Hall v. Bezio

KEVIN HALL, Petitioner,

v.NORMAN BEZIO, Respondent.

9:10-CV-0837 (DNH)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Dated: August 11, 2011

APPEARANCES:

KEVIN HALL

Petitioner, pro se

Great Meadow Correctional Facility

HON. ERIC T. SCHNEIDERMAN

Attorney General for the State of New York

Attorney for Defendant

OF COUNSEL:

THOMAS B. LITSKY, ESQ.

Ass't Attorney General

DAVID N. HURD

United States District Judge

MEMORANDUM-DECISION and ORDER

I. BACKGROUND

The state court records reflect that on October 14, 2006, Cheryl White lived in a house on Hudson Road in Albany, New York. See Transcript of Trial of Kevin Hall (5/14/07) ("Trial Tr.") at p. 216. When she returned to her home at approximately 2a.m. on October 15, 2006, she noticed that the back door to her home was partially open and her telephone answering machine and jewelry box were missing. Id. at pp. 216-17.

The following day, Patrick O'Keefe, who lived in a house on Tudor Road in Albany, id. at p. 233, returned to his home at about 9:30 p.m. and noticed that a light which he had turned off in a bedroom had been turned on, and the lock to the door to his residence had been "completely ripped off the [side] door." Id. at pp. 234-35. Upon further investigation, O'Keefe discovered that a laptop computer was missing from the dining room of his home, several drawers of a dresser in his bedroom had been emptied, and a Mastercard credit card was missing. Id. at pp. 235-36.

The record also establishes that on October 16, 2006, William Frye lived in a residence located on Linden Road, near New Scotland Avenue in Albany. Id. at p. 246. On that day, Frye left his house at about 6:00 a.m. and returned home at about 8:45 p.m. that same day. Id. at p. 247. When Frye returned home, he realized that his jewelry box - where he kept his dog tags and other property - was missing. Id. at pp. 247-48. Frye subsequently provided the Albany Police Department with a statement concerning the burglary, and also identified several items that belonged to Frye that were recovered by the police during the course of their investigation into the burglary of Frye's home, including a set of dog tags, a Visa debit card, and various other items. Id. at pp. 248-500.

The record further reflects that on the evening of October 16, 2006, at approximately 9:00 p.m., Christopher McKenna was sitting with his wife on the frontporch of their home on Van Schoick Avenue when McKenna heard a noise coming from his fenced-in backyard. Trial Tr. at pp. 130-31, 155. Upon investigation, McKenna discovered petitioner, Pro Se Kevin Hall in McKenna's backyard, on a bicycle with a bag over his shoulder. Id. at pp. 131-33. McKenna approached Hall and asked him why he was in McKenna's yard, to which Hall responded that "he was trying to get away from someone." Id. at pp. 133-34. After a brief conversation between the two men, McKenna escorted Hall from McKenna's premises, and Hall rode his bike toward New Scotland Avenue. Id. at pp. 134-35. After a brief discussion about the incident with his wife, McKenna called the police and informed them as to what had just transpired. Id. at pp. 135-36.

Albany Police Officers Salvatore Sturiale and Robert Paone responded to McKenna's call to the police. Id. at pp. 154-55. Officer Paone questioned McKenna concerning the individual whom McKenna had encountered in his backyard, id. at pp. 155-56, after which Officer Paone provided a description of the suspect to other police officers. Id. at p. 156. Officer Sturiale thereafter learned that an individual matching the description of the perpetrator had been stopped by the police. Id. at pp. 136-37. An officer brought McKenna to view that individual, however McKenna informed the police that the man who was being detained was not the same man as the person whom McKenna had previously encountered in his backyard. Id. at pp. 136-37. Later on that evening, Officer Sturiale saw a male riding a bicycle on New Scotland Avenue and carrying several bags. Id. at pp. 156-57. After observing the individual for a period of time, the officer pulled his patrol car near the individual because the officer believedthat he matched the description of the intruder in McKenna's yard. Id. at pp. 157-59. Hall then turned his bicycle onto a nearby driveway, abandoned his bicycle, and began running away from the scene. Id. at pp. 159-60. Officer Sturiale called for backup assistance and began pursuing Hall on foot. Id. at pp. 159-60. With the assistance of a police dog, law enforcement agents were eventually able to locate Hall in a backyard, crouching down on the ground, covering his body with a jacket. Id. at pp. 160-65. Hall was thereafter placed under arrest. Id. at p. 165.

