# Haynes v. Attorney General of New York

> District Court, E.D. New York · February 15, 2023

URL: https://www.frixlaw.com/law-library/cases/10309191

## Case

- **Court:** District Court, E.D. New York
- **Decided:** February 15, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10309191

## How later opinions describe it (automated extraction)

- recognizing exception to procedural bar rule for Fifth Amendment claims
- holding that district court's error in giving jury instruction on conscious avoidance theory of criminal liability was harmless error given "the lack of evidence of conscious avoidance, coupled with the evidence of actual knowledge"

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MARCELL HAYNES, :

Petitioner, : MEMORANDUM DECISION

- v - : 19-CV-1814 (DC)

ATTORNEY GENERAL OF NEW YORK, :

Respondent. :

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APPEARANCES: MARCELL HAYNES
Petitioner Pro Se
DIN 16A3060
Eastern NY Correctional Facility
P.O. Box 338
Napanoch, NY 12458

ANNE T. DONNELLY, Esq.
District Attorney
Nassau County
By: Mary Faldich, Esq.
Assistant District Attorney
262 Old Country Road
Mineola, NY 11501
Attorney for Respondent

CHIN, Circuit Judge:
On July 11, 2016, following a jury trial, Marcell Haynes was convicted in
the Supreme Court of the State of New York, Nassau County (Delligatti, J.), of second-
degree criminal possession of a weapon and criminal possession of a firearm. Haynes
was sentenced, as a second violent felony offender, to an aggregate term of ten years'
imprisonment and seven years of post-release supervision. See Dkt. 5 at 5-6. His

convictions were affirmed by the Appellate Division, Second Department, People v.
Haynes, 77 N.Y.S.3d 640 (2d Dep't 2018) ("Haynes I"), and the New York Court of
Appeals denied leave to appeal, People v. Haynes, 115 N.E.3d 635 (N.Y. 2018) (DiFiore, J.)

("Haynes II").
On March 29, 2019, Haynes petitioned this Court for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. See Dkt. 1. Represented by the Nassau County

District Attorney's Office, respondent Attorney General of the State of New York
opposed the petition on May 24, 2019, and Haynes filed his reply on August 22, 2019.
See Dkt. 5, 11. On February 3, 2023, the case was reassigned to the undersigned.
For the reasons set forth below, Haynes's petition is denied.

BACKGROUND
I. The Facts
The evidence at trial established the following:

On November 13, 2014, plainclothes police officers Nicholas Collins and
Carl Feil were patrolling the Inwood area of Nassau County in an unmarked car when
they observed a vehicle driven by Joshua Lindsay fail to signal while making a turn,
and noticed that neither Lindsay nor Haynes wore a seatbelt. Collins and Feil stopped

the vehicle at approximately 3:42 p.m., approached the car, and asked through the open
window why Haynes, sitting in the passenger seat, was not wearing his seatbelt. When
Haynes attempted to secure his seatbelt by reaching with his left arm across his body,

his jacket moved, allowing Collins to observe the brown handle and hammer of a
handgun located in the center-right of Haynes's waistband. Collins then ordered
Haynes out of the vehicle, secured the .38 caliber revolver, placed him in handcuffs, and

transported him to the Fourth Detective Squad. Dkt. 8-1 at 6-14; 18-19.
There, Detective Rhubens Toussaint examined the recovered gun and
determined that it was loaded. At approximately 6:24 p.m., Detective Toussaint met

Haynes in an interview room, where Haynes was seated on a bench with one hand
cuffed to the wall. Id. at 30-34. Detective Toussaint read from a department-issued
Voluntary Disclosure Form, on which he wrote Haynes's name and which stated:
Before asking you any questions you should understand you
have the right to remain silent and that any statements you
make may be used against you in court. Also, you have the
right to talk to a lawyer before answering any questions or
have a lawyer present at any time. If you cannot afford to
hire a lawyer, one will be furnished you, if you wish, and
you have the right to keep silent until you have had a chance
to talk to a lawyer. Do you understand?

Id. at 34; Dkt. 6-1 at 22. Haynes responded "yes," and Detective Toussaint instructed
him to write "yes" and initial the form. Detective Toussaint then asked, "Now that I
have advised you of your rights, are you willing to answer any questions?" Haynes
stated, "No. I'm not going to answer any questions. You guys got me. I had the gun on
me. I was on my way home to Far Rockaway. I use it for protection. That's all I'm
going to say." Dkt. 8-1 at 34-35. Detective Toussaint instructed Haynes to write "no"
and initial the form and he memorialized Haynes's statement in his case file. Id. at 38.

