Opinion
23-CV-09123 (JLR) (JLC)
06-26-2024
WILBUR IRICK, Petitioner, v. MICHAEL CAPRA, Respondent.
To the Honorable Jennifer L. Rochon, United States District Judge:
REPORT AND RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
Before the Court is Wilbur Irick's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking to have the Court vacate his first-degree robbery and second-degree menacing convictions. Irick is currently incarcerated at Sing Sing Correctional Facility and is serving an 18-year term of imprisonment. Irick, represented by counsel, argues that he was denied due process and his constitutional right to be present when he was removed from the courtroom after disrupting a suppression hearing. For the reasons set forth below, Irick's petition should be denied.
I. BACKGROUND
A. Factual Background
1. The Early Stages of Irick's Case
Irick was arrested following the September 24, 2015, robbery of a woman at knifepoint in a subway station. Appendix (“App.”) at ¶ 15, Dkt. No. 1-1. Irick was first represented by attorney Annie Costanzo. Id. at ¶ 20. After Irick complained to the court that she had failed to secure his appearance at a grand jury, Costanzo was relieved, and Enrico Demarco was appointed as Irick's new counsel. Id. at ¶ 20-21.
The page number in citations to the Appendix refers to the number at the bottom of the page (A), not the page number automatically generated by ECF.
On October 5, 2016, Irick and Demarco appeared in New York County Supreme Court at a pretrial proceeding. Id. at ¶ 23. At that proceeding, the court provided Irick with Parker warnings. Id. With these warnings, the court advised Irick that “[i]f you decide not to participate in either the hearing stage or trial stage of the proceeding . . . the trial is going to go whether you're here or not . . . if you are convicted you could be sentenced whether you are here or not[.]” State Court Transcripts (“SCT”) at 24, Dkt. No. 16. Irick then complained to the court about Demarco and asked to represent himself. App. at ¶ 23. The court relieved Demarco and then appointed Irick's third counsel, Steven Hoffner. Id.
In People v. Parker, the New York Court of Appeals established that “[i]n order to effect a voluntary, knowing and intelligent waiver [of his right to be present], the defendant must, at a minimum, be informed in some manner of the nature of the right to be present at trial and the consequences of failing to appear for trial.” 57 N.Y.2d 136, 141 (1982).
The page number in citations to the State Court Transcripts refers to the page number automatically generated by ECF.
On February 23, 2017, Irick appeared in court with Hoffner at a pretrial proceeding. SCT at 54. Hoffner expressed Irick's distrust of Hoffner to the court. Id. at 55. Nevertheless, the court decided to keep Hoffner on the case. Id. at 57.
On April 17, 2017, Irick and Hoffner appeared in court again. Id. at 59. Irick argued at that time that he was not ready for trial. Irick stated: “Judge, I'm not ready for trial,” and when the court indicated that it would nonetheless choose a trial date, Irick responded: “I object to this whole proceeding, because it seems like there is a sense of misconduct here” and “I will not move on until you give me my right. You guys are moving on prejudicially[.]” Id. at 61-63. As the court began to finalize the date of the next appearance, Irick stated: “I'm leaving. I object. This is crazy” and then walked out of the courtroom. Id. at 64-65.
2. Irick's Exclusion from a Suppression Hearing
In advance of Irick's trial on charges of robbery and menacing, the court ordered a pretrial hearing to assess whether eyewitness identifications and Irick's pants seized during his arrest should be suppressed. App. at ¶ 25. This suppression hearing occurred on June 19, 2017. Id. From the outset of the hearing, Irick sought to delay the proceeding, and Irick's counsel stated on the record that “[Irick] told me that I should tell [the court that he does not wish to have the proceeding today] because otherwise he was going to put an end to it himself.” Id. at ¶ 169-70. In response, the court stated that “[w]e're going to proceed, Mr. Irick, no matter what.” Id. at ¶ 170.
