# Wisdom v. Perez

> District Court, E.D. New York · December 6, 2023

URL: https://www.frixlaw.com/law-library/cases/10311070

## Case

- **Court:** District Court, E.D. New York
- **Decided:** December 6, 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/10311070

## How later opinions describe it (automated extraction)

- holding that had the petitioner stated “that he wanted to remain silent or that he did not want to talk with the police . . . either of these simple, unambiguous statements [] would have invoked his right to cut off questioning”
- finding that although the petitioner refused to sign a waiver of his Miranda rights, his concurrent statements, such as "I am not sure if I should be talking to you,” were too ambiguous to cut off further questioning
- explaining that an individual in custody merely stating, "[m]aybe I should talk to a lawyer,” is not a request for counsel.
- discussing certificate of appealability standard

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
ATARA WISDOM,
Petitioner, MEMORANDUM & ORDER
20-cv-02196(KAM)
-against-

ADA PEREZ, Superintendent, Bedford
Hills Correctional Facility,
Department of Corrections and
Community Supervision,
Respondent.
--------------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
Petitioner Atara Wisdom (“Petitioner”) currently incarcerated
in the custody of the New York State Department of Corrections and
Community Supervision, petitions for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. On July 10, 2014, Petitioner was
convicted after a jury trial of murder in the second degree (N.Y.
Penal Law § 125.25[1]). (See ECF No. 1, Petition for Writ of
Habeas Corpus (“Pet.”), at 1; ECF No. 5, State’s Affidavit in
Opposition (“State Opp.”), at 26.) On October 8, 2014, the trial
court sentenced Petitioner to an indeterminate prison term of 18
years to life for the murder. (State Opp. at 26.) The Petitioner
claims that (1) her custodial statements were improperly admitted
as evidence in trial, (2) the trial court violated her rights to
due process, to present a defense, and to the effective assistance
of counsel by requiring defense counsel to interview a state’s

witness in the presence of the prosecutor, (3) the trial court
violated her right to present a defense by precluding her from
admitting records and from cross-examining prosecution witnesses
on certain topics, and (4) the trial court violated her due process
right to a fair trial by admitting Anthony Wilson’s 911 call as a
hearsay exception. (Pet. at 42, 54, 60, 72.) For the reasons set
forth below, the petition is respectfully DENIED.
BACKGROUND
I. Factual Background1
At trial, the prosecution presented evidence showing that on
November 29, 2011, Petitioner stabbed Anthony Wilson to death
inside his studio apartment at 832 Bushwick Avenue in Brooklyn,

New York. (State Opp. at 2.) In March 2012, DNA evidence recovered
at the scene was found to match the DNA profile of Petitioner,
and, following a search, NYPD detectives learned in July 2012 that
Petitioner was staying at a women’s homeless shelter. (Id. at 3.)
Detectives subsequently brought Petitioner to the NYPD’s 83rd
Precinct on July 25, 2012, to conduct an interview, where the

1 Because the petitioner was convicted, the court summarizes the facts in the
light most favorable to the verdict. See United States v. Wasylyshyn, 979 F.3d
165, 169 (2d Cir. 2020) (citing Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir.
2012)).
petitioner was advised of, and waived her Miranda rights and agreed
to speak with the Detective Christopher Scandole. (Id. at 3-4.)
Petitioner admitted to stabbing Mr. Wilson, claiming that she had

done so in self-defense, and was subsequently arrested after being
identified in a lineup by a witness who knew Mr. Wilson. (Id. at
5-6, 16.) Following her arrest, Petitioner made two further
statements on the evening of July 25, 2012, and gave an additional
statement to Detective Scandole the following morning, on July 26,
2012. (Id. at 16-18.)
II. Pre-trial Proceedings

A. Pre-trial Huntley/Wade Suppression Hearing
On October 30, 2013, the Kings County Supreme Court held a
Huntley/Wade hearing regarding Petitioner’s motion to suppress her
statements from July 26, 2012. (ECF No. 5-1, Exhibit 1 to State’s
Opposition (“Ex. 1”), at 9.)2 Detective Scandole provided
testimony recounting his interviews with Petitioner on July 25 and
July 26, 2012. (Id. at 10–22.) Detective Deborah Batanjany also
testified with respect to the lineup she conducted on July 25,
2012. (Id. at 27-39.)
The trial court determined that there were two issues to be
resolved in the hearing, including whether the identification of
Petitioner during the lineup was “unduly suggestive in this case,”

