Jury in the first instance, may bypass the preliminary hearing stage entirely.” People v. Hodge, 53 N.Y.2d 313, 319 (1981); Williams v. Levally, No. 12-cv-8164 (KMK) (LMS), 2017 WL 4685103, at *4 (S.D.N.Y. Oct. 17, 2017).
Here, the State lawfully bypassed the preliminary hearing when A.D.A. Ward presented the case to a grand jury and obtained an indictment prior to Petitioner's scheduled preliminary hearing on September 23, 2009. Even though a preliminary hearing was scheduled for that date, the presentation of Petitioner's case to the grand jury, and the grand jury's return of an indictment, on September 14, 2009 obviated the need for a preliminary hearing pursuant to C.P.L. § 180.10. See Williams, 2017 WL 4685103, at *4-*5. Petitioner's assertion that his constitutional rights were violated because no preliminary hearing was conducted is meritless.
Petitioner's corresponding contention that the trial court lacked subject matter jurisdiction to render any decision on his indictment based on the lack of a preliminary hearing also fails. Petition at 3; see also Resp. Ex. 6 at 12-14. Petitioner's case was not “secretly lifted” from the Village Court of Bronxville, Resp. Ex. 6 at 13, to be presented before a grand jury. Under New York law a defendant may be indicted by a grand jury even if he was first arraigned on a felony complaint in the local criminal court, and no preliminary hearing is required if an indictment has been returned. See Williams, 2017 WL 4685103, at *4. Nothing in the record supports the assertion that the Westchester County Court lacked subject matter jurisdiction to render a decision in Petitioner's case.
Petitioner's other subject matter jurisdiction claimi.e., that the trial court did not have jurisdiction because Petitioner's indictment allegedly was never signed by the grand jury foreperson-is addressed in Section II.E, infra.
For all of these reasons, Petitioner is not entitled to habeas relief on this ground.
B. Prosecutorial Misconduct (Ground Two)
Petitioner asserts that A.D.A. Ward, in making his presentation before the grand jury, “allowed what he knew to be false and Perjured Testimony to stand before the impanelled (sic) Grand Jury.” Petition ¶ 12 (Ground Two). Specifically, Petitioner claims that Officer DeYoung gave false testimony regarding items stolen from the Georges' house being found “right next” to Petitioner, when in fact the stolen items were actually found the next day in the nearby storm drain. See id. Again, Petitioner first raised this issue in his pro se supplemental brief on direct appeal. See Resp. Ex. 6 at 19-27. Respondent, in opposition to the Petition, asserts that this claim is both procedurally barred and meritless. Resp. Mem. of Law in Opp'n at 7.
As with Petitioner's preliminary hearing claim, his claim regarding prosecutorial misconduct based on the grand jury presentation was disposed of within the ambit of the Appellate Division, Second Department's ruling that the “remaining contentions, raised in [Petitioner's] pro se supplemental brief, are unpreserved for appellate review and, in any event, without merit.” Sain I, 111 A.D.3d at 966. For the same reasons discussed in Section II.A, supra, habeas review of this ground of the Petition is precluded. Petitioner did not raise the alleged prosecutorial misconduct issue in pre-trial motion practice or at trial; the Appellate Division's determination that Petitioner's claim regarding alleged prosecutorial misconduct was “unpreserved for appellate review” constituted an independent and adequate state ground for denial of the claim; and the application of the firmly established and regularly followed New York procedural rule here is not “exorbitant.” Further, the Appellate Division's alternative, merits-based determination of this claim does not permit this Court to reach the merits of Petitioner's claim, as petitioner has failed to allege or establish cause for the procedural default, prejudice arising therefrom, or that a fundamental miscarriage of justice will occur if this Court fails to consider this claim. See Section II.A, supra.
