Opinion
03 Civ. 5404 (WHP) (KNF).
October 13, 2006
REPORT AND RECOMMENDATION
I. INTRODUCTION
Jamile Hankins ("Hankins") has made an application to the court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. He contends that his confinement by the state of New York is unlawful because: (1) the sentence imposed upon him, following his conviction after a jury trial, violated the Sixth Amendment, because it was harsher than the sentence he could have obtained if he had been allowed, by the trial court, to accept a plea bargain offer tendered to him by the prosecution; (2) his trial counsel rendered ineffective assistance to him, in violation of the Sixth Amendment, by failing to request pretrial hearings to explore the extent, if any, to which Hankins was acquainted with one of the crime victims, and to seek suppression or preclusion of an in-court identification of him that was made by another crime victim; and (3) his appellate counsel rendered ineffective assistance to him, in violation of the Sixth Amendment, by failing to assert, in an appellate brief, that the petitioner's trial counsel rendered ineffective assistance to him by failing to alert the trial court, with specificity, that the evidence presented at Hankins' trial was insufficient to support either a conviction for burglary in the first degree or an assault in the first degree conviction that he suffered.
The respondent opposes Hankins' application for the writ. He maintains that the grounds upon which Hankins seeks relief have been raised and disposed of, on the merits, in the state courts and, inasmuch as the determinations made by those courts were neither contrary to nor the products of unreasonable applications of clearly established federal law, as determined by the Supreme Court, or based on unreasonable determinations of fact, in light of the evidence presented to those courts, Hankins is not entitled to habeas corpus relief.
II. BACKGROUND
In the early morning hours of July 26, 1996, Hankins and Javier Ortega ("Ortega") devised a plan to don masks and use a ruse, involving a teenage girl, to force their way into a Bronx apartment and rob its occupants. The apartment's occupants were an African taxi driver, his wife, brother, nephew and a friend. Hankins and Ortega believed that the apartment's occupants had secreted money in their home. The two men agreed that, during the commission of the robbery, Ortega would brandish a cigarette lighter that resembled a gun.
As Hankins and Ortega discussed their robbery plan, a third man, later alleged to have been Kenneth Jones ("Jones"), overheard their conversation and approached them. Jones offered to help them execute the robbery by supplying real guns and a knife. Jones departed from the two men and returned a short time later with two handguns and the knife he had agreed to provide for the robbery.
After the three robbers managed to enter the victims' apartment, one of them placed a gun to the head of Mamaodou Sambakechi ("M. Sambakechi"), the taxi driver, and asked him "where's the money?" According to M. Sambakechi, that robber was the petitioner. M. Sambakechi recalled that Hankins threatened to shoot him in the head if he did not give the robbers money. M. Sambakechi grabbed the gun that had been pointed at his head and one of the other robbers tried to cut him with a knife, which M. Sambakechi also grabbed. During the ensuing struggle, M. Sambakechi was shot in his right leg by one of the robbers; however, he was unable to identify the shooter.
M. Sambakechi's wife, Miriam Nkouna ("Nkouna"), who had arrived in this country recently, was pregnant. She witnessed the altercation the robbers had with her husband. Nkouna did not speak English; therefore, she went to the window in the apartment's living room, opened it and waived her arm, hoping to attract the attention of passersby on the street below. As she did this, Nkouna fell through the window and landed on the ground below. Her face was badly bruised, her right hand was broken, requiring surgery, and she suffered a miscarriage.
The commotion in the apartment awakened Adama Sambakechi ("A. Sambakechi"), M. Sambakechi's brother, and his nephew, Berane Lo ("Lo"), with whom he shared a bedroom. They determined to exit their bedroom to investigate what was happening in their apartment. Once their bedroom door was opened, A. Sambakechi saw his brother lying on the apartment floor and observed a robber approaching the bedroom door with a gun. The bedroom door was re-closed quickly and locked. However, the robber began to break down the bedroom door by kicking it.
A. Sambakechi advised his nephew that M. Sambakechi had been shot. Upon learning that, Lo jumped from the bedroom window. As he did so, an air conditioning unit that was in the window became dislodged, and fell from the window; it landed on Lo. Lo's elbow was broken and he tore a ligament. Lo later underwent surgery and participated in post-surgery physical therapy.