2 All pin citations to the record refer to the page number assigned by the
court’s CM/ECF system.
and whether the Petitioner voluntarily and knowingly waived her
Miranda rights during the interrogation. (Id. at 40–42.)
The court, after reviewing the lineup photos and Detective

Batanjany’s testimony, determined that there was no serious issue
regarding the suggestiveness of the lineup to warrant suppressing
the identification testimony. (Id. at 41.) Based on the
documented Miranda form, the written statement read to and signed
by Petitioner, and a video statement where the Detective provided
Petitioner with another set of Miranda warnings on July 25, 2012,
the court ruled on October 30, 2023, that Petitioner knowingly and
voluntarily waived her rights to remain silent and agreed to speak
with the police. (Id. at 41–42.) The court denied Petitioner’s
motion to suppress in full. (Id. at 42.)
B. Second Huntley Hearing
On July 1, 2014, during trial, defense counsel made an oral

motion for a mistrial arguing that the testimony of a prosecution
witness regarding the use of Mr. Wilson’s Electronic Benefits
Transfer (EBT) card was inadmissible for its prejudicial effect.
(ECF No. 5-4, Exhibit 4 to State’s Opposition (“Ex. 4”), at 160.)
The defense counsel made an alternative request to strike the
witness’s testimony. (Id. at 162.) The trial court denied the
application for a mistrial and to strike the testimony regarding
the use of the EBT card but granted a separate second Huntley
hearing to determine the admissibility of Petitioner’s July 26
statements, in which Petitioner stated, among other things, that
she did not use Mr. Wilson’s benefits card. (Id. at 162-67.)
During the second Huntley hearing before the trial court,

Detective Scandole testified that on the morning of July 26, 2012,
he reminded Petitioner that she had waived her Miranda rights the
previous day, and asked if she would be willing to speak with him
further. (Id. at 165.) Detective Scandole further testified that
Petitioner agreed to speak with him and provided further details
regarding her actions on the night of Mr. Wilson’s death. (Id. at
165-67.) The trial court also questioned Detective Scandole
regarding how Petitioner was advised of her Miranda rights, and
how Petitioner’s interview on the evening of July 25, 2012,
concluded. (Id. at 168-70.) Defense counsel cross-examined
Detective Scandole and asked if Petitioner stated on July 25 that
“she didn’t want to speak anymore,” to which Detective Scandole
answered: “Correct.” (Id. at 173.) Upon redirect questioning by

the prosecution, Detective Scandole clarified that Petitioner
never asked for a lawyer and did not say anything about not wanting
to speak with Detective Scandole on the morning of July 26, 2012.
(Id. at 175.)
The prosecution argued at the close of the hearing that
Petitioner’s statements were admissible because she had
acknowledged that Detective Scandole provided her with Miranda
warnings on July 25, she did not refuse to speak with Detective
Scandole when he reminded her of the Miranda warnings given on
July 25 and asked on the morning of July 26 to follow up with more
questions, and because the police did not “force[] her to talk.”
(Id. at 176.) The prosecution also argued that the video of

Petitioner’s statement on the evening of July 25, 2012, showed
that Petitioner was “visibly upset,” which was the reason that the
Assistant District Attorney present asked if she wanted to stop
the interview at the time. (Id.) The court read in the relevant
portion of the video transcript to the record, which was as
follows:
[A.D.A’s ]QUESTION: You okay? You want to take a
minute? You want us to stop for a second or do you
want to continue? You want to stop for a second?
[Petitioner]: All right.
A.D.A. Purce: We're just going to hold out here for a
little bit. You just take your time, all right?
[Petitioner]: All right.
[A.D.A. Purce: ]You know what, I think we're going to-
we're going to stop now, and if you want to continue,
we'll talk in a second, okay.
You want us to stop right now?
[Petitioner’s] ANSWER: Yeah.
A.D.A. Purce: All right, just stop the tape for now.
There will be no further questions until we resume the
tape.
(Id. at 178-79.) The trial court noted that the next day, July
26, Detective Scandole reminded Petitioner of her rights and asked
if she wanted to continue, and that a full recitation of the
Miranda rights again was not required. (Id. at 179.) Accordingly,
the trial court ruled that Petitioner voluntarily, knowingly, and
intelligently made statements on July 26, 2012, to the police,
thereby rendering the statements admissible at trial. (Id. at
181.)
C. Admissibility of the 911 Call

