Opinion
9:98-CV-0656 (NAM)(GLS)
February 20, 2001
FOR THE PETITIONER: MICHAEL ROE, Petitioner, Pro Se, Clinton Correctional Facility, Dannemora, NY.
FOR THE RESPONDENT: HON. ELIOT SPITZER OF COUNSEL: CHRISTOPHER A. QUARANTA, ESQ., Office of the Attorney General, New York, NY.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner, pro se Michael Roe ("Roe") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on April 27, 1998. This court issued an order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, directing, inter alia, the Office of the Attorney General for the State of New York ("Attorney General") to file a response. Docket No. 4. The Attorney General filed papers in opposition, together with a request that this matter be sealed due to the nature of the crime and the age of the victim. Docket Nos. 9 — 12. Roe filed a reply in which he contends his petition must be granted. Docket No. 13.
II. Discussion
A. Request to Seal
Respondent requests that this court seal this entire case "to protect the victim's identity from the public." Docket No. 9. In support of this application, he cites New York's Civil Rights Law § 50-b ("§ 50-b") which reads, in part: "[t]he identity of any victim of a sex offense . . . shall be confidential. No . . . court file or other documents, in the custody or possession of any public officer or employee, which identifies such a victim shall be made available for public inspection."
However, this statute does not provide that all court records are to be sealed, as requested by respondent. It merely provides that these documents be kept confidential. The court finds that the victim's privacy interest, while substantial, does not warrant sealing the entire file. Instead, the court will refer to the victim as "J.P." to ensure her privacy. See Lucidore v. New York State Div. of Parole, 209 F.3d 107, 109 n. 4 (2nd Cir.), cert. denied, ___ U.S. ___, 121 S.Ct. 175, 148 L.Ed.2d 120 (2000) (substantial compliance with this statute is obtained where the court refers to the victim by use of initials). The court notes, however, that the state court records in this case have been docketed. See Docket Nos. 10 and 12. Therefore, the court directs that these documents be sealed, and that they be removed from the file before it is given to any individual requesting this file.
B. State Court Proceedings
J.P.'s mother had a romantic relationship with Roe. Trial Tr. of Michael Roe (5/2/95) ("Tr.") at 94-95. J.P. testified that shortly after she and her mother moved into a house on Vestal Avenue in Broome County, Roe began sexually abusing her when she was ten years old. Id. at 63-64. This abuse would typically occur while her mother was at work, Id. at 65, because her mother trusted Roe with the care of J.P. and her brothers. Id. at 71. J.P. testified that she was reluctant to tell others about the abuse because Roe told her that no one would believe her and because she was scared. Id. at 66, 69. The last incident of sexual abuse occurred on December 11, 1994, in her mother's bedroom. Id. at 68, 71. On December 18, 1994, J.P. told her mother about the abuse, who immediately called the police. Id. at 105.
At the time of her testimony, J.P. was fourteen years old. Id. at 72.
The jury found Roe guilty of first and second degree sodomy, first and second degree sexual abuse, and endangering the welfare of a child. Id. at 202-03. Roe was sentenced by the Hon. Martin J. Smith ("Judge Smith") as a second violent felony offender to three to six years imprisonment on the conviction for second degree sodomy, to run consecutive to a term of six to twelve years imprisonment for the first degree sodomy conviction, with lesser, concurrent sentences on the other convictions. Sentencing Tr. (11/17/95) at 11-12. Roe appealed this decision to the Appellate Division, Third Department ("Appellate Division") which affirmed. People v. Roe, 235 A.D.2d 950 (3rd Dep't 1997). The Court of Appeals denied Roe leave to appeal. People v. Roe, 89 N.Y.2d 1099 (1997). Roe filed a motion to vacate this conviction pursuant to Section 440.10 of New York's Criminal Procedure Law ("CPL") which was denied by Judge Smith on December 11, 1997. Docket No. 10 at Ex. G.