Even if Petitioner's claim for prosecutorial misconduct in the grand jury presentation were not procedurally barred, the claim would be denied on the merits. First, there is no federal constitutional right to a grand jury in state criminal prosecutions. See Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990) (“The Fifth Amendment right to indictment by a grand jury was not incorporated by the Due Process Clause of the Fourteenth Amendment, and, accordingly, does not pertain to the states.”); see LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002). As a result, “a claim of deficiency in the proceeding is not cognizable in a habeas corpus proceeding.” May v. Warden, No. 07-cv-2176 (BSJ) (GWG), 2010 WL 1904327, at *3 (S.D.N.Y. May 10, 2010) (disposing of habeas claim that “prosecutor knowingly presented false information” to the grand jury “and committed perjury”); Mirrer v. Smyley, 703 F.Supp. 10, 11 (S.D.N.Y. 1989). Second, any alleged error before the grand jury is rendered harmless by a conviction of a defendant at his or her criminal trial. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (relying on United States v. Mechanik, 475 U.S. 66, 70 (1986)). The “subsequent guilty verdict means not only that there was probable cause to believe that the defendant ] [was] guilty as charged, but also that [he is] in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.” Lopez, 865 F.2d at 32 (2d Cir. 1989) (quoting Mechanik, 475 U.S. at 70). The Lopez court therefore concluded that “[i]f federal grand jury rights are not cognizable on direct appeal where rendered harmless by a petit jury, similar claims concerning a state grand jury proceeding are a fortiori foreclosed in a collateral attack brought in a federal court.” Id. at 32; Smith v. Hulihan, No. 11-cv-2948 (HB) (AJP), 2011 WL 4058764, at *10 (S.D.N.Y. Sept. 13, 2011) (collecting cases), adopted by 2012 WL 4928904 (S.D.N.Y. Oct. 17, 2012); see also Davis v. Mantello, 42 Fed.Appx. 488, 490-91 (2d Cir. 2002). Even claims that the prosecutor used perjured testimony in the grand jury are not cognizable on federal habeas review for these reasons. See May, 2010 WL 1904327, at *3; Smith, 2011 WL 4058764, at *10.
While the criminal convictions referenced in Mechanik and Lopez both involved juries as the finders of fact, the same legal principle applies equally to a criminal conviction, such as Petitioner's, where the finder of fact was a judge rather than a jury. See, e.g., Sims v. Artus, No. 14-cv-4734 (VEC) (DF), 2016 WL 6462405, at *10 n. 8 (S.D.N.Y. July 7, 2016), adopted by 2016 WL 6426397 (S.D.N.Y. Oct. 28, 2016).
Accordingly, Petitioner is not entitled to habeas relief on this ground.
C. Denial of Right to Appear in Grand Jury and Ineffective Assistance of Counsel (Grounds Three and Four)
Petitioner asserts in Grounds Three and Four of the Petition that he was denied the right to testify before the grand jury on September 14, 2009, and that this denial was a violation of his constitutional rights. See Petition ¶ 12. Specifically, Petitioner asserts that he was denied effective assistance of counsel, and his due process rights were violated, when his then-counsel, Mr. Viviano, left a voicemail for A.D.A. Ward on September 11, 2009 informing him that Petitioner did not wish to testify at his upcoming grand jury hearing. Id. (Ground Three). Petitioner also claims that A.D.A. Ward violated his right to due process when A.D.A. Ward “accepted” this voicemail. Id. (Ground Four); Resp. Ex. 6 at 34.
Petitioner first raised this issue in a motion to dismiss the indictment filed on October 14, 2009. Aff. in Opp'n at 9. Both Petitioner and Mr. Viviano testified at a hearing held on the motion on November 11, 2009. Id. Petitioner testified that during his initial meeting with Mr. Viviano, Mr. Viviano was insistent that it was not in Petitioner's best interest to testify before the grand jury, even though Petitioner expressed a desire to do so. Hearing Transcript (“Hearing Tr.”) at 7-11. Mr. Viviano testified that he and Petitioner “went back and forth about the benefits” of testifying, but “came to the resolution that he would not testify at the grand jury.” Hearing Tr. at 35. According to Mr. Viviano, Petitioner said he would follow Mr. Viviano's advice and not testify, and it was only after this decision that Mr. Viviano left the voicemail for A.D.A. Ward. Hearing Tr. at 36. In a bench ruling following the hearing, the court denied Petitioner's motion, finding Mr. Viviano's testimony to be “entirely credible” and Petitioner's testimony “to lack credibility.” Hearing Tr. at 45. Petitioner raised the issue again after his trial in a motion to set aside, and the motion was again denied. See Aff. in Opp'n at 10-11.
