Rembert v. Annucci

PAUL REMBERT, Petitioner, v. ANTHONY J. ANNUCCI, Acting Commissioner,New York Department of Corrections and Community Supervision, Respondent.¹

16 Civ. 7490 (CS) (PED)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

December 1, 2020

November 4, 2020

No objections to this Report and Recommendation (the "R&R") have been received, and I therefore review it for clear error. Finding no error, clear or otherwise, I hereby adopt the R&R as the decision of the Court. The Petition is denied in its entirety. As Petitioner has not made a substantial showing of the denial of a constitutional right and reasonable jurists would not find that conclusion debatable, no certificate of appealability will issue. The Clerk of Court is respectfully directed to send a copy of this endorsement to Petitioner and to close the case.

SO ORDERED.

/s/_________

CATHY SEIBEL, U.S.D.J.

12/1/20

REPORT AND RECOMMENDATION

TO THE HONORABLE CATHY SEIBEL, United States District Judge:

I. INTRODUCTION

On September 12, 2012, a Westchester County jury convicted petitioner Paul Rembert ("petitioner" or "defendant") of the crimes of second degree burglary (N.Y. Penal Law § 140.25(2)), petit larceny (N.Y. Penal Law § 155.25) and fourth degree criminal mischief (N.Y. Penal Law § 145.00(1)). He was sentenced on December 18, 2012 (as a second violent felony offender) to a determinate prison term of ten years followed by five years of post-release supervision on the burglary conviction, and two definite one-year terms of incarceration on the petit larceny and criminal mischief convictions.

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 November 21, 2016 (Dkt. #9). For the reasons set forth below, I respectfully recommend that Your Honor deny the petition in its entirety.

II. BACKGROUND³

A. Petitioner's Arrest

On the morning of November 12, 2011, petitioner entered a residential cooperative building located at 472 Gramatan Avenue in Mount Vernon, New York. All of the entrances to the building were kept locked; visitors entered the front of the building using the buzzer/intercom system. Petitioner entered the building as someone was exiting, and walked downstairs into the basement. Video surveillance cameras had been installed in the basement. One of the cameras showed petitioner using a screwdriver to enter a locked room in the basement (elevator room #3). He took a dark suitcase from elevator room #3.

Later that morning, the President of the Board of the Directors of the co-op (Paul Donahue) was notified that two rooms in the basement had been broken into. Donahue wentdown to the basement and observed broken locks on the doors to the meeting room and elevator room #3. He reviewed that morning's surveillance video from elevator room #3, which showed petitioner breaking into the room and removing the suitcase. There was no surveillance camera directed at the meeting room door. Donahue made a DVD copy of the surveillance footage and, on November 14, he notified the Mount Vernon Police Department about the video. Donahue was under the impression that the building superintendent had reported the burglary to the police on November 12^th, but the police had no incident report relating to the burglary. Donahue arranged to meet with police officers the next day.

On November 15, 2011, Donahue showed police officers the two doors with damaged locks; the officers reviewed the video surveillance.⁴ One of the officers contacted the detective division; two detectives responded to the location. Donahue took them down to the basement to view the doors, and handed one of them the DVD of the video surveillance (which the detectives later reviewed).

At around noon the next day (November 16, 2011), the detectives saw petitioner walking on Third Street, wearing sneakers that matched the ones in the surveillance video. H. 46.⁵ Petitioner identified himself as Paul Rembert; the detectives had an outstanding arrest warrant for petitioner (for unlawful imprisonment). H. 47. He was arrested and brought to the police station. At the station, the detectives recovered a screwdriver from a knapsack inside a shopping cart that petitioner was wheeling when he was arrested. H. 55. Petitioner was placed in aninterview room, read his Miranda rights and signed a form indicating he understood his rights and wished to speak with the detectives. In a videotaped statement, petitioner acknowledged the following: he entered the building looking for a place to sleep; he walked downstairs and saw a door partially open; he used a stick to open the door; he took an empty suitcase from the room to transport his clothes; he did not sleep in the building.⁶ After the interview, one of the detectives took petitioner's black, red and white sneakers, which matched those worn by petitioner in the surveillance video.