II. Procedural History
A. State Court Proceedings
On April 14, 2015, the grand jury indicted Haynes on one count each of

criminal possession of a weapon in the second and fourth degrees and criminal
possession of a firearm, in violation of N.Y. Penal Law §§ 265.03(3), 265.01(1),
265.01-b(1), as well as two counts of criminal possession of a weapon in the third

degree, in violation of N.Y. Penal Law §§ 265.02(1), (5)(ii). See Dkt. 6-1 at 23-25.
Haynes moved before trial to suppress the gun and his statement to
Detective Toussaint. Dkt. 7 at 8-11. The trial court held an evidentiary hearing, during
which the People presented the testimony of Officer Collins and Detective Toussaint.

Haynes presented no evidence, but argued that his statement to Detective Toussaint
was made prior to the reading of Miranda rights, as the Voluntary Disclosure Form
reflected the statement was made at 5:00 p.m., but Detective Toussaint testified that he

read from the Voluntary Disclosure Form at 6:24 p.m. Dkt. 8-1 at 37. Haynes did not
challenge the adequacy of the Miranda warnings themselves. The People argued that
the 5:00 p.m. time noted on the Voluntary Disclosure Form was incorrect; Haynes's
statement was indeed made after Detective Toussaint read the Miranda warnings; and,
irrespective of timing, the statement was not the result of interrogation, but instead was
spontaneously uttered by Haynes, and was thus admissible. Id. at 42-43.

The trial court denied Haynes's motion to suppress, concluding that the
gun was admissible because Officer Collins observed it in plain view, and that the
statement was admissible because Haynes was "duly advised" of his constitutional

rights and, in any event, the statement did not implicate Miranda because it was not the
product of a custodial interrogation. Dkt. 8-4 at 12; 9-1 at 8.
At trial, Officer Collins testified about the car stop, his observation of the

revolver in Haynes's waistband, Haynes's arrest for possession of the handgun, and his
seizure of the revolver. Dkt. 7 at 12-14; Dkt. 8-1 at 7-14. Detective Toussaint testified
about the Voluntary Disclosure Form and Haynes's statement admitting that he "had
the gun on" him. Dkt. 7 at 14-15; Dkt. 8-1 at 34-35. The People also presented expert

witness testimony: Detective Steven Mansbart, an expert in latent fingerprint
identification, testified that he analyzed the recovered gun and found no latent
fingerprints that could be linked to any individual, including Haynes. Dkt. 9-1 at 10-12,

17-20. Daniel Arana, a forensic geneticist and an expert in DNA testing, testified that he
did not perform any DNA testing on the gun because the gun was recovered from a
known individual, i.e., Haynes, as opposed to being left at the scene. Id. at 22-25.
Sergeant Wyndell Hurtt, an expert in firearms operability, tested the recovered weapon

and found it operable. Id. at 28-33.
In his defense, Haynes introduced a document from the Nassau County
Sherriff's Department, which indicated what Haynes was wearing on the day of his

arrest. Haynes did not testify. Dkt. 9-1 at 33-34.
Prior to charging the jury, defense counsel asked the trial court to avoid
defining possession as "dominion and control because that would imply that [Haynes]

could be found guilty if there was constructive possession," despite the People pursuing
only an actual possession theory of criminal liability. Dkt. 9-2 at 2-3. The trial court
rejected this application but permitted defense counsel to pursue the point in

summation. Id. Indeed, defense counsel stressed in summation that the People failed to
prove beyond a reasonable doubt that Haynes physically possessed the gun. Id. at 9-11.
In its charge, the trial court instructed the jury that it could not draw any
adverse inference from the fact that Haynes did not testify. Id. at 38 ("I charge you that

the fact that he did not testify is not a factor you may draw any inference unfavorable to
the defendant."). The trial court submitted to the jury second- and third-degree
criminal possession of a weapon and criminal possession of a firearm. Id. at 3. To

convict Haynes of criminal possession of a weapon in the second and third degrees, the
trial court instructed the jury that it had to find, inter alia, that he had "physical
possession or otherwise exercise[d] dominion or control over" a loaded firearm. Dkt. 9-
3 at 4-5, 6-7. Similarly, to convict for criminal possession of a firearm, the jury was

instructed that it had to find that Haynes, inter alia, had "physical possession or
otherwise exercise[d] dominion or control over" an operable firearm. Id. at 5, 20-21.
Defense counsel took no exception to the jury charge. Id. at 11.

During deliberations, the jury requested, inter alia, the legal definition of
"possession." Id. at 14. The trial court re-read the jury instructions for the three charged
counts, including the previously-read definition of "possession." Id. at 16-21. Defense

counsel stated on the record that the Court's response to the jury "was proper." Id. at 22.
The jury continued to deliberate, until it requested clarification on the legal definition of
"dominion and control." Id. at 23. The trial court mostly adopted defense counsel's

proposed instruction but rejected as unnecessary an additional clarification that the jury
may only consider physical possession. Id. at 28-29. The trial court instructed the jury:
The People's theory of this case is that the defendant had
actual possession of the gun. The dominion and control
means did the defendant exercise a level of control over the
area in which the property was found sufficient to give him
the ability to use or dispose of the property, all right? That
should answer your question as best I can.