The transcript of Petitioner's hearing was provided to the Court by Respondent, but was not filed electronically on the docket.
On direct appeal, the Appellate Division again rejected Petitioner's claims regarding his grand jury testimony and the alleged ineffective assistance of Mr. Viviano. Sain I, 111 A.D.3d at 965. The Appellate Division noted that C.P.L. § 190.50(5)(a) provides a defendant with the right to testify before the grand jury “if, prior to the filing of any indictment . . . he serves upon the district attorney of the county a written notice making such request.” Id. “Notwithstanding the defendant's claim that he told his attorney of his desire to testify before the grand jury, ” the court found, “there is no evidence in the record that either he or his attorney served the written notice on the district attorney.” Id. Additionally, the court ruled that even if Mr. Viviano failed to act on Petitioner's wish to testify before the grand jury, his failure would not amount to the denial of effective assistance of counsel under the circumstances of this case. Id.
Grounds Three and Four of the Petition can be construed, in part, as an argument that Petitioner's right to appear and testify before the grand jury was violated. But such claims are not cognizable on federal habeas review, because the right to appear before the grand jury is secured by New York State law-specifically, C.P.L. § 190.50(5)(a)-rather than by the federal constitution, and “‘federal habeas corpus is not, of course, available simply by virtue of a violation of state criminal law.'” Cates v. Senkowski, No. 02-cv-5957 (LAK), 2003 WL 1563777, at *2 (S.D.N.Y. Mar. 17, 2003) (quoting Hameed v. Jones, 750 F.2d 154, 160 (2d Cir. 1984)). Indeed, on direct appeal, the Appellate Division rejected Petitioner's arguments regarding the purported deprivation of his right to testify before the grand jury without any reference to federal law or the U.S. Constitution, see Sain I, 111 A.D.3d at 965, and federal habeas courts cannot re-examine state-law determinations on state law questions. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Hameed, 750 F.2d at 160.
Petitioner frames these claims as a violation of his right to due process under the Fifth and Fourteenth Amendments to the U.S. Constitution, but these claims also are without merit. C.P.L. § 190.50(5)(a) requires that the district attorney “notify the defendant or his attorney of the prospective or pending grand jury proceeding and accord the defendant a reasonable time to exercise his right to appear at a witness therein, ” and, as the Appellate Division explained, only “provides a defendant with the right to testify before the grand jury ‘if, prior to the filing of any indictment . . . in the matter, he serves upon the district attorney of the county a written notice making such request.'” Sain 1, 111 A.D.3d at 965. Here, A.D.A. Ward provided notice of the pending grand jury proceeding to Petitioner on September 9, 2009, in accordance with § 190.50(5)(a). Aff. in Opp'n at 8. As noted by the Appellate Division, neither Petitioner nor Mr. Viviano served the required written notice requesting that he be permitted to testify before the grand jury, People v. Sain 1, 111 A.D.3d at 965, nor did Petitioner submit the waiver of immunity form that would have been necessary for him to testify, see C.P.L. § 190.45. Accordingly, the Appellate Division rejected the claim that Petitioner was not given an opportunity to appear and testify before the grand jury. Sain 1, 111 A.D.3d at 965. The factual findings underpinning the Appellate Division decision are presumed to be correct, see Nelson, 121 F.3d at 833, and there is no basis to conclude that the course of events that led to Petitioner not testifying before the grand jury violated his federal constitutional rights to due process, see Cates, 2003 WL 1563777 at *2.