On June 30, 2014, the prosecution submitted a Molineux
application to admit a 911 call made by Mr. Wilson at 12:37 A.M.
on the early morning of the stabbing. (ECF No. 5-2, Exhibit 2 to
State’s Opposition (“Ex. 2”), at 2.) The 911 call was determined
to be 26 seconds long, and contained only the following statement
by Mr. Wilson: “I got this girl in my house and I don't know what's
wrong with her, she's acting all crazy and I want her out of my
house.” (Ex. 4 at 131; Ex. 2 at 2-3). The prosecutor argued that
the audio recording of Mr. Wilson’s 911 call was admissible under
the present sense impression or the excited utterance exception to
the hearsay rule. (Ex. 2 at 3.) Defense counsel objected to the
inclusion of the evidence, arguing that the prejudice to Petitioner
outweighed the probative value. (Id. at 3.) Defense counsel

further argued that there was uncertainty about the context of the
911 call – whether the call referred to the stabbing or a different
matter. (Id.)
The prosecution responded by arguing that phone records
showed that, shortly after the 911 call, Petitioner used Mr.
Wilson’s cell phone, including to call an individual that the
prosecution planned to call as a witness. (Id. at 4–5.) The court
admitted the 911 call recording under the present sense impression
exception. (Id. at 6.)
III. Trial

Jury selection for the trial against Petitioner began on June
26, 2014, and concluded on June 30, 2014, at which point the trial
began. (ECF No. 5-1, Exhibit 1 to State’s Opposition (“Ex. 1”),
at 43; Ex. 2 at 292.) Petitioner’s trial defense was based upon
justification under N.Y. Penal Law § 35.15 Subsection 2B, relating
to the justified use of deadly force when a person reasonably
believes that the person they kill is “committing or attempting to
commit a kidnapping, forcible rape, forcible criminal sexual act
or robbery.” (ECF No. 5-7, Exhibit 7 to State’s Opposition (“Ex.
7”), at 25.)
A. The Testimony of Prosecution Witness Matthew Shepard
During the trial, on July 9, 2014, the prosecution obtained

a material witness order to compel Matthew Shepard to testify at
trial. (Id. at 32.) Prior to Mr. Shepard testifying, the trial
court granted defense counsel’s request to confirm with Mr. Shepard
that the prosecutor had accurately represented Mr. Shepard’s
unwillingness to speak with defense counsel. (Id. at 30.) Defense
counsel subsequently spoke with Mr. Shepard but objected to the
presence of a detective and the prosecutor during the conversation.
(Id. at 31.) Defense counsel asked the trial court to direct the
prosecutor to permit a closed-door conversation with the witness,
however, the prosecutor objected, stating that defense counsel was
not Mr. Shepard’s lawyer, and Mr. Shepard was the prosecutor’s
witness pursuant to a material witness order signed by the trial
court the previous day. (Id. at 32.) The trial court ultimately

decided to allow the prosecutor to be present for defense counsel’s
conversation with Mr. Shepard. (Id. at 34.) Defense counsel
objected to the condition and the trial court acknowledged the
objection. (Id.)
Mr. Shepard testified at the trial following the dispute over
defense counsel being able to speak with him alone. (Id. at 37.)
Mr. Shepard testified that Petitioner called him a few days after
Thanksgiving in the early morning hours from Mr. Wilson’s cell
phone number. (Id. at 45-46.) Mr. Shepard testified that later
that day, following the call, he met Petitioner on DeKalb Avenue
in Brooklyn. (Id. at 45–47.) Mr. Shepard testified that

