McCray v. Capra

TERENCE SANDY MCCRAY, Petitioner, v. MICHAEL CAPRA, Superintendent, Sing Sing Correctional Facility, Respondent.

No. 9:15-cv-01129-JKS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

August 31, 2017

MEMORANDUM DECISION and ORDER

[Re: Appointment of Counsel]

Terrence Sandy McCray, a New York state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. McCray is in the custody of the New York State Department of Corrections and Community Supervision and incarcerated at Sing Sing Correctional Facility. Respondent has answered the Petition, and McCray has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

On June 3, 2009, McCray was charged with rape in the first degree in an indictment alleging that he had engaged in sexual intercourse with the victim by forcible compulsion. On direct appeal of his conviction, the Appellate Division of the New York Supreme Court recounted the following facts underlying the charges against McCray and the evidence presented at trial:

Many details are undisputed. [McCray], then 40 years old, first met the victim—an 18-year-old woman with an extensive history of psychiatric problems—at a bus stop in the City of Albany in April 2009. They talked extensively about various topics, including sex, while walking together until they eventually visited a recreational vehicle that belonged to a friend of [McCray]. The victim testified that, while inside the vehicle, [McCray] gave the victim a back massage, but nothing else happened of an intimate nature. [McCray's] version of these events differed only in that he testified that, following the massage, the victim engaged in oral sex with him. Upon parting that night, the victim gave [McCray] her telephone number and they spoke on the telephone a few times in the weeks ahead. On May 26, 2009, [McCray] called the victim and invited her out for the evening. The victim's mother drove her to [McCray's] residence, where the victim met members of [McCray's] family, and she then dropped the pair off on Lark Street. They walked around for a while and stopped at the home of [McCray's] friend, Marvin Calhoun, where they visited with Calhoun and his family. The victim admits that she exchanged sexual innuendos with [McCray] during this visit. After a few hours, the couple left, ending up at the apartment of another one of [McCray's] friends, Kevin Johnson, where they engaged in consensual kissing and fondling.

It is at this point that the testimony of [McCray] and the victim sharply diverges. The victim testified that after about 15 minutes, [McCray] wanted to have intercourse but she refused, telling him it was too soon in their relationship. When [McCray] continued to insist, she became angry with him and left the apartment. [McCray] caught up with her on a street outside the apartment and apologized to her. She stated that they continued to argue while they walked, but that she tired of walking so they sat down. The victim stated that, while seated, they witnessed police officers draw their weapons on a young female with a baseball bat. She explained that this incident made both her and [McCray] laugh, and she no longer felt angry with him.

[McCray] testified that the victim had unsuccessfully asked Calhoun if they could use a bedroom to have sex while visiting Calhoun's family and, once at Johnson's apartment, she initiated sex and it was he who refused to have intercourse there because he thought it was not appropriate to have sex on the couch with his friend in the next room. He testified that they left the apartment together in search of another place to have sex, and that the victim was willing even to have sex outside in the bushes. [McCray] further stated that the victim was not angry with him when they left Johnson's apartment and that they never witnessed the police encounter with the female with the baseball bat.

By both accounts, the couple eventually ended up at an abandoned house located at 595 Clinton Avenue in Albany, where the victim followed [McCray] through the backyard into the house. At this point, the accounts of the victim and [McCray] again diverge. The victim testified that [McCray] backed her up against a wall and started to forcibly kiss and grind against her. She testified that she pushed him away and told him to stop, but that he continued, telling her, "You are going to give it to me or I'm going to take it." The victim stated that they struggled; she punched [McCray] in the face, near his jaw or chin, and [McCray] hit her in the face several times and choked her. While he was choking her from behind, the victim testified, she was able to bite his forearm. After an extended struggle, during which the victim tried to make noise to draw attention and begged for her life, she gave up and submitted to sexual intercourse with [McCray]. The victim stated that, when it was over, [McCray] did not prevent her from leaving, but told her, "Don't go out there looking like that." The victim stated that she wiped the tears and blood off of her face onto her shirt, then went out the same way they had entered. She further testified that she got caught on a fence while trying to leave, and ripped her shirt. She came upon a pay telephone and called 911. Police officers arrived and she was brought to the hospital for examination. The victim's torn shirt and photographs of her bruised face were admitted in evidence at trial.

