# Bisnauth v. Morton J.R

> District Court, E.D. New York · August 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10306699

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
FILED
CLERK
No. 18-CV-4899 (JEB)
1:41 pm, Aug 09, 2021
U.S. DISTRICT COURT
RUDOLPH BISNAUTH, EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
Petitioner,
VERSUS
ROBERT MORTON J.R.,
SUPERINTENDENT OF THE DOWNSTATE
CORRECTIONAL FACILITY
Respondent.

MEMORANDUM AND ORDER
August 9, 2021

JOSEPH F. BIANCO, Circuit Judge (sitting by Law. § 60.35; (2) the state court wrongfully
designation): denied petitioner’s motion for a missing
witness charge; (3) his conviction was both
Rudolph Bisnauth (“petitioner”), legally insufficient and against the weight of
proceeding pro se, petitions this Court for a the evidence; and (4) the State suppressed
writ of habeas corpus pursuant to 28 U.S.C. evidence in violation of Brady v. Maryland,
§ 2254, challenging his conviction in New 373 U.S. 83 (1963). (ECF No. 1 at 5-10.)
York state court on four grounds. On January
21, 2011, following a jury trial, the jury For the reasons discussed below,
convicted petitioner of murder in the second petitioner 's request for a writ of habeas corpus
degree. See N.Y. Penal Law § 125.25(2). is denied in its entirety.
Petitioner was thereafter sentenced to a term of lL. BACKGROUND
imprisonment of twenty-five years to life.
i, . On January 21, 2011, a jury in the New
In his instant habeas petition, petitioner York State Supreme Court, Suffolk County
challenges his conviction as unconstitutional found petitioner guilty of second-degree
because: (1) the State of New York (the murder in violation of N.Y. Penal Law
State”) wrongfully impeached is own § 125.25(2). Following his sentencing,
witnesses in violation of N.Y. Crim. Proc. petitioner unsuccessfully moved the state

court to vacate the judgment of conviction and would beat her up if she canceled the
unsuccessfully pursued a direct appeal, as well insurance. (A. 38, 363-64)
as a motion under N.Y. Crim. Proc. Law . . . .
§ 440.10(1)(h), through the New York state sted ne pts imothy Rich Is bis
courts. His petition to this Court followed. and his sister “mushed” Ms. Byrd in the face.
A. The Trial and Sentencing (A. 39-41, 363-65.) The altercation did not
we ss escalate further because Timothy Rich grabbed
Over the COUTSS of P etitioner 8 trial, the his sister and because Ms. Byrd left her own
State presented evidence implicating petitioner house to travel to her sister’s house at 119
in the murder of Jerry Armstrong, including the Irving Avenue in Wyandanch, New York. (A.
testimony of over a dozen fact witnesses and 41-42, 364-65.) Timothy Rich and his sister
multiple exp erts. The evidence established left Ms. Byrd’s house around that same time as
that, on the morning of June 1, 2009, a verbal well. (A. 365-66.)
dispute arose between Timothy Rich and his
partner Keana Byrd, the daughter of the victim, At her sister’s house, Ms. Byrd told her
Jerry Armstrong. Following the verbal father, Jerry Armstrong, about the argument
altercation, the dispute escalated, with with Timothy Rich. (A. 43.) At her father’s
members of the Byrd/Armstrong family and request, Ms. Byrd called Timothy Rich and the
the Rich family proposing a fistfight. Rather parties agreed that her father would retrieve the
than a fistfight, however, the interfamily license plates for the car after the weekend and
argument ended that night in the shooting death that Timothy Rich could continue to see his
of Jerry Armstrong by Timothy Rich’s friends, daughter. (A. 45-46, 367-69.) According to
Michael McKenzie and petitioner.' Timothy Rich, that phone call resolved the
1. The Verbal Dispute dispute. (A, 368.)
On the morning of June 1, 2009, Keana 2. The Proposed Fistfight
Byrd spotted Timothy Rich, the father of her Shortly after the phone call, however,
daughter, driving his car with another woman several individuals who had learned about the
in the front passenger seat. (A. 33-36. After dispute, including Ms. Byrd’s brothers Jerry
following ‘Timothy Rich and noticing that this “Montreal” Byrd and Darryl Byrd, sought out
wotan was seven-months’ pregnant, Ms, Byrd and located Timothy Rich in front of his home
called Timothy Rich and threatened to cancel and attempted to fight with him. (A. 90-91,
the car’s insurance, which was registered and 145, 369-70.) Timothy Rich, however, fled in
insured by Ms. Byrd. (A. 36-37, 361-64.) his car to his sister’s house at 29 Parkway
According to Ms. Byrd, Timothy Rich then Boulevard in Wyandanch, while Montreal
threatened her, stating that he and his sister Byrd and others returned to 119 Irving Avenue
at around 9 p.m. (A. 90-91, 118, 146, 370-71.)

' McKenzie pleaded guilty to manslaughter in the People v. McKenzie, 98 A.D.3d 749, 749 (2d Dep’t
first degree prior to the commencement of 2012), appeal denied, 20 N.Y.3d 987 (2012).
petitioner’s trial, see N.Y. Penal Law § 125.20, and 5
was sentenced to twenty-five years’ imprisonment be aie ee “A. Ipawe ooeber on appeal □□
followed by five years of supervised release. See available on the docket for this case. (See ECF
Nos. 11, 11-1, 11-2.)