Irick then complained that he was “not feeling well” and “need[ed] emergency medical attention.” Id. When the court observed that Irick could remove himself voluntarily, Irick interrupted: “[n]ot going under the Parker rule.” Id. The court continued that “[t]he case will go on in your absence.” Id. at ¶ 171. Irick objected and then stated: “I am not feeling well. I am not an animal. I'm asking for medical attention.” Id. The court replied: “[y]ou are fine.” Id. Irick countered that “[y]ou raised my blood pressure by denying me my right.” Id. The court responded: “[b]e quiet. We will proceed.” Id. A moment later, the court found that Irick “[threw] himself on the floor in protest alleging that he has some sort of medical problem, which he is clearly malingering in protest. I am having him escorted out of the courtroom at this time.” Id. Irick then “got up off the floor after saying how ill he was and was escorted out by the court officers[.]” Id. at ¶ 172. The suppression hearing then proceeded, although Irick was absent. Id. The identification evidence Irick sought to suppress-witness identifications, his pants, and a photograph-was admitted. SCT at 113-17.
While the court stated that it would “credit the testimony of the two witnesses,” SCT at 113, the court also precluded the testimony of a third witness. Id. at 117-18.
3. Jury Selection and Trial
On August 21, 2017, jury selection for Irick's trial began. Id. at 173. After Irick again asked for medical attention, the court observed: “I've been informed that on previous occasions, the defendant has feigned medical stress in the middle of proceedings when judges deny his various other requests” and “[i]n light of his history . . . he did absolutely nothing here but give the impression of someone who was attempting willfully to delay the proceedings.” Id. at 167-68. After learning that jury selection would proceed, Irick stated to the court: “God is going to hang you and your family. He's going to strike you down.” Id. at 171. Later in jury selection, Irick also stated that the court was being “racist” and that the court was “castrating” and “raping” him. Id. at 377-78. Additionally, Irick said: “Fuck you, cracker” to the court. Id. at 380.
Because of his disruptive behavior, Irick was excluded by the court for most of trial. Id. at 317, 380-81, 397, 582, 610. However, Irick was permitted to testify on his own behalf and did so. Id. at 582. To prove its case, the People introduced surveillance camera videos and photographs of the crime. Dkt. No. 19. Irick was convicted by the jury and sentenced to an aggregate term of 18 years plus five years of post-release supervision for convictions of robbery in the first degree and menacing in the second degree. App. at ¶ 81.
In his petition, Irick does not dispute these exclusions.
B. The State Court's Decision on Appeal
On appeal, the Appellate Division, First Department (“First Department”) unanimously affirmed the conviction and sentence. Id. at ¶ 1; People v. Irick, 203 A.D.3d 517 (1st Dep't 2022). It is undisputed that the state court adjudicated the issues presented in this case on the merits. In its opinion, the First Department held that “[t]he totality of the court's interchanges with defendant were sufficient to warn him that if he persisted in his announced plan to prevent the hearing from going forward, the hearing would proceed in his absence.” App. at ¶ 1-A2. The First Department also ruled that Irick “was not deprived of his right to selfrepresentation,” that “[Irick's] presence was not required at a very brief discussion during jury selection,” that “[t]he court . . . providently exercised its discretion in denying defendant's request for a potentially prolonged delay to prepare for his testimony,” and that “[Irick's] claim that his original counsel rendered ineffective assistance with regard to defendant's request to testify before the grand jury is unreviewable on direct appeal[.]” Id. at ¶ 2-A3. Irick does not raise these issues in his petition.
On March 16, 2022, Irick sought permission to appeal to the New York State Court of Appeals. Id. at ¶ 138. The Court of Appeals denied leave to appeal on May 26, 2022. Id. at ¶ 137. Irick then petitioned the Supreme Court of the United States for a writ of certiorari, which the Court denied on October 17, 2022. Id. at ¶ 161; Irick v. New York, 143 S.Ct. 357 (2022).