By contrast, [McCray] testified that the couple had consensual intercourse once inside the abandoned building. He explained that after they were through and he asked the victim if she wanted to go home, she suddenly demanded money from him and, when he refused, grabbed his pants and began to leave. [McCray] stated that he then tackled the victim to prevent her from leaving and her face struck the floor as they fell. They then struggled as he attempted to pry his money—which the victim had by then extracted from the pocket of his pants—from her hand and, during the struggle, she bit his arm. According to [McCray], he eventually managed to squeeze the victim's hand open and retrieve his cash, at which point the victim got up and left the building.

[McCray] then went to the home of his friend, James Close, where, according to Close, he pounded on the door, yelling for admittance. Close testified that [McCray] looked like he was being chased by someone and implied that he wanted to come inside because there was a female outside who was exposing herself to [McCray]. [McCray] testified that he went to Close's house because he wanted to tell him about his encounter with the victim but, suddenly realizing that the abandoned house he had been trespassing in might belong to Close, changed his mind and left. He explained that he might have referred to the victim as "the girl [who] lifted her shirt up on Central Avenue that time" because he had told Close about his first meeting with the victim and that she had exposed herself on the street that night to some passers-by.

People v. McCray, 958 N.Y.S.2d 511, 514-16 (N.Y. App. Div. 2013).

McCray filed a pre-trial discovery demand seeking medical, psychiatric, and related medical records of each prosecution witness on the ground that such information could bear on testimonial capacity, memory, or credibility. At a court appearance on August 27, 2009, the prosecutor appeared before the court and indicated that she had disclosed to the defense information related to the victim's mental health history. The prosecutor further stated that there were three prior incidents in which the victim had alleged sexual assault; she had reported only one of those to the police. Defense counsel asked the trial court to require the People to disclose all of the victim's mental health records. The trial court ordered the People to obtain the records and to submit the records to the court for in camera review.

On November 4, 2009, the court informed the parties that it had reviewed the psychiatric records and would disclose to the defense those records that would relate to fabricating ormisperceiving events or that showed delusional behavior on the part of the victim. On December 17, 2009, the court released to the defense 28 pages from the thousands of documents submitted for in camera review.

At the conclusion of trial, the jury convicted McCray of first-degree rape as charged. The court subsequently sentenced him as a second felony offender to a determinate imprisonment term of 22 years to be followed by 5 years of post-release supervision.

Through counsel, McCray appealed his conviction, arguing that: 1) the verdict was against the weight of the evidence; 2) the victim's statements that McCray raped her were improperly admitted as bolstering evidence and the lack of accompanying limiting instructions mandated reversal; 3) the trial court erred in refusing to turn over all of the victim's mental health records; 4) the trial court improperly prevented him from establishing that the victim was diagnosed as "hypersexual;" 5) the trial court erred in sustaining objections to questions regarding various acts that the victim had committed; 6) McCray was entitled to medical records of the victim's hospitalization for overdosing six months after the rape; 7) trial counsel was ineffective for failing to challenge the voluntariness of McCray's statements to the police; and 8) his sentence was harsh and excessive. McCray also submitted a pro se supplemental brief in which he argued that evidence of his prior uncharged crimes were improperly introduced and admitted. The Appellate Division affirmed the judgment against McCray in a reasoned, divided opinion issued on January 17, 2013. McCray, 958 N.Y.S.3d at 528. Two justices dissented, stating their belief upon review of the undisclosed medical records that, "[b]y not disclosing [the complainant's medical] records, County Court deprived [McCray] of the ability to fully prepare his defense, in...