Robertson v. Keyser

ERICK ROBERTSON, Petitioner, v. WILLIAM F. KEYSER, Respondent.

20-cv-4318 (ERK)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

June 16, 2021

NOT FOR PUBLICATION

MEMORANDUM & ORDER

KORMAN, J.:

I assume familiarity with the record. In brief, petitioner was arrested for stealing a van from Ishwerdial Haitram. Haitram testified at trial that petitioner approached him from behind while he was standing beside the van, shoved him to the ground, and drove off in the van. NYPD officers pursued petitioner as he fled in the van and apprehended him shortly after he abandoned the vehicle and tried to escape on foot. Petitioner now seeks habeas relief from a judgment entered after a jury convicted him of robbery in the second degree, grand larceny in the fourth degree, and criminal possession of stolen property in the fourth degree. Petitioner raises a number of grounds for relief and I address each below.

DISCUSSION

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act ("AEDPA") allows a federal court to grant habeas relief to a state prisoner only if a state court's adjudication "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 "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); Williams v. Taylor, 529 U.S. 362, 409-10 (2000).

A decision "involves an unreasonable application" of federal law where it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Williams, 529 U.S. at 407-08. A petitioner must demonstrate that the state court's decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011). This is a "highly deferential standard," requiring that state courts "be given the benefit of the doubt." Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation omitted). However, "[i]t preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents." Harrington, 562 U.S. at 102.

B. Weight and Sufficiency of the Evidence

Petitioner's challenges to the weight and sufficiency of the evidence supporting his conviction for robbery in the second degree are meritless. First, a challenge to the weight of the evidence "is a pure state law claim" and is not cognizable in a habeas proceeding. Garrett v. Perlman, 438 F. Supp. 2d 467, 470 (S.D.N.Y. 2006).

Second, Haitram's testimony that petitioner pushed him to the ground before taking his van was sufficient to establish the force element of the robbery charge. See ECF No. 14-3 at 68 (Haitram testimony). Evidence is sufficient where "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Appellate Division concluded that the evidence was sufficient to convict petitioner, People v. Robertson, 172 A.D.3d 1239, 1239 (2d Dep't 2019), and that determination is due deference under AEDPA. Cavazos v. Smith, 565 U.S. 1, 7 (2011). Petitioner contends that Haitram's testimony that petitioner shoved him was implausible, but "[t]he jury decided that question, and its decision is supported by the record." Id. at 8. Petitioner has failed to show "that the jury's verdict was irrational, let alone that it was unreasonable for the [Appellate Division] to think otherwise." Id.

C. Prior Inconsistent Statements

Petitioner argues that the trial court violated his Sixth Amendment right to confrontation, his right to present a defense, and his right to a fair trial by preventing him from impeaching Haitram with prior inconsistent statements. The Sixth Amendment guarantees an opportunity for the effective cross-examination of witnesses, but it does not guarantee "cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). "[T]rial judges retain wide latitude . . . to impose reasonable limits on [] cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Id. That discretion is limited by the constitutional guarantee of "a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal quotation omitted). Here, the trial court declined to admit Haitram's prior inconsistent statements because petitioner failed to lay a proper foundation under state law. The Appellate Division affirmed. Robertson, 172 A.D.3d at 1239-40.

The Appellate Division likely erred as a matter of state law. "In order to prevent surprise and give the witness the first opportunity to explain any apparent inconsistency between his testimony at trial and his previous statements, he must first be questioned as to the time, place and substance of the prior statement." People v. Duncan, 46 N.Y.2d 74, 81 (1978). Defense counsel questioned Haitram as to thesematters. See ECF No. 14 at 33-36; ECF No. 14-3 at 109-11. This questioning made clear to Haitram when he made the statement (the day of the incident), ECF No. 14-3 at 109, where he made it (in the police precinct), id. at 111, who he made it to (Officer Marrero or another police officer), id. at 110-11, and what the substance of the statements was (that he had left the keys to his van in the ignition, rather than dropping them when petitioner shoved him, and that he was not the owner of the van), id. at 108, 111. Haitram denied both statements, and it is hard to see how confronting him with them would have constituted the kind of unfair surprise that the foundation rule guards against.

The decisions excluding Haitram's prior inconsistent statements deprived petitioner of the opportunity to argue that "Haitram was lying about being pushed because he did not want to admit in open court that he had carelessly left the keys in the van[,]" which petitioner contended was owned by someone else. ECF No. 14 at 40. In other words, petitioner was "prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness" — a motive to lie on the stand. Van Arsdall, 475 U.S. at 680.

Nevertheless, assuming that the Appellate Division's decision was an unreasonable application of federal precedents, that error was harmless. Even if impeaching Haitram regarding the location of the keys and the ownership of the van might have impacted his credibility with the jury, it would not have directly undermined Haitram's uncontroverted testimony that petitioner pushed him.Petitioner has failed to show that precluding him from cross-examining Haitram with prior inconsistent statements had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also Alvarez v. Ercole, 763 F.3d 223, 233 (2d Cir. 2014); Cotto v. Herbert, 331 F.3d 217, 254 (2d Cir. 2003).

D. Hearsay Testimony

Petitioner's argument that the trial court violated his right to a fair trial by allowing Officer Marrero to testify to the New York State Identification (NYSID) number returned to him after he submitted petitioner's fingerprints to a state database is meritless. The NYSID number was relevant because the prosecution sought to introduce proof of prior crimes to show petitioner's intent to permanently deprive Haitram of his property, but petitioner objected because the name on the proffered certificates of disposition was slightly different from his own (although the date of birth matched). ECF No. 14-3 at 168-71. The NYSID number returned when Officer Marrero submitted petitioner's fingerprints matched the one listed on those certificates. Id. at 190-91; 195-96.

Under the Sixth Amendment, criminal defendants must have an opportunity to confront the witnesses who testify against them, and presentation of testimonial hearsay evidence violates that right. Crawford v. Washington, 541 U.S. 36, 51-52 (2004). Habeas relief from run of the mill state law evidentiary errors is appropriate only if a ruling is so erroneous that it trenches upon the petitioner's constitutionalright to due process. Estelle v. McGuire, 502 U.S. 62, 68 (1991); Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013).

New York law, like federal law, defines hearsay as an "assertion made out of court as testimony to the truth of the fact asserted." People v. Edwards, 47 N.Y.2d 493, 496 (1979); see also People v. Nieves, 67 N.Y.2d 125, 131 (1986). The records relied upon by Officer Marrero are machine-generated, rather than prepared by a human staff member. The Department of Criminal Justice Services (DCJS) system receives these electronic record requests "24 hours a day, seven days a week, 365 days a year" and processes each transaction "in fewer than 15 minutes," on average. State Identification Bureau, N.Y.S. Div. of Crim. Just. Servs., https://www.criminaljustice.ny.gov/pio/fp_services.htm (last visited June 14, 2021). The District Attorney has confirmed that fingerprints submitted by officers "are automatically run through algorithms in the DCJS computerized biometric system" and "[t]he result of this search generates the criminal history report . . . which includes a computer-generated NYSID number unique to each set of fingerprints." ECF No. 18. Because there was no human declarant, there was no out-of-court statement to be offered for its truth, and therefore no hearsay. Compare ...