Petitioner's ineffective assistance of counsel claim also fails. When evaluating an ineffective assistance of counsel claim in a habeas petition, a court's review is “doubly deferential” because the court is charged with taking “a highly deferential look at counsel's performance through the deferential lens of § 2254(d).” Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (citations and quotation marks omitted); see also Jackson, 763 F.3d at 152-53. In order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate both (1) that counsel's performance was “deficient” in that it fell below an “objective standard of reasonableness, ” and (2) that “the deficient performance prejudiced the defense, ” i.e., a “reasonable probability” exists that “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). With respect to the performance component of the inquiry, a reviewing court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. 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 decisions. Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 688-89). The defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland, 466 U.S. at 690 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
With respect to the prejudice component of the inquiry, the defendant must show that “counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. To satisfy the prejudice prong, “[t]he defendant must show 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. “Reasonable probability” means “a probability sufficient to undermine confidence in the outcome”-that is, “absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 694-95.
In this case, the Appellate Division properly adhered to the dictates of Strickland when it rejected Petitioner's ineffective assistance of counsel claim on the merits. As to the performance prong, the testimony from the November 11, 2009 hearing on Petitioner's motion to dismiss provided ample evidence that Mr. Viviano acted well within the range of reasonable professional assistance. See Hearing Tr. at 25-44. At that hearing, Mr. Viviano testified that in his experience, “certain cases present well for the defendant to the Grand Juries . . . and other cases are best left where the client remains silent at that particular proceeding.” Hearing Tr. at 33. Mr. Viviano testified that he spent “a good bit of time” going through Petitioner's criminal record, including past violent felonies that “were of particular concern.” Hearing Tr. at 34. When it came time to discuss whether Petitioner would testify before the grand jury, Mr. Viviano testified that they “went back and forth about the benefits and the . . . disadvantages of presenting testimony, ” but “came to a resolution that he would not testify at the grand jury.” Hearing Tr. at 35. Mr. Viviano left the Westchester County Jail after “about an hour and a half, ” and subsequently left the voicemail message for A.D.A. Ward, informing him that Petitioner would not testify. Hearing Tr. at 36. Mr. Viviano appropriately drew on his experience and the particulars of Petitioner's criminal record in advising Petitioner not to testify, and his conduct satisfies the requirements of the performance prong. As the Supreme Court opined in Strickland, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” 466 U.S. at 690-91. See Davis, 42 Fed.Appx. at 491 n.1 (“New York courts have consistently held that counsel's failure to ensure that the defendant testifies before the grand jury does not amount to ineffective assistance of counsel.”).
Petitioner also cannot demonstrate that Mr. Viviano's assistance could satisfy the prejudice prong of Strickland. There is no indication in the record that it is “reasonably likely” that the grand jury would not have indicted Petitioner had he testified. See Strickland, 466 U.S. at 696. Indeed, there is a distinct possibility (alluded to by Mr. Viviano at the hearing) that had Petitioner testified at the grand jury, he would be asked about his extensive criminal record, including his eight violent felony convictions. Hearing Tr. at 33-34; see Saldana v. State of N.Y., 850 F.2d 117, 121 (2d Cir. 1988) (opining that “[a]ny defense counsel” would have strongly advised defendant with criminal record not to appear before the grand jury). And in any event, Petitioner's claim that he was prejudiced by his inability to appear before the grand jury is “neutered by the subsequent conviction.” Williams, 2017 WL 4685103, at *5 n. 3; Cates, 2003 WL 1563777 at *3. Thus, Petitioner has not shown that but for Mr. Viviano's actions, the result of the proceeding would have been different.
In sum, the state courts' adjudication of Petitioner's grand jury testimony claims did not “result[] in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). For all of these reasons, Petitioner is not entitled to habeas relief based on Grounds Three and Four of the Petition.
D. Legal Insufficiency of the Evidence and Ineffective Assistance of Counsel (Ground Five)
Petitioner asserts that the evidence presented at trial was legally insufficient to support his conviction for petit larceny under New York Penal Law § 155.25, because the value of the property at issue “far exceeds the monetary threshold of 1, 000.00 dollars or less.” Petition ¶ 12 (Ground Five). He further claims that he was denied effective assistance of counsel when his trial counsel, Richard Ferrante, failed to raise this issue at trial, even though “he knew of the Depositions typed, and signed by the complaining witness, Mrs. Janet George.” Id. Petitioner made an identical claim in his pro se supplemental brief on appeal. See Resp. Ex. 6 at 38. The Appellate Division ruled that “[v]iewing the evidence in the light most favorable to the prosecution we find that it was legally sufficient to establish the defendant's guilt of . . . petit larceny beyond a reasonable doubt.” Sain I, 111 A.D.3d at 966 (citations omitted). In addition, the court found that after its independent review, it was satisfied that “the verdict of guilt as to those crimes was not against the weight of the evidence.” Id.