Petitioner arrived with three or four bags and explained to Mr.
Shepard that she and Mr. Wilson had an altercation and that she
was “not going to pay rent and fuck him too,” and that she had
“poked” him. (Id. at 47–48.) Mr. Shepard testified that he was
“almost sure” Petitioner “had a swelling up on her face, a little
bit,” but did not see any blood on her. (Id. at 50.) Mr. Shepard
testified that he had had no further contact with Petitioner after
she left his apartment. (Id. at 51.)
B. Trial Court’s Exclusion of Victim’s Medical Records
Also during the trial, on July 1, 2014, the trial court held
a Molineux hearing to discuss various evidentiary issues raised by
the parties. (Ex. 4, at 2.) Defense counsel explained that he

wanted to admit a certified copy of Mr. Wilson’s mental health
medical records into evidence and to call Mr. Wilson’s physician
to testify about the use of Seroquel (which was not detected in
Mr. Wilson’s toxicology report) and alcohol and their effects on
hallucinations. (Id. at 13-20.) Defense counsel explained that
Mr. Wilson’s medical records would be used to establish that Mr.
Wilson had experienced hallucinations in the past and was
prescribed Seroquel. (Id. at 15-16.) The trial court reviewed
the records and declined to admit the medical records, noting that
that Mr. Wilson was being treated for depression and not psychosis,
that there was no evidence that Mr. Wilson’s reported
hallucinations were violent, that Mr. Wilson was not hearing

voices, that there was no evidence that Seroquel was prescribed to
Mr. Wilson for hallucinations or that failure to take Seroquel
caused Mr. Wilson to harm or want to harm Petitioner, and that
defense counsel was attempting to “dirty the victim” with the
evidence. (Id. at 13-17-20.) The trial court found that Mr.
Wilson was treated for depression and that the defense theory was
speculative, and that Petitioner never told police that Mr. Wilson
had been hallucinating. (Id. at 15-20.)
C. Defense Counsel’s Motion to Dismiss
At the close of the prosecution’s case, defense counsel moved
to dismiss the case, arguing that the prosecution failed to
substantiate the crime of intentional murder in the second degree.

(Ex. 7, at 92–94.) The court denied the defense counsel’s motion
to dismiss. (Id. at 96.)
IV. Verdict and Sentence
On July 10, 2014, the jury found Petitioner guilty of murder
in the second degree. (Ex. 7, at 220.) On October 8, 2014,
Petitioner was sentenced to 18 years to life in prison for second-
degree murder. (ECF No. 5-6, Exhibit 6 to State’s Opposition (“Ex.
6”), at 13.)
PROCEDURAL HISTORY
I. State-Murder Conviction Direct Appeal
Petitioner, represented by counsel, appealed her conviction
to the Appellate Division, Second Department, arguing that (1) the

verdict was against the weight of the evidence; (2) the trial court
violated Petitioner’s right to due process, to present a defense,
and to the effective assistance of counsel in its decision to allow
the prosecutor to be present during defense counsel’s interview of
Mr. Shepard; (3) the trial court violated Petitioner’s right to
present a defense by declining to admit Mr. Wilson’s medical
records and medical testimony in evidence; (4) the trial court
erred in admitting Mr. Wilson’s 911 call; (5) the trial court erred
by refusing to suppress Petitioner’s July 26, 2012, statement; and
(6) the prosecutor’s summation violated Petitioner’s right to a
fair trial. (ECF No. 1-2 (“App. Div. Appellant Brief”), at 3-4.)
On August 29, 2018, the Appellate Division unanimously