At 29 Parkway Boulevard, Timothy Rich Both Anthony Rich and Pottur testified that
explained to his friends about the altercations there were two sets of gunshots. (A. 267, 308-
with the Byrd/Armstrong family earlier that 09.) An offduty police officer who lived
day. (A. 238-40, 300-01, 371-72.) Among nearby also testified that she heard two sets of
those present were petitioner, his cousin Shawn gunshots. (A. 169-70.) Specifically, the
Bisnauth, McKenzie, Dajaun Pottur, and officer heard three shots and a pause, followed
Anthony Rich. (A, 237-38, 298-300, 370-72.) by seven or eight additional shots. (A. 169-70.)
_ Timothy Rich thereafter called Ms. Byrd and Several Byrd/Armstrong family members and
said he would fight her brother, Montreal. (A. friends also reported two sets of gunshots.
48-49.) However, after driving to 119 Irving (A. 55, 59, 97-99, 119-22.)
Avenue and realizing that his daughter was .
present, Timothy Rich returned to 29 Parkway According to Anthony Rich. there were
Boulevard and phoned Ms. Byrd, calling off two sets of gunshots because © eu
the fight. (A. 93-94, 376-77.) Montreal Byrd jammed—and McKenzie in fact said, “[S]h"t
° the gun jammed.” (A. 309.) Anthony Rich
joined the call and accused Timothy Rich of . ys
being afraid to fight. (A. 93-94, 377.) Both further testified that he witnessed petitioner
men then challenged each other to fight at the and McKenzie tussle with the gun pulling
other’s location. (A. 377.) the gun back and forth’—until the gun
cae unjammed. (A. 309-10.) Pottur similarly
3. The Shooting and Aftermath testified that, after the first round of gunfire, he
. heard petitioner and McKenzie arguing and
After Montreal Byrd left the call, Timothy “assumed” that the gun had jammed. (A. 245,
Rich warned Ms. Byrd that his friends were 267, 281-85.)
“going to come shoot the house up” and to get °
the kids out of the house. (A. 378; see also Although Anthony Rich saw McKenzie
A. 53-54.) Petitioner, his cousin Shawn take the gun after it was unjammed, he was
Bisnauth, McKenzie, Pottur, and Anthony unclear as to who fired the second set of
Rich then drove to 119 Irving Avenue at gunshots. (A. 266, 309-12.) When petitioner
around 11:30 p.m. to “shoot... up” the house. and McKenzie returned to the car, however,
(A. 169, 241-42, 301-02, 378-79.) Once at 119 McKenzie carried the gun and announced that
Irving Avenue, petitioner, McKenzie, and he had “had” the victim. (A. 245, 275.)
i i hi d hed
fathony ich exited Nek onvie carrying ° a After the shooting, the men returned to an
handgun (A 242-45, 303-05.) Shawn abandoned house at 18 Parkway Boulevard and
Bisnauth and Pottur remained in the car. (A. recounted the event, (A, 297-58, 277-78.)
264.) According to Anthony Rich, as they According to Timothy Rich, Mckenzie said
walked into the front yard, McKenzie yelled that he shot the gun, and petitioner said that he
« 1g)? unjammed the gun, that a shot fired in the
what’s popping?” and started shooting at a d that he fired off another shot
small crowd of people standing in front of the PROCESS, al a ree © ane
U.S, at 264 n.10 (explaining that “a state court 496 (1986). To overcome @ Pr ocedural default
need not fear reaching the merits of a federal based on a miscarriage of justice, the petitioner
claim in an alternative holding,” so long as the must demonstrate that more likely than not, In
state court “explicitly invokes a_ state light of the new evidence, no reasonable juror

render a habeas petition moot because “[w]hile Rochester Psychiatric Ctr., 955 F.3d 314, 319 (2d
petitioner’s parole releases him from immediate Cir. 2020), Ortiz v. Martisucello, 16-CV-7927
physical imprisonment, it imposes conditions (LAP) (OTW), 2018 WL 10468148, at *1 n.1
which significantly confine and restrain his (S.D.N.Y. Aug. 23, 2018) (collecting cases).
freedom”); accord Janakievski v. Exec. Dir.,
1]

