Opinion
00 Civ. 8932 (SHS)(KNF)
May 15, 2002
Paul Wexler, Esq., Peter D. Morgenstern, Esq., Bragar, Wexler, Eagel Morgenstern, L.L.P., New York, N.Y., for Plaintiff(s)
Barry S. Pollack, Esq., Donnelly, Conroy Gelhaar, LLP, Boston, MA, for Defendant(s)
REPORT AND RECOMMENDATION
TO THE HONORABLE SIDNEY H. STEIN, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Al Jones ("Jones") pro se, has made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Jones contends that he is entitled to habeas corpus relief from a 1993 conviction for attempted grand larceny in the third degree because: (1) the trial court deprived him of his constitutional rights to confront witnesses and to due process, as well as statutory rights, by permitting a videotape of the complaining witness' conditional examination to be used at Jones' trial, without preliminary requiring the prosecution to explain why the witness could not testify in person and, furthermore, by denying the jurors' request to view the videotape while they were deliberating; 2) the trial court deprived him of his due process right to a fair trial by determining, after a Sandoval hearing, to permit the prosecutor to inquire into (a) seven of petitioner's prior convictions, and (b) his use of 43 aliases on different occasions should Jones elect to testify at his trial; and 3) the trial court deprived him of his due process and statutory rights by shifting the burden of proof at the trial when it directed Jones' trial counsel, during the presentation of his opening statement, to limit his comments to "any proof that you intend to produce here in the courtroom, any evidence that you intend to produce."
At a hearing, pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849 (1974), the court determines whether and to what extent the prosecution will be permitted to produce evidence of a criminal defendant's prior convictions or prior bad acts to impeach the defendant's credibility if he or she testifies at trial.
Respondent opposes petitioner's application. He contends that, at the time Jones filed his petition for a writ of habeas corpus, he was no longer in custody pursuant to the 1993 conviction and, therefore, the court lacks subject matter jurisdiction over the petition. Notwithstanding this impediment, respondent also maintains that petitioner's claims lack merit and provide no basis for the court to grant him habeas corpus relief.
II. BACKGROUND
Petitioner is a grifter. On the evening of April 3, 1999, in midtown Manhattan, petitioner and another attempted to execute a swindle through a confidence game commonly called the "handkerchief switch." Through this scam, a confidence man, either acting alone or with an accomplice(s), induces the mark, through false representations and the display of a "Mich" or "Michigan Roll," to commingle his money with the grifter's. The combined funds are then placed in a handkerchief, paper bag or other receptacle by the grifter and given to the mark for safekeeping. Unbeknownst to the mark, the grifter carries an identical receptacle, oftentimes containing strips of newspaper that have been cut to the size of dollar bills. At a convenient time, the grifter switches the receptacles, gives the mark the one that does not contain any money and absconds with the mark's money.
A "Mich" or "Michigan Roll" is a quantity of cut up newspaper or play money, which is surrounded by a single genuine United States note; the wad is usually held together with a rubber band. See Trial Transcript pgs. 210-211.
In the instant case, while affecting a foreign accent, Jones approached Jorge Monteil ("Monteil") and engaged him in conversation. After ascertaining that Monteil was an alien who spoke and read English, Jones displayed a card to him that contained the name of a hotel. Jones told Monteil that he had come to New York City, at the request of an attorney, to retrieve a substantial inheritance. He explained that he had $10,000 of the inheritance with him, but had left the lion's share of it in a locker at the Port Authority bus terminal. To establish the bona fides of this tale, petitioner showed Monteil what appeared to be a wad of money. In reality, it was a Michigan Roll.
Jones offered to pay Monteil if he would assist petitioner by taking him to the hotel listed on the card petitioner carried. Monteil advised Jones to put his money away. He explained that to display it openly on the streets of New York City was not safe.
While Monteil and Jones were engaged in conversation, Jones' accomplice approached. He was stopped by Jones, but neither man gave any indication that he was acquainted with the other. Jones asked his accomplice if he could assist him in locating the hotel identified on the card he had previously shown to Monteil. Jones also showed his accomplice the Michigan Roll. The accomplice advised Jones not to display his wad of "money" openly on the street. He directed petitioner to return it to the bag from which it had been retrieved. Monteil recalled that Jones offered the accomplice $400 to assist in finding the hotel noted on the card that petitioner had shown him. Monteil also recalled that Jones recounted the story of having been summoned to New York City to retrieve an inheritance. In support of this claim, Jones produced a letter, purportedly from an attorney, directing him to travel to New York City to receive his inheritance.
The three men began to walk in the vicinity of West 54th Street and Sixth Avenue. As they did so, petitioner's accomplice suggested that Jones deposit his money in a bank and obtain an automatic teller machine card so that he might have ready access to his funds. The accomplice told petitioner that by obtaining this card, he would eliminate the need to carry the large sum of money on his person as he ambulated through the city streets. Jones rejected this suggestion. He claimed that, in his country, withdrawing money from an automatic teller machine was considered magic.