affirmed the judgment of conviction and sentence. People v.
Wisdom, 82 N.Y.S.3d 97 (2d Dep’t 2018). First, the Appellate
Division concluded that the prosecution’s case was legally
sufficient to disprove the defendant’s justification defense
beyond a reasonable doubt and to establish the defendant’s guilt
of murder in the second degree beyond a reasonable doubt. Id. at
98. Second, the Appellate Division agreed with the trial court’s
decision to deny suppression of Petitioner’s July 26, 2012,
statement:
After waiving her Miranda rights (see Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694),
the defendant freely and voluntarily made a videotaped
statement at the police station on July 25, 2012,
beginning at approximately 9:00 p.m. The interview ended
after approximately 30 minutes, not because the
defendant unequivocally invoked her right to remain
silent, but rather, to allow her to compose herself. The
idea for ending the interview and stopping the videotape
was that of the Assistant District Attorney (hereinafter
ADA) conducting the interview. The ADA said, “Let's stop
the tape for now,” and “there will be no further
questions until we resume the tape.” Questioning resumed
the following morning at approximately 10:00 a.m., at
which time the defendant was reminded of the rights she
had been read the previous day, and the defendant agreed
to continue answering more questions. During that
session, the defendant stated that after she stabbed the
victim, she took the victim's cell phone, keys, and
wallet. The wallet contained the victim's welfare
benefit card, but the defendant specifically denied ever
using the card.
. . . The suppression hearing testimony of a detective
who, in response to questions by defense counsel that
the defendant did not want to talk anymore during the
prior evening's videotaped interview, answered, “Right,”
and in another instance said, “Correct,” does not
require a different result. This testimony does not
change the fact that there was no unequivocal invocation
of the defendant's right to remain silent at that time.
The suggestion that the detective's answers refer
instead to an unrecorded communication by the defendant,
despite the colloquy on the videotape that there would
be no further questioning until the tape is resumed, is
mere speculation and conjecture that reads into the
record information that simply is not present, and
provides no basis for concluding that the defendant's
10:00 a.m. statement should have been suppressed.
Id. at 98–99. Third, the Appellate Division agreed with the trial
court’s determination to “admit evidence of a prior uncharged crime
involving [Petitioner’s] theft and use of certain property that
belonged to the victim, as it completed the narrative and provided
circumstantial evidence of the date of the victim's death.” Id.
at 99. The Appellate Division found that the “probative value of
the evidence outweighed its prejudicial effect and the court's
limiting instruction was sufficient to avert any potential
prejudice.” Id. (citation omitted). Fourth, the Appellate
Division found that Petitioner’s contention that she was denied a
fair trial by the admission of the 911 call was “unpreserved for
appellate review” under N.Y. Crim. Proc. Law § 470.05, but was
nonetheless “without merit.” Id. Fifth, the Appellate Division
found Petitioner’s contention that certain comments made by the
prosecutor during summation deprived her of a fair trial was
partially unpreserved for appellate review, but that “to the extent
that the prosecutor exceeded the bounds of permissible rhetorical
comment or made other improper remarks during summation, the
remarks were not so egregious as to have deprived the defendant of

a fair trial, and any other error in this regard was harmless.”
Id. at 100. Sixth, the Appellate Division found that “it was
improper for the Supreme Court to condition her ability to
interview a prosecution witness upon the interview occurring
either in the presence of the prosecutor or a detective” but that
“the error was harmless.” Id. Finally, the Appellate Division
noted that Petitioner’s remaining contention was “without merit.”
Id.
On February 14, 2019, the New York Court of Appeals denied
Petitioner’s application for leave to appeal, in which she raised
the same arguments and incorporated her briefs submitted to the
Appellate Division. People v. Wisdom, 122 N.E.3d 1140 (N.Y. 2019)

(Rivera, J.).
II. Habeas Corpus Petition
On May 14, 2020, Petitioner filed this petition, raising a
subset of the claims she raised on appeal: first, that the trial
court erred in refusing to suppress her July 26 statement and that
the use of the statement prejudiced her in trial, (Pet. at 42);
second, that the trial court violated her right to due process and
to the effective assistance of counsel by conditioning defense
counsel’s ability to interview Mr. Shepard on the presence of
either a detective or prosecutor, (id. at 54); third, that the
trial court violated her right to present a defense by declining
to admit Mr. Wilson’s medical records, (id. at 60); fourth, that

the trial court violated her right to due process by improperly
admitting Mr. Wilson’s 911 call at trial, (id. at 72.).
On November 12, 2020, Respondent filed a memorandum of law in
opposition to the petition. (State Opp. at 1.) On January 13,
2021, Petitioner filed a reply brief in support of her petition.
(ECF No. 7 (“Pet. Reply”), at 1.)
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) requires a federal court reviewing a state prisoner's
habeas petition to give deference to a state court's decision on
the merits. 28 U.S.C. § 2254(d). A federal court may not issue
a writ of habeas corpus unless the state court's decision was