As the bedroom door began to break, A. Sambakechi was able to see the face of the person on the other side of the door. It was the face of the petitioner. Fearful for his safety, A. Sambakechi leaped from his bedroom window to the street below. As a result of doing so, he broke a leg and suffered several cuts. Despite his injuries, A. Sambakechi tried to find a telephone on the street across from where his home was located in order to report the incident to a 911 operator. As he did so, he observed the robbers exit his apartment building and flee. The robbers were no longer wearing their masks.
Sometime after the robbery occurred, A. Sambakechi was looking out the window of his apartment and spotted two of the robbers on the street below. He contacted the detective assigned to investigate the robbery immediately and informed him that two of the robbers were across the street from his apartment building. Thereafter, detectives traveled to the location of the apartment building and apprehended Ortega and Jones.
Hankins surrendered to police officials later. Following his surrender, Hankins was placed in a lineup. The Sambakechi brothers were brought to the police precinct where the lineup was held so that they might view it. Each brother viewed the lineup separately. M. Sambakechi identified Hankins as one of the robbers. At that time, he also informed a detective that Hankins lived in his neighborhood, and that he had seen him on various occasions prior to the robbery. When A. Sambakechi viewed the lineup, he indicated to a detective that Hankins looked familiar to him, but he could not identify Hankins, with certainty, as one of the robbers who invaded his apartment.
A Bronx County grand jury charged Hankins in a multicount indictment with burglary in the first degree (four counts), attempted murder in the second degree, assault in the first degree (twelve counts), assault in the second degree (two counts), criminal possession of a weapon in the second degree, attempted robbery in the first degree (fifteen counts), criminal possession of a weapon in the third degree, attempted robbery in the second degree (four counts) and criminal possession of a weapon in the fourth degree (three counts). Jones was charged in a separate multicount indictment; however, he and Hankins were tried before the same jury. Ortega elected to plead guilty to robbery and agreed to assist the prosecution by testifying against Hankins and Jones at their trial.
Prior to the date on which the trial was scheduled to commence, the prosecution notified the petitioner, in accordance with New York law, that, during his trial, it intended to offer testimony that the Sambakechi brothers had identified him, as one of the robbers, after viewing the lineup. The notice given was erroneous, since only one of the brothers had made a positive identification of Hankins, as one of the robbers, after viewing the lineup. As a result of receiving this notice, Hankins' attorney made a motion that the trial court conduct, inter alia, a Wade hearing to determine whether to suppress, at the trial, all the identification testimony the prosecution indicated, through the notice it gave the petitioner, it intended to use at his trial. The motion was granted. Thereafter, a Wade hearing was held concerning M. Sambakechi's lineup identification of Hankins, since A. Sambakechi did not identify Hankins, positively, after viewing the lineup. At its conclusion, the trial court determined not to suppress testimony about M. Sambakechi's lineup identification of Hankins.
A hearing held pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967), explores whether a pretrial identification proceeding, in which a criminal defendant participated, was compromised by suggestive or other improper law enforcement activities.
During the trial, the jurors learned of the long-term effects that the robbery had on the victims. For example, they learned that, even after undergoing surgery and participating in post-surgery physical therapy, Lo was unable to straighten his arm completely as a result of the damage done to his elbow. In addition, the jurors learned that A. Sambakechi continued to experience pain in his right hip as a result of leaping out of his bedroom window and that he could neither walk long distances nor work. Furthermore, M. Sambakechi testified that, as a result of the injuries he received, during his encounter with the three robbers, he was required to wear a brace and suffered with a great deal of pain.
While the prosecution was presenting evidence to the jurors in support of the charges made against Hankins and Jones, Hankins' attorney advised the trial court that his client wished to accept a plea offer that had been made by the prosecutor. The plea offer included a promise that the prosecution would recommend that the trial court sentence Hankins to a period of 8 years incarceration. Shortly after Hankins' decision to tender a plea of guilty had been communicated to the trial court, Hankins changed his mind and determined that the trial should continue. Hankins then changed his mind again, and had his attorney advise the trial court that he wished to enter a plea of guilty. Hankins' apparent change of mind occurred after he discussed the matter with Jones. However, while Hankins' decision to accept the plea offer was in flux, the prosecutor withdrew the plea offer. Thereafter, the court explained to Hankins that it would not accept a plea of guilty from him because his vacillating position called into question whether Hankins' decision to plead guilty was a knowing and voluntary decision. Accordingly, the trial proceeded.