Id. at 29-30. Defense counsel did not object to the court's instruction. After additional
deliberations, the jury returned a verdict convicting Haynes of second-degree criminal
possession of a weapon and criminal possession of a firearm. Id. at 31-33.
On March 23, 2016, Haynes, through counsel, moved to set aside the
verdict. Haynes argued that the trial court's instruction that "possession" means "actual
possession or . . . [exercising] 'dominion or control'" allowed the jury to convict him on a
theory of constructive possession, which was contrary to the People's actual possession
theory and impermissibly amended the indictment. Dkt. 6-1 at 33-39. The trial court
denied the motion, concluding the instructions were proper. Dkt. 7 at 21.

On April 1, 2016, Haynes was sentenced to an aggregate ten-year term of
imprisonment and seven years' post-release supervision. Dkt. 6-1 at 14-15. On July 11,
2016, Haynes was re-sentenced as a second violent felony offender based on his April

19, 2012 conviction for attempted second-degree criminal possession of a weapon. His
terms of imprisonment and post-release supervision were unaltered. Dkt. 6-3 at 45-46.
Represented by counsel, Haynes appealed to the Appellate Division,

Second Department. Haynes raised four claims: (1) the trial court impermissibly
suggested to the jury that it could draw an unfavorable inference against him from his
decision not to testify at trial; (2) the trial court's jury instructions on the possession
element of the crimes charged impermissibly altered the People's theory of criminal

liability from actual to constructive possession; (3) the trial court failed to inquire if his
decision not to testify was voluntary and intelligent; and (4) the Miranda warnings
provided to him were "incomplete and confusing." Dkt. 6 at 7.

By decision dated July 25, 2018, the Appellate Division affirmed Haynes's
conviction. See Haynes I, 77 N.Y.S.3d at 641. The Appellate Division held that all four of
Haynes's claims were unpreserved for appellate review, id. (citing, inter alia, N.Y. Crim.
Proc. Law § 470.05(2) (contemporaneous objection rule)), and were, in any event,

without merit, id. The Appellate Division elaborated only on the merits of Haynes's
"contention that the court should have inquired whether his failure to testify was
intelligent and voluntary," stating that a "trial court does not have a general obligation

to sua sponte ascertain if the defendant's failure to testify was a voluntary and
intelligent waiver of his right." Id. (citation omitted) (collecting New York cases).
Leave to appeal to the New York Court of Appeals was denied on

November 21, 2018. See Haynes II, 115 N.E.3d at 635.
B. Proceedings Below
Haynes filed this habeas petition on March 29, 2019, raising the same four

claims raised before the Appellate Division. See Dkt. 1 at 16.
DISCUSSION
I. Federal Review of State Convictions
A federal court may not grant a habeas petition on a claim that was

adjudicated on the merits in state court unless that adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that 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); see Harrington v. Richter, 562 U.S. 86, 97-98 (2011); Waiters v. Lee, 857
F.3d 466, 477 (2d Cir. 2017). Hence, when a claim is adjudicated on the merits, the state
court's decision must be accorded "substantial deference." Fischer v. Smith, 780 F.3d 556,
560 (2d Cir. 2015). "A federal court may reverse a state court ruling only where it was
'so lacking in justification that there was . . . [no] possibility for fairminded

disagreement.'" Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012) (per curiam) (quoting
Harrington, 562 U.S. at 103); Wetzel v. Lambert, 565 U.S. 520, 524 (2012) (per curiam).
Generally, "federal courts will not review questions of federal law

presented in a habeas petition when the state court's decision rests upon a state-law
ground that is independent of the federal question and adequate to support the
judgment." Cone v. Bell, 556 U.S. 449, 465 (2009) (citation omitted). That is, federal

courts may not review a state court ruling that "fairly appear[s] to rest primarily on
state procedural law," so long as the procedural bar is "adequate to support the
judgment." Murden v. Artuz, 497 F.3d 178, 191-92 (2d Cir. 2007) (citations omitted). The
Second Circuit has "held repeatedly that the contemporaneous objection rule" -- barring

state appellate courts from reviewing arguments presented for the first time on appeal
pursuant to N.Y. Crim. Proc. Law § 470.05(2) -- "is a firmly established and regularly
followed New York procedural rule." Downs v. Lape, 657 F.3d 97, 103, 104 (2d Cir. 2011)