“contrary to, or involved an unreasonable application of, clearly
established Federal law” or was “based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” Id.; see also Johnson v. Williams,
568 U.S. 289, 292 (2013); Chrysler v. Guiney, 806 F.3d 104, 116-
17 (2d Cir. 2015).
For the purposes of federal habeas review, “clearly
established law” means “the holdings, as opposed to the dicta, of
[the Supreme] Court's decisions as of the time of the relevant
state-court decision.” Williams v. Taylor, 529 U.S. 362, 412
(2000). A state court decision is “contrary to” or an
“unreasonable application of” clearly established law if the

decision: (1) is contrary to Supreme Court precedent on a question
of law; (2) arrives at a conclusion different than that reached by
the Supreme Court on “materially indistinguishable” facts; or (3)
identifies the correct governing legal rule but unreasonably
applies it to the facts of the petitioner's case. Id. at 412-13.
The court reviews the last reasoned state court decision. Ylst v.
Nunnemaker, 501 U.S. 797, 804 (1991); Jones v. Stinson, 229 F.3d
112, 118 (2d Cir. 2000). The state court's factual determinations
are presumed to be correct, and the petitioner bears the burden of
rebutting that presumption by clear and convincing evidence. 28
U.S.C. § 2254(e)(1).
“In all cases in which a state prisoner has defaulted his

federal claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the claims
is barred unless the prisoner can demonstrate cause for the default
and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims
will result in a fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750 (1991).
A petitioner can seek federal habeas corpus relief only after
she exhausts state court remedies and gives the state courts a
fair and full opportunity to review the merits of the claim. 28
U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842
(1999). In other words, a petitioner must present “the essential

factual and legal premises of [her] federal constitutional claim
to the highest state court capable of reviewing it.” Jackson v.
Conway, 763 F.3d 115, 133 (2d Cir. 2014) (quoting Rosa v. McCray,
396 F.3d 210, 217 (2d Cir. 2005)).
DISCUSSION
I. Refusal to Suppress the July 26 Statement
Petitioner renews her claim that the trial court should have
suppressed her statement made on July 26, 2012, because she invoked
her right to remain silent, and the questioning detective
subsequently failed to fully readminister her Miranda rights.
(Pet. at 42.) The Appellate Division’s decision rejecting
Petitioner’s claim that the July 26, 2012, statements should have

been suppressed is entitled to AEDPA deference, and Petitioner
must show that the state court’s decision was either “contrary to,
or involved an unreasonable application of, clearly established
Federal law” or was “based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).
For the foregoing reasons, this Court finds that the Appellate
Division’s decision was consistent with clearly established
federal law and was based on a reasonable determination of the
facts in light of the evidence presented, specifically, from the
video transcript of Petitioner’s questioning on the evening of
July 25, 2012. (Ex. 4 at 176-78.)
A. Invoking the Fifth Amendment

It is well-settled law that when an individual in custody has
shown that they intend to invoke their Fifth Amendment right to
remain silent, the interrogation must cease. Michigan v. Mosley,
423 U.S. 96, 100 (1975) (citing Miranda v. Arizona, 384 U.S. 436,
473-74 (1966)). This right is invoked when the individual
indicates in any manner, at any time prior to or during
questioning, that they wish to remain silent. Id. In a parallel
line of cases, the Supreme Court held that an individual must
unambiguously and unequivocally invoke their right to counsel to
prevent further police questioning. Davis v. United States, 512
U.S. 452, 462 (1994) (explaining that an individual in custody

merely stating, "[m]aybe I should talk to a lawyer,” is not a
request for counsel.) Subsequently, in Berghuis v. Thompkins, 560
U.S. 370 (2010), the Supreme Court clarified that this unambiguous
standard applies both to the invocation of an individual’s right
to counsel and their right to remain silent. Id. at 381-82
(holding that had the petitioner stated “that he wanted to remain
silent or that he did not want to talk with the police . . . either
of these simple, unambiguous statements [] would have invoked his
right to cut off questioning”).
Even prior to the Supreme Court’s holding in Berghuis,
however, the Second Circuit Court of Appeals had consistently
required an unambiguous assertion of the right to remain silent in

cases where a defendant sought to suppress statements made while
in custody. In United States v. Ramirez, 79 F.3d 298 (2d Cir.
1996), the Second Circuit found that the defendant did not
unambiguously invoke his right to remain silent because he
continued to answer questions by interrogating officers after
previously refusing to answer questions by those officers. Id. at
303. In United States v. Plugh, 648 F.3d 118 (2d Cir. 2011), the
only statements that the defendant made to the interrogating
officers were: “I am not sure if I should be talking to you," and
"I don't know if I need a lawyer.” Id. at 121. In both cases,
the Second Circuit found that the statements did not expressly
invoke the defendant’s right to counsel or right to remain silent
in a manner sufficient to cut off all further questioning. Id. at
126; Ramirez, 79 F.3d at 303.