would find him guilty beyond a reasonable regarding the State’s introduction of prior
doubt.” House v. Bell, 547 U.S. 518, 538 statements to impeach two prosecution
(2006), witness; (2) the failure of the trial court to give
In addition, “[a]n application for a writ of oe pvcachmen a ee atthe
habeas tte on on mene State in eusiny introduced; and (3) the State’s reference to the
hot be granted unless it appears that ... the ‘Por Statements during summation, (Id.
applicant has exhausted the remedies available a. Alleged Impeachment of Witnesses
in the courts of the State.” 28 USC. □
§ 2254(b\(1)(A); see also Fama v. Comm’r of New York’s preservation tule, N.Y. Crim.
Corr, Servs., 235 F.3d 804, 808 (2d Cir, 2000) Proc. Law § 470.05(2), “require[sj, at the very
(“Prior to bringing a petition for habeas corpus least, that any matter which a party wishes the
pursuant to 28 U.S.C. § 2254, petitioner must appellate court to decide have been brought to
exhaust the remedies available in state court or the attention of the trial court at a time and ma
demonstrate that ‘there is an absence of way that gave the latter the opportunity to
available State corrective process [or] [that] remedy the problem and thereby avert
circumstances exist that render such process reversible error.” Garcia, 188 F.3d at 78
ineffective to protect the rights of the (quoting People v. Lup eron, 85 N.Y.2d 71, 78
applicant.’” (alterations in original) (quoting (1995), accord Richardson v. Greene, 497
28 U.S.C. § 2254(b)(1)(B))). To fulfill the F.3d 212, 218 (2d Cir, 2007). The rule requires
exhaustion requirement, a petitioner must a contemporaneous objection to any al leged
“fairly present” the federal claim “in each legal error by defense counsel at a criminal
appropriate state court (including a state trial. See N.Y. Crim. Proc, Law § 470.05(2);
supreme court with powers of discretionary see als 0 Cotto v. Herbert, 331 F.3d 217, 239
review).” Baldwin v, Reese, 541 U.S. 27, 29 (2d Cir. 2003). The rule is also a state law
(2004). “A prisoner has not fairly presented a ground that s independent of any federal
federal claim before a state court if the federal constitutional question that is “firmly
claim is not mentioned in the prisoner’s state established and regularly followed by the
court brief.” Richardson v. Superintendent of state.” Richardson v. Greene, 497 F.3d at 217-
Mid-Orange Corr. Facility, 621 F.3d 196, 201 19.
(2d Cir. 2010). However, “[a]n application for This Court agrees with the Second
a writ of habeas corpus may be denied on the Department that petitioner failed to preserve
merits, notwithstanding the failure of the the issue concerning the alleged impeachment
applicant to exhaust the remedies available in of State witnesses for his direct appeal and,
the courts of the State.” 28 U.S.C. accordingly, for his instant habeas petition.
§ 2254(b)(2). Although it is true that petitioner objected to
sags the State’s attempted impeachment of Pottur
2, Application during direct examination with Pottur’s July 9
As noted above, the Second Department statement and the trial court rejected that
concluded that three of petitioner’s arguments objection because defense counsel “just started
were “for the most part, unpreserved for objecting” before the State “asked any
appellate review.” (ECF No. 11-2 at 131 foundational questions” (A. 260-61), the State
(citing N.Y. Crim. Proc. Law § 470.05(2)).) did not pursue the line of questioning further
These arguments included: (1) the alleged error during direct examination and, thus, no
12

objection was made at that juncture. (See prisoner has not fairly presented a federal claim
A. 259-69.) On re-direct, petitioner again before a state court if the federal claim is not
objected when the State attempted to use mentioned in the prisoner’s state court brief.”
Potiur’s July 9 statement to refresh his Richardson v. Superintendent of Mid-Orange
recollection, arguing that the use of the July 9 Corr. Facility, 621 F.3d at 201. A habeas court
statement was outside the scope of cross- may excuse a petitioner’s failure to exhaust if
examination into “a whole new area,” but petitioner demonstrates “cause and prejudice
failed to argue that such use constituted an excusing his failure to exhaust or actual
improper impeachment of the State’s own innocence.” Dixon v. McGinnis, No. 06 CIV.
witness in violation of N.Y. Crim. Proc. Law 39 (RJS), 2012 WL 6621728, at *4 (S.D.NLY.
§ 60.35. (See A. 282.) Under New York law, Dec. 19, 2012); see also Murden v. Artuz, 497
however, “to preserve a particular issue for F.3d 178, 194 (2d Cir. 2007) (citing Dretke v.
appeal, defendant must specifically focus on Haley, 541 U.S. 386, 393 (2004)).
the alleged error.” Garvey v. Duncan, 485 F.3d weg
709, 714-15 (2d Cir. 2007) (collecting New The Court finds that petitioner's claim is
York cases). Here, because petitioner failed to nexhausted: aoe 8 ae reoore i ne raised
contemporaneously object to the State’s use of 1s Tegal’ Insuticiency of tne evidence clam in
the July 9 statement to impeach Pottur, his post-judgment Section 440.10 motion or in
petitioner’s claims based on the alleged his consolidated direct appeal. Moreover,
violation of N.Y. Crim. Proc. Law § 60.35— petitioner has not attempted to show cause and
including the State’s elicitation of such prejudice excusing his failure to exhaust or
impeachment testimony and the trial court’s a Accoadinel vee mur den. 497 i □
failure to issue a contemporaneous limiting ecor ingly, the claim Is unextaustec.
instruction during Pottur’s testimony—are However, “[a]n application for a writ of habeas
procedurally barred from habeas review.’ votwith ona re denied Pith the lot □□
Moreover, petitioner has failed to demonstrate notwitastancing te Taine or tie appican □□
vas exhaust the remedies availabie in the courts of
cause or prejudice or actual innocence to
the State,” 28 U.S.C. § 2254(b)(2); see also
overcome this procedural bar. .
Jones v. Keane, 329 F.3d 290, 294 n.6 (2d Cir.
b. Sufficiency of the Evidence at Trial 2003), which the Court addresses below.
Petitioner alleges in his habeas petition that B. Merits
there was insufficient evidence to support the .
state court verdict beyond a reasonable doubt. Out of an abundance of caution, the Court
(ECF. No. 1 at 8.) As noted above, to fulfill the has analyzed all of petitioner’s claims in this
exhaustion requirement, a petitioner must case, and concludes that all such claims
“fairly present” the federal claim “in cach (including the procedurally-barred and
appropriate state court (including a. state unexhausted claims in the current petition) fail
on the merits. Given that petitioner’s claims
supreme court with powers of discretionary as .
review)” Baldwin, 541 US. at 29. “A present no constitutional basis for habeas