The trial record indicates that at some point it was contemplated that the prosecution would recommend a sentence of 15 years incarceration, if Hankins agreed to plead guilty. However, the submissions made in connection with the instant application for the writ suggest that, ultimately, a recommendation of 8 years imprisonment, in return for a plea of guilty, was offered to Hankins and Jones.
After being instructed by the trial court to consider the following charges: burglary in the first degree (two counts), attempted robbery in the first degree (two counts) and assault in the first degree (four counts), the jury returned a verdict finding Hankins guilty for burglary in the first degree, attempted robbery in the first degree and four counts of assault in the first degree. The trial court sentenced Hankins to 25 years for his burglary conviction; 10 years for his attempted robbery conviction; and 10 years for each assault conviction. The trial court directed that the sentences run concurrently.
Jones was acquitted of all charges made against him.
Hankins appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. His appellate counsel urged that court to upset Hankins' conviction because the trial court "punished him for exercising his Sixth Amendment right to a jury trial" by effectively sentencing Hankins to a term of 25 years imprisonment, after refusing to accept Hankins' offer to tender a plea of guilty, on the understanding that the prosecution would recommend that the court impose either an 8 or a 15-year term of imprisonment. In addition to the appellate brief filed by his counsel, Hankins sought and obtained permission from the Appellate Division to file a pro se supplemental appellate brief.
In that document, Hankins argued that his conviction should be overturned because he received ineffective assistance from his trial counsel. In particular, Hankins alleged that his trial counsel erred by failing to protest that the prosecution had failed to comply fully with the pretrial identification notice provision contained in New York Criminal Procedure Law ("CPL") § 710.30. Hankins also alleged that his trial counsel failed to establish, at the Wade hearing, that the identifications made of him by two witnesses were the products of suggestive activity by law enforcement officers. In addition, Hankins maintained that his trial counsel did not register an objection "to the prosecutor's bolstering of evidence during summation." Furthermore, according to Hankins, his trial counsel failed "to request [a] proper identification charge be delivered by the trial court to the jury." After the prosecution filed its responsive brief with the Appellate Division, that court granted an application made by Hankins to strike his pro se supplemental appellate brief.
The Appellate Division affirmed the petitioner's conviction unanimously. See People v. Hankins, 286 A.D.2d 639, 730 N.Y.S.2d 322 (App.Div. 1s' Dep't 2001). It explained that, in light of Hankins' "extreme vacillation" concerning whether to accept the prosecution's plea offer, the voluntariness of any plea Hankins might have tendered was "undermined;" and, therefore, the trial court acted properly when it determined not to permit Hankins to tender a plea of guilty in the midst of his trial. The Appellate Division also noted that, in any event, by the time Hankins decided to accept the prosecution's plea offer, that offer had already been withdrawn. The Appellate Division explained further that, under New York law, in such a circumstance, only a plea of guilty to all charges in the indictment could be accepted by the trial court. However, the trial record did not indicate to the Appellate Division that Hankins wanted to plead guilty to all charges made against him in the indictment. Accordingly, the trial court could not accept a plea of guilty from Hankins. The Appellate Division also found nothing in the trial record to support a conclusion that the petitioner's sentence was "based on any improper criteria." Consequently, it found further that no reason to reduce the petitioner's sentence existed.
Hankins sought leave to appeal from the Appellate Division's determination to the New York Court of Appeals. That application was denied. See People v. Hankins, 97 N.Y.2d 755, 742 N.Y.S.2d 615 (2002).
