Opinion
18Civ. 4604(VB)(PED)
12-21-2021
MARC RISPERS, Petitioner, v. MICHAEL CAPRA, Superintendent, Sing Sing Correctional Facility, Respondent.
REPORT AND RECOMMENDATION
HONORABLE VINCENT L. BRICCETTI, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
On March 28, 2014, a Westchester County jury convicted petitioner Marc Rispers ("petitioner" or "defendant") of first degree robbery and lesser crimes, stemming from his armed robbery on May 21, 2013 (along with co-defendants Michael Jordan and Joseph Pleasant) of Dennis O'Hearn, the owner of Suds Car Wash in Yonkers, New York. Petitioner was sentenced on October 14, 2014 (as a second violent felony offender) to concurrent terms of imprisonment of twenty years plus five years of post-release supervision (four concurrent terms), two to four years (two concurrent terms) and one year (four concurrent terms).
Presently before this Court is petitioner's pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, wherein petitioner alleges (1) the prosecution committed a Brady' violation and (2) his sentence is excessive. This petition is before me pursuant to an Order of Reference dated July 27, 2018 (Dkt. #5). For the reasons set forth below, I respectfully recommend that Your Honor deny the petition in its entirety.
Brady v. Maryland, 373 U.S. 83 (1963).
Unless otherwise indicated, the information in this section is drawn from the instant petition (Diet. #1), respondent's Affidavit in Opposition to Petition for a Writ of Habeas Corpus (Dkt. #10), respondent's Memorandum of Law (Dkt. #10-1) and respondent's Exhibits (Dkt. #10-2 through #10-11).
A. The Crime
Sometime between 3:00 p.m. and 4:00 p.m. on May 21, 2013, O'Hearn saw petitioner, Jordan and Pleasant talking to car wash employees in the exit area where cars were towel-dried.O'Hearn asked the three men to move along and then went into his office, Within ten minutes, he saw two of the three men near the car wash entrance. He approached them and said "I thought I asked you to leave"; one of the men replied that their friend was in the bathroom. At this point, the car wash was shut down due to a mechanical issue. O'Hearn sent some of his workers home and went back to his office (located inside the car wash tunnel).
O'Hearn identified all three defendants at trial, Trial Transcript ("T.") at 763-64.
Shortly thereafter, O'Hearn heard his office door open and someone say "Hey, Dennis." He turned around and saw petitioner and Pleasant standing there, pointing weapons at him. Pleasant was holding a pistol; petitioner had what appeared to be a machine gun. They grabbed duct tape from a shelf and bound O'Hearn's ankles and wrists, gagged his mouth and wrapped duct tape around his eyes. The men ordered O'Hearn to stand up, rifled through his pockets and took about $250 in cash and two credit cards (both embossed with O'Hearn's name). O'Hearn heard and saw the third man, Jordan, enter the office. The men placed O'Hearn on the floor in a fetal position. He could hear (and see) the men rustling through his desk. They took O'Hearn's laptop computer (which had his name and cell phone number on the underside), his Blackberry telephone, a cordless desk phone and some other cash lying on the desk. O'Hearn did not want the men to damage his cash register so he explained how to get the cash drawer opened. The register sat on a desk located at the entrance to the tunnel. The cash drawer contained several hundred dollars in singles bound by a blue wrapper. The men threatened to come back and shoot O'Hearn if he moved or left the office. They left and shut the office door.
O'Hearn was able to look upward and see through a slit in the duct tape.
Around 5:00 p.m., Jorge Velez arrived to speak with O'Hearn. As Velez headed into the car wash tunnel he saw Pleasant, and another man who was standing at the cash register pulling out the tray. Velez walked past Pleasant toward the office, called O'Hearn's name and got no response. Velez was about to knock on the office door when Pleasant grabbed his arm. Velez brushed Pleasant off and told Pleasant not to touch him. Velez ran out of the tunnel and toward the street, where he had seen several police officers near a motorcycle shop.
Velez identified Pleasant at trial. T. 616, 631-32.