C. Procedural History
On October 17, 2023, Irick, represented by counsel, filed this petition for a writ of habeas corpus. Dkt. No. 1. In support, he filed an appendix, a request to proceed in forma pauperis, and a memorandum of law (“Pet. Mem.”). Dkt. Nos. 1-4. Irick contends that he was involuntarily removed from the suppression hearing without warning, in violation of his constitutional right to be present and due process. Pet. Mem. at 1. On October 24, 2023, this petition was referred to me for a report and recommendation. Dkt. No. 6. On December 15, 2023 and January 22, 2024, the State sought and was granted extensions of time to answer the petition. Dkt. Nos. 9-12. On February 16, 2024, the State filed its answer and memorandum of law in opposition (“Resp. Mem.”) as well as state court records and proceedings and state court transcripts. Dkt. Nos. 13-16. On March 8, 2024, Irick sought and was granted an extension of time to file his reply. Dkt. Nos. 17-18. On March 29, 2024, Irick filed his reply memorandum of law (“Pet. Reply”). Dkt. No. 20.
II. DISCUSSION
A. Legal Standards
1. Habeas Relief Under Section 2254
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), courts may only grant a habeas corpus petition if the challenged state-court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “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)(1)-(2).
“A state court decision is ‘contrary to . . . clearly established Federal law, as determined by the Supreme Court' when ‘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.'” Carmichael v. Chappius, 848 F.3d 536, 544 (2d Cir. 2017) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)); see also Parker v. Matthews, 567 U.S. 37, 49 (2012) (circuit precedent, even if “merely reflect[ing]” Supreme Court precedent, does not constitute “clearly established federal law” for purposes of § 2254(d)(1)). “A principle of law is ‘clearly established' when it is a holding as opposed to dicta in a Supreme Court decision ‘as of the time of the relevant state-court decision.'” Morgan v. Walsh, No. 01-CV-1360 (DLC), 2003 WL 22019835, at *2 (S.D.N.Y. Aug. 27, 2003) (quoting Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001)).
A state court makes an unreasonable application of federal law if it “correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 572 U.S. 415, 426 (2014). Such application of federal law must be “‘objectively unreasonable,' not merely wrong; even ‘clear error' will not suffice.” Id. at 419 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)).
AEDPA “‘imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.'” Jones v. Murphy, 694 F.3d 225, 234 (2d Cir. 2012) (quoting Hardy v. Cross, 565 U.S. 65, 66 (2011)). The standard was designed to be difficult to meet. Metrish v. Lancaster, 569 U.S. 351, 358 (2013) (citing Harrington v. Richter, 562 U.S. 86, 102 (2011) (“If this standard is difficult to meet, that is because it was meant to be.”)). “Where ‘[r]easonable minds reviewing the record might disagree' as to the relevant finding, that is not sufficient to supplant the state court's factual determination.” Davidson v. Capra, No. 15-CV-9840 (LGS), 2019 WL 2342980, at *4 (S.D.N.Y. May 31, 2019) (quoting Rice v. Collins, 546 U.S. 333, 341-42 (2006)).
Additionally, “if the federal claim was not adjudicated on the merits, AEDPA deference is not required, and conclusions of law and mixed findings of fact are reviewed de novo.” Gamble v. Kirkpatrick, No. 17-CV-05294 (JMA), 2023 WL 3688043, at *7 (E.D.N.Y. May 26, 2023) (quoting Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009)).
2. The Constitutional Right to be Present
In general, “[t]he Fourteenth Amendment entitles a defendant to be present in his own person whenever his ‘presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.'” Harrell v. Miller, No. 21-CV-6714 (AKH), 2022 WL 375289, at *9 (S.D.N.Y. Feb. 8, 2022) (quoting Snyder v. Mass., 291 U.S. 97, 105-06 (1934)). Additionally, “[t]he constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment[.]” U.S. v. Gagnon, 470 U.S. 522, 526 (1985).