(citations omitted). Hence, the Circuit has affirmed the denial of habeas relief based on
the Appellate Division's ruling that the failure of a petitioner to object at trial rendered a
claim unpreserved for appellate review. See, e.g., Garcia v. Lewis, 188 F.3d 71, 81-82 (2d
Cir. 1999) (affirming denial of habeas relief where petitioner's trial counsel failed to

bring to trial court's attention a claim that he later attempted to advance on appeal).
There is one exception to this general rule: A defendant's failure to object
to a trial court's comments in violation of his Fifth Amendment rights does not

automatically impose a procedural bar precluding federal habeas review of the
constitutional claim. See Hawkins v. LeFevre, 758 F.2d 866, 871 (2d Cir. 1985) ("Because
New York courts refuse to enforce the contemporaneous-objection requirement where a

criminal defendant seeks to exercise his privilege against self-incrimination, we
conclude that [petitioner] is not procedurally barred from raising his constitutional
claim." (citation omitted)). Rather, "[i]n the case of a charge error implicating

defendant's right against self-incrimination, the exception to the preservation
requirement may be invoked only where the language of the charge expressly or at least
unambiguously conveys to the jury that the defendant should have testified." People v.
Autry, 552 N.E.2d 156, 157 (N.Y. 1990) (citations omitted).

But, aside from the Autry exception, if a claim is procedurally barred
pursuant to an independent and adequate state rule, a federal habeas court may not
review it on the merits, unless the petitioner demonstrates (1) "cause for the default and

actual prejudice as a result of the alleged violation of federal law," or (2) "that failure to
consider the claims will result in a fundamental miscarriage of justice." Coleman v.
Thompson, 501 U.S. 722, 750 (1991).
Cause may be demonstrated with "a showing that the factual or legal basis

for a claim was not reasonably available to counsel, . . . or that 'some interference by
officials' made compliance impracticable, . . . [or that] the procedural default is the
result of ineffective assistance of counsel." Murray v. Carrier, 477 U.S. 478, 488 (1986)

(citations omitted). Prejudice can be demonstrated by showing "that the errors worked
to [the defendant's] actual and substantial disadvantage, infecting his entire trial with
error of constitutional dimensions." Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003)

(citation and internal quotation marks omitted).
And, in the event of a fundamental miscarriage of justice, "'where a
constitutional violation has probably resulted in the conviction of one who is actually

innocent,' the [Supreme] Court has recognized that 'a federal habeas court may grant
the writ even in the absence of a showing of cause for the procedural default.'" Dixon v.
Miller, 293 F.3d 74, 81 (2d Cir. 2002) (quoting Murray, 477 U.S. at 496). "To establish
actual innocence, petitioner must demonstrate that 'in light of all the evidence,' 'it is

more likely than not that no reasonable juror would have convicted him.'" Id. (quoting
Bousley v. United States, 523 U.S. 614, 623 (1998)).
II. Analysis

Haynes raises four claims in his habeas petition: (1) the trial court
impermissibly suggested to the jury that it could draw an adverse inference against him
from his decision not to testify at trial; (2) the trial court's jury instructions on the
possession element of the crimes charged impermissibly altered the People's theory of

criminal liability from actual to constructive possession; (3) the trial court failed to
inquire if Haynes's decision not to testify was voluntary and intelligent; and (4) the
Miranda warnings provided to Haynes were inadequate, thereby rendering his post-

arrest statement inadmissible. See Dkt. 1 at 16. None of Haynes's claims provide a basis
for habeas relief -- all four are procedurally defaulted and, in any event, meritless.
A. Procedural Default

The Appellate Division determined that each of Haynes's four claims was
"unpreserved for appellate review." Haynes I, 77 N.Y.S.3d at 641 (citing Crim. Proc. Law
§ 470.05[2] and New York cases); see also People v. Padro, 551 N.E.2d 1233, 1233 (N.Y.

1990) ("A post verdict motion . . . is not, by itself, ordinarily sufficient to preserve a
'question of law' within the meaning of [Crim. Proc. Law] 470.05(2) . . . for review in this
Court."). This determination constitutes an independent and adequate state ground for
the Appellate Division's decision as to all of Haynes's claims, see, e.g., Downs, 657 F.3d at

103, 104; Garcia, 188 F.3d at 81-82, except for his claim, discussed further below, that the
trial court's jury instruction as to his decision not to testify violated his Fifth
Amendment right against self-incrimination, see Autry, 552 N.E.2d at 157 (recognizing

exception to procedural bar rule for Fifth Amendment claims). Thus, Haynes is not
entitled to habeas review for three of his four claims because of his procedural default,
even though the Appellate Division held that all of Haynes's claims were "in any event"
without merit. See Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005) ("Thus, even when a
state court says that a claim is 'not preserved for appellate review' but then rules 'in any
event' on the merits, such a claim is procedurally defaulted.").

