Opinion
01 Civ. 11558 (RWS)
September 4, 2002
BENJAMIN CHERRY, #98-A-5222, Attica Correctional Facility, Attica, N.Y. Petitioner Pro Se.
HONORABLE ELIOT SPITZER, Attorney General of the State of New York New York, NY, Attorney for Respondent, By: MARIA FILIPAKIS, Assistant Attorney General Of Counsel
OPINION
Benjamin Cherry ("Cherry" or "Petitioner") has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his constitutional rights. For the reasons set forth below, the petition is denied.
Procedural History
Cherry's state custody arises from a judgment entered on August 13, 1998 in New York State Supreme Court, New York County, convicting him, after a jury trial, of Attempted Burglary in the Second Degree (Penal Law §§ 110.00, 140.25), Criminal Possession of Stolen Property in the Fourth Degree (Penal Law § 165.45(2)), Criminal Possession of Stolen Property in the Fifth Degree (Penal Law § 165.40), and Possession of Burglar's Tools (Penal Law § 140.35), and sentencing him to concurrent terms, as a persistent violent felony offender, to an indeterminate state prison term of 12 years to life on the attempted burglary count; as a second felony offender, to an indeterminate state prison term of 2 to 4 years on the fourth-degree possession count; and to a definite term of one year on each of the misdemeanor counts.
At his trial, Cherry did not testify, nor did he present any witnesses on his own behalf. At the close of the evidence, defense counsel made a motion to dismiss the attempted burglary charge on evidentiary sufficiency grounds, claiming that Cherry did not come within "dangerous proximity" of committing the crime, as was legally required. That motion was denied, as was a subsequent written motion to set aside the verdict claiming that the evidence was insufficient to establish that Cherry was guilty of Attempted Burglary in the Second Degree.
On April 28, 1998, the People filed a "Statement of Two or More Predicate Violent Felony Convictions Pursuant to Criminal Procedure Law § 400.16 and Penal Law § 70.08" notifying Cherry that the People intended to seek enhanced sentencing based on a 1992 conviction in New York County for Second-Degree Burglary and 1995 convictions in Pennsylvania for Aggravated Assault and Robbery. On August 13, 1998, Cherry admitted being the individual convicted of these offenses.
At the sentencing hearing on August 13, 1998, Cherry was adjudicated as a persistent violent felony offender because of the aforementioned 1992 and 1995 convictions. Cherry was sentenced to twelve years to life in prison, the minimum sentence permissible for the attempted burglary charge, with concurrent sentences on the lesser counts.
Cherry filed a timely notice of appeal and was assigned counsel. In September 2000, Cherry's assigned counsel filed a brief on Cherry's behalf in the Appellate Division, First Department. Cherry claimed that there was insufficient evidence to prove his guilt beyond a reasonable doubt. In December 2000, Cherry, through counsel, filed a supplemental appellate brief contending that, in the wake of the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), New York's persistent violent felony offender sentencing scheme violated the United States and New York Constitutions. Specifically, Cherry alleged that his due process rights were violated because his enhanced sentence was premised upon the existence of two violent predicate convictions that were neither submitted to the jury nor contained in the indictment.
On April 19, 2001, in a unanimous decision and order, the Appellate Division, First Department affirmed Cherry's judgment of conviction and sentence. People v. Cherry, 282 A.D.2d 333, 725 N.Y.S.2d 304 (1st Dept. 2001). The court stated that the "verdict was based on legally sufficient evidence and was not against the weight of the evidence" and that "the procedure under which [Cherry] was sentenced as a persistent felony offender was not unconstitutional." Id. at 333-34.
In a letter dated April 24, 2001, Cherry's appellate counsel requested leave to appeal to the New York Court of Appeals based on the two issues raised in his appellate brief. On May 23, 2001, that request was denied. People v. Cherry, 96 N.Y.2d 827, 754 N.E.2d 207, 729 N.Y.S.2d 447 (2001).
On December 18, 2001, Cherry filed the instant habeas corpus petition, reiterating the two claims he raised in the Appellate Division. The Respondent filed its opposition to Cherry's application on May 14, 2002.
Facts
In May 1997, Juan Guzman ("Guzman") was the superintendent of a forty-unit apartment building at 1976 Seventh Avenue, just north of West 199th Street in Manhattan. Guzman lived in the basement of the building and knew all of the residents. Residents were not allowed on the roof of the building.
