Opinion
99 Civ. 11692 (GEL)(JCF)
May 2, 2001
REPORT AND RECOMMENDATION
This is a breach of contract action in which the plaintiff, Technology Express, Inc. ("TE"), alleged that the defendant, FTF Business Systems Corp. ("FTF"), failed to deliver computer parts for which TE had paid $525,000.
In an Opinion and Order dated December 12, 2000 (the "Opinion"), familiarity with which is assumed, the Court granted summary judgment on liability in favor of TE and awarded the plaintiff restitution in the amount of the purchase price. At the same time, the Court granted defense counsel's motion to withdraw from further representation of FTF and ordered FTF to appear by new counsel at a conference on January 5, 2001. When FTF failed to appear, the Court entered judgment by default against it on the remaining claims and referred the case to me for an inquest on damages.
A hearing was held on April 19, 2001. Although notice was sent to FTF, the defendant failed to appear.
Accordingly, the following findings are based on the evidence submitted by the plaintiff.
Background
The factual background of this case is set forth in the Court's summary judgment decision and will be summarized only briefly here. TE is a Tennessee corporation, while FTF is incorporated and has its principal place of business in New York. Each company buys and sells computer equipment and software. In August 1999, the parties entered into an agreement under which FTF would sell TE 500 Compaq CPQ3200 Smart Array Controllers at $1,050.00 each, for a total of $525,000. At FTF's direction, TE wire transferred the full purchase price to a vendor, but FTF failed to deliver any controllers to TE.
Discussion
A. Jurisdiction
Because the parties are citizens of different states and the amount in controversy exceeds $75,000, this Court has diversity jurisdiction pursuant to 28, U.S.C. § 1332.
B. Liability
The liability of FTF has been established in the Court's summary judgment determination.
C. Damages
The Court has already awarded TE restitution of the purchase price of $525,000. The only remaining aspect of damages sought by the plaintiff is an award of lost profits. Under New York law, which the parties agreed applies to this case (Opinion at 4), a party may recover lost profits in a contract action if "(1) its alleged lost profits were caused by the breach; (2) the `damages were fairly within the contemplation of the parties' when contracting; and (3) the damages can be proven with a reasonable certainty." Merlite Industries, Inc. v. Valassis Inserts, Inc., 12 F.3d 373, 376 (2d Cir. 1993) (quoting Kenford Co. v. County of Erie, 67 N.Y.2d 257, 261, 502 N.Y.S.2d 131, 132 (1986) ("Kenford I").
In this case, TE seeks lost profits of $350,000.00, representing the difference between the price of $1,050.00 per unit at which it bought the controllers and a price of $1,750.00 per unit for which it had agreed to resell all 500 units. (Affidavit of Harry Shields dated March 15, 2000 ("Shields Aff."), ¶¶ 6, 10, attached as Exh. B to Affidavit of Eugene Licker dated April 19, 2001 ("Licker Aff.")). With respect to the first requirement for awarding lost profits, it is clear that any such losses here are attributable directly to FTF's breach. When FTF failed to supply the promised controllers, TF lost the opportunity to profit from reselling them.
Lost profits were also within the contemplation of the parties when the contract was made. "`The party breaching the contract is liable for those risks foreseen or which should have been foreseen at the time the contract was made.'" Schonfeld v. Hilliard, 218 F.3d 164, 172 (2d Cir. 2000) (quoting Ashland Management Inc. v. Janien, 82 N.Y.2d 395, 403, 604 N.Y.S.2d 912, 915 (1993)). Thus, "[w]here the contract is silent on the subject, the court must take a `common sense' approach, and determine what the parties intended by considering `the nature, purpose and particular circumstances of the contract known by the parties . . . as well as what liability the defendant fairly maybe supposed to have assumed consciously.'" Id. (quoting Kenford Co. v. County of Erie, 73 N.Y.2d 312, 319, 540 N.Y.S.2d 1,4 (1989)). In this instance, FTF knew from its prior dealings with TE that the plaintiff was in the business of reselling computer components. (Shields Aff. ¶ 5). TE's damages as the result of a breach — damages reasonably foreseeable by FTF — would necessarily consist of the spread between TE's purchase price and its sales price.
See Travellers International, A.G. v. Trans World Airlines, Inc., 41 F.3d 1570, 1578 (2d Cir. 1994) (lost profits contemplated by parties based on history of relationship).