I address first whether Haynes's Fifth Amendment claims satisfies the
Autry exception to the state procedural bar rule, and then whether Haynes can
overcome the procedural bar with respect to his defaulted habeas claims.

1. The Autry Exception
Haynes argues that his due process rights were violated because the trial
court instructed the jury that it may draw an adverse inference from his decision not to
testify. See Dkt. 11 at 1-4. As discussed above, the contemporaneous objection rule,

N.Y. Crim. Proc. Law § 470.05(2), would usually bar federal habeas review of a claim
not objected to before the trial court. See, e.g., Downs, 657 F.3d at 103, 104; Garcia, 188
F.3d at 81-82. But Haynes's failure to object to the trial court's instruction regarding his

decision not to testify does not preclude him from seeking federal habeas review of his
Fifth Amendment claim, so long as "the language of the charge expressly or at least
unambiguously convey[ed] to the jury that [he] should have testified." Autry, 552
N.E.2d at 157; Hawkins, 758 F.2d at 871. The trial court's charge did not do so here.

Under New York law, "[u]pon request of a defendant who did not testify
in his own behalf, but not otherwise, the court must state that the fact that he did not
testify is not a factor from which any inference unfavorable to the defendant may be

drawn." N.Y. Crim. Proc. Law § 300.10(2) (McKinney); see also New York Criminal Jury
Instructions, CJI2d [N.Y.] Charges of General Applicability -- "Defendant Not
Testifying"). At Haynes's request, the trial court provided an instruction to the jury that

was nearly identical to the language in the statute and pattern jury instruction: "The
defendant did not testify in this case. I charge you that the fact that he did not testify is
not a factor you may draw any inference unfavorable to the defendant." Dkt. 9-2 at 38.

The only difference between the statute or pattern jury instruction and the trial court's
instruction is that the trial court, without explanation and seemingly inadvertently,
omitted the phrase "from which" between "a factor" and "you may draw any inference."

Although this omission hindered the clarity of the instruction, it did not
"expressly" or "unambiguously" convey that Haynes "should have testified." Autry, 552
N.E.2d at 157. Unlike jury charges previously deemed prejudicial -- such as a trial
court's statement that a defendant's out-of-court denial of guilt did "not take the place of

sworn testimony from [the] witness chair," People v. McLucas, 204 N.E.2d 846, 848 (N.Y.
1965), or a trial court's charge that "it is [the defendant's] judgment that the situation is
such that [he] elect[s] not to take the witness stand," People v. Reid, 522 N.Y.S.2d 657, 659

(2d Dep't 1987) -- the trial court here made no clear suggestion that Haynes should have
testified. Indeed, "[t]he charge in substance was consistent with the intent of the statute,
was not so lengthy as to prejudicially draw the jury's attention to the issue, and did not
imply that the defendant should have testified or that his decision not to testify was a

strategic one." People v. Maples, 715 N.Y.S.2d 317, 317 (2d Dep't 2000).
Accordingly, because Haynes fails to satisfy the Autry exception, Haynes's
Fifth Amendment claim is subject to the general rule -- like the other three claims

Haynes raises in his petition -- that a failure to object at the trial court is an independent
and adequate state procedural rule that bars federal habeas review of that claim.
2. Overcoming the State Procedural Bar Rule
Assessing Haynes's claims does not end here, however. Haynes may

overcome the procedural bar to his four habeas claims if he demonstrates either cause
for the default and actual prejudice, or that failure to consider the claims will result in a
"fundamental miscarriage of justice." Coleman, 501 U.S. at 750.

Haynes implies that his procedural default was the result of ineffective
assistance of counsel. See Dkt. 11 at 8 ("There is absolutely no representation on the
record reflecting that defense counsel discussed with the defendant the issue of the

defendant waiving his right to testify[.]"). Haynes, however, did not raise an ineffective
assistance claim in state court, and his failure to do so then precludes him from now
relying on ineffective assistance as the cause for procedural default on his habeas
claims. See Reyes v. Keane, 118 F.3d 136, 140 (2d Cir. 1997) ("[A] petitioner may not bring

an ineffective assistance claim as cause for a default when that ineffective assistance
claim itself is procedurally barred."). Thus, Haynes has failed to show cause.
Nor has Haynes demonstrated that a fundamental miscarriage of justice

would take place if this Court fails to consider his claims; Haynes has not shown that
"in light of all the evidence, it is more likely than not that no reasonable juror would
have convicted him." Dixon, 293 F.3d at 81 (citation and internal marks omitted).