Yonkers Police Officer Diodati was standing on the corner of Harding and McLean Avenue, talking to fellow officers. Velez approached Officer Diodati and reported that the car wash was being robbed by some black men with white tee shirts who ran northbound on Harding. Officers Diodati and Bohan immediately walked to the car wash; Velez followed. O'Hearn came hopping out of the office, still bound by the duct tape. An employee helped free O'Hearn, who said he had just been robbed by three black men. Officer Diodati elicited physical descriptions of the suspects from O'Hearn, Velez and two car wash employees, then initiated a citywide broadcast over police radio about a gunpoint robbery at the car wash (including descriptions of the three men),
Petitioner and his cohorts were spotted in a Nissan Maxima coming from the direction of the car wash. A high-speed chase on the New York State Thruway ensued, involving several police cars. The suspects' car left the Thruway at the Ardsley exit and crashed head first into a guardrail. All three men fled the car and ran in different directions. About a dozen police cars from several jurisdictions converged at the scene. Yonkers Patrol Captain Butler was told by an officer that there was a submachine gun in the back seat of the suspects' car. He approached the car and observed the weapon lying on the rear seat. The police pursued the men and apprehended all three within five or ten minutes.
A search of Pleasant's pockets revealed a black wallet containing a bundle of cash and O'Hearn's two credit cards. Jordan's denim jacket, recovered in the nearby wooded area, contained $774 in bundles bound with blue wrappers. Items recovered from the suspects' vehicle included two operable, loaded firearms (a Tec-9 in the back seat and a .380 caliber handgun in a bag on the floor of the front passenger seat) and O'Hearn's phone and laptop.
B. Pretrial Hearing/Jury Selection/Trial
On February 24 and 26, 2014, the Westchester County Court (J. Zambelli) held a pretrial hearing to address, inter alia, petitioner's motion to suppress the weapons recovered from the suspects' vehicle. During the hearing, the prosecution called several members of the Yonkers Police Department to testify, including Detective Christian Koch. Detective Koch testified as follows:
He arrived at the scene after the crash but in time to see three occupants exit the vehicle. Hearing Transcript at 53-54, 87. The driver jumped the barrier and went down the ravine; the two passengers ran northbound along the road. Id. at 54. There were multiple police vehicles and personnel at the scene. Id. at 55. Because a sufficient number of police officers were already in pursuit of the suspects, Koch and his partner (Detective Molina) walked over to the suspects' vehicle. Id. at 55-56, 73-74. Koch looked through the untinted car windows and observed a machine gun lying on the back seat. Id. at 56-57. Molina drew Koch's attention to a partially opened bag on the floor of the front passenger seat; Koch saw a handgun protruding out of the bag. Id. at 57, 60, 84-85. Koch and Molina waited by the car until personnel from the Crime Scene Unit and Emergency Services Unit photographed the interior of the car and secured the weapons. Id. at 57-59, 78-79, 88. Koch never opened the car doors or entered the vehicle. Id. at 57, 76, 86.
On March 3, 2014, Judge Zambelli orally denied petitioner's motion to suppress. Jury selection immediately commenced and concluded on March 6, 2014. Trial began on March 6, 2014; the jury rendered its verdict on March 28, 2014. Detective Koch did not testify at trial.
On March 31, 2014, Judge Zambelli issued a Consolidated Decision After Hearing in which she concluded, inter alia, "(t]he weapons were in plain view and therefore lawfully recovered." Dkt. #10-5, at 13 (ECF pagination).
C. Post-Verdict Motion
By letter dated July 28, 2014, the District Attorney notified petitioner and his co-defendants that an affidavit made by Detective Koch in support of a search warrant in an unrelated case contained material false statements. Dkt. #10-6. Koch had signed the affidavit on March 21, 2014; the District Attorney discovered the false affidavit in May 2014. Dkt. #10-10, at 2-3 (ECF pagination).