Hankins returned to the trial court with a motion, made pursuant to CPL § 440.10, to vacate the judgment of conviction. The motion was based upon Hankins' allegation that his trial counsel rendered ineffective assistance to him by failing to request a pretrial hearing, pursuant to People v. Rodriguez, 79 N.Y.2d 445, 583 N.Y.S.2d 814 (1992), to explore the extent to which Hankins was acquainted with M. Sambakechi so that the trial court could assess whether the lineup, in which he participated, was a confirmatory identification procedure and, thus, not susceptible to being tainted by suggestive police conduct. Hankins also claimed that his trial counsel failed to review and investigate, in a professional manner, documents disclosed to him by the prosecution, in accordance with New York law. See People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448 (1961). In addition, Hankins alleged that his trial counsel failed to protest that the prosecution did not give adequate notice, as required by CPL § 710.30(1)(b), of a pretrial identification of him that was made by A. Sambakechi. As a consequence, according to Hankins, his trial counsel failed to move to preclude any in-court identification of him by A. Sambakechi. Furthermore, Hankins alleged that his trial counsel also erred by failing to move, pretrial, to suppress A. Sambakechi's in-court identification of him, on a ground independent of the prosecution's failure to comply with the CPL § 710.30 notice requirement.
The trial court denied Hankins' CPL § 440.10 motion. It found the petitioner's "claims, individually and cumulatively, are without merit." The court noted, among other things, that Hankins' trial counsel moved successfully for a Wade hearing. However, after the hearing was completed, the court concluded that no basis existed upon which to preclude the prosecution from eliciting testimony about the pretrial identification of the petitioner or to preclude any prospective in-court identification of him. With respect to Hankins' allegation that his trial counsel erred in failing to request a Rodriguez hearing, the court concluded that, since the prosecution had not alleged that M. Sambakechi was so familiar with the petitioner that he was impervious to improper suggestive activity at the lineup and, furthermore, since a full Wade hearing had been conducted, no basis existed for the petitioner's trial counsel to make an application for a Rodriguez hearing.
The court also explained that, since A. Sambakechi had not identified the petitioner as one of the robbers when he viewed the lineup, the provision of CPL § 710.30 requiring the prosecutor to give notice that the petitioner had been identified during an identification proceeding was not applicable. However, in the instant case, the prosecution had provided the petitioner with CPL § 710.30 notice regarding A. Sambakechi's participation in a lineup identification proceeding. Although giving the petitioner that notice was not necessary, the court found that the form of the notice given to the petitioner comported with the statute's requirement. In addition to finding the claims raised by the petitioner in his CPL § 440.10 motion were without merit, the court also observed that the claims could have been raised by the petitioner on direct appeal but were not, and that Hankins' failure to raise the claims on direct appeal also warranted the court in denying Hankins' request to vacate the judgment of conviction that had been entered against him.
Hankins sought leave to appeal to the Appellate Division from the determination on his CPL § 440.10 motion. However, an associate justice of that court denied the application.
Hankins also sought a writ of error coram nobis from the Appellate Division, based upon his contention that he received ineffective assistance from his appellate counsel. Specifically, Hankins alleged that his appellate counsel failed to recognize that his trial counsel had rendered ineffective assistance to him by failing to protest before the trial court that insufficient evidence to support a conviction for acting in concert to commit burglary in the first degree or assault in the first degree had been offered by the prosecution at the trial. According to Hankins, had his appellate counsel recognized his trial counsel's deficiencies and errors, and raised those matters before the Appellate Division, that court would have reduced Hankins' first degree burglary conviction to a conviction for burglary in the third degree and would have found that Hankins neither acted in a concerted fashion with his co-defendants nor shared their intent to cause serious physical injury to M. Sambakechi. Therefore, Hankins should not have been convicted for the first degree assault perpetrated on M. Sambakechi.
The Appellate Division denied Hankins' application for a writ of error coram nobis. See People v. Hankins, 6 A.D.3d 1249, 777 N.Y.S.2d 331 (App.Div. 1st Dep't 2004). Thereafter, Hankins made an application for leave to appeal from the Appellate Division's determination to the New York Court of Appeals. That application was denied. See People v. Hankins, 3 N.Y.3d 641, 782 N.Y.S.2d 412 (2004).
III. DISCUSSION
Where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 provides that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000);Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). "A decision is 'contrary to' clearly established federal law as determined by the Supreme Court if 'the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts. . . . A decision is an 'unreasonable application' of clearly established Supreme Court law if a 'state court' identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case. . . .Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (citingWilliams, 529 U.S. at 413, 120 S. Ct. at 1523).