In his petition, Roe alleges: (i) the conviction violated his rights because the only evidence presented at trial against Roe was the testimony of J.P., and "absent . . . independent supportive proof tending to establish that the crime was in fact committed" the "conviction must be dismissed as a matter of law," Pet. at unnumbered P. 6; (ii) his trial and/or appellate counsel rendered ineffective assistance by failing to challenge the lack of corroboration of J.P.'s testimony; and, (iii) the prosecution failed to disclose: a) medical evidence that demonstrated J.P. was not sexually assaulted; and, (b) an exculpatory statement he made to the police. Id. at unnumbered P. 5.
C. Merits of Petition
1. Claim Based Upon Failure to Corroborate J.P.'s Testimony
Although this is the third Ground asserted by Roe because it relates to his first claim which alleges ineffective assistance, the court initially addresses the merits of the third Ground.
Roe contends that J.P.'s testimony was not corroborated by another individual or medical evidence, and that this is fatal to his conviction, because "[c]orroboration is required as a matter of law." Docket No. 14. In support of this contention, Roe cites CPL § 70.10 and New York's Penal Law § 130.16, as well as the Supreme Court's decision in Smith v. United States, 348 U.S. 147 (1954), together with other court rulings that considered issues similar to the one raised in Smith.
The statutes upon which Roe relies do not support his claim. CPL § 70.10 defines "legally sufficient evidence" as "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent." (emphasis added). New York's Penal Law provides:
Sex offenses; Corroboration
A person shall not be convicted of consensual sodomy, or an attempt to commit the same, or of any offense defined in this article of which lack of consent is an element but results solely from incapacity to consent because of the victim's mental defect, or mental incapacity, or an attempt to commit the same, solely on the testimony of the victim, unsupported by other evidence tending to:
(a) Establish that an attempt was made to engage the victim in sexual intercourse, deviate sexual intercourse, or sexual contact, as the case may be, at the time of the occurrence; and
(b) Connect the defendant with the commission of the offense or attempted offense.
N Y Pen.L. § 130.16 (emphasis added). Although a prior version of § 130.16 required corroboration where the incapacity to consent resulted from the victim's age, this statute was amended in 1984. This amendment, inter alia, specifically eliminated this corroboration requirement. As the Appellate Division noted in rejecting a similar challenge raised by the appellant in People v. Bolden, 194 A.D.2d 834 (3rd Dep't), leave to appeal denied 82 N.Y.2d 714 (1993):
Roe was indicted for crimes that occurred no earlier than 1992. See Tr. at 83 (noting that the first incident occurred in August of 1992). Thus, the amended version of § 130.16 clearly applies to this case, and no ex post facto challenge to its application has merit.
Defendant next contends that evidence adduced at trial was not legally sufficient to establish his guilt. As to the sexual abuse charges, defendant's argument is premised largely upon the theory that corroboration of the victim's testimony was required pursuant to Penal Law § 130.16. In 1984, however, the Legislature amended Penal Law § 130.16 so that corroboration is no longer required in cases where, as here, the incapacity to consent results solely from the victim's age (L. 1984, ch 89, § 1; see People v. Hudy, 73 N.Y.2d 40, 48 [1988]).
Bolden, 194 A.D.2d at 835 (emphasis added). Similarly, New York's Court of Appeals recently noted:
[T]he testimony of a child victim alone is sufficient because corroboration of sex offenses with respect to child victims is no longer required except in instances not pertinent here see e.g., People v. Groff, 71 N.Y.2d 101, 109 [1987]; see also, Penal Law § 130.16 [corroboration rule now limited to those sex offenses for which the victim is deemed incapable of consent because of a mental defect or mental incapacity]).
People v. Carroll, 95 N.Y.2d 375, 383 (2000) (emphasis added).
Thus, contrary to Roe's contention, J.P.'s testimony did not have to be corroborated because this testimony was given under oath (Tr. at 57) and no allegation has ever been raised that J.P.'s lack of consent was attributable to any mental defect or mental incapacity. Thus, this theory is meritless.
The fact that the Appellate Division found that J.P.'s statements were corroborated by her mother, Roe, 235 A.D.2d at 952, has no bearing on whether corroboration was legally required. This was merely an additional finding of the Appellate Division.