Finally, TE has proven its lost profits with reasonable certainty. "[D]amages may not be merely speculative, possible or imaginary." Kenford I, 67 N.Y.S.2d at 261, 502 N.Y.S.2d at 132 (citation omitted). They need not, however, be proven with "mathematical precision." Ashland Management, 82 N.Y.2d at 403, 604 N.Y.S.2d at 915. Here, TE has demonstrated that it paid $525,000 for 500 controllers at $1,050.00 each. (Shields Aff. ¶ 6). The plaintiff has also proven that it had contracted to resell those controllers for $1,750.00 per unit, for a total of $875,000.00. (Shields Aff. ¶ 10; Deposition of Harry Shields dated August 29, 2000 ("Shields Dep."), at 75-76, attached as Exh. A. to Licker Aff.). Moreover, when FTF failed to deliver the controllers, TE was unable to cover by obtaining them from another source. (Shields Aff. ¶ 11; Shields Dep. at 81-83). Thus, TE incurred damages equal to the difference between the cost to it of the controllers and the resale price, which for 500 units comes to $350,000.00
Conclusion
For the reasons set forth above, I recommend that judgment in this action include an award in favor of TE and against FTF for $350,000.00 in lost profits. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Gerard E. Lynch, United States District Judge, Room 803, 40 Foley Square, New York, New York 10007, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.
WOODS v. GREINER, (S.D.N.Y. 2001)
LAWRENCE WOODS, Petitioner, v. C. GREINER, Superintendent, Sing Sing Correctional Facility, Respondent. 00 Civ. 0864 (LMM)(JCF) United States District Court, S.D. New York. May 8, 2001
REPORT AND RECOMMENDATION
JAMES C. FRANCIS IV, United States Magistrate Judge.
Lawrence Woods brings this habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging his conviction in New York State Court, New York County, for criminal possession of a weapon. In the petition, Mr. Woods argues that: (1) the police lacked probable cause to search him; (2) the trial court erred in refusing to give a circumstantial evidence charge; (3) he did not voluntarily waive his right to be present during voir dire conducted at sidebar; and (4) his attorney provided ineffective assistance of counsel. Because three of these claims are procedurally barred and the fourth is meritless, I recommend that the petition be denied.
Background
On May 27, 1995, at approximately 12:30 p.m., Mr. Woods entered a bodega at 124th Street and Lexington Avenue in Manhattan. As Mr. Woods proceeded down an aisle, the store clerk, who was watching a security mirror, saw him remove an object from a small bag and place it on the shelf. As the bodega owner entered the store with a plainsclothes investigator for the Department of Corrections, the clerk told them what he had seen. While the investigator detained Mr. Woods, the clerk checked the aisle where he had been and discovered a revolver on the shelf. The police were then summoned. Upon their arrival, the police officers retrieved the weapon. They patted down Mr. Woods and discovered three bullets in his pocket. The caliber of the bullets matched that of the gun. Mr. Woods was then arrested.
The petitioner was indicted for Criminal Possession of a Weapon in the Second and Third Degrees. N.Y. Penal Law §§ 265.03, 265.02[4]. Following a Mapp hearing on December 12, 1995, Justice Frederic S. Berman denied Mr. Wood's motion to suppress the bullets found during the search. The case proceeded to trial, and after the judge advised the petitioner of the disadvantages of his participating in voir dire at sidebar, Mr. Woods indicated that he would "let [his] attorney handle it." At the conclusion of the case, the jury acquitted the petitioner of possession of a weapon in the second degree but convicted him of possession of a weapon in the third degree.
This is a hearing held pursuant to Mapp v. Ohio, 367 U.S. 643 (1961), to determine whether evidence was obtained in violation of the petitioner's Fourth Amendment right to be free from unreasonable search and seizure.
He was subsequently sentenced as a persistent felony offender to a term of imprisonment of fifteen years to life. Mr. Woods then appealed to the Appellate Division, First Department, raising three claims. First, he argued that he had been deprived of his right to be present at trial because he had been deterred from attending the sidebar conferences where prospective jurors were questioned. (Brief for Defendant-Appellant ("Pet. Appellate Brief") at 14-18, attached as Exh. A to Affidavit of Bruno V. Gioffre, Jr. dated July 14, 2000 ("Gioffre Aff.")). Second, he contended that the court's refusal to give a circumstantial evidence charge denied him due process. (Pet. Appellate Brief at 19-22). Finally, the petitioner maintained that he should not have been sentenced as a persistent felony offender. (Pet. Appellate Brief at 23-26).