Accordingly, Haynes cannot overcome the procedural bar, and thus, none
of his claims are entitled to habeas review by this Court. Nonetheless, even were
Haynes's claims properly before this Court, all of them lack merit. I address each in

turn.
B. Merits
1. Jury Charge Addressing Haynes's Decision Not to Testify
Haynes's claim that his due process rights were violated because the trial

court instructed the jury that it may draw an adverse inference from his decision not to
testify fails on the merits. The Appellate Division's conclusion that this claim is without
merit is entitled to "substantial deference," Fischer, 780 F.3d at 560, and is certainly a

reasonable application of Federal law, see 28 U.S.C. § 2254(d)(1).
The Supreme Court has held that "the Fifth Amendment, in its direct
application to the Federal Government and in its bearing on the States by reason of the
Fourteenth Amendment, forbids either comment by the prosecution on the accused's

silence or instructions by the court that such silence is evidence of guilt." Griffin v.
California, 380 U.S. 609, 615 (1965). But not all comments regarding a criminal
defendant's failure to testify rise to the level of a constitutional violation. In the case of

either an improper comment by the prosecution or instruction by the court, a court
must consider whether the remark was "so prejudicial that it denied the defendant a
fair, as opposed to a perfect, trial." United States v. Rosa, 11 F.3d 315, 343 (2d Cir. 1993)

(cleaned up). Moreover, "[w]hen we review a claim of an erroneous jury charge, 'a
single instruction to a jury may not be judged in artificial isolation, but must be viewed
in the context of the overall charge.'" Fox v. Mann, 71 F.3d 66, 72 (2d Cir. 1995) (citation

omitted).
Haynes has failed to make the requisite showing of prejudice. The trial
court, at Haynes's request, instructed the jury that it may not draw any adverse

inferences from Haynes's decision not to testify, and its instruction "closely paralleled
the pattern jury charge." People v. McClenos, 100 N.Y.S.3d 758, 760 (3d Dep't 2019) ("In
any event, we perceive no deficiency in an instruction that 'closely paralleled the
pattern jury charge.'" (citation omitted)). Moreover, this instruction to the jury was

presented alongside thorough recitations of the statutory elements of the crimes
charged and the constitutional safeguards for the accused, such as the presumption of
innocence and the People's burden of proof beyond a reasonable doubt. See Dkt. 9-2 at

36-40; Fox, 71 F.3d at 72. And, most importantly, this trial court's instruction in no way
suggested to the jury that Haynes's failure to testify was evidence of his guilt. Indeed,
what Griffin specifically bars are "instructions by the court that [a defendant's] silence is
evidence of guilt," 380 U.S. at 615, and the trial court's instruction here "that the fact that

[Haynes] did not testify is not a factor you may draw any inference unfavorable to
[Haynes]," Dkt. 9-2 at 38, does not come close to the conduct condemned in Griffin.
Although slightly garbled, the clear import of the language was that the jury could not

draw any unfavorable inference from the fact Haynes did not testify. Thus, Haynes
cannot show that the Appellate Division's conclusion that this claim was without merit
is an unreasonable application of Federal law. See 28 U.S.C. § 2254(d)(1).

Accordingly, even if Haynes's claim that the jury charge violated his Fifth
Amendments rights was not procedurally barred, it is meritless, and habeas relief on
this claim must be denied.

2. Jury Charge on the Possession Element of the Crimes
In another challenge to the jury charge, Haynes argues that the trial court
improperly instructed the jury on the possession element of the crimes charged, such
that the jury could find Haynes guilty under a constructive possession theory of

criminal liability, even though the People's theory was based only on actual possession.
Specifically, Haynes argues that by defining "possession" as "physical possession or
otherwise exercise[ing] dominion or control over," Dkt. 9-3 at 5, the trial court
instructed the jury that it could convict Haynes on either a theory of actual or

constructive possession, depriving Haynes of a fair trial, Dkt. 11 at 14.
"A jury charge in a state trial is normally a matter of state law and is not
reviewable on federal habeas corpus absent a showing that the alleged errors were so

serious as to deprive defendant of a federal constitutional right." U.S. ex rel. Smith v.
Montanye, 505 F.2d 1355, 1359 (2d Cir. 1974) (citing Cupp v. Naughten, 414 U.S. 141, 146
(1973) ("Before a federal court may overturn a conviction resulting from a state trial in

which this instruction was used, it must be established not merely that the instruction is
undesirable, erroneous, or even 'universally condemned,' but that it violated some right
which was guaranteed . . . by the Fourteenth Amendment.")). For an erroneous jury

instruction to support a collateral attack on the constitutional validity of a state court
judgment, a petitioner must show that "the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due process." Cupp, 414 U.S. at 147. In

other words, even where error is found in a state trial court's jury instruction, the error
is harmless, unless it results in "actual prejudice" -- that is, unless the error "had
substantial and injurious effect or influence in determining the jury's verdict." Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (citations omitted). A petitioner must prevail

where the trial record is "so evenly balanced that a conscientious judge is in grave doubt
as to the harmlessness of the error." O'Neal v. McAninch, 513 U.S. 432, 437 (1995).
Haynes has not established that the trial court's instruction on