Koch's affidavit supported his application for a warrant authorizing the search of a location in Yonkers in furtherance of a narcotics investigation um`elated to the instant case. Dkt. #10-9, at 9 (ECF pagination). During the warrant's execution, an individual at the location died after falling three stories to the ground from a window. Id. The Westchester County District Attorney's Office and the Yonkers Police Department Internal Affairs Department initiated an investigation, which included a review of the factual allegations in Koch's warrant application. Id.
On or about August 15, 2014, petitioner filed a CPL 330, 30 motion to set aside the verdict on the ground that the prosecution's failure to disclose its investigation of the factual allegations in Koch's warrant application in the unrelated case constituted Brady and Gigliosviolations. Dkt. #10-7. Petitioner specifically argued: "There is no question that evidence of Det. Koch's making of material false statements and the investigation into the making of those false statements would constitute, at the very minimum, impeachment material that should have been disclosed during the trial. Id. at 7 (ECF pagination). On October 7, 2014, the trial court denied petitioner's motion. Dkt. #10-10. In particular, the trial court rejected petitioner's Brady claim because "the false affidavit was not made until March 21, 2014, after the conclusion of the hearing and was not discovered until May, 2014 long after the jury verdict in this case." Id. at 4 (ECF pagination).
Gigliov. United States, 405 U.S. 150 (1972) (extending Brady to impeachment evidence).
Koch was indicted on October 7, 2014. He pled guilty to second degree perjury on April 23, 2015 and, on September 17, 2015, he was sentenced to eight weekends in jail.
D. Direct Appeal
Petitioner (by and through counsel) appealed his judgment of conviction to the Appellate Division, Second Department on the following grounds; (1) the prosecution committed a Brady violation by failing to timely disclose that Detective Koch was under investigation for perjury; and (2) petitioner's sentence was excessive. Dkt. #10-11. By Decision and Order dated January 25, 2017, the Second Department affirmed petitioner's conviction. People v. Rispers, 146 A.D.3d 988, 45 N.Y.S.3d 217 (2d Dep't 2017). The Court of Appeals denied petitioner leave to appeal on May 22, 2017. People v. Rispers. 29 N.Y.3d 1036, 84 N.E.3d 977, 62 N.Y.S.3d 305 (Table) (2017).
III. STANDARD OF REVIEW
"Habeas review is an extraordinary remedy." Bousley v. United Stales, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991), See 28 U.S.C, § 2254(a). "The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)." Harrington v. Richter, 562 U.S. 86, 97 (2011).
When reviewing petitions filed subsequent to the AEDPA's effective date, a federal court may not grant habeas relief unless the petitioner establishes that the state court's 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), (d)(2). The AEDPA deferential standard of review will be triggered if the petitioner's claim "was adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d); see Bell v. Miller, 500 F.3d 149, 154-55 (2d Cir. 2007). "A state court adjudicates a state prisoner's federal claim on the merits when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment." Jimenez v. Walker, 458 F.3d 130, 140 (2d Cir. 2006) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)), A state court's decision is "contrary to" clearly established Federal law if (1) "the state court applies a rule that contradicts the governing law set forth [by the Supreme Court of the United States]" or (2) "the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). "Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [Supreme Court] decisions. And an 'unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even 'clear error' will not suffice." White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (internal quotation marks and citations omitted). "The critical point is that relief is available under § 2254(d)(1)'s unreasonable application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no <fairminded disagreement' on the question." Id., at 1706-07 (quoting Harrington, 131 S.Ct. at 786-87) ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").
Finally, under the AEDPA, the factual findings of state courts are presumed to be correct. See 28 U.S.C. §2254(e)(1); see also Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by "clear and convincing evidence." 28 U.S, C. §2254(e)(1). "A state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Cardoza v. Rock, 731 F, 3d 169, 178 (2d Cir. 2013) (quoting Woodv. Allen, 558 U.S. 290, 301 (2010)).