* Petitioner’s motion for a mistrial following motion for a curative instruction regarding the
Pottur’s testimony on the grounds that the Stafe’s State’s impeachment of Pottur, likewise failed to
redirect went outside the scope of cross- failed to satisfy New York contemporaneous
examination and that the State impeached its objection rule. See N.Y. Crim. Proc. Law
witness, and, the following day, petitioner’s § 470.05(2).
13

relief, for the reasons discussed below, the N.Y. Crim. Proc. Law § 60.35(1)-(2).
Court denies the habeas petition in its entirety The propriety of a trial court’s decision to
on the merits. admit impeachment testimony under Section
1. State’s Alleged Improper Use of 60.35 is not cognizable on habeas review. See
Impeachment Evidence Gueits v. Kirkpatrick, 612 F.3d 118, 124 (2d
: . . Cir. 2010); see also Estelle vy. McGuire, 502
Petitioner asserts that he is entitled to U.S. 62, 67-68 (1991) (“[I]t is not the province
habeas relief because the State improperly of a federal habeas court to reexamine state-
impeached two of its witnesses during trial in court determinations on state-law questions.”);
violation of N.Y. Crim, Proc. Law § 60.35 and, Hawkins v. Costello. 460 F.3d 238, 244 (2d
relatedly, that the trial court erred by failing to Cir, 2006); Harris ° vy Perez, 1 4-CV-7218
issue a curative instruction during and (SLT) 017 WL 5 468782 at #5 (E.DN.Y
following the testimony of Pottur. (ECF No. 1 Nov. 13 2017) (“Since § 60.35’s provisions
at 5.) In addition, petitioner alleges ineffective are not man dated by federal law or the United
assistance of counsel due to his lawyer's failure States Constitution, a trial court’s error in
to object 0 the use of such impeachment applying these [sic] provision is solely an error
evidence during the State’s summation. (/d.) of state law.”); Dunston v. Griffin, 16-CV-821
The Court concludes that, in addition to being (BMC) 2016 WL 1255727. at #4 (EDNY
procedurally barred, petitioner’s claims on this Mar. 29, 2016) (holding clai m under Section
issue do not warrant habeas relief. 60.35 was not cognizable on habeas review
New York Criminal Procedure Law because “[t]he U.S. Constitution places no
§ 60.35 states: restrictions on a prosecutor’s ability to impeach
, his own witness”). Instead, a habeas petitioner
1. When, upon examination by the can prevail on an evidentiary error claim only
party who called him, 4 witness In a if “fhe] show[s] that the error deprived [him] of
criminal proceeding gives testimony a fundamentally fair trial.” Taylor v. Curry,
upon a material issue of the case 708 F.2d 886, 891 (2d Cir. 1983); see also
which. tends to disprove the position Zarvela y. Artuz, 364 F.3d 415, 418 (2d Cir.
of such party, such party _ may 2004) (“[E]rroneous evidentiary rulings
introduce evidence that such witness warrant a writ of habeas corpus only where the
has previously made either a written petitioner ‘can show that the error deprived
statement signed by him or an oral [him] of a fundamentally fair trial.’” (quoting
statement under oath contradictory to Rosario v. Kuhlman, 839 F.2d 918, 925 (2d
such testimony. Cir. 1988))). In other words, “[t]he
2, Evidence concerning a prior introduction of improper evidence against a
contradictory statement introduced defendant does not amount to a violation of due
pursuant to subdivision one may be process unless the evidence ‘is so extremely
received only for the purpose of unfair that its admission violates fundamental
impeaching the credibility of the conceptions of justice.’” Dunningan v. Keane,
witness with respect to his testimony 137 F.3d 117, 125 (2d Cir. 1998) (quoting
upon the subject, and does not Dowling v. United States, 493 U.S. 342, 352
constitute evidence in chief. Upon (1990), abr ogated on other grounds by Perry
receiving such evidence at a jury trial, v. New Hampshire, 565 U.S. 228 (2012).
the court must so instruct the jury.
14

