D'Onofrio v. Annucci

MICHAEL D'ONOFRIO, Petitioner, v. ANTHONY J. ANNUCCI, Acting Commissioner,New York Department of Corrections and Community Supervision, Respondent.¹

16 Civ. 1740 (VB) (PED)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

October 23, 2018

REPORT AND RECOMMENDATION

TO THE HONORABLE VINCENT L. BRICCETTI, United States District Judge:

I. INTRODUCTION

On November 7, 2012, petitioner Michael D'Onofrio (a/k/a Michael Donofrio) pled guilty to three counts of burglary in the second degree (N.Y. Penal Law §140.25(2)). His conviction stemmed from an investigation of a burglary ring that targeted homes in Rockland and Westchester counties, On January 9, 2013, petitioner was sentenced to three concurrent prison terms of ten years, to be followed by seven years of post-release supervision.

Presently before this Court is petitioner's pro se Petition for a Writ of Habeas Corpuspursuant to 28 U.S.C. § 2254.² This petition is before me pursuant to an Order of Reference dated March 22, 2016 (Dkt. #7). For the reasons set forth below, I respectfully recommend that Your Honor deny the petition in its entirety.

II. BACKGROUND³

A. Petitioner's Arrest

Detectives from the Orangetown Police Department identified Michael Maietta as a suspect in burglaries committed in their jurisdiction. Their investigation revealed that Maietta lived at an address in Rockland County, and that a purple Dodge Caravan (with New York license plate number FLA 3341) frequently picked him up at that location. Petitioner was the registered owner of that vehicle.

The information was passed on to detectives from the Clarkstown Police Department, who were investigating burglaries in the Valley Cottage area. They interviewed Maietta, who thereafter abruptly moved out of his apartment, After further investigation, the ClarkstownPolice Department issued a bulletin (on September 28, 2011) describing the purple Dodge Caravan and identifying petitioner and Maietta as suspects in the burglary of three Clarkstown residences. On September 30, 2011, the Orangetown Police Department issued a bulletin containing photographs of petitioner and Maietta, identifying them as burglary suspects and describing the purple Dodge Caravan.

The White Plains Police Department ("WPPD") received both bulletins. After further investigation, WPPD issued its own bulletin (on October 13, 2011) which contained photographs of petitioner and Maietta, identified them as burglary suspects and described the purple Dodge Caravan.

On October 21, 2011, WPPD detectives Robbins and Vallely were working overtime (in uniform), directing traffic at a construction site near North Street in White Plains. Detective Robbins saw a purple minivan backed into the driveway of 905 North Street; the driver was on a cell phone. A male exited the building at 905 North Street and got into the passenger side of the van. The van pulled out of the driveway and headed away from the detectives. A short time later, the purple van returned (now headed in the opposite direction), stopped in front of the detectives and asked how long the paving would take. Detective Robbins recognized the driver (petitioner) and his passenger (Maietta) from the WPPD bulletin. Detective Vallely transmitted the purple minivan's plate number to headquarters; headquarters ran the plates through NYSPIN, and informed the detectives that the vehicle was registered to petitioner.

Detective Robbins called his supervisor and told him that he had recognized petitioner, Maietta and the van from the bulletin and that he had confirmed the plate and description of the vehicle. Detective Robbins reported that the vehicle drove northbound on North Street. Thesupervisor relayed the information to Sergeant Moskalik, the sergeant in charge of the Narcotics and Intelligence Unit.

Around this time, WPPD detectives Douglass and Lee were seated inside an unmarked police vehicle. Detective Douglass overheard the exchange between Vallely and headquarters regarding information about the registered owner of the minivan, and recognized petitioner's name from the bulletins issued by WPPD and the Orangetown Police Department. Detective Douglass called his supervisor (Sergeant Moskalik); Sergeant Moskalik instructed Detective Douglass to go to 905 North Street and investigate a possible burglary.

Detective Douglass (with Lee in the car) headed toward 905 North Street. At about 11:45 a.m., they located the van in front of the White Plains High School (on North Street). Detective Douglass made a u-turn and followed the van from a distance of about four to five car lengths. Petitioner turned right onto Westchester Avenue, entered Interstate 287 (eastbound) and then exited (at exit 9) toward the southbound Hutchinson River Parkway. According to Detective Douglass, he observed petitioner drive through a steady red arrow traffic light and enter the left lane of the southbound parkway, Sergeant Moskalik (who had joined the pursuit and was following behind Detective Douglass's vehicle), instructed Detective Douglass to stop petitioner's vehicle. Both officers activated their lights and sirens and pursued the van.