However, this right is not absolute. “The right to be present may [] be waived so long as the waiver is knowing and voluntary.” Morgan, 2003 WL 22019835, at *4 (citing Gagnon, 470 U.S. at 529). Furthermore, “even absent a warning, a defendant may be found to have forfeited certain trial-related constitutional rights based on certain types of misconduct.” Gilchrist v. O'Keefe, 260 F.3d 87, 97 (2d Cir. 2001). While the Supreme Court held in Illinois v. Allen “that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a [disruptive] manner,” 397 U.S. 337, 343 (1970), the Allen court “did not indicate whether such a warning was a requirement in every situation.” Jones, 694 F.3d at 242 n.9 (cleaned up).
“As a general matter, violations of the right to be present during critical stages of the proceedings are subject to harmless error analysis.” Ramirez v. Keyser, No. 20-CV-8445 (KMK), 2024 WL 1076945, at *6 (S.D.N.Y. Mar. 12, 2024) (citing Rushen v. Spain, 464 U.S. 114, 117 n.2 (1983)). A “[p]etitioner's right to be present was not violated” if his absence “did not frustrate the fairness of the proceedings.” Johnson v. New York Co., No. 07-CV-7908 (GBD) (RLE), 2011 WL 1044204, at *2 (S.D.N.Y. Mar. 14, 2011) (citing Tennessee v. Lane, 541 U.S. 509, 523 (2004)). However, “where the violation of a particular right is so ‘egregious' as to ‘fundamentally undermine the fairness of the validity of the trial,” the violation is considered a ‘structural defect.'” Ramirez, 2024 WL 1076945, at *6 (quoting Yarborough v. Keane, 101 F.3d 894, 897 (2d Cir. 1996)). “To determine whether an error is properly categorized as structural, the [court] must look not only at the right violated, but also at the particular nature, context, and significance of the violation.” Id. (quoting Yarborough, 101 F.3d at 897). The “process due at a suppression hearing may be less demanding and elaborate than the protections accorded the defendant at the trial itself.” U.S. v. Raddatz, 447 U.S. 667, 679 (1980).
B. AEDPA Requires that the First Department's Ruling Stand As a threshold matter, the parties do not dispute that the First Department reached a decision in this case on the merits or that Irick's efforts to obtain relief through the state court system have been exhausted. Therefore, the Court will proceed to address the two prongs of the AEDPA analysis. Irick's petition should only be granted if the state court's decision was contrary to or involved an unreasonable application of clearly established federal law or made an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d)(1)-(2). As explained below, Irick has not met this high burden.
In this case, the parties dispute whether any relevant and clearly established federal law applies. In particular, the parties disagree about whether the Supreme Court's opinion in Illinois v. Allen requires, in all instances, that a trial judge warn a criminal defendant before involuntarily removing him from a proceeding. Because there is no clearly established federal law guaranteeing a defendant's right to a warning before involuntary removal at a pre-trial hearing, the first part of the AEDPA inquiry fails. Moreover, even if the law were clearly established, the First Department did not unreasonably apply the law to the facts in this case.
1. The First Department's Ruling Was not Contrary to Clearly Established Federal Law
First, the Court will assess whether the First Department's decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court[.]” Carmichael, 848 F.3d at 544 (cleaned up). Irick contends that the Supreme Court decision in Illinois v. Allen is the relevant and established federal law because the Court there held “that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on [continued disruption].” Pet. Mem. at 11-12 (citing Allen, 397 U.S. at 343). Irick also argues that Second Circuit cases that have held that a criminal defendant could be removed without warning due to “extraordinary violence” are instructional here. Pet. Mem. at 12-13. Irick points out that “this case does not involve ‘violence' at all” and that “the state court here did not hold that a warning was not required.” Id. at 13. Finally, Irick contends “[t]hat the Supreme Court did not explicitly direct that pre-removal warning was necessary in every single case without exception is neither here nor there in this run-of-the mill case of disruption.” Id. at 14.