Here, even assuming arguendo that the Amendment claim for ineffective assistance of
admission of the prior statements for counsel, “a petitioner must demonstrate both
impeachment purposes under Section 60.35 that counsel’s performance was deficient and
was erroneous,> it is clear that such an error did that prejudice resulted from the deficient
not rise to the level of a constitutional violation performance.” Gueits, 612 F.3d at 122 (citing
that could support habeas relief. First, Strickland v. Washington, 466 U.S. 668, 687
although the trial court did not provide a (1984)). To establish deficient performance,
limiting instruction during or directly after the petitioner must show that “counsel’s
Pottur’s testimony, it did provide a limiting representation fell below an objective standard
instruction following Anthony Rich’s of reasonableness.” Strickland, 466 U.S. at
testimony and, most importantly, again 688. The Second Circuit has recognized,
provided such instruction in its charge to the however, that “[u|nder Strickland, there is a
jury before deliberations. (See A. 340-41, 801, ‘strong presumption that counsel’s conduct
803-05.) Second, there was overwhelming falls within the wide range of reasonable
evidence of petitioner’s guilt established by professional assistance.’” Palacios v. Burge,
admissible testimony from multiple witnesses 589 F.3d 556, 561 (2d Cir. 2009) (quoting
and other evidence such that the passing Strickland, 466 U.S. at 689). To establish
references to the prior statements of these two prejudice, the petitioner “must show that there
witnesses could not possibly have deprived is a reasonable probability that, but for
petitioner of a fundamentally fair trial or counsel’s unprofessional errors, the result of
affected the outcome of the case. In sum, any the proceeding would have been different.”
alleged error in the admission of prior Strickland, 466 U.S. at 694.
statements under Section 60.35 does not wa
warrant habeas telicf. The performance of petitioner's counsel
was not deficient based upon his failure to
* * * object to the use of impeachment evidence
et oo: . . during summation. Evidence that the “gun
Petitione rs ineffective assistance of jammed” and that petitioner helped McKenzie
counsel claim based upon his lawyer s failure with unjamming the gun was properly admitted
to object to the use of such impeachment into evidence through the testimony of
testimony during summation likewise lacks Anthony Rich, who witnessed the events
merit. In order to demonstrate a Sixth firsthand. (See A. 309-10 (testifying that
5 Although the Court assumes error for purposes of Similarly, Anthony Rich testified that there was a
this habeas petition, the Court notes that it is far tussle with the gun where petitioner and McKenzie
from clear that the challenged questioning was a “pullfed} the gun back and forth” until it
violation of state law under Section 60.35, In other unjammed, which was inconsistent with his prior
words, it appears that the State was properly statement to police that petitioner “grabbed the gun
permitted to impeach both Pottur and Anthony and un-jammed it” (A. 328-30)}—suggesting that
Rich with their previously signed police statements petitioner cleared the jam on his own. Since the
because their trial testimony “tend[ed] to disprove testimony in question directly addressed the
the [State’s] position.” See People v. Berry, 27 State’s theory of the accessorial liability—a key
N.Y.3d 10, 17 (2016) (internal quotation marks issue at trial—any testimony negating petitioner’s
omitted), Pottur testified that he assumed the gun participation in the handling of the gun was
jammed, which was inconsistent with his prior adverse to the State’s case and could be impeached
statement to police that the gun in fact jammed. with prior statements.
15

McKenzie said “sh*t the gun jammed” and that 2. Missing Witness Charge
the wanback oath” ane □□ vn Petitioner next argues that habeas relief is
of it un-jamming”).) In addition, two appropriate because the trial court did not
additional witnesses—Timothy Rich and his instruct the jury that it could draw an adverse
girlfriend—each testified that, following the inference from the State 8 failure to call_co-
shooting, petitioner stated that he “un- defendant McKenzie as a witness a trial. (ECF
jammed” the gun for McKenzie. (See A. 348, No. | at 6.) The Court concludes, however,
382-83.) Moreover, a third witness, Wilfred that petitioner's claim does not faise a federal
Stevens, testified that, in the days following the constitutional issue that is cognizable on
shooting, petitioner stated that he was habeas review.
“involved in a shooting” and asked, “[Hjow “Whether a missing witness charge should
long does it take for gun powder to come off be given lies in the sound discretion of the trial
your hands?” (A. 430-31.) Therefore, any court.” Reid v. Senkowski, 961 F.2d 374, 377
reference to Pottur’s —_ impeachment (2d Cir. 1992) (quoting United States v. Torres,
testimony—i.e., that he previously told the 845 F.2d 1165, 1170-71 (2d Cir. 1988)); see
police that the “gun jammed” even though he also People v Macana, 84 N.Y.2d 173, 179-80
did not see the events (A. 283-84)—was (1994). The Second Circuit has explained that,
proper. “Iblecause we recognize that an aura of
And, importantly, the State did not use gamesmanship . frequently accompanies
Anthony Rich’s previous police statement requests for missing witness charges, we afford
that petitioner “grabbed the gun and un- [trial] judges considerable discretion in
jammed it” (A. 328)—during summation. deciding when they should and should not be
Instead, the State properly used Anthony given. United States Gaskin, 364 F3 d 438,
Rich’s statement that there was a tussle for the 463 (2d Cir. 2004) (citation and internal
gun until he “heard the snap of it un-jamming” quotation marks omitted). To obtain a missing
(A. 309, 758-59). It therefore was not a charge under New York law, th © Feu esting
deficient performance by petitioner’s counsel party must establish that: (1) the witness □
to fail to object to the use of such admissible knowledge [is] material to the trial”; (2) the
testimony during the State’s summation. witness [is] expected to give noncumulative
testimony favorable to the party against whom
In any event, as noted above, the Second the charge is sought”; and (3) “the witness [is]
Department correctly held that, to the extent available to that party.” People v. Savinen, 100
petitioner’s contentions have any merit, any N.Y.2d 192, 197 (2003). The burden is upon
error was harmless, as there was no significant the party seeking the charge to prove that the
probability that the error contributed to witness is not only knowledgeable about a
defendant’s conviction in light of the material issue, but also that the witness would
overwhelming evidence of his guilt. (ECF No. be expected to testify favorably for the party
11-2 at 131.) Accordingly, petitioner’s claim not calling the witness and that the witness’
regarding the impeachment evidence fails on testimony would be non-cumulative. See
the merits. People v Gonzalez, 68 N.Y.2d 424, 427 (1986).
In New York, the State’s “failure to call a
witness will allow the jury to infer that the
witness would contradict the testimony of the
16