On June 29, 1999, the Appellate Division affirmed Mr. Woods' conviction. People v. Woods, 262 A.D.2d 249, 693 N.Y.S.2d 26 (1st Dep't 1999). It found that the petitioner had validly waived his right to be present for voir dire, that the court had properly declined to give a circumstantial evidence charge, and that the judge had acted within his discretion in sentencing. Mr. Woods then sought leave to appeal to the New York Court of Appeals. In a letter dated July 14, 1999, the petitioner's counsel argued that review was warranted on the basis of one issue: the alleged deprivation of Mr. Woods' right to be present at sidebar during voir dire. (Letter of Joel Atlas dated July 14, 1999, attached as Exh. D to Gioffre Aff.). The Court of Appeals denied leave to appeal on November 16, 1999. People v. Woods, 94 N.Y.2d 831, 702 N.Y.S.2d 602 (1999). Mr. Woods then filed the instant petition.
Discussion
The doctrine of exhaustion generally requires a petitioner in a habeas corpus proceeding to exhaust all available state court remedies for each claim prior to federal review. 28 U.S.C. § 2254(b), (c) (1994 2000 Supp.); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Lurie v. Wittner, 228 F.3d 113, 123-24 (2d Cir. 2000). Nevertheless, a claim will be deemed exhausted if it is clear that the state court would find it procedurally barred. See Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). That same procedural bar, however, precludes the habeas corpus court in most instances from reviewing the defaulted claim on the merits. See Gray v. Netherland, 518 U.S. 152, 162 (1996); Bossett, 41 F.3d at 829; Sims v. Stinson, 101 F. Supp.2d 187, 191 (S.D.N.Y. 2000). Substantive review of procedurally barred claims will only be available if the petitioner is able to show cause for the default and resulting prejudice, see Gray, 518 U.S. at 162; Bossett, 41 F.3d at 829, or "demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice, or, in other words, an unjust incarceration." Spence, 219 F.3d at 170 (internal quotations and citations omitted). See also Cowan v. Artuz, 96 F. Supp.2d 298, 304 (S.D.N.Y. 2000); Howard v. Lacy, 58 F. Supp.2d 157, 165 (S.D.N.Y. 1999).
These principles can now be applied to Mr. Woods' claims.
A. Search and Seizure
In his first claim, the petitioner contends that he was stopped and searched without probable cause. He raised the same argument at the Mapp hearing, after which the trial judge denied his suppression motion. However, Mr. Woods never appealed this ruling or otherwise sought review in the state courts. He is now precluded from doing so. New York law provides for only a single application for direct review. See Spence, 219 F.3d at 170. Moreover, a defendant who fails to press an available claim on direct appeal is barred from raising it on collateral review. See Lurie, 228 F.3d at 124; Spence, 219 F.3d at 170; N.Y. Crim. Proc. Law § 440.10(2)(c). Mr. Woods has not suggested any cause for failing to assert this claim on appeal, nor has he demonstrated prejudice. Finally, he has not shown that manifest injustice will result if this ground is not considered. Accordingly, this claim is procedurally barred and may not be reviewed on the merits.
B. Ineffective Assistance of Counsel
In the fourth ground of his petition, Mr. Woods argues that he was denied effective assistance of counsel because his attorney failed to raise certain objections, failed to advise him with respect to waiver of the right to be present at sidebar for voir dire, and failed to zealously litigate the suppression motion. To the extent that a claim of ineffective assistance is based on evidence outside the trial record, a criminal defendant may pursue collateral relief by moving to vacate the judgment of conviction under New York Criminal Procedure Law § 440.10. See Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994) (assertion that trial counsel was under influence of drugs). On the other hand, where the basis for the ineffective assistance claim is contained in the record and the petitioner has failed to raise it on direct appeal, he has procedurally defaulted. See Taylor v. Kuhlmann, 36 F. Supp.2d 534, 545 n. 9 (E.D.N.Y. 1999); Garcia v. Scully, 907 F. Supp. 700, 706 (S.D.N.Y. 1995). In this instance, counsel's alleged shortcomings — the failure to object, the absence of any indication that he provided advice before his client waived his presence at the sidebar voir dire, and his performance during the suppression motion — are apparent in the transcript of the state proceedings. Having failed to raise these issues on direct appeal, Mr. Woods has forfeited them, and he had not established any basis for being relieved of the default.