Enhanced Sentence
The petitioner maintains that he was punished for exercising his Sixth Amendment right to a jury trial because the trial court sentenced him, effectively, to 25 years in prison after refusing to accept his offer to tender a plea of guilty, in the midst of his trial, when the prosecution offered to permit him to do so, on the understanding that it would recommend a sentence of either 15 years or perhaps 8 years imprisonment be imposed by the sentencing court. Hankins contends the "enhanced" sentence he received should be reduced.
This was the sole claim raised by Hankins on direct appeal from the judgment of conviction that was entered in the New York State Supreme Court, Bronx County, following the conclusion of his trial. The Appellate Division adjudicated the claim on the merits and found it wanting. As noted earlier in this writing, the Appellate Division concluded that the trial court acted properly when it determined not to accept a plea of guilty from Hankins because his "extreme vacillation undermined the voluntariness of the plea." Hankins, 286 A.D.2d at 639, 730 N.Y.S.2d at 322. Furthermore, the Appellate Division noted that at the time Hankins sought to accept the prosecution's plea offer it had been withdrawn. The court explained that under New York law, a criminal defendant cannot plead guilty to fewer than all the charges made against him in an indictment without the consent of the prosecution. Therefore, Hankins could not have pleaded guilty once the prosecution's plea offer had been withdrawn, unless he intended to plead guilty to the entire indictment. However, the record generated in the trial court lacked any indication that Hankins attempted to plead guilty to all of the charges made against him in his indictment. Thus, in such a circumstance, it was not legally possible for the trial court to accept a plea of guilty from Hankins.
The Appellate Division also considered Hankins' claim that his sentence was augmented because of the trial court's displeasure with his decision to exercise his constitutional right to have a trial. The court concluded that no "improper criteria" were considered by the trial court when it determined the petitioner's sentence. Consequently, no basis for reducing Hankins' sentence existed.
The Supreme Court has indicated that a plea of guilty to a criminal charge is a grave and solemn act, which a trial court must accept only with care and discernment. This is so because when a person pleads guilty to a crime, he gives up several constitutional rights, among them the Fifth Amendment right he possesses not to be a witness against himself. The Supreme Court has advised that a waiver of any constitutional right must be voluntary and knowing. It has also explained that a waiver of a constitutional right must be an intelligent act done with an awareness of the circumstances with which one is confronted and the likely consequences that will flow from the waiver of the constitutional right. See Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1468-1469 (1970).
When a criminal defendant pleads guilty to a crime, a court must ensure that the record of the pleading proceeding shows affirmatively that the plea of guilty was knowing and voluntary. See Boykin v. Alabama, 395 U.S. 238, 242-243, 89 S. Ct. 1709, 1711-1712 (1969); Parke v. Raley, 506 U.S. 20, 29, 113 S. Ct. 517, 523 (1992). Here, the Appellate Division, consistent with the views expressed by the Supreme Court, found that the trial court acted properly in refusing to accept a guilty plea from Hankins when his vacillation made the voluntariness of his stated desire to tender a plea of guilty suspect. The Court finds that, based on the above, the determination reached by the Appellate Division does not provide a basis for granting Hankins habeas corpus relief.
The Supreme Court has determined that due process is violated when a penalty is imposed upon a person for electing to exercise a constitutionally protected right, including the right to have a jury trial in a criminal case. See Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 668 (1978). "However, the mere fact that the sentence imposed following trial is greater than the offer made during plea negotiations, does not indicate that a petitioner has been punished for exercising his right to proceed to trial." Walker v. Walker, 259 F. Supp. 2d 221, 226 (E.D.N.Y. 2003) (citing United States v. Araujo, 539 F.2d 287, 292 [2d Cir. 1976]).