[State’s] other witness(es) and corroborate the 42 F. App’x 488, 491-92 (2d Cir. 2002)
version of the defendant.” Savinon, 100 (finding testifying witness and missing witness
N.Y.2d at 197 n.2. (alterations and internal were together throughout duration of the crime,
quotation marks omitted). and missing witness therefore would have
Moreover. as it relates to habeas review added no new information). Petitioner presents
. ae . , no evidence that McKenzie would have
the failure to provide a MISSINE witness charge testified to a version of the shooting that was
in accordance with New York law is a matter materially different than the version provided
of state law for which habeas . relief is by the other witnesses. Thus, petitioner failed
unavailable. See, e.g., Kirkby v. Filion, 644 F. to demonstrate that the Second Department
Supp. 2d 299, 307 (W.D.N.¥.2009) (“Kirkby’s erred in concluding that the trial court did not
missing witness charge claim raises only an abuse its discretion in declining to give missing
issue of state law that cannot justify federal witness charge. See Gaskin, 364 F.3d at 463
habeas relief. Instead, on habeas TeVvIeW > the (quoting United States v. Torres, 845 F.2d at
Court may consider only whether the failure to 1170-71); see also Reid, 961 F.2d at 377.
provide a missing witness charge violated
petitioner’s federal constitutional rights. “Like More importantly, even if the failure to
the failure to give any other jury instruction, give a missing witness instruction violated
the failure to issue a missing witness New York law in this case, there is no basis to
instruction does not raise a constitutional issue conclude that such error was of a constitutional
and cannot serve as the basis for federal habeas magnitude warranting habeas relief. It is
relief unless the failure ‘so infected the entire entirely speculative to suggest that the failure
trial that the resulting conviction violated due by the court to give a missing witness charge
process.” Kloskin v. Conway, 501 F. Supp. 2d had any impact on the trial. Indeed, despite at
429, 444 (W.D.N.Y. 2007) (quoting Cupp v. least six sustained objections by the State
Naughten, 414 U.S. 141, 147 (1973)). Finally, during summation, defense counsel repeatedly
“Twlhere, as here, the alleged error is one of argued to the jury the absence of McKenzie
omission, it ‘is less likely to be prejudicial than from the State’s case-in-chief. (A. 704-05,
a misstatement of the law,’ thereby making the 710-11, 725, 734.) Moreover, as noted above,
petitioner’s ‘burden ... especially heavy.” there was overwhelming evidence of
Crews v. Herbert, 586 F. Supp. 2d 108, 114 petitioner’s guilt. In short, the Court cannot
(W.D.N.Y. 2008) (quoting Henderson v. conclude that the failure to give a missing
Kibbe, 431 U.S. 145, 155 (1977)). witness instruction violated petitioner’s federal
tongs oe constitutional rights by “so infect{ing] the
As an initial matter, It Is unclear whether entire trial as to deny [p]etitioner due process.”
the circumstances of petitioner § case even Hernandez v. Lee, No. 10-CV-4667 (JEB),
warranted a missing witness charge. 2014 WL 1407274, at *17 (E.D.N.Y. Apr. 11,
Specifically, based on this Court’s review of 2014); see, e.g., Davis v. Smith, No. 06-CV-
the record, there is no reason to believe that 1389 (IKS), 2009 WL 236506, at *7 (N.D.N.Y.
McKenzie would have given non-cumulative Feb. 2, 2009) (“Even if state law had called for
testimony favorable to petitioner. Anthony the missing witness charge, its absence
Rich and Pottur were present during the certainly did not so infect the entire trial as to
shooting that resulted in the death of Jerry deny Petitioner due process where, as here, the
Armstrong on June 1, 2009—as was prosecutor’s comments during his opening
McKenzie, the shooter. See Davis v. Mantello, statement were equivocal, defense counsel was
17

permitted to comment on the absence of any rational trier of fact could have found the
eye-witness testimony during summation, and essential elements of the crime beyond a
the jury was instructed to limit itself to the reasonable doubt.” Jackson v. Virginia, 443
evidence actually presented.”); Toland vy. U.S. 307, 319 (1979); see also Policano v.
Walsh, No. 04-CV0773 (GLS), 2008 WL Herbert, 507 F.3d 111, 115-16 (2d Cir. 2007)
65583, at *14-15 (N.D.N.Y. Jan. 4, 2008) (stating that “[i]n a challenge to a state criminal
(denying habeas relief where possibility that conviction brought under 28 U.S.C. § 2254...
missing witness would give favorable the applicant is entitled to habeas corpus relief
testimony was “based upon nothing other than if it is found that upon the record evidence
mere conjecture” and stating that “federal adduced at the trial no rational trier of fact
habeas relief cannot be granted upon claims could have found proof of guilt beyond a
that are rooted in speculation”); Brown v. reasonable doubt” (quoting Jackson, 443 U.S.
Spitzer, No. 05 Civ. 1553 (BMC), 2007 WL at 324)); Ponnapula y, Spitzer, 297 F.3d 172,
2406870, at *3 (E.D.N.Y. Aug. 21, 2007) 179 (2d Cir. 2002) (“[W]e review the evidence
(denying habeas relief in part because “failure in the light most favorable to the State and the
to give a missing witness charge will rarely applicant is entitled to habeas corpus relief
support reversal or habeas relief since only if no rational trier of fact could find proof
reviewing courts recognize the aura of of guilt beyond a reasonable doubt based on the
gamesmanship that frequently accompanies evidence adduced at trial.”), A criminal
requests for a missing witness charge as to conviction will stand so long as “a reasonable
which the trial judge will have a surer sense mind ‘might fairly conclude guilt beyond a
than any reviewing court” (citation and internal reasonable doubt.’” United States v. Strauss,
quotation marks omitted)). Accordingly, 999 F.2d 692, 696 (2d Cir. 1993) (quoting
petitioner’s claim as to the missing witness United States v. Mariani, 725 F.2d 862, 865
charge does not provide a basis for habeas (2d Cir. 1984)). Even when “faced with a
relief. record of historical facts that supports
. . . conflicting inferences[,] [a court] must
3. Sufficiency and Weight Of Evidence presume—even if it does not affirmatively
Petitioner also argues that his conviction appear in the record—that the trier of fact
was against the weight and sufficiency of the resolves any such conflicts in favor of the
evidence. (ECF No. 1 at 8.) The Court prosecution, and must defer to that resolution.”
disagrees. Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir.
1994) (quoting Jackson, 443 U.S. at 326).
The law governing habeas relief from a When considering the sufficiency of the
state conviction based on insufficiency of the evidence of a state conviction, “[a] federal
evidence is well established. A petitioner court must look to state law to determine the
“bears a very heavy burden” when challenging elements of the crime.” Quartararo □□
the legal sufficiency of the evidence in an Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999).
application for a writ of habeas corpus.
Einaugler v, Sup. Ct. of the State of N.Y., 109 This Court concludes that there was more
F.3d 836, 840 (2d Cir. 1997) (quoting Quirama than sufficient evidence for the jury to convict
y, Michele, 983 F.2d 12, 14 (2d Cir. 1993)). A petitioner of murder in the second degree in
criminal conviction in state court will not be violation of New York Penal Law § 125.25(2).
reversed if, “after viewing the evidence in the
light most favorable to the prosecution, any
18