Moreover, Roe's reliance on Smith as well as other court decisions that address issues similar to the one raised in Smith, is misplaced. The court in Smith extended the general rule that a conviction may not be based solely on a defendant's own uncorroborated confession to situations where a defendant admits inculpatory facts to law enforcement agents. Smith, 348 U.S. at 155 (in prosecution for tax evasion, defendant's own statement concerning his net worth must be corroborated; defendant's admission was made to an official charged with investigating the possibility of wrongdoing, and statement concerned an element vital to the Government's case); see also, Opper v. U.S., 348 U.S. 84, 90-91 (1954) (an accused's admissions of essential facts or elements of a crime, subsequent to commission of the crime, should be corroborated). Similarly, in U.S. v. Martinez, 54 F.3d 1040, 1047-48 (2nd Cir.), cert. denied, 516 U.S. 1001 (1995), another case upon which Roe relies heavily in support of his claim that corroboration is required, Judge Calabresi, in his concurring opinion, opined that defendant's own admission to a detective that the defendant did not use drugs, standing alone, would require corroboration because the statement would implicate defendant, who was charged with possession, with intent to distribute, cocaine.
The Government argued that because the defendant in Martinez admitted he was not a "user," the drugs seized on defendant's person were necessarily to be distributed by defendant.
None of the cases cited by Roe in either his supporting memorandum of law or reply support the proposition for which they are cited, i.e., that the testimony of a victim to whom an oath has been administered must, under the law applicable to this case, be corroborated where such testimony is the sole basis upon which the conviction rests. See Groff, 71 N.Y.2d at 108-09 (unsworn testimony of four year old child must be corroborated); People v. Reade, 13 N.Y.2d 42 (1963) (predated amendment to CPL § 130.16 and related to use of defendant's confession without corroboration); People v. Cuozzo, 292 N.Y. 85 (1944) (same); People v. Creedon, 106 A.D.2d 515 (2nd Dep't 1984) (criminal conduct predated amendment to CPL § 130.16); People v. Keindl, 117 A.D.2d 679 (2nd Dep't), aff'd, 68 N.Y.2d 410 (1986) (same).
A victim's testimony, standing alone, is sufficient to support a conviction. People v. Richard, 172 A.D.2d 569, 570 (2nd Dep't), leave to appeal denied, 78 N.Y.2d 973 (1991). Thus, Roe's contention that the jury improperly relied on J.P.'s testimony in reaching its verdict (Docket No. 3 at unnumbered PP. 2-3) is without merit. Since J.P.'s testimony clearly accused Roe of committing the crimes of which he was convicted, and he has submitted no evidence that indicates that the jury's verdict was against the weight of the evidence, this court recommends that Ground Three of the petition be denied and dismissed.
2. Ineffectiveness Claim
This Ground appears to allege that his trial and/or appellate counsel wrongfully failed to challenge the evidence presented at trial concerning the issue of corroboration of J.P.'s testimony. Pet. at Ground One.
The Supreme Court has articulated a two-pronged test to determine whether a criminal defendant received effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 688-90, 694 (1984). To establish ineffective assistance, a habeas petitioner must show: (1) that counsel's representation fell below an objective standard of reasonableness measured by the prevailing professional norms; and (2) that there is a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different." United States v. Gordon, 156 F.3d 376, 379 (2d Cir. 1998) (per curiam) (citing Strickland, 466 U.S. at 688-90); Mask v. McGinnis, 233 F.3d 132, 140 (2d Cir. 2000).
As noted above, any claimed requirement that J.P.'s testimony was required by law to be corroborated is inaccurate. Therefore, neither Roe's trial nor appellate counsel acted in an objectively unreasonable manner by failing to raise such a challenge. No other errors on the part of his attorneys are asserted by Roe in his ineffectiveness claim. Thus, the court need not consider the second prong of the Strickland test. Jones v. U.S., 1997 WL 800866, at *3 (W.D.N.Y. Dec. 23, 1997) (court need not analyze second prong of Strickland where attorney's conduct was objectively reasonable). The court therefore recommends that this Ground be denied and dismissed.