The State responds that “the Supreme Court has never held that the Confrontation Clause grants a defendant the right to be present at a pre-trial suppression hearing.” Resp. Mem. at 17-18. It argues that courts in other circuits have held exactly as much, see e.g., Witten v. U.S., No. 19-12087A, 2020 U.S. App. LEXIS 22929, at *9-10 (11th Cir. July 22, 2020) (observing there is no “constitutional right to be present, much less testify, at a suppression hearing.”) (citing U.S. v. Gradsky, 434 F.2d 880, 883 (5th Cir. 1970)) and notes that the Second Circuit has similarly never “identif[ied] any holding of the Supreme Court affirming a defendant's right to be present at a suppression hearing.” Id. at 18-19. In his Reply Memorandum of Law, Irick does not refute the State's argument.
Irick's reliance on Allen is misguided. Irick misconstrues the Allen holding in his memorandum of law, contending that “the Supreme Court ‘explicitly h[e]ld' in Illinois v. Allen, [that] a court may only eject a defendant from his criminal proceedings for disruptive behavior if [he has been warned that he will be removed if he continues].” Pet. Mem. at 7. But it is disputed whether this holding in Allen stands for the notion that a court's warning is necessary for a defendant's involuntary removal.
In his petition for certiorari to the Supreme Court of the United States, Irick acknowledged that “federal circuit courts and state courts of last resort have split in interpreting the Allen Court's reference to a pre-removal warning, disagreeing about both its necessity and its content.” State Court Records and Proceedings (“SCR”) at ¶ 266, Dkt. No. 15. And in his certiorari petition, Irick also pointed out that courts in other states, including Washington, State v. Chapple, 36 P.3d 1025 (Wash. 2001) (en banc), and Minnesota, State v. Kluck, 217 N.W.2d 202 (Minn. 1974), have upheld the removal of disruptive defendants without explicit warning language from the court. SCR at ¶ 267. In this case, Irick cites to Gilchrist. Pet. Mem. at 13. But in Gilchrist, the Second Circuit observed that the Allen Court “did not indicate whether [a warning before removing a defendant from the courtroom] was a requirement in every situation.” Gilchrist, 260 F.3d at 96; see also Jones, 694 F.3d at 238 (“In addition to express waiver, a defendant may constructively waive his rights to be present at trial by disruptive behavior.”).
The page number in citations to the State Court Records and Proceedings refers to the number at the bottom of the page (SR), not the page number automatically generated by ECF.
Some circuits have held differently, such as the Sixth Circuit in Gray v. Moore, 520 F.3d 616, 624 (6th Cir. 2008) (“[T]he warning requirement from Allen cannot be interpreted in any non-mandatory way”). But in a case in this District, Wilkins v. Ercole, a defendant was found by the First Department to have been properly removed by the trial judge from the rendering of his verdict after a disruption that “created an emergency necessitating his immediate removal.” No. 08-CV-2882 (SAS), 2012 WL 8525915, at *5 (S.D.N.Y. Nov. 5, 2012). In denying Wilkins' habeas petition, the court held: “In light of the circuit split regarding the Allen warning, the Appellate Division's ruling could not have been contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States.” Id.; see also Lettley v. Walsh, No. 01-CV-5812 (NGG) (LB), 2007 WL 4590019, at *7 (E.D.N.Y. Dec. 20, 2007) (“The question of whether a warning is constitutionally required before a defendant is removed from the courtroom has not yet been decided by the Supreme Court.”).
Even if the Allen Court's holding were “clearly established,” the principle to which Irick cites is insufficiently specific to be considered clearly established federal law that would permit a grant of his petition. The relevant holding from Allen explicitly addresses when “a defendant can lose his right to be present at trial[.]” Allen, 397 U.S. at 343 (emphasis added). For the writ to issue on these grounds, Irick must at least demonstrate that it is established federal law that a defendant may not be removed from a pre-trial hearing without a warning. That a defendant may be removed from trial with a warning due to his disruptive behavior “is far too abstract to establish clearly the specific rule [petitioner] needs.” Lopez v. Smith, 574 U.S. 1, 6 (2014).