On May 29, 1997, Police Officers Kevin Prentice ("Prentice"), Joseph Volpato ("Volpato"), and James Lusk ("Lusk") were part of a field team designed to reduce the amount of burglaries in the area. Prentice was stationed three blocks away on the roof of 131 Saint Nicholas Avenue, an observation post enabling him to view the rooftops of buildings in the 28th Precinct. Shortly before noon, Prentice saw Cherry walking across the roof of 1990 Seventh Avenue, between West 119th and West 120th Streets. In order to better observe Cherry, Prentice used a telescope. Cherry approached a fence separating the rooftops of 1990 Seventh Avenue and 1976 Seventh Avenue. Prentice kept the field team apprised of Cherry's actions. He observed Cherry take off a leather jacket he was wearing and squeeze through a hole in the fence. Cherry then walked onto the roof of 1976 Seventh Avenue, put the jacket back on and walked back and forth across the rear of the building, constantly peeking over the ledge where fire escapes led down past apartment windows. Twice, Cherry walked two or three steps down one of the fire escapes and then returned to the roof. Prentice instructed the field team to immediately go to the 1976 Seventh Avenue rooftop. There, Lusk and his partner met with another field team, Volpato, and another officer.
When Lusk arrived on the roof, he observed Cherry peering over the side of the building. Lusk ordered Cherry to put his hands up and approach the fence between the two rooftops. After being told that Cherry was in visual contact and that it was safe,
Volpato arrived through the door to the roof of 1976 Seventh Avenue. Cherry was placed under arrest. Volpato searched Cherry and seized a screwdriver from his jacket pocket. Later, at the police precinct, Volpato again searched Cherry and discovered a Chase MasterCard bearing the name of "Sadie McDowell." Volpato contacted McDowell and her step-daughter, Deborah McDowell, who both lived at 145 West 135th Street. The credit card and the leather jacket Cherry was wearing at the time of his arrest had been stolen from their fifth-floor apartment on May 23, 1997, along with numerous other credit cards and items.
Discussion
I. The Claims Have Been Exhausted
The Respondent does not dispute that Cherry has fully exhausted the two claims he raises in this habeas petition. In his brief to the Appellate Division, Cherry raised each of these claims and framed his arguments in federal constitutional terms. He referred to federal case law and cited to sections of the United States Constitution in connection with his claims, thus effectively "presenting" a federal claim to the state court. See Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) ("[A] minimal reference to the Fourteenth Amendment satisfies the exhaustion requirement."); Daye v. Attorney General of the State of New York, 696 F.2d 186, 192 (2d Cir. 1982) ("[I]f the petitioner has cited the state courts to the specific provision of the Constitution relied on in his habeas petition, he will have fairly presented his legal basis to the state courts"). Further, by expressly requesting the New York Court of Appeals to grant leave based on the two issues raised in the Appellate Division brief, and discussed again in his leave application, Cherry fairly presented these claims to the highest state court. See Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001); Morgan v. Bennett, 204 F.3d 360, 370-371 (2d Cir. 2000).
II. The Evidence Was Not Legally Insufficient
Because Cherry filed his petition in December 2001, the provisions of 28 U.S.C. § 2254(d), as amended by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), are applicable. Section 2254(d) provides that a writ of habeas corpus shall not be granted with respect to any federal claim that was adjudicated on the merits in state court "unless the adjudication of the claim . . . (1) 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 (2) 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." AEDPA also requires that federal habeas courts apply a "presumption of correctness" to a state court's factual findings." See 28 U.S.C. § 2254(e)(1). By that provision, "a determination of a factual issue made by a state court shall be presumed to be correct," and a petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
In his petition, Cherry alleges that the evidence failed to establish beyond a reasonable doubt that he committed Attempted Burglary in the Second Degree. Specifically, Cherry contends in his petition that he "was on the roof of a building but made no attempt whatsoever to enter or even look into the building."
"It is established that a defendant advancing a claim based on insufficiency of the evidence bears a very heavy burden." United States v. Soto, 716 F.2d 989, 991 (2d Cir. 1983) (citations omitted). He is entitled to relief only "if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also Farrington v. Senkowski, 214 F.3d 237, 240-41 (2d Cir. 2000). In reviewing the claim, the federal court must consider the evidence in the light most favorable to the prosecution, and draw all inferences in its favor. Fama v. Correctional Services, 235 F.3d 804, 811 (2d Cir. 2000).
In order to prove Attempted Burglary in the Second Degree, the People had the burden of proving that Cherry intended to knowingly enter or remain unlawfully in a building with the intent to commit a crime, and that he came "dangerously close" to doing so. See N.Y. Penal Law §§ 110.00, 140.25(2); People v. Mahboubian, 74 N.Y.2d 174, 189-91 (1989). Although conduct amounting to mere preparation does not constitute an attempt, New York courts have held that an attempt has been committed if the defendant(s) "had gone to the extent of placing it in their power to commit the offense unless interrupted." Id. at 191; see also People v. King, 61 N.Y.2d 550, 555, 463 N.E.2d 601, 475 N.Y.S.2d 260 (1984) (affirming conviction of attempted burglary where defendant "was found in a position where he could have" broken a window and entered the premises).