At Hankins' sentencing proceeding, the trial court indicated, after Hankins conceded that he had a prior felony conviction, that the evidence of the petitioner's guilt was overwhelming. The trial court explained that Hankins and his accomplices had caused the victims to be "damaged for life." These and other factors expressed by the trial court informed the penalty that was imposed on Hankins. The Appellate Division found nothing in the record to suggest vindictiveness or any other improper criterion influenced the sentence the trial court imposed upon Hankins, notwithstanding the fact that the sentence was longer than that which would have been recommended by the prosecution, had the trial court determined that Hankins could have tendered a plea of guilty knowingly and voluntarily. Hankins' assertion that a harsher sentence was imposed than that which would have been recommended had he been able to plead guilty during the trial, without more, does not establish that he was punished for exercising his constitutional right to a jury trial. Therefore, the Court finds that Hankins has not met his burden of showing that the Appellate Division's determination was contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court, or that the Appellate Division's determination was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Accordingly, he is not entitled to habeas corpus relief on this branch of his application for the writ.
Ineffective Assistance of Counsel a. Trial Counsel
The Sixth Amendment guarantees a criminal defendant the "right to effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). To determine whether counsel's assistance was effective, the Supreme Court devised a two-part test. See id. at 687-96, 2064-69. First, a criminal defendant must show that his counsel's performance was deficient, that is, that it fell below an "objective standard of reasonableness," measured according to "prevailing professional norms." Id. at 687-88, 2064-65. Second, the criminal defendant must affirmatively demonstrate prejudice. Id. at 694, 2068. Prejudice is rarely presumed, and so the defendant generally must prove that "there is a reasonable probability that but for counsel's [error], the result of the proceeding would have been different." Id.; see also United States v. Javino, 960 F.2d 1137, 1145 (2d Cir. 1992). A reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome." See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Considerable deference is accorded counsel's performance, as counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 2066.
The essence of Hankins' claim, that he received ineffective assistance from his trial counsel, is that his trial counsel failed to review police reports disclosed to the defense by the prosecution, pretrial, that would have prompted a knowledgeable and effective criminal defense attorney to take actions his trial counsel did not take. According to Hankins, had his counsel reviewed the documents, he would have realized that it was necessary for him to make an application for: (a) a pretrialRodriguez hearing, concerning M. Sambakechi's identification of him as one of the robbers; and (b) an order suppressing or precluding any in-court identification of him by A. Sambakechi, during the trial, because the prosecution failed to comply with the notice requirement in CPL § 710.30.
"A Rodriguez hearing is held to determine whether the identification of a defendant is confirmatory in nature, that is, whether the witness had sufficient familiarity with the defendant to eliminate the issue of police suggestiveness in the identification process. If the court determines that the identification was not confirmatory, then a Wade hearing must be held." In re Duane F., 309 A.D.2d 265, 278, 764 N.Y.S.2d 434, 443-444 (App.Div. 1st Dep't 2003). A Rodriguez hearing is a proceeding through which the prosecution can attempt to persuade a court that a Wade hearing is unnecessary because a crime victim and the alleged perpetrator of the crime are so familiar with each other that suggestiveness on the part of law enforcement officials, with respect to the identification of the alleged perpetrator, is not a concern and, furthermore, that any identification procedure employed by law enforcement officials was merely confirmatory. If the prosecution fails to meet its burden of establishing, to the satisfaction of the court, that a crime victim's familiarity with a criminal defendant is so extensive that any identification procedure employed by law enforcement officials was merely confirmatory, then a Wade hearing must be held. See People v. Coleman, 306 A.D.2d 549, 550, 760 N.Y.S.2d 263, 265 (App.Div. 3rd Dep't 2003).
As the trial court pointed out when it resolved Hankins' CPL § 440.10 motion, the prosecution never alleged that M. Sambakechi and Hankins were familiar with each other — a condition precedent to holding a Rodriguez hearing, or that a Wade hearing was not necessary because the lineup was merely a confirmatory identification procedure. In any event, the petitioner's trial counsel sought and obtained a full Wade hearing, at which all of the facts and circumstances surrounding M. Sambakechi's identification of Hankins at the lineup were explored. In seeking and obtaining a Wade hearing, after receiving notice from the prosecution that a lineup had been conducted and that the petitioner had been identified as a perpetrator of the charged crimes at that proceeding, the petitioner's trial counsel acted in conformity with professional norms and in no way prejudiced the petitioner. Moreover, Hankins' contention that his trial counsel erred when he failed to seek a pretrial Rodriguez hearing is wrong.