In New York, a person is guilty of murder recovered from the body of Jerry Armstrong,
in the second degree when the following were ejected from the same gun, and that an
elements are proven beyond a reasonable unfired cartridge, like the one recovered on the
doubt: “Under circumstances evincing a property, could be ejected from the gun in
depraved indifference to human life, he order to clear a jam. (A. 598-602, 605, 625-
recklessly engages in conduct which creates a 26.)
grave risk of death to another person, and
thereby causes the death of another person.” M oreover, Anthony Rich and Pottur each
N.Y. Penal Law § 125,25(2). testified that McKenzie had permanently
“disabled” his right hand in a childhood
This Court concludes that there was legally accident (A. 242-43, 314), which was
sufficient evidence—both testimonial and corroborated by the officer processing the
physical evidence—to sustain a conviction for arrest, who testified that McKenzie’s right
depraved indifference murder. With respect to hand could not be scanned for fingerprints
the trial testimony, multiple witnesses testified because it could not lie flat during booking.
that petitioner was present at the shooting and (A, 551-54.) The State’s forensic expert also
that petitioner assisted with unjammed the gun testified that it would be “virtually impossible”
midway through the shooting. In particular, to clear a jammed gun with one hand. (A. 625-
Anthony Rich testified that, in the midst of the 26.)
shooting, he heard McKenzie yell “sh*t the .
oun jammed” and then saw petitioner and in sum, there was more than sufficient
McKenzie “pulling the gun back and forth” evidence from which a rational jury could
until he heard another bullet “snap” into the convict petitioner of murder in the second
chamber as the gun “un-jamm[ed].” (A. 309- degree . beyond 4 reasonable doubt,
11, 330-31.) Pottur corroborated Anthony Accordingly, there is no basis for habeas relief
Rich’s testimony, by also placing petitioner at based upon the sufficiency of the evidence.
the scene of the crime and stating that, during kOe Ok
the shooting, he “heard a fuss” and “assum|ed] .
the gun jammed.” (A, 281.) Likewise, The Court also rejects petitioner's claim
Timothy Rich and his girlfriend each testified that the verdict was against the weight of the
that, following the shooting, petitioner evidence. (ECF No. | at 8.) A New York state
admitted to helping unjam the gun. (A. 348, appellate court may reverse or modify a
382-83.) Similarly, Wilfred Stevens testified conviction if the court determines that the
that petitioner admitted he was “involved in a jury’s verdict “was, in whole or in part, against
shooting” and that he asked Stevens, “[H]ow the weight of the evidence.” N.Y. Crim. Proc.
long does it take for gun powder to come off Law § 470.15(5). By way of contrast to a
your hand?” (A. 430-31.) sufficiency-of-the-evidence claim, the state
court considering the weight of the evidence
There was also ample physical evidence to has the power to set aside a guilty verdict
corroborate the testimonial evidence. The where it determines that the evidence against
police recovered ten shell casings and one the defendant is not credible. See People v.
unfired cartridge from near the property at 119 Bleakley, 69 N.Y.2d 490, 495 (1987); see also
Irving Avenue. (A. 479-83, 597-98.) The Hatcher v. Heath, No. 10-CV-782 (JG), 2011
State’s forensic expert testified that all of the WL 4710854, at *8 (E.D.N.Y. Oct. 4, 2011).
bullets and casings, including the bullet “The argument that the jury’s verdict was
19