“The evidence is sufficient to support a conviction whenever, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'” Parker v. Matthews, 567 U.S. 37, 43 (2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)). Triers of fact have “broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that [they] draw reasonable inferences from basic facts to ultimate facts, . . . and on habeas review a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court.” Santone v. Fischer, 689 F.3d 138, 148 (2d Cir. 2012) (citations, quotation marks, and italics omitted). Further, “a state-court decision rejecting a sufficiency challenge may not be overturned on federal habeas unless the decision was objectively unreasonable.” Matthews, 567 U.S. at 43 (quotation marks and citation omitted). Put differently, a habeas petitioner must overcome “this twice-deferential standard” to prevail on a sufficiency of the evidence challenge. Id.; see also Santone, 689 F.3d at148 (“When a federal habeas petition challenges the sufficiency of the evidence to support a state-court conviction, AEDPA establishes a standard that is ‘twice-deferential.'”) (quoting Matthews, 567 U.S. at 43). Here, the Appellate Division rejected Petitioner's challenge to the legal sufficiency of the evidence supporting his conviction. See Sain I, 111 A.D.3d at 966. Accordingly, the “twice deferential” standard applies to this Court's review of Petitioner's challenge to the legal sufficiency of the evidence supporting his conviction, and the Appellate Division's decision may not be overturned unless it was objectively unreasonable.
“A federal habeas court reviewing an insufficient evidence claim must look to state law to determine the elements.” Dzebolo v. Perez, No. 07-cv-3421 (ER) (GAY), 2012 WL 4763090, at *6 (S.D.N.Y. Jan. 12, 2012) (citing Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999)), adopted by 2013 WL 81335 (S.D.N.Y. Jan. 7, 2013). “Under New York law, the degrees of larceny are defined by the size of the taking committed by the defendant.” Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002). Grand larceny in the fourth degree, the lowest tier of grand larceny, requires a theft of property that is valued in excess of $1,000.00. N.Y. Penal Law § 155.30. The statutory definition of the offense of petit larceny does not include any monetary threshold; rather, “a person is guilty of petit larceny when he steals property.” N.Y. Penal Law § 155.25. Someone steals property within the meaning of the statute when, “with intent to deprive another of property or to appropriate the same to himself or herself or to a third person, he wrongfully takes, obtains, or withholds such property from an owner thereof.” N.Y. Penal Law § 155.05(1); Adamson v. Griffin, No. 16-cv-0511 (JPO), 2016 WL 6780011, at *8 (S.D.N.Y. Nov. 16, 2016).
Upon careful review of the trial record, it was objectively reasonable for the Appellate Division to have determined that the evidence presented at trial was legally sufficient to support Petitioner's conviction for petit larceny. The prosecution was required to prove at trial that Petitioner took property from the George home, with the intent to deprive members of the George family of that property. Here, the evidence presented created a strong inference that Petitioner entered the Georges' home intending to steal property, and did in fact steal the coins, jewelry, and other items that were found in the storm drain the next day.