Monteil suggested that petitioner place his money in a hotel safe. However, Jones stated that he did not have adequate identification documents with him in order to secure a hotel room. He maintained that his passport and other belongings remained in a bus terminal locker. Jones then asked Monteil if he could be trusted to hold Jones' money while he returned to the bus terminal to gather his belongings. Monteil responded affirmatively, and indicated that he kept his own money and traveler's checks at the hotel where he was staying on West 57th Street.
The trio agreed that Monteil would hold Jones' money while he returned to the bus terminal and they set off for Monteil's hotel. On the way to that hotel, petitioner's accomplice produced a paper bag. He told Jones to place his money inside the bag. Petitioner removed the Michigan Roll from a black leather bag he was carrying and placed it inside the paper bag that his accomplice supplied. Jones then placed the paper bag inside his black leather bag. When the three men reached Monteil's hotel, petitioner's accomplice remained downstairs while Jones and Monteil went to Monteil's hotel room. Once they reached the hotel room, petitioner asked where Monteil kept his money. Monteil opened a night table drawer and showed Jones two checkbooks containing traveler's checks and $300 in cash. Jones announced that he was going to combine Monteil's money with his own and removed the travelers checks and the cash from the night table. He placed those items in the paper bag with the Michigan Roll. He then sealed the bag with a rubber band. Jones advised Monteil that if anyone tried to steal the paper bag he should secrete it inside his shirt. Petitioner then demonstrated for Monteil how he should accomplish this. At this point, Jones switched the paper bag with Monteil's money with another paper bag that was hidden in his shirt. Petitioner then removed the substitute paper bag from the inside of his shirt and placed it in the night table drawer.
Monteil was suspicious. He tried to open the night table drawer to confirm that his money, as well as petitioner's, was actually inside the paper bag. As Monteil went to open the night table drawer, petitioner blocked his way, and retrieved the paper bag himself. Petitioner then demonstrated again how the paper bag should be placed within Monteil's shirt if anyone should try to steal it. Thereafter, Jones switched the paper bags again. He removed the original paper bag from the inside of his shirt, opened it and showed Monteil that the traveler's checks and his money were still inside the bag along with the Michigan Roll.
Next, Jones approached the hotel room window, which was near a radiator. He took the paper bag that did not contain Monteil's money, crouched down and placed it underneath the radiator in a hole in the floorboard. He advised Monteil that if someone should attempt to rob him, Monteil should place the bag under the radiator, as petitioner had done, and run from the hotel room. Monteil was again concerned that petitioner had switched paper bags and had not placed his traveler's checks and all of the money underneath the radiator.
The two men exited the hotel room and returned to the hotel lobby. At that point, Jones asked Monteil to obtain for him a card that showed the hotel's address. Monteil did as petitioner asked. When the two men reached the hotel's door, Jones' accomplice was waiting. Monteil believed that this would be his last opportunity to determine whether petitioner was engaged in some chicanery. Monteil touched petitioner near his underarm and felt a bulge; he inquired of petitioner what it was. Petitioner denied any bulge existed. At that point, Monteil grabbed petitioner by the shirt and demanded the return of his money. A struggle ensued on the sidewalk in front of the hotel. Jones reached inside his shirt during the struggle, removed a paper bag and tossed it to the sidewalk. Monteil dragged petitioner toward the paper bag, retrieved it from the sidewalk and discovered that his traveler's checks were inside along with the Michigan Roll.
While the two men struggled, a porter of an adjacent building summoned two police officers who were in the vicinity. The officers separated Monteil and Jones. While Monteil spoke with one officer, petitioner began to flee. He was pursued by the other officer. During the chase, petitioner discarded the black leather bag he had been carrying. It was later recovered by the police. A bystander, who observed Jones being chased by a police officer, blocked his path; this enabled the police officer to apprehend him. Thereafter, Monteil retrieved the paper bag that Jones had placed under the radiator in the hotel room and provided that to the police.
Following his arrest, petitioner was indicted by a New York County grand jury. He was charged with grand larceny in the third degree and criminal possession of stolen property in the third degree. Jones demanded that a jury trial be held in the New York State Supreme Court, New York County. To accommodate the vacation schedule of petitioner's trial counsel, it was agreed that Monteil would be examined conditionally, pretrial, on videotape, because it appeared likely that he would be returning to his native Argentina before the date on which the trial would commence. The trial court also held a pretrial Sandoval hearing. At the conclusion of that proceeding, the trial court determined that if Jones decided to testify at the trial, the prosecution would be allowed to elicit evidence establishing that petitioner had been convicted for seven crimes and that he had, on 43 different occasions, used aliases.