Additionally, Second Circuit caselaw cited by Irick that permitted the involuntary removal of criminal defendants due to their violent conduct is not relevant. Irick seeks to draw a distinction with cases in which criminal defendants in this Circuit were removed without warning because they exhibited “extraordinary violence,” in contrast to Irick. Pet. Mem. at 12. However, “[c]ircuit precedent cannot ‘refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme Court] has not announced.'” Lopez, 574 U.S. at 6 (quoting Marshall v. Rodgers, 569 U.S. 58, 64 (2013)). The only relevant inquiry for this prong of the AEDPA analysis is whether the constitutional right was “clearly established Federal law, as determined by the Supreme Court[.]” Carmichael, 848 F.3d at 544. Because the Supreme Court has not “clearly established” a right to a warning prior to a defendant's involuntary removal in a pre-trial hearing, Irick has not demonstrated that his removal from the suppression hearing was contrary to clearly established federal law.
2. The First Department's Ruling Was Not Based on an Unreasonable Application of the Facts
The Court next assesses the second prong required by AEDPA: whether the First Department “correctly identifie[d] the governing legal rule but applie[d] that rule unreasonably to the facts of [Irick's] case.” White, 572 U.S. at 426. Even if the Court were to find that Illinois v. Allen is clearly established law that guarantees criminal defendants a right to be warned prior to their involuntary removal from pre-trial proceedings-and it is not-Irick would still need to establish that this right was violated because he was not warned prior to his removal from court.
Irick contends that “[n]othing in this record indicates that [he] was aware that if he continued to disrupt or stall the proceedings, he would be involuntarily ejected from the courtroom.” Pet. Mem. at 11. According to Irick, because “[t]he Appellate Division's finding that the ‘totality of the court's interchanges' with [him] were sufficient cannot be reasonably reconciled with the hearing transcript,” he argues that “AEDPA does not bar relief.” Id.
The State counters that “[t]he record demonstrates that, based on the court's statements and petitioner's responses, petitioner understood that the court would not tolerate his continued disruption as a means to thwart the proceedings and that it would conduct the suppression hearing in his absence.” Resp. Mem. at 21-22. In particular, the State observes that “the court informed petitioner that his efforts to stop the hearing would fail by stating that the hearing would proceed, ‘no matter what.'” Id. at 22. The State argues that the full exchange between Irick and the trial judge was sufficient for “the Appellate Division [to have] reasonably found that petitioner understood, and thus had been adequately warned, that his continued disruptive behavior would result in his removal and that the hearing would proceed even in his absence.” Id. at 23.
The Court agrees with the State. It was reasonable for the First Department to have held that the totality of the circumstances sufficiently warned Irick that he could be removed. The court clearly told Irick that his case would proceed “no matter what,” that “[t]he case will go on in your absence,” and, in response to Irick's malingering, the court replied “[w]e will proceed.” SCT at 68-69. In accordance with the requirements of AEDPA deference, this Court's role is only to determine if the First Department's decision that Irick was warned was unreasonable, not to delve deeply into the nuances of the precise language that the trial judge used.
C. Any Constitutional Error Was Harmless
Finally, even if the First Department's ruling was found to be an unreasonable interpretation of the law or facts, such an error was harmless. The court must “apply[] both the test this Court outlined in Brecht and the one Congress prescribed in AEDPA.” Brown v. Davenport, 596 U.S. 118, 122 (2022). The Brecht test asks whether an error “‘had substantial and injurious effect or influence in determining the jury's verdict.'” Fry v. Pliler, 551 U.S. 112, 116 (2007) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). Irick's absence from the suppression hearing did not inflict a “substantial and injurious effect or influence” on the jury's verdict.