Sarah George testified that she encountered Petitioner on the stairs, as he was leaving her sister Emilie's room on the third floor. Tr. at 269-71. Janet George testified that as Petitioner descended the stairs, he was holding a bag with handles that was “weighted down at the bottom.” Tr. at 195. Janet also testified that after Petitioner was arrested, Sarah found that her coin jar, which normally had “quite a bit” inside it, was empty and lying on her bed. Tr. at 213. The next day, Janet noticed that “there were a lot of things missing” from the jewelry boxes in her room. Tr. at 220. Janet testified that since the time Petitioner had entered her home the day before, no one else had come into her bedroom. Tr. at 221-22. After retracing the route Petitioner took before he was arrested, Janet found jewelry, a white shirt, cufflinks, and coins in a storm drain on the side of the Village Lutheran Church. Tr. at 222-30. She identified the jewelry as “definitely” hers. Tr. at 231. Sarah also identified a white Banana Republic tank top found in the storm drain as hers, and guessed that the amount of coins found in the drain matched the amount of coins that had been in her coin jar. Tr. at 291. Drawing all inferences in favor of the prosecution, and considering the “twice-deferential standard” of federal habeas review, the evidence was certainly sufficient for a rational trier of fact to find that Petitioner stole these items from the George home. The fact that this evidence is circumstantial does not diminish its sufficiency. See Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (“Guilt beyond a reasonable doubt may be established entirely by circumstantial evidence.”).
Petitioner maintains that the evidence was legally insufficient to support his conviction for petit larceny because the value of the objects taken exceeded $1,000.00. Effectively, Petitioner seems to be arguing that he should have been charged with a more serious crime- grand larceny-because Janet George testified in a deposition that the value of the items taken by Petitioner was $17,490.41. Resp. Ex. 6 at 38. But despite the fact that the value of the property at issue could have made Petitioner eligible to face more serious charges, a conviction for petit larceny only requires the prosecution to demonstrate that the defendant stole property with intent to deprive another of property, or to appropriate the same to himself or herself or to a third person. N.Y. Penal Law §§ 155.05, 155.25. As discussed above, the evidence presented at trial was sufficient for a rational trier of fact to find that Petitioner intended to steal, and in fact did steal, property. The elements of petit larceny do not include a requirement that the items taken be valued at a certain monetary threshold, and there is no basis to suggest that a charge of petit larceny cannot be sustained if the value of the stolen property exceeds a particular threshold. Additionally, the Westchester County District Attorney's Office had the discretion to charge Petitioner with petit larceny, rather than seeking a more serious charge. See People v. Urbaez, 10 N.Y.3d 773, 775 (2008) (“The law also provides the prosecutor with broad discretion to decide what crimes to charge, People v. Eboli, 34 N.Y.2d 281 (1974), including reducing a charge when appropriate.”).
Viewing the evidence in the light most favorable to the prosecution, any rational factfinder could have determined that there was legally sufficient evidence that Petitioner was guilty of petit larceny. Matthews, 567 U.S. 43. Thus, it was objectively reasonable for the Appellate Division to reject Petitioner's challenge to the legal sufficiency of the evidence supporting his conviction, and its holding was neither contrary to, nor an unreasonable application of, clearly established federal law.
Petitioner's attendant ineffective assistance of counsel claim is meritless. “Actions or omissions by counsel that ‘might be considered sound trial strategy' do not constitute ineffective assistance.” Henry, 409 F.3d at 63 (quoting Michel, 350 U.S. at 100-01). Here, Mr. Ferrante's choice not to challenge the prosecution's charging decision-rather than potentially inviting a more serious charge for his client-was sound trial strategy, falling well within the “wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Petitioner has also failed to show that there is a reasonable probability that, but for counsel's choice not to object, the result of the trial would have been different. As discussed above, in order to prove the crime of petit larceny, the prosecution need not prove that the property was valued at a particular amount. Arguing that the property was worth a particular amount would not have changed the outcome of the proceedings, and thus Petitioner cannot show that he was prejudiced by Mr. Ferrante's actions. For these reasons, Petitioner's ineffective assistance of counsel claim fails as to both the performance and prejudice prongs of the Strickland standard.
Accordingly, Petitioner is not entitled to habeas relief on this ground.
E. Failure of the Trial Court to Obtain Subject Matter Jurisdiction (Ground Six)
Petitioner asserts that the trial court lacked subject matter jurisdiction over his criminal case due to the “Grand Jury Foreperson's failure to obtain, sign, and verify” his indictment. Petition ¶ 12 (Ground Six). Petitioner first raised this issue in his pro se supplemental brief on direct appeal. See Resp. Ex. 6 at 56-61. Respondent, in opposition to the Petition, asserts that this claim is both procedurally barred and meritless. Resp. Mem. of Law in Opp'n at 6, 19.