Petitioner did not pull over; instead, he sped up and weaved in and out of traffic. He exited erratically onto Mamaroneck Avenue, ran a red light, made a u-turn, entered the northbound Hutchinson River Parkway and drove on the right hand shoulder in order to pass vehicles in the right lane. With both officers still in pursuit, petitioner made a left turn (crossing the northbound lanes of the parkway) and entered the on-ramp for a Mobil gas station. Petitionerstopped the vehicle at the end of the ramp, backed up and then moved forward again - colliding with a marked police vehicle (driven by Officer Gallo). As petitioner tried (unsuccessfully) to back up and get around Officer Gallo's vehicle, Maietta jumped out of the van and ran across the parkway into the woods. Detective Douglass followed Maietta but lost sight of him. The driver's side of the van was pinned shut; Sergeant Moskalik helped petitioner out of the passenger side and observed jewelry on the passenger seat. Petitioner was arrested.

Police obtained a search warrant for the van. Upon execution of the warrant, they recovered a cell phone and items reported missing after a burglary at 763 North Street. Police subsequently obtained a search warrant for the cell phone found in the van.

B. Indictment and Pretrial Proceedings

By Westchester County Indictment No. 11-1487, petitioner and Maietta were charged, each aiding and abetting the other and acting in concert, with the crimes of, inter alia, second degree burglary (three counts) and third degree grand larceny (three counts). Petitioner was also charged individually with third degree criminal mischief and second degree reckless endangerment. He was arraigned on January 3, 2012 and pled not guilty.

On or about February 20, 2012, petitioner (through counsel) filed an omnibus motion seeking, inter alia, suppression of all recovered evidence on the grounds that the police illegally stopped and searched the vehicle he was driving. By Decision and Order dated April 23, 2012, the County Court (Zambelli, J.) granted petitioner's motion solely to the extent of ordering pretrial hearings. A combined Dunaway/Mapp hearing was held on July 5, 2012. Resp. Mem., Exh. 3.⁴ On July 10, 2012, the County Court (Zambelli, J.) denied petitioner's motion tosuppress. Exh. 4.

C. Petitioner's Guilty Plea

On November 7, 2012, the day before jury selection was to commence, petitioner appeared with counsel (Mr. Goubeaud) for a final pretrial hearing before Judge Neary (to whom the case had been assigned for trial). Exh. 5. Following some discussion off the record between counsel and the court, petitioner's counsel stated that petitioner wished to plead guilty to three counts of second degree burglary in full satisfaction of the indictment, in exchange for a promised sentence of three concurrent, determinate prison terms of ten years. Id. at 2-3,8. The court asked petitioner whether he was interested in that plea disposition; petitioner responded "Yes, your Honor. I'm scared to death to go to trial. I'm not going to lie." Id. at 4.

Petitioner's counsel asked the court if it would consider issuing a "violent felony override" statement at sentencing. Id. The prosecutor (Ms. Murphy) stated she would not consent; the court stated it would "keep an open mind [as] to what appears in the presentence report" and would listen to defense counsel's arguments, but told him "don't be surprised" if the request is denied at sentencing. Id. at 4-5. Defense counsel stated that he had explained that to petitioner (Id. at 5), which prompted the following exchange:

THE COURT: Do you still want to go ahead?

THE DEFENDANT: Yeah, I just wanted to say I was sitting in the car. I didn't actually do the burglaries. I was sitting in the car.

THE COURT: If you didn't do the burglaries, don't plea. I'm not taking a plea that he says he didn't commit the crime to [sic].

THE DEFENDANT: I'm not saying that --

MR. GOUBEAUD: Judge, I have an aiding, abetting and acting in concertcount. If he was aware of what was going on.

THE DEFENDANT: That's what I mean.

MR. GOUBEAUD: He would be just as guilty, under the terms of the law. His agreement is to the actions that might have been taken at the time, and he will make a presentation to your Honor with regard to that.

MS. MURPHY: Not just that he's aware. The People's position is he's the look out; actively looking out for his codefendant at the time.

THE COURT: I'm not interested in a plea if somebody is going to be using semantics, and playing with words. If you did the crime, and were involved with the other fellow doing the burglaries, own up to. I think it's a pretty good deal if you did the crime.

THE DEFENDANT: I'm not saying I didn't do the crime.

THE COURT: You've been around the system. Don't play games. I don't have the time. You don't have the time.

If you want to take the

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