At the time of his arrest, Hall was searched and a Visa card bearing the name of William Frye was found in Hall's front pocket. Id. at pp. 165-66. Officer Sturiale testified that when he asked the individual about the card, Hall explained to Officer Sturiale that the card belonged to Hall's cousin. Id. at p. 166. At the time of his arrest, the police also recovered other property that was on Hall's person, including jewelry, Frye's dog tags, cuff links and other items. Id. at pp. 166-67. Following Hall's arrest, Officer Thomas Shea recovered O'Keefe's credit card, White's college identification card and a backpack near the area where Hall had been arrested. Id. at pp. 260-62.

After the police apprehended Hall, an officer returned to McKenna's home and he agreed to accompany the police to the location where Hall was being detained. Id. at pp. 137-38. When they arrived at that location, an officer turned a spotlight on Hall, and McKenna "immediately" recognized the individual who was being detained as the man whom had McKenna had encountered in his yard earlier that day. Id. at pp. 139-40.

As a result of the foregoing, on October 24, 2006, an Albany County grand juryreturned a seven count indictment against Hall. See Dkt. No. 32-3 at p. 13 ("Indictment"). In that accusatory instrument, Hall was charged with: (1) second degree burglary and third degree grand larceny (with respect to the White residence); (2) second degree burglary and fourth degree grand larceny (with respect to crimes involving O'Keefe); (3) second degree burglary and fourth degree grand larceny (with respect to crimes involving Frye); and (4) criminal possession of stolen property in the fourth degree. See Indictment, Counts One through Seven.¹

Hall's jury trial on the foregoing charges commenced in Albany County Court on May 14, 2007, with Albany County Court Judge Thomas A. Breslin presiding. In Hall's defense to the charges, he testified that on the evening of October 16, 2006, he was looking through trash "for stuff to salvage," with another individual, whose name he did not know. Trial Tr. at pp. 279-280. During the course of that salvaging operation, Hall claimed that he came upon a box of silverware, "costume" jewelry, credit cards and other items which he decided to take. Id. at pp. 286-291. He further testified that after having rummaged through the trash, he rode off on his bicycle and soon thereafter a police officer drove up next to Hall and began honking the horn of the police car. Id. at pp. 300-01. Since Hall had not done anything wrong, he testified that he had no intention of stopping for the officer. Id. at p. 301. When a second police car approached Hall from the opposite direction, Hall believed that he was going to be run off the road, so he rode his bicycle onto a driveway, abandoned the bike and began toleave the area. Id. at pp. 301-03. He explained to the jury that he did not wish to talk to the police at that time because he suffered from post-traumatic stress disorder due to the fact that he had recently been "tortured" by the police. Id. at p. 303. Hall specifically denied telling Officer Sturiale that Hall was a cousin of William Frye, id. at p. 308, and also denied having entered any of the three homes that he was charged with burglarizing. Id. at pp. 308-10.

At the conclusion of his trial, the jury convicted Hall of one count of burglary in the second degree, grand larceny in the fourth degree, and criminal possession of stolen property in the fourth degree, all related to the crimes involving the Frye residence. Trial Tr. at p. 422. The jury found Hall not guilty of the charges relating to the homes of White and O'Keefe. Id. at pp. 421-22.

On July 11, 2007, Hall appeared before Judge Breslin for sentencing on the above convictions. See Transcript of Sentencing of Hall (7/11/07) (Dkt. No. 32-16) ("Sentencing Tr."). At that proceeding, the County Court sentenced Hall to a determinate sentence of fifteen years for the burglary conviction, a concurrent, indeterminate sentence of one and one-third to four years for the grand larceny conviction, and a consecutive, indeterminate term of one and one-third to four years relating to Hall's conviction on the charge of criminal possession of stolen property. Id. at p. 19.

Hall appealed the foregoing convictions and sentences to the New York State, Supreme Court, Appellate Division, Third Department. In support of his direct appeal, Hall asserted the following claims: (1) the County Court erred in admitting testimony regarding the pre-trial identification of Hall made by McKenna; (2) the evidence of hisguilt was legally insufficient, and the guilty verdict was against the weight of the evidence; and (3) trial counsel was ineffective because he did not raise the issue of whether Hall was mentally competent to stand trial before the County Court. See Appellate Brief on Appeal (3/31/08) (Dkt. No. 32-1) ("App. Br.").² Hall filed a supplemental Pro Se Appellate Brief in support of his direct appeal. See Dkt. No. 32-9 ("Pro Se Appellate Brief"). In that submission, Hall argued that: (1) he was denied the opportunity to consult with his appellate attorney regarding legal issues that should be considered in his appeal; and (2) he was denied the ability...