CPL § 710.30(1) states, in pertinent part, the following:
Whenever the people intend to offer at a trial . . . (b) testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such, they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered.
A. Sambakechi never identified the petitioner as a perpetrator of the charged crimes when he viewed the police-arranged lineup. Therefore, the prosecution, as the trial court noted when it resolved the petitioner's CPL § 440.10 motion, was under no obligation to provide the petitioner with the notice contemplated by CPL § 710.30. However, CPL § 710.30 notice was given by the prosecutor concerning A. Sambakechi. Thereafter, the record demonstrates that the petitioner's trial counsel sought a suppression hearing based on that notice. The petitioner's allegation that his counsel failed to seek such a hearing is undermined by a simple reading of the December 7, 1996 motion for, inter alia, a Wade hearing that the petitioner's trial counsel submitted to the trial court. In any event, since A. Sambakechi did not identify the petitioner as a perpetrator of the charged crimes during the police-arranged lineup, there was no reason for the trial court to conduct a Wade hearing to explore whether A. Sambakechi fell prey to suggestive behavior by law enforcement officials at the lineup.
Similarly, no basis existed for Hankins' trial counsel to move to preclude A. Sambakechi's in-court identification of his client simply because he received erroneous and unnecessary CPL § 710.30 notice. Failing to seek a suppression or preclusion hearing when none is warranted is not indicative of ineffective assistance of counsel. Consequently, the trial court's determination that Hankins' trial counsel did not render ineffective assistance to him, as discussed in Strickland, based upon the petitioner's allegation that his counsel failed to seek a Wade hearing regarding A. Sambakechi, was neither contrary to nor an unreasonable application of clearly established federal law as set forth by the Supreme Court. Furthermore, that determination was not based on an unreasonable determination of the facts in light of the evidence presented in the state court. Hankins' claim, to the contrary, is baseless. Therefore, he is not entitled to habeas corpus relief based upon his claim that he received ineffective assistance from his trial counsel.
b. Appellate Counsel
The Sixth Amendment right to effective assistance of counsel also extends to the prosecution of a direct appeal from a judgment of conviction. See Evitts v. Lucey, 469 U.S. 387, 395-96, 105 S. Ct. 830, 836 (1985). Since appellate counsel is permitted to exercise professional judgment when determining which issue(s) to pursue on appeal, failure to present every nonfrivolous argument to the appellate court does not constitute ineffective assistance of counsel. See Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312 (1983). Indeed, the Supreme Court has recognized that effective appellate advocacy entails "winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Id. at 751-52, 3312-3313.
Hankins contends his appellate counsel rendered ineffective assistance to him by failing to recognize that his trial counsel rendered ineffective assistance to him when he failed to protest, with the requisite specificity, that insufficient evidence was presented by the prosecution to permit the jury to return a verdict of guilty for burglary in the first degree. Specifically, Hankins maintains there was an absence of proof that he shared the intent of his accomplices to cause injury to M. Sambakechi. Therefore, according to the petitioner, his first degree burglary conviction should have been reduced to a conviction for third degree burglary and his first degree assault conviction, predicated on M. Sambakechi's shooting, should be vacated.
As noted earlier in this writing, the Appellate Division considered these allegations when it entertained Hankins' application for a writ of error coram nobis. In its decision denying Hankins' application, the court made citation to People v. Bienvenido De La Hoz, 131 A.D.2d 154, 520 N.Y.S.2d 386 (App. Div. 1st Dep't 1987), a case in which the Appellate Division analyzed a claim of ineffective assistance of appellate counsel and made specific reference to Strickland and Evitts.
"The constitutional standard for determining the sufficiency of the evidence is that a conviction is constitutional if, 'after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). [This] 'standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law. Id. at 324 n. 16, 279 n. 16.'" Vasquez v. Poole, 331 F. Supp. 2d 145, 164 (E.D.N.Y. 2004). Under New York law, burglary in the first degree is committed when a person "knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in the immediate flight therefrom, he or another participant in the crime . . . causes physical injury to any person who is not a participant in the crime." New York Penal Law (" PL") § 140.30(2). § 10.00(9) explains that physical injury "means impairment of physical condition or substantial pain." Here, the jury learned that after the petitioner and his accomplices entered the Sambakechi apartment to effect a robbery, a struggle ensued and, during the struggle, M. Sambakechi, who was not one of the robbers, was shot. The jury also learned that, as a result of the injuries he suffered, M. Sambakechi experienced a great deal of pain and, at the time of the petitioner's trial, approximately two years after he was shot, M. Sambakechi needed to wear a brace.