contrary to the weight of the evidence, It is well established that prosecutors have
however, does not raise a question of federal a clear and unconditional duty to disclose all
due process, and is not cognizable on a habeas material, exculpatory evidence to the defense.
petition.” Hatcher, 2011 WL 4710854, at *8 See Brady, 373 U.S. at 87. “This duty exists
(citing Young v. Abrams, 698 F.2d 131, 135 whether or not the defense requests
(2d Cir. 1983)). exculpatory evidence.” Lewis v. Conn.
. OF. ir.
In any event, the juny verdict was not 3015 (citing United States» Bagley, 473 U.S
against the weight of evidence. Petitioner only 667, 681-82 (1985); see also Giglio v United
that the testi f Wilfred St ; °
ot ee dible (ECE No. i tg ) However, States, 405 U.S. 150, 154-55 (1972) (applying
‘thout th 4 Wilf dst ° Brady to impeachment evidence). In order to
ce miu einony of Wied Seve genase Bray natn, fede
, t: (1
evidence that petitioner, acting in concert with willfully : { wu vvtently aan vvoncased
evinced depr aed mnailierence to evidence; (2) the evidence at issue is favorable
le Ww he Tee h ess ve + fe to the defendant; and (3) the failure to disclose
8 ooine at on fh ob uple Pp 4 the this evidence resulted in prejudice.” United
je one eee ey cnet Now States v. Coppa, 267 F.3d 132, 140 (2d Cir.
Von iL, Ros oe >) violation of New 2001) (citing Strickler v. Greene, 527 U.S.
ork Penal Law § 125.25(2). 263, 281-82 (1999)).
4. Brady Claim As an initial matter, the State does not
Petitioner also argues that he is entitled to dispute the first two prongs of Br ady—i.e.,
habeas relief because the State failed to that Timothy Rich’s informant status
disclose that Timothy Rich was a police constituted Brady material—but argues that
informant prior to the shooting and at the time petitioner was not prejudiced by the
of his trial testimony in violation of Brady v. nondisclosure. (ECF No, 10-1 at 28-31.) The
Maryland, 373 U.S. 83 (£963). (ECF No. 1 at Court therefore only addresses whether
9,) The court denied the post-trial motion on petitioner was prejudiced by the State’s failure
this ground, concluding that the State should to disclose the impeachment evidence.
have disclosed that Timothy Rich was working “To establish prejudice, a plaintiff must
detectives knew oboe his status an show that the evidence was material.” Lewis,
. . 790 F.3d at 124. “The touchstone of
informant shooting (A Tie) bot that ther materiality is a reasonable probability of a
was no “reasonable “probability” that the different result[.]” Zeka v. Portuondo, 257
. 104 ir, 2 ti
outcome of the trial would have been different sanitted) (quot n ve an nit, y ee
had the information been disclosed to defense eThe amen ie net
counsel (A. 1168-69) The Second 419, 434 (1995)). “The question is not
Department agreed that there was ho whether the defendant would more likely than
dj ‘ot with th
reasonable probability that such nondisclosure ne pave received a auteren t verdiet with □□
area the outcome of the trial. oe No. II- received a fair trial, understood as a trial
a -) This Court agrees as weil. resulting in a verdict worthy of confidence. A
‘reasonable probability’ of a different result is
20

accordingly shown when the government’s any basis for habeas relief under 28 U.S.C.
evidentiary suppression ‘undermines § 2254. His petition for a writ of habeas
confidence in the outcome of the trial.’” corpus is therefore denied in its entirety.
Kyles, 514 U.S. at 434 (quoting Bagley, 473 Because petitioner has failed to make a
US. at 678). substantial showing of a denial of a
Here, given the overwhelming evidence of one kati al eh ne
petitioner’s guilt; the State’s failure to disclose 622. 53(0) Ina d dition the Co urt certi fies
he mpeachnet evden: regning Timothy pra to 38 USC, $1910) ht any
undermine confidence in the outcome of the appeal from this Order would not be taken m
trial. As noted in detail above, multiple good a 27 nerehore, in forma PaUP □□
witnesses testified that petitioner was involved See Coppedge » □□ 4 States, ° SOUS. "38,
in the shooting and assisted—either jointly or 444-45 (1962). The Clerk of the Court shall
jammed. (See A. ne me 330 phen it enter judgment accordingly and close this
382-83, 430-31.) There was also substantial case.
physical evidence used by the State to support
the testimony of these witnesses. (See A. 479-
83, 597-602, 605, 625-26.) And, as the State SO ORDERED.
notes, Timothy Rich mostly provided IsiJoseph F. Bianco
background testimony regarding the events
leading up to the shooting, which were IOSEPHT. BIANCO
corroborated by other witnesses and J SEPH F. BIANCO
uncontested, See Strickler, 527 U.S. at 293 United States Circuit Judge
(explaining that the existence of corroborating (sitting by designation)
evidence lessened the materiality of
undisclosed impeachment __ evidence). Dated: August 9, 2021
Moreover, Timothy Rich was not present at Central Islip, New York
the shooting and, with respect to the elements
of the crime, only testified that, following the □ □ *
shooting, petitioner stated that he had “un- Petitioner is proceeding pro se. Respondent is
jammed” the gun. (A. 382-83.) Thus, even if represented by Caren C. Manzello, Assistant
Timothy Rich had been effectively impeached District Attorney, for Timothy Sini, District
(or had not testified at all), there is no basis Attomey of Suffolk County, 200 Center Drive,
conclude that the outcome would have been Riverhead, New York, 11901.
different given the overwhelming evidence
established through the other witnesses and
physical evidence. Accordingly, petitioner’s
claim for habeas relief on the basis of withheld
Brady material is without merit.
VI. CONCLUSION
For the reasons set forth above, the Court
concludes that petitioner failed to demonstrate
21

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306699. Public record. Not legal advice.