"possession" was erroneous as a matter of state law, let alone an error of constitutional
magnitude. See Cupp, 414 U.S. at 147. A jury charge is generally proper under New
York law when it comports with the pattern jury instructions. See People v. Curran, 32
N.Y.S.3d 309, 312 (2d Dep't 2016) (holding that defendant failed to show he was

prejudiced by the court's charge, which tracked language of the pattern instructions).
Here, during the jury charge, the trial court provided the pattern instructions for
second- and third-degree criminal possession of a weapon and criminal possession of a

firearm, each of which include the definition of "possess" as it appears in N.Y. Penal
Law § 10.00(8). See New York Criminal Jury Instructions, CJI2d [N.Y.] §§ 265.03(3),
265.02(5)(ii), 265.01-b(1); Dkt. 9-3 at 4-5, 9. Thus, because the trial court's instruction

comported both with the pattern jury instruction and the statutory definition of
"possession," it was not erroneous.1
And, even if the trial court did err by instructing the jury on "dominion

and control," such error was harmless because Haynes cannot show that it "had [a]
substantial and injurious effect or influence in determining the jury's verdict." Brecht,
507 U.S. at 637. At trial, the People only argued that Haynes had actual possession of
the gun; the trial court explicitly instructed the jury that the "People's theory of this case

is . . . actual possession," Dkt. 9-3 at 29-30; and ample evidence supported that theory,
including the testimony of Officer Collins that he observed the gun in Haynes's
waistband, Dkt. 8-1 at 11, and the testimony of Detective Toussaint that Haynes

1 Moreover, the definition of "possess" in Penal Law § 10.00(8) "long has been construed as
embracing constructive possession." Nevins v. Giambruno, 596 F. Supp. 2d 728, 738 (W.D.N.Y.
2009) (citations omitted). Even if the People did not request a constructive possession theory of
liability, the indictment gave sufficient notice to Haynes that the possession element of the
charges he faced could be satisfied by proving either actual or constructive possession beyond a
reasonable doubt. "Accordingly, the trial court did not err, at least in federal constitutional
terms, in submitting the constructive possession theory to the jury." Fernandez v. Breslin, No. 00-
CV-7931, 2001 WL 197034, at *2 (S.D.N.Y. Feb. 27, 2001).
confessed he "had the gun on [him]," id. at 34-35. It was defense counsel who
introduced the theory of constructive possession to the jury by arguing both in opening

and summation that the gun belonged to Lindsay, not Haynes, and was found on the
car floor, not in Haynes's waistband. See Dkt. 8-8 at 20-21; Dkt. 9-2 at 14. But no
evidence was presented to the jury in support of this constructive possession theory,

and the jury was properly instructed that the possession element of the crimes charged
includes "physical possession." Dkt. 9-3 at 4-5, 11. Under these circumstances, there is
nothing to suggest the jury convicted Haynes on the unsupported, constructive

possession theory of liability; the jury evidently credited the testimony of the People's
witnesses and not defense counsel's alternative version of the facts.
Accordingly, even if the trial court erred by defining "dominion and
control" for the jury, the record is not evenly balanced and the Court finds itself far from

"grave doubt," O'Neal, 513 U.S. at 437, as to the harmlessness of any error. See United
States v. Taylor, 800 F.3d 701, 709-710 (6th Cir. 2015) (holding that it was harmless error
to give an unsupported constructive-possession instruction along with an adequately

supported actual-possession instruction); cf. United States v. Adeniji, 31 F.3d 58, 63 (2d
Cir. 1994) (holding that district court's error in giving jury instruction on conscious
avoidance theory of criminal liability was harmless error given "the lack of evidence of
conscious avoidance, coupled with the evidence of actual knowledge"). Haynes's

second challenge to the jury charge is also meritless, and habeas relief must be denied.
3. Trial Court's Failure to Sua Sponte Inquire into the
Voluntariness of Haynes's Waiver of His Right to Testify
Nor would Haynes be entitled to habeas relief for his claim that the trial
court failed to sua sponte inquire about whether he knowingly and voluntarily waived

his right to testify. The Appellate Division determined this claim on the merits,
providing that "'[a] trial court does not have a general obligation to sua sponte ascertain
if the defendant's failure to testify was a voluntary and intelligent waiver of his right.'"
Haynes I, 77 N.Y.S.3d at 641 (collecting New York cases). Not only is this determination

entitled to "substantial deference," Fischer, 780 F.3d at 560, but Haynes cannot show that
it involved an unreasonable application of Federal law, see 28 U.S.C. § 2254(d)(1).
There is "no general obligation on the trial court to inform a defendant of