C. Circumstantial Evidence Charge
The petitioner did seek direct review of the trial judge's refusal to give the jury a circumstantial evidence charge.
However, Mr. Woods' counsel did not include this claim as a ground for seeking leave to appeal to the Court of Appeals. In order to fulfill the exhaustion requirement, a petitioner must have presented his claim "to the highest court of the pertinent state." Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990) (per curiam); see also Bossett, 41 F.3d at 828. This includes making application for any available form of discretionary review. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
Here again, Mr. Woods' claim concerning a circumstantial evidence charge is deemed exhausted because it is procedurally defaulted.
The failure to raise issues before the Court of Appeals precludes further consideration in the New York courts because [the petitioner] has already made the one request for leave to appeal to which he is entitled. N.Y. Court Rules § 500.10(a). Nor may [the petitioner] now seek collateral review. See N.Y. Crim. Proc. Law § 440.10(2)(a) (McKinney 1994) (collateral review barred if claims raised and addressed on direct appeal); N.Y. Crim. Proc. Law § 440.10(2)(c) (collateral review barred if claims could have been raised on direct review but were not).
Bossett, 41 F.3d at 829. And, since there has been no showing of cause and prejudice or manifest injustice, there can be no review on the merits.
D. Sidebar Voir Dire
Finally, Mr. Woods did assert throughout the state courts his claim of having been excluded from the sidebar voir dire of jurors. However, he raised this issue exclusively as a purported violation of state law. In both his brief to the Appellate Division and his application for leave to appeal to the Court of Appeals, the petitioner argued that he had been deprived of rights established by People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33 (1992). (Pet. Appellate Brief at 14-18; Gioffre Aff., Exh. E).
To satisfy exhaustion requirements, a petitioner must have "fairly presented" his federal constitutional claims in state court. Picard v. O'Connor, 404 U.S. 270, 275-76 (1971). See also Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991). Although the petitioner need not have cited "book and verse on the federal constitution," he must have articulated the "substantial equivalent" of the federal habeas claim. Picard, 404 U.S. at 278 (internal quotations and citations omitted). He can accomplish this by:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Daye v. Attorney General of the State of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc).
Mr. Woods did none of these things. He relied exclusively on state cases that in turn employed state law analysis.
Moreover, neither the claim nor the facts underlying it could have been expected to alert the state courts to a federal constitutional issue. Indeed, habeas corpus courts faced with Antommarchi claims have consistently rejected them on the ground that they present issues of state law only. See Bryant v. Bennett, No. 00 Civ. 5692, 2001 WL 286776, at *3 (S.D.N.Y. March 2, 2001); Espejo v. Artuz, No. 98-CV-7130, 2000 WL 1863488, at *7 (E.D.N.Y. Dec. 18, 2000); Morrison v. Giabruno, No 97-CV-306, 1999 WL 689475, at *6 n. 10 (E.D.N.Y. Sept. 2, 1999); James v. Senkowski, No. 97 Civ. 3327, 1998 WL 217903, at *9 (S.D.N Y April 28, 1998); Benitez v. Senkowski, No. 97 Civ. 7819, 1998 WL 668079, at *8 (S.D.N.Y. Sept. 17, 1998).
Thus, Mr. Woods' Antommarchi claim has not been adequately presented to the state courts, and, as with his other claims, it would be procedurally barred. However, the respondent has inexplicably failed to argue procedural default and has therefore waived that defense. See Gray, 518 U.S. at 166; Mask v. McGinnis, 233 F.3d 132, 137 (2d Cir. 2000); Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998) (§ 2255 proceeding). Accordingly, this claim cannot be deemed exhausted.
Nevertheless, "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state." 28 U.S.C. § 2254(b)(2). Since, as discussed above, an Antommarchi claim does not present a federal constitutional issue, it is not cognizable in a habeas corpus proceeding in any event. This claim must therefore be rejected on the merits.
Conclusion
Mr. Woods has procedurally forfeited three of his claims, and the fourth does not present a federal issue. I therefore recommend that his petition for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Lawrence M. McKenna, Room 1640, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.