As with the claims addressed in Sections II.A and II.B, supra, Petitioner's claim regarding the purportedly unsigned indictment was disposed of within the ambit of the Appellate Division, Second Department's ruling that the “remaining contentions, raised in [Petitioner's] pro se supplemental brief, are unpreserved for appellate review and, in any event, without merit.” Sain I, 111 A.D.3d at 966. For the same reasons discussed in Sections II.A and II.B, habeas review of this ground of the Petition is precluded. Petitioner did not raise the indictment issue in pre-trial motion practice or at trial; the Appellate Division's determination that Petitioner's claim regarding the indictment issue was “unpreserved for appellate review” constituted an independent and adequate state ground for denial of the claim; and the application of the firmly established and regularly followed New York procedural rule here is not “exorbitant.” Further, the Appellate Division's alternative, merits-based determination of this claim does not permit this Court to reach the merits of Petitioner's claim, as petitioner has failed to allege or establish cause for the procedural default, prejudice arising therefrom, or that a fundamental miscarriage of justice will occur if this Court fails to consider this claim. See Section II.A, supra.
Even if habeas review of this claim were not precluded, Petitioner's final claim fails on the merits. Petitioner's assertion that the indictment was unsigned is belied by the signed copy of the indictment provided by Respondent, which was originally filed on September 29, 2009. See Resp. Ex. 12. Petitioner claims in his reply submission that Respondent's copy of the indictment “has been altered in a quest to satisfy [Respondent's] argument, ” and Petitioner provides his own attached exhibit to show the purported differences between his copy and Respondent's copy. ECF No. 15 at 5, 10-11. While there are features that differ between the copies (for example, one is signed digitally, rather than with ink), both are signed by the foreperson of the grand jury. Id. at 11. The fact that one copy is also signed by the acting foreperson of the grand jury does not mean that the other copy violates New York law, which allows a signature by either the grand jury foreperson, or the acting foreperson. C.P.L. § 200.50(8); Williams, 2017 WL 4685103, at *8. It appears that Petitioner received a “conformed” copy of the indictment-with digital signatures-whereas the copy submitted by Respondent in response to the Petition is a copy of the original indictment with original ink signatures. See Resp. Mem. of Law in Opp. at 6 (discussing conformed signatures); ECF No. 18 (same). Notably, both documents have file stamps of September 29, 2009, from different offices within the Westchester County Clerk's Office; the fact that conformed copies of indictments and original copies of indictments are maintained in two separate offices is confirmed by the supplemental letter submitted by Respondent. See ECF No. 18 at 3. There is simply no factual basis for Petitioner's claim that there was no signed indictment for his criminal charges.
Petitioner attempts to make an issue of the fact that his (conformed) copy of the indictment has a stamp that indicates that a copy was made and provided to him by the County Clerk on July 10, 2012, whereas the copy of the original indictment in the Respondent's filing has a stamp that indicates that a copy was made and provided on December 18, 2015 (a short time before Respondent's opposition filings were submitted to the Court in this action). See ECF No. 15 at 5. These stamps, however, simply refer to the dates on which the County Clerk provided verified copies of the documents-the stamps are affixed to the copies, not to the originals, and have no bearing on the original contents of the records.
Moreover, “even assuming these allegations somehow established a violation of state law, . . . they do not show a violation of Petitioner's federal rights.” See Williams, 2017 WL 4685103, at *8 (citing Estelle, 502 U.S. at 68).
Accordingly, Petitioner is not entitled to habeas relief on this ground.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Petition be DENIED in its entirety. As the Petition presents no questions of substance for appellate review, I respectfully recommend that a certificate of probable cause should not issue. See Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990) (per curiam); Alexander v. Harris, 595 F.2d 87, 90-91 (2d Cir. 1979). I further respectfully recommend that the Court should certify pursuant to 28 U.S.C. § 1915(a) that an appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made by mail). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of The Honorable Cathy Seibel, United District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Seibel, and not to the undersigned. Failure to file timely objections to this
Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).
A copy of this Report and Recommendation has been mailed to Petitioner by Chambers.