the right to testify and ascertain whether the defendant wishes to waive that right."
Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997) ("Just as the trial judge need not stop a
defendant called by defense counsel to the stand and explain the right not to testify, the
judge need not intervene when counsel announces that the defendant rests and the

defendant has not testified."). However, judicial interjection concerning a defendant's
right to testify may be required in "exceptional, narrowly defined circumstances," such
as "where the trial judge has reason to believe that defense counsel is frustrating the

defendant's desire to testify, where the defendant has expressed his desire to testify to
the court, or where 'there appears to be no rational explanation for the decision' not to
testify.'" Brown, 124 F.3d at 79 n. 2 (first citing United States v. Pennycooke, 65 F.3d 9, 13
(3d Cir. 1995); then citing Ortega v. O'Leary, 843 F.2d 258, 261 (7th Cir. 1988); then citing
United States v. Ortiz, 83 F.3d 1066, 1071 (D.C. Cir. 1996)). When such exceptional

circumstances are not present, it is "inadvisable," although permissible, for a trial judge
to inquire about the voluntariness of a defendant's waiver of his right to testify. Id.
("[J]udicial interference with counsel's strategic decision not to place his client on the

stand 'poses a danger that the judge will appear to encourage the defendant to invoke
or waive this right' even when it is unwise to do so." (citation omitted)).
Haynes's case does not present any of the "exceptional" circumstances that

would trigger the need for judicial interjection. Indeed, the state court record does not
reflect that Haynes ever expressed to the trial court a desire to testify, that he was
prevented from testifying by his counsel or the court, or that he did not personally
decide to waive his right to testify. Thus, the trial judge was not required to inquire sua

sponte whether Haynes's silence at trial was the result of a knowing and voluntary
decision not to testify, and the Appellate Division's conclusion to this effect was a
reasonable application of Federal law. See 28 U.S.C. § 2254(d)(1).

Accordingly, even if this claim provided a basis for habeas relief, it is
without merit and must be denied.
4. Adequacy of the Miranda Warnings
In his final claim for habeas relief, Haynes argues that the Miranda

warnings read to him by Detective Toussaint were "incomplete and confusing, thereby
rendering his statement inadmissible." Dkt. 11 at 10. Even if this claim were entitled to
habeas review, it would be denied on the merits because Haynes cannot show that the

Appellate Division unreasonably applied Federal law when it held that his challenge to
the adequacy of the Miranda warnings was meritless. See 28 U.S.C. § 2254(d)(1).
In fact, the Supreme Court has "never insisted that Miranda warnings be

given in the exact form described in that decision." Duckworth v. Eagan, 492 U.S. 195,
202 (1989); see also California v. Prysock, 453 U.S. 355, 359 (1981) ("This Court has never
indicated that the 'rigidity' of Miranda extends to the precise formulation of the

warnings given a criminal defendant."). Thus, because "no talismanic incantation [i]s
required to satisfy [Miranda's] strictures," Prysock, 453 U.S. at 359, the inquiry is whether
the warnings "reasonably convey to a suspect his rights as required by Miranda,"
Duckworth, 492 U.S. at 203 (citation and internal marks omitted).

In Duckworth, the Supreme Court held that the warnings read to the
defendant "touched all of the bases required by Miranda" where he was informed that
he had the right to remain silent, that anything he said could
be used against him in court, that he had the right to speak
to an attorney before and during questioning, that he had
'this right to the advice and presence of a lawyer even if [he
could] not afford to hire one,' and that he had the 'right to
stop answering at any time until [he] talked to a lawyer.'

492 U.S. at 203. Here, the language Detective Toussaint read from the Voluntary
Disclosure Form similarly informed Haynes of his right to remain silent, his right to talk
to a lawyer before questioning, his right to have a lawyer present at any time, and his
right to have a lawyer appointed for him if he could not afford one. See Dkt. 8-1 at 34.
Thus, the Voluntary Disclosure Form provided and read out loud to Haynes reasonably
conveyed to him his rights as required by Miranda.
Accordingly, even if Haynes's challenge to the adequacy of the warnings
were entitled to habeas review, this claim is also without merit.
CONCLUSION
Haynes has failed to show a basis for relief under 28 U.S.C. § 2254.
Accordingly, his habeas petition is denied. Additionally, I decline to issue a certificate
of appealability because Haynes has not made a substantial showing of the denial of a
constitutional right. See 28 U.S.C. § 2253. Pursuant to 28 U.S.C. § 1915(a)(3), I certify
that any appeal taken from this decision and order would not be taken in good faith.
The Clerk of the Court shall enter judgment accordingly and close this

case. The Clerk shall also mail copies of this memorandum decision and the judgment
to Haynes at his last known address.
SO ORDERED.
Dated: New York, New York
February 15, 2023

: DENNY CHI
United States Circuit Judge
Sitting By Designation

26

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10309191. Public record. Not legal advice.