Watson v. The Superintendent of Greene Corr. Facility

1

KEVIN WATSON, Petitioner, v. THE SUPERINTENDENT OF GREENE CORRECTIONAL FACILITY, Respondent.

No. 19-CV-5098 (PKC)

United States District Court, E.D. New York

September 18, 2023

MEMORANDUM & ORDER

Pamela K. Chen, United States District Judge

Petitioner Kevin Watson petitions this Court for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction for criminal possession of a weapon in the second degree. The Petition is granted for the reasons set forth below.

BACKGROUND^[1]

I. Facts Relating to Petitioner's Criminal Conduct

On October 26, 2013, Detective Frank Muzikar (“Det Muzikar”) of the New York City Police Department's (“NYPD”) Staten Island gang squad was assigned to patrol the 120th Precinct. (Trial Transcript (“Tr.”),^[2] Dkt. 9-14, at 38-39.) At approximately 3:10 pm, he observed Petitioner leave a building, “have a short conversation with a taxi driver,” and then sit in the front seat of the taxi. (Tr. 40.) Det. Muzikar found this suspicious and began to follow the livery cab.

(Tr. 41, 52-53.) He subsequently pulled the cab over near the corner of Bay Street and Victory Boulevard-located approximately a half-mile from the NYPD's 120th Precinct-for failing to use its turn signal at two stop signs. (Tr. 53-54, 101.) Det. Muzikar approached the passenger side of the taxi and saw Petitioner “with a red Samsung Galaxy phone in his hand” that had a “screen saver . . . which had firearms on it.” (Tr. 54; see also Dkt. 1-C (screensaver image).) Det. Muzikar then observed the butt of a loaded firearm in a holster on Petitioner's hip. (Tr. 55-56, 58.) He asked Petitioner to step out of the vehicle, at which point Petitioner stated that he “ha[d] a firearm on [him].” (Tr. 56.) Petitioner initially stated that he had a permit for the firearm; he did not, but he did have a “premises permit” for a different firearm.^[3] (Tr. 57-58.) Petitioner then asked Det Muzikar to contact Crystal Armstrong, Petitioner's mother-in-law, who worked at the 120th Precinct.^[4] Petitioner stated, in sum and substance, that he was on his way to the 120th Precinct to turn in the gun pursuant to the NYPD's Gun Buyback Program (the “Program”).^[5] (Tr. 58, 118-19.)

Petitioner was placed under arrest and charged with, among other things, criminal possession of a weapon in the second degree, in violation of New York Penal Law § 265.03(3).^[6] (Respondent's Brief (“Resp. Br.”), Dkt. 9-21, at 1.)^[7]

II. Pre-Trial Proceedings

In response to the charges, Petitioner asserted a defense under New York Penal Law § 265.20, i.e., excusing the unlicensed possession of a weapon where possession is for the purpose of surrendering the gun to a buyback program. (See Dtk. 9-5, at 1; Pre-Trial Hearing Transcript (“Hr'g”),^[8] at 20-21.) This defense shifted the burden to the prosecution to prove beyond a reasonable doubt at trial that Petitioner did not possess the gun for that purpose on the day he was arrested and made Petitioner's intent the central issue in the case. The prosecution filed pre-trial motions seeking to admit certain evidence going to Petitioner's intent.

On October 25, 2015, the prosecution filed a motion in limine seeking to admit, among other things, two photographs at trial: (1) the screensaver photograph that Det. Muzikar saw, which might have been taken on May 8, 2013, and “depicts five firearms on top of a yellow sheet” (the “Five-Gun Photo”) and (2) a photograph, which might have been taken on July 10, 2013, found during a post-arrest search of Petitioner's cell phone showing “four firearms on top of a blue striped sheet” (the “Four-Gun Photo”). (Dkt. 1-6, at 2-4.) The illegal firearm for which Petitioner was arrested was allegedly in both photographs, which were taken five months and three months before Plaintiff's arrest, respectively. (Id.)

Petitioner filed a motion in limine seeking to cross-examine Det. Muzikar about civil rights lawsuits filed against him pursuant to 42 U.S.C. § 1983 (“Section 1983”). See People v. Watson, 163 A.D.3d 855, 859-60 (N.Y.App.Div. 2018).