At trial, Prentice, Volpato, and Lusk recounted the activities and observations of the field team on May 29, 1997. Prentice testified that, using a telescope, he observed Cherry approach a fence separating the rooftops of the 1990 and 1976 Seventh Avenue buildings, take off a leather jacket, squeeze through the hole in the fence, and put the leather jacket back on. He testified that he saw Cherry walking back and forth, constantly peeking over the ledge, and that Cherry twice descended two or three steps down one of the fire escapes. In addition, the officers testified that they found a screwdriver in Cherry's jacket pocket. Volpato stated that, at the precinct, he searched Cherry and recovered a Chase MasterCard bearing the name "Sadie McDowell." It was stipulated that the credit card and the leather jacket Cherry was wearing were stolen from the apartment of McDowell and her stepdaughter. Finally, Guzman, the superintendent of the building, testified that he lived in the building, that he knew all of the residents, and that Cherry was not one of them. He stated that Cherry did not have authority or permission to be on the rooftop.
This evidence, taken together, is adequate to establish that Cherry came "dangerously close" to entering the apartment building unlawfully and with the intent to commit a crime therein.
Cherry's contention that he did not come within "dangerous proximity" of committing the crime was reasonably rejected by the trial court. As the Appellate Division noted, Cherry was observed on the roof taking "very peculiar measures" to enter the adjacent building, Cherry had no prior relationship with any of the occupants of the building that could explain his behavior, and he possessed a screwdriver, "a common burglar's tool." Cherry, 282 A.D.2d at 334.
The jury was entitled to draw the inference that Cherry was on the roof with the intent to enter one of the apartments and commit a crime given his suspicious and unexplainable behavior on the roof, pacing back and forth, constantly peering over the ledge, twice descending a few steps on the fire escape, all while in possession of a screwdriver. Moreover, the jury heard proof that Cherry was arrested wearing a stolen jacket and carrying a stolen credit card, both from the same nearby apartment looted just a few days earlier. This evidence was sufficient for the jury to reasonably infer that Cherry had the intent to commit a burglary, that he came dangerously close to doing so, and that but for the police's intervention, he would have committed the burglary.
Because this Court must draw all inferences in favor of the People, and under the amended provisions of AEDPA all state court factual findings are presumptively correct, see 28 U.S.C. § 2254(e)(1), Cherry's contention that no rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt must be rejected. Accordingly, the claim that the evidence of his guilt was legally insufficient must be dismissed.
III. Cherry's Enhanced Sentence As A Persistent Violent Felony Offender Did Not Violate His Constitutional Rights
Cherry contends that his aggregate sentence of twelve years to life, which was enhanced as a result of two prior convictions that were neither submitted to the jury nor contained in the indictment, violated his rights to notice of the charges against him, to a jury trial, and to due process of law, pursuant to Apprendi, 530 U.S. at 466, and the Fourteenth Amendment to the U.S. Constitution. This claim must be denied.
The Supreme Court held in Apprendi that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. As the Second Circuit has explained, Apprendi applies "only when a sentencing court's findings increase the penalty faced by the defendant above the statutory maximum for a given count, and not when they merely affect the length of a sentence within the statutory range." United States v. White, 240 F.3d 127, 136 (2d Cir. 2001); see also United States v. Cotton 122 S.Ct. 1781, 1783, 152 L.Ed.2d 860 (2002) (quoting Apprendi's holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.").
Here, the record shows that Cherry's sentence neither exceeded the statutory maximum, nor was it enhanced by a factor other than his two prior convictions. For this reason, Cherry's claim that notice of his prior convictions were neither submitted to the jury nor alleged in the indictment are unpersuasive. There is no requirement that prior convictions be charged in an indictment before the court can enhance a sentence. See People v. Rosen, 96 N.Y.2d 329, 335, 752 N.E.2d 844, 728 N.Y.S.2d 407 (2001) ("[T]he Supreme Court has clearly established that facts regarding `recidivism increasing the maximum penalty need not be so charged.'") (quoting Jones v. United States, 526 U.S. 227, 248, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Hence, Cherry's claim that his enhanced sentence as a persistent violent felony offender violated his rights under the U.S. and New York State Constitutions must be dismissed.
Conclusion
For the reasons stated, the petition is denied in its entirety. Because Cherry has failed to make a substantial showing of the denial of a constitutional right, he is not entitled to a certificate of appealability. See Lozada v. United States, 107 F.3d 1011, 1016-17 (2d Cir. 1997), abrogated on other grounds by United States v. Perez. Any appeal from this order would not be taken in good faith, and the Clerk of the Court is hereby directed to close this case. It is so ordered.