When the trial commenced, defense counsel used his opportunity to make an opening statement to attack the evidence that the prosecutor, in his opening statement, had explained to the jurors, would be presented to them by the State as the trial unfolded. The prosecutor objected to defense counsel's opening statement, and the trial judge sustained the objection. She directed petitioner's counsel to limit his opening statement to "any proof that you intend to produce here in the courtroom, any evidence that you intend to produce." As the trial progressed, and the prosecution sought to use the videotape of Monteil's conditional examination, petitioner's counsel objected. He alleged that the use of the videotape was improper, since the prosecution had not established, as required by applicable New York procedural law, that Monteil was not available to appear in person and to testify before the jurors. The objection was overruled by the trial judge; she explained, in part, that petitioner's counsel had consented to the conditional examination so that his vacation plans would not be upset. Moreover, to accommodate those vacation plans, the court had to delay the commencement of the trial to a point in time after Monteil had left the country to return to his native land. The court explained, further, that defense counsel's consent to the taking of the conditional examination, under the circumstances described above, was an implicit acknowledgment that the videotape could be used by the prosecution at the time of trial.
After the jurors had received all of the trial evidence, and had retired to deliberate upon a verdict, they requested that the videotape of Monteil's conditional examination be played for them. The jurors advised the court that they wished to see the videotape so that they might determine Monteil's height and weight. The trial court informed the jurors that they could not see the videotape again, but they could have the testimony recorded on the videotape read to them. The court told the jurors that "I can't treat a videotape any differently [than] I would treat a live witness here on the stand. So I could not call back a live witness if you were to ask for that witness to come back at this juncture, neither can I show you the videotape at this juncture because we are treating it the same way." The jury later returned a verdict acquitting petitioner of grand larceny in the third degree, but convicting him for attempted grand larceny in the third degree.
On November 4, 1993, petitioner was sentenced, as a second felony offender, to a term of imprisonment of two to four years. Petitioner appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. In that court, petitioner urged that his conviction be upset because the trial court deprived him of his constitutional right to confront adverse witnesses and his due process and statutory rights by admitting the videotape of the complainant's conditional examination into evidence without requiring the prosecution to explain why the witness could not appear in person. Petitioner alleged that the refusal to permit the jurors to see the conditional examination videotape, while they were deliberating, was also violative of his constitutional and statutory rights. Petitioner also urged the Appellate Division to upset his conviction because the trial court's ruling, following the Sandoval hearing, deprived him of his due process right to a fair trial because the ruling permitted the prosecutor to inquire into seven prior convictions that Jones had acquired and to elicit evidence concerning petitioner's use of 43 aliases on different occasions. In addition, petitioner argued that his conviction was infirm because he was deprived of his due process and statutory rights when the trial court restricted defense counsel's opening statement, as described above, and thereby allegedly shifted the burden of proof from the prosecution to the defense. The Appellate Division affirmed petitioner's conviction unanimously. See People v. Orr, 267 A.D.2d 177, 700 N.Y.S.2d 444 (App.Div. 1st Dep't 1999). Thereafter, petitioner sought leave to appeal to the New York Court of Appeals. That application was denied. See People v. Orr, 95 N.Y.2d 856, 714 N.Y.S.2d 7 (2000).
After Jones completed the sentence imposed upon him for his 1993 conviction, he was convicted for another felony offense. He is in the custody of New York State pursuant to that conviction. At the time that the instant petition for a writ of habeas corpus was filed in 2000, petitioner had already completed the sentence imposed upon him following his 1993 conviction.
III. DISCUSSION
28 U.S.C. § 2254 (a) provides that a federal court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." The "in custody" prerequisite to the court's habeas corpus jurisdiction is a threshold matter that must be addressed before a federal court may consider a claim on the merits presented to it through a petition for a writ of habeas corpus.
The Supreme Court has explained that the "in custody" language of the federal habeas corpus statute requires that "the applicant must be in custody when the application for habeas corpus is filed." Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 1560 (1968). That is to say that, the applicant for a writ of habeas corpus must be "'in custody' under the conviction or sentence under attack at the time his petition is filed." Maleng v. Cook, 490 U.S. 488, 490-491, 109 S.Ct. 1923, 1925 (1989). Therefore, "a habeas petitioner [is not] 'in custody' under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed." Maleng v. Cook, 490 U.S. at 491, 109 S.Ct. at 1925 (emphasis in original).
In the case at bar, the record evidence establishes that the sentence imposed upon Jones for his 1993 conviction for attempted grand larceny in the third degree, had fully expired at the time the instant petition was filed. As a consequence, the court lacks subject matter jurisdiction and cannot entertain his application for a writ of habeas corpus.
IV. RECOMMENDATION
For the reason set forth above, the instant petition for a writ of habeas corpus should be dismissed.
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 Sidney H. Stein, 500 Pearl Street, Room 1010, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Stein. 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).