IV. DISCUSSION
A. Petitioner's Brady Claim is Meritless
As his first claim for habeas relief petitioner alleges that the trial court "misapplied [B]rady and didn't properly consider it." Dkt. #2, at 5 (ECF pagination). Although petitioner does not elaborate, he is obviously reasserting the argument he raised in his CPL 330.30 motion and again on direct appeal: the prosecution committed a Brady violation by failing to timely disclose that Detective Koch was under investigation for perjury. The trial court rejected petitioner's Brady claim because "the false affidavit was not made until March 21, 2014, after the conclusion of the hearing and was not discovered until May, 2014 long after the jury verdict in this case." Dkt. #10-10, at 4 (ECF pagination). The Second Department agreed, and held that petitioner "failed to show that the People suppressed the purported Brady material" because "the People did not discover Detective Koch's false statements until after the trial had ended." Rispers. 146 A.D.3d at 989-90, 45 N.Y.S.3d at 218-19. Because the Appellate Division's decision represents the last-reasoned state court decision to address petitioner's Brady claim, I must review that claim in accordance with the deferential AEDPA review standard.
"There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Jimenez v. Stanford, No. 16 Civ. 8545, 2021 WL 4199914, at *9 (S.D.N.Y. Sept. 15, 2021) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). Here, the trial court and the Second Department found that the prosecution did not discover Detective Koch's false statements until after petitioner was convicted. Petitioner offers no evidence - clear and convincing or otherwise - to rebut the presumption of correctness accorded to this factual finding. I note that, although the prosecution discovered Detective Koch's false statements in May 2014, they did not notify defense counsel until July 2014. Nonetheless, this delay is of no moment: even the prompt disclosure upon discoveiy in May 2014 would have had no effect on the trial itself. Thus, petitioner fails to demonstrate that the prosecution either intentionally or inadvertently failed to disclose evidence which would fall under Brady's mandate. See Berger v. Stinson, 97 F.Supp.2d 359, 369 (W.D.N.Y. 2000) (statement made over three months after petitioner was convicted did not constitute Brady material); Castillo v. United States, No. 92 Civ. 3982, 1993 WL 51181, at *8 (S.D.N.Y. Feb. 23, 1993) (evidence which did not exist at time of trial did not constitute Brady material). Accordingly, 1 conclude and respectfully recommend that petitioner's first claim is meritless and must be dismissed.
Copies of all unpublished cases available only in electronic form cited in this Report and Recommendation have been mailed to petitioner. See Lebron v. Sanders, 557 F.3d 76, 78 (2d Cir. 2009).
B. Petitioner's Remaining Claim
Petitioner alleges, as his remaining basis for habeas relief, that his twenty-year sentence was excessive and should be reduced to fifteen years. It is well-settled that an excessive sentence claim is not cognizable on habeas corpus review unless the sentence imposed falls outside the range prescribed by state law. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam) ("No federal constitutional issue is presented where ... the sentence is within the range prescribed by state law."); see also Watson v. Superintendent of Five Points Corr, Facility, No. 18 Civ. 0835, 2019 WL 1508958, at *5 (S.D.N.Y. Apr. 5, 2019).
Under New York law, first degree robbery is a class B felony. N, Y. Penal Law § 160.15. Because petitioner was a second violent felony offender convicted of a class B felony, New York law prescribed a sentencing range from ten to twenty five years imprisonment. N.Y. Penal Law § 70.04(3)(a). Petitioner's sentence thus fell within the range prescribed by state law. Accordingly, I conclude and respectfully recommend that petitioner's excessive sentence claim is not cognizable and must be dismissed.
V. CONCLUSION
For the reasons set forth above, I conclude - and respectfully recommend that Your Honor should conclude - that the instant petition for a writ of habeas corpus should be denied in its entirety. Further, because reasonable jurists would not find it debatable that petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(c), Rule 72(b) of the Federal Rules of Civil Procedure and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. Fed.R.Civ.P. 6(d). See also Fed. R. Civ. P. 6(a). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Hon. Vincent L. Briccetti, at the Hon. Charles L. Brieant, Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517F.3d601, 604(2d Cir.2008).