A. November 13, 2015 Hearing

On November 13, 2015, the presiding judge, Justice William Garnett of the Richmond County Supreme Court, held a hearing on the prosecution's motion. (See generally Hr'g 1-45.) At the hearing, the prosecution stated that it wanted to use the Four-Gun Photo and Five-Gun Photo to: (1) rebut Petitioner's defenses based on the Gun Buyback Program exemption from prosecution or that he was lawfully in possession of the firearm; (2) “really to portray the picture of who this defendant is as a person ....He's into guns, whether they are illegal or he has a license for it”; and (3) show that Petitioner was “claiming ownership of this [illegal] It's right alongside his firearm that he's licensed to possess in his home.” (Hr'g 8.)^[9]

Petitioner did not object to the introduction of the photographs on the condition that they be redacted to only show Petitioner's licensed firearm and the illegal gun at issue. (Hr'g 10-11; see also Hr'g 19 (“If they want to set the timeline of when he was first in contact with [the illegal] gun . . ., that I'm not arguing with.”).) The trial court stated it would reserve decision on the motion because:

What it comes down to for me is there's a defense of temporary lawful possession and I'm the trier of fact. Again, it's a weighing of probative value versus prejudice.

If a defendant is saying that I came upon a gun, however I came upon it, and I decided to turn it into the police as soon as I could, shouldn't the trier of fact know at one point, at least, he was in the presence of five guns?

(Hr'g 18-19.)^[10] Petitioner objected to this theory of relevance, stating that it “sound[ed] like a textbook definition of propensity.” (Hr'g 19.)

With respect to Petitioner's motion in limine, his counsel argued that Petitioner should be permitted to inquire about the § 1983 lawsuits against Det. Muzikar because in each of “the underlying criminal cases[,] . . . Detective Muzikar, then Police Officer Muzikar, made accusations against the defendant [in those cases] which were false, they then were dismissed by the Court or were declined to be prosecuted by the District Attorney's Office.” (Hr'g 23.) The trial court also reserved decision on Petitioner's motions. (Hr'g 34.)

B. December 3, 2015 Hearing

At the pre-trial hearing on December 3, 2015, the trial court stated that it would postpone ruling on the motions in limine “until after the jury [was] selected” due to media attention surrounding the case. (Hr'g 47.)

C. December 7, 2015 Jury Selection

On December 7, 2015, during jury selection, the trial court granted the State's motion in limine as to the Five-Gun Photo, holding that:

Detective Muzikar testified at the suppression hearing that before he saw the butt of the gun[,] he observed the defendant's cell phone displaying a picture of five guns ....If the detective is able to testify that [the photograph of the five firearms] looks like the picture he saw on the defendant's phone, the [] photo would tend to support his testimony about the events which transpired at the cab that day. In addition, any alteration of the detective's testimony or the redaction of the photo to show only two guns would necessarily call into question the detective's accuracy and credibility without a sound basis. The jury may question the officer's credibility because of the photo[']s redaction . . . or the alternative that he testified that he just saw guns.

This is not a case where [the] photograph has no connection with the circumstances that led up to the seizure of the gun. The [] photo is a part of the narrative of the events at the car and it is in the Court's judgment inextricably intertwined with the facts of the case. In addition, in light of the announced defense, the [] photo would be probative of the issue of how likely it would be that a person so apparently enamored of guns would be in the process of surrendering to authorities when the gun was seized from him. Therefore, the Court will allow the unredacted photo with the evidence [subject to a limiting instruction].

(Hr'g 236-37; see also Hr'g 254, 273, 288 (stating that photograph “is part of Muzikar's testimony”).)

The trial court then heard argument with respect to the Four-Gun Photo. Petitioner argued that the photograph was irrelevant because “with the statutory defense of [Section] 265.20, whether he possessed [the gun] two months earlier or not is not relevant as it would be if we were doing the temporary [and lawful possession defense] .... [I]t's not really relevant to the issue of whether he was going to the precinct” on the day he was arrested. (Hr'g 259-60.) Petitioner requested, in the alternative, that the photograph be redacted to only show Petitioner's licensed firearm and the illegal gun at issue. (Hr'g 259.) The trial court reserved decision.

D. December 8, 2015 Hearing

On December 8, 2015, the trial court heard further argument with respect to the Four-Gun Photo. Petitioner argued that both the Four- and Five-Gun Photos: (1) were “evidence of a prior bad act, prior uncharged misconduct that is being used . . . to show that [Petitioner] had a propensity to possess illegal firearms”; (2) were irrelevant because, under the Section 265.20 defense, “the only issue for the jury to decide is whether he was going to the precinct on that day”; (3) were not necessary “to complete the narrative with Det. Muzikar's credibility as to whether he saw a picture with five firearms” because Petitioner did not intend to challenge that portion of the officer's testimony as the court had already ruled that the stop was legal; and (4) would mislead the jury as to whether all of the firearms pictured were real firearms. (Hr'g 289-92, 295; see...