As a threshold matter, the present inquiry should be subject to harmless error review. There are two different classes of constitutional errors: “the vast majority, denominated ‘trial errors,' [] are subject to harmless error review, and a very limited class of errors, called ‘structural,' [] require automatic reversal regardless whether the error had any appreciable effect on the outcome of the trial.” Yarborough, 101 F.3d at 896 (cleaned up). In Rushen v. Spain, the Supreme Court indicated that “most constitutional rights[] are subject to harmless error analysis,” including the right to be present. 464 U.S. at 117 n.2.
Irick asserts that “[his] exclusion . . . from the suppression hearing [was] a structural error” but cites no cases in which a defendant's exclusion from a suppression (or any other pre-trial) hearing was deemed a structural error. Pet. Mem. at 15. While courts in this Circuit have not directly addressed whether the exclusion of a defendant from a suppression hearing is a structural error, “[t]he erroneous introduction of identification evidence is not a structural error.” Wray v. Johnson, 202 F.3d 515, 525 (2d Cir. 2000). Furthermore, it was “at most, harmless error” when a state court failed to accord a defendant a pre-trial suppression hearing “in light of the failure of [defendant's] proof on these issues.” U.S. ex rel. Cubicutti v. Vincent, 383 F.Supp. 662, 668 (S.D.N.Y. 1974).
Here, any constitutional error was harmless. First, Irick was represented by counsel who advocated for his interests at the proceeding. SCT at 79-87, 98-109. Irick's counsel cross-examined the witnesses and argued to the court in support of the suppression motions. Id. It is not clear how Irick's presence at the hearing would have changed the result. In his memorandum in support of his petition, Irick discusses what might have happened at trial “[h]ad the hearing court granted [his] suppression motions,” but that is not the question. Pet. Mem. at 16. Irick needed to establish what would have changed because of his presence, not opine about what might have happened if he had prevailed on his motion. In his reply, Irick briefly argues that he “could have provided an alternative account of, among other factual issues, the eyewitness identifications and the seizure of the pants within his grabbable area.” Pet. Reply at 5. This vague claim is insufficient. Simply put, Irick “fails to point out anything that would have been different if he were present.” Lynes v. Mitchell, 894 F.Supp. 119, 126 (S.D.N.Y. 1995) (petitioner “unequivocally fail[ed] to meet his burden in seeking a writ of habeas corpus” when he did not demonstrate the difference his presence would have made in a suppression hearing or at trial).
Second, and perhaps more importantly: Irick's identity was not at issue at his trial. Irick freely admitted that he was the man in the surveillance footage introduced by the People who was interacting with the complainant. SCT at 608. In reference to the People's photo and video evidence, his counsel admitted as much. Id. at 421 (“[y]es, it is Mr. Irick[.]”). Instead, Irick presented a different account of the altercation, arguing that the complainant “accosted” him and that the complainant “threw something [and it] hit me.” Id. at 590. Irick did not dispute identification. During the suppression hearing, the identification of Irick from two eyewitnesses, a post-arrest photograph, and the distinctive pants that Irick was wearing during the robbery were admitted into evidence. Pet. Mem. at 4. Irick mistakenly argues that “[t]his identity-related evidence was particularly important here[.]” Pet. Mem. at 16. But in fact, the issue before the jury was whether Irick had actually robbed the complainant-and the identification testimony of two eyewitnesses, a post-arrest photograph, and Irick's pants shed no light on that question.
Therefore, even if Irick's exclusion from the suppression hearing was a constitutional error, it had no impact on the jury's verdict and was harmless.
III. CONCLUSION
For the foregoing reasons, Irick's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See Fed.R.Civ.P. 6(a), (b), (d). 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 Jennifer L. Rochon, United States Courthouse, 500 Pearl St., New York, New York 10007-1312. Any requests for an extension of time for filing objections must be directed to Judge Rochon.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).