The trial record, viewed in the light most favorable to the prosecution, would permit a reasonable factfinder to conclude, beyond a reasonable doubt, that Hankins was guilty for burglary in the first degree because all the elements of that crime were proved through witness testimony. Furthermore, the Appellate Division was warranted, based on the trial record, and the standards outlined in Jackson and Strickland, in rejecting the petitioner's allegation that his appellate attorney rendered ineffective assistance to him by failing to argue that his trial counsel failed to recognize that the elements of the crime, burglary in the first degree, were not established by the prosecution.
The petitioner's claim, that he lacked the requisite community of purpose to support accessorial liability for the serious injury M. Sambakechi suffered as a result of the robbery, is also belied by the trial evidence. Under New York law, a person is criminally culpable for first degree assault when the person intends to cause serious physical injury to another person and, by means of a deadly weapon or a dangerous instrument causes such injury to that person or a third person. See PL § 120.10(1). A serious physical injury is an injury that causes protracted impairment of health or protracted loss or impairment of the function of any bodily organ. See PL § 10.00(10). A deadly weapon includes a loaded firearm from which a shot can readily be discharged capable of causing death or a serious physical injury.See PL § 10.10(12).
In the instant case, the jury heard testimony that Ortega and Hankins delayed executing their robbery plan until their accomplice could supply them with real firearms and a knife. In addition, M. Sambakechi told the jury that Hankins placed a gun to his head and threatened to shoot him if he did not give the robbers money. Shortly thereafter, M. Sambakechi was shot, which injury necessitated that the wear a brace years after suffering the gunshot wound. The robbers did not flee from the apartment immediately after M. Sambakechi was shot, as if the shooting was not contemplated by them. Instead, according to the trial testimony of A. Sambakechi, Hankins approached A. Sambakechi's closed bedroom door and kicked it in an attempt to break it down and pursue him. When the robbers realized that A. Sambakechi and his nephew had escaped, they fled the scene and were observed doing so by A. Sambakechi.
The combination of these facts, considered in the light most favorable to the prosecution, established that Hankins shared with his accomplices the mental intent to use a deadly weapon during the robbery that left M. Sambakechi unable, for a protracted period of time, to use his leg as he had prior to the robbery, because of his need to wear a brace. See People v. Shero, 283 A.D.2d 953-54, 725 N.Y.S.2d 782 (App.Div. 4th Dep't 2001); People v. McDaniels, 19 A.D.3d 1071, 1072, 796 N.Y.S.2d 484, 485 (App.Div. 4th Dep't 2005). Therefore, the Appellate Division was also warranted, based on the trial record and the standards outlined in Jackson and Strickland, in finding that Hankins' appellate counsel acted appropriately when he decided to forego making a meritless argument: that Hankins' trial counsel failed to recognize that insufficient evidence appeared in the trial record to establish that Hankins shared the requisite community of purpose to support accessorial liability for the first degree assault conviction that was predicated on the injuries M. Sambakechi suffered when his apartment was invaded in July 1996. The Appellate Division recognized that Hankins' appellate counsel determined to exercise his professional judgment by winnowing out weaker arguments and focusing on a central issue that was more likely to garner relief for his client. See Jones, 463 U.S. at 751-52, 3312-3313. Consequently, the Appellate Division's determination to reject this branch of the petitioner's application for a writ of error coram nobis was not contrary to nor involved an unreasonable application of clearly established federal law as determined by the Supreme Court and was not based on an unreasonable determination of the facts in light of the evidence that was presented at Hankins' trial. Accordingly, Hankins is not entitled to habeas corpus relief based on this ground of his petition.
IV. RECOMMENDATION
For the reasons set forth above, Hankins' application for a writ of habeas corpus should be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable William H. Pauley, III, 500 Pearl Street, Room 2210, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Pauley. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).