B. Indictment and Pretrial Proceedings

Petitioner was indicted on February 6, 2012. Exh. 1.⁷ On or about March 19, 2012, he moved inter alia to suppress admission of his videotaped statement. On May 17, 2012, petitioner moved to suppress the screwdriver. On August 28, 2012, following a pretrial hearing, the court denied petitioner's motion to suppress his statement and granted his motion to suppress the screwdriver. H. 90.

The prosecution then sought leave to introduce into evidence several of petitioner's prior convictions, to rebut his defense that he entered the building simply to find a warm place to sleep. Specifically, the prosecution sought to introduce evidence related to six prior convictions to establish petitioner's intent (relevant to the burglary charge). H. 90-105. Defense counsel opposed, arguing that introduction of the "large number of prior incidents" would confuse thejury and would be highly prejudicial (outweighing its probative value). H. 105. The court limited the prosecution's use of petitioner's prior convictions, as follows:

I am going to grant certain aspects of the People's Ventimiglia application negating an explanation why he is in the building in this case because he has established a pattern.

The defense here is that he went in just to find a place to sleep which was evidently his testimony before the grand jury, and it's very probative of the issue of his intent at the point he unlawfully enters.

With regard to the May 11^th incident, the People are permitted to inquire solely to the extent that he is found at 16 East 4^th Street by the super in the basement at 11 p.m. and he is convicted of the possession of burglar's tools and the tools that are found inside his jacket pocket, that's the limit on that.⁸

On December 11^th, 2004, he is found by a resident of 50 South Second Avenue with a pry bar to gain entry into the storage room, and that is the extent of the People's inquiry on the December 11, 2004.

That's the extent the People are permitted on their case in chief to elicit prior bad acts because it does negate an innocent explanation as to why he is in this building and what his intent is at the point of entry.

H. 108-10.⁹

C. Trial

Following jury selection on September 6, 2012, the case proceeded to trial on September 7, 2012. During the direct testimony of one of the detective, defense counsel asked for a sidebar at which the following exchange occurred:

MS. WASSERMAN [defense counsel]: I would never say that there was any bad intent on Ms. Hochheiser's part, she took out the screwdriver in front of the jury, kept it on the table for approximately five minutes in plain view of the jury and then just Sifted it up and put it on the other side.

THE COURT: Did you do that?

MS. HOCHHEISER: I was trying to move it so the jury wouldn't see it.

MS. WASSERMAN: After it had already been laying there for several minutes. I didn't know because there was a box on the other side of the desk, if I had seen it initially.

MS. HOCHHEISER: I didn't notice it was there. What I was trying to do was, I was trying to move it so the jury wouldn't see it, that's what I was trying to do.

MS. WASSERMAN: It was on the table for several minutes.

THE COURT: Look, what do you want me to do, Ms. Wasserman?

MS. WASSERMAN; If you draw attention to it, you make it worse. I don't know how you cure something like that and that's the problem.

MS. HOCHHEISER: Judge, I was trying to move it so the jury would not see it, that's what I was trying to do. It was in the basket with the sneakers that I took out and I took it out inadvertently. I didn't want the jury to see it so I moved it further away from the jury next to something so they would not see it. That's what I was trying to do.

MS. WASSERMAN: I don't know why it's in the courtroom to begin with.

MS. HOCHHEISER: It's in the basket with the other items.

THE COURT: Look, it's done. You're right, it should not have been in the courtroom. It's done. What do you want, at this point? Leave it alone, Ms. Wasserman, nothing needs to be done at this point. Let's step back, please.

MS. WASSERMAN: Can I just - it I think of something that I think will be curative, I would like to bring it up at a later date. Thank you.

T. 149-51.¹⁰

After the jury was excused for the day (on Friday), the prosecutor asked to make a record regarding the screwdriver, and stated that it was hidden behind a box and a laptop so the jurorswould not be able to see it. T. 167. The prosecutor again explained:

What happened was, Judge, all of the evidence which has been in this cart since the jump, which is where the police have been keeping it, has been in here and I didn't remove the items. They were all together and I didn't think to remove it, and that's my bad, but that was inadvertent.

And when I removed the other items to take out these sneakers, that item ended up on my desk here and I was concerned that this jury would see it, so I took it from a place that they might be able to see it and 1 moved it to a hiding spot behind this box and this computer so they

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