3. Failure to Disclose Exculpatory Material
Roe argues that the prosecution failed to provide him with medical evidence "that show[ed] the victim was not sexually assaulted," and that, as a result, his conviction must be overturned (Ground Two). Roe also states that an unspecified statement he made to the police, that apparently was exculpatory, was never "provided to [Roe] for his inspection." Id.
Under Brady v. Maryland (1963), the government must disclose exculpatory material and impeachment evidence to the defense. See U.S. v. Wong, 78 F.3d 73, 79 (2nd Cir. 1996) (emphasis added). Evidence is material to guilt or punishment "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Brooks v. Artuz, 2000 WL 1532918, at *4 (S.D.N.Y. Oct. 17, 2000) (citing United States v. Bagley, 473 U.S. 667, 682 (1985) (other citations omitted)); see also, Gayle v. Lacy, 1997 WL 610654, at *7 (N.D.N.Y. Oct. 1, 1997) (Pooler, D.J.) (adopting Report-Recommendation of Magistrate Judge that recommended denial of Brady claim).
In reviewing Roe's Brady claim concerning the medical report, Judge Smith, in denying Roe's CPL § 440 motion, noted that the People stated that this report was disclosed to Roe, and that this contention was supported by the fact that he was aware that the result was negative. See Decision and Order of Judge Smith (12/11/97) (Docket No. 10 at Ex. G) ("§ 440 Decision") at 2. Moreover, Judge Smith found that a negative result on the medical examination: "might be expected in a case in which the offenses involved oral sodomy and sexual touching, but neither rape nor ejaculation." Id.; see also, Tr. at 89 (noting that Roe never ejaculated while sexually abusing J.P.). Roe has come forth with no evidence which demonstrates that the prosecution failed to turn over the medical report relating to J.P., or that their alleged failure to do so was material. As Judge Smith correctly noted, J.P. did not testify that Roe penetrated her. Instead, her testimony alleged that Roe orally sodomized her and subjected her to sexual touching. Tr. at 62-65, 70-71, 85. Since it is entirely understandable that this conduct would result in a negative result on a medical examination of J.P., Roe has failed to demonstrate a reasonable probability that, even assuming, arguendo, that this report was not disclosed, the result of his trial would have been different. Therefore, this court recommends that this theory of Roe be denied.
Finally, Roe argues that an unspecified oral admission he purportedly made to the police was never disclosed to him or his counsel (Ground Two). Judge Smith considered and rejected this claim in denying the § 440 motion. Specifically, he found:
Defendant's allegation that oral admissions were not turned over is unsupported by any affidavit from his trial counsel; the People's affidavit and Court records reflect that any oral admissions were turned over to the defendant's attorney during pre-trial motion practice. Accordingly, the Court finds that the defendant has failed to establish any Brady violation with respect to oral admissions.
§ 440 Decision at 1-2.
Determination of factual issues made by a State court "shall be presumed to be correct," and a petitioner is required to rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Mask v. McGinnis, 233 F.3d 132, 139 (2d Cir. 2000). "The touchstone for a reasonable determination under § 2254(e)(1) is whether the determination is at least minimally consistent with the facts and circumstances of the case." Dawson v. Donnelly, 111 F. Supp.2d 239, 245 (W.D.N.Y. 2000) (citations and internal quotations omitted).
Roe has produced no evidence, much less clear and convincing evidence, that rebut's Judge Smith's factual finding that any oral admissions of Roe were turned over to his attorney prior to trial. Consequently, this court recommends the denial of this Ground.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that Roe's petition be DENIED and DISMISSED, and it is further
ORDERED, that the Clerk serve a copy of this Order and Report-Recommendation on the parties by regular mail, and it is further
ORDERED, that for the reasons referenced above relative to New York's Civil Rights Law § 50-b, Docket Nos. 10 and 12 in this matter be SEALED, and it is further
ORDERED, that the Clerk remove these documents from this file prior to providing this file to any member of the public.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have TEN (10) DAYS within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.