Further, a court will assess the entire context of the
situation, including anything said by the Petitioner before or
after the statement that the petitioner alleges invoked their right
to remain silent. See Bradley v. Meachum, 918 F.2d 338, 342 (2d
Cir. 1990) (finding that there was not an unambiguous invocation
where the petitioner stated he did not want to talk about the
alleged crime but continued to speak, denying the officer’s
allegations and proffering explanations of his whereabouts).
Recently, a district court in the Eastern District of New York
applied the Berghuis standard to a statement made by a defendant

while in custody: "I don't want to talk and get myself into more
trouble, man.” See United States v. Ross, No. 21-CR-571 (BMC)
(LB), 2023 WL 6160436, at *10 (E.D.N.Y. July 31, 2023), report and
recommendation adopted, 2023 WL 6158840 (E.D.N.Y. Sept. 21, 2023).
The court noted that such a statement could have been considered
an unambiguous invocation of the right to remain silent when
considered alone, but that the defendant continued to speak,
stating: “But I got a lot of stuff going on. I don't know what the
fuck is going on. My whole life is fucked up.” Id. The court
reasoned that the defendant’s subsequent statements turned what
may have been an unequivocal statement into an ambiguous one. Id.
As a result, the court found that the defendant’s statements were
insufficient to invoke his Fifth Amendment rights. Id. at *11.

When an individual in custody unambiguously and unequivocally
invokes the right to remain silent, the admissibility of statements
obtained by questioning officers after this invocation depends on
whether their "right to cut off questioning" was "scrupulously
honored.” Mosley, 423 U.S. at 104. After the invocation of that
right, however, there is no “per se proscription of indefinite
duration upon any further questioning by any police officer on any
subject” with that individual.3 Id. at 102-03. Accordingly, the
Second Circuit has held that when a person has invoked the right
to remain silent, questioning can resume after new Miranda warnings

have been administered and the right to remain silent is otherwise
scrupulously honored. Perkins v. Herbert, 596 F.3d 161, 174 (2d
Cir. 2010).
B. Whether Petitioner Invoked the Fifth Amendment
In contending that her July 26, 2012, statements should be
suppressed, Petitioner argues that she invoked her Fifth Amendment
right to remain silent when, on July 25, 2012, she “agreed during
the [ADA’s] videotaped interview about the stabbing that she wanted
to ‘stop right now.’” (Pet. at 42.) Petitioner refers to language
from Miranda v. Arizona, 384 U.S. 436 (1966), cited in Mosley,
which states that the invocation of the right to remain silent can
be done “in any manner, at any time prior to or during

questioning.” (Pet. at 44.) Petitioner contends that her
invocation was sufficient because she “did not remain mute or
express uncertainty about wanting to stop” or “merely request a
break.” (Id. at 44-45.) Petitioner also argues that because she
invoked her right to remain silent, the investigators were

3 The Supreme Court in Mosley reasoned that instituting a categorical prohibition
of voluntary statements after someone has invoked their right to remain silent
would transform the Miranda safeguards into “wholly irrational obstacles to
legitimate police investigative activity, and deprive suspects of an opportunity
to make informed and intelligent assessments of their interests.” Mosley, 423
U.S. at 102.
accordingly “required to re-read her rights before questioning her
again.” (Id. at 46.)
This Court finds Petitioner’s argument that she invoked her

right to remain silent unpersuasive. The statements Petitioner
made on July 25, 2012, cannot be read in isolation from the actual
context of the interrogation. The video transcript4 referenced by
the trial court reflects the following conversation after
Petitioner became emotional:
QUESTION: You okay? You want to take a minute? You
want us to stop for a second or do you want to
continue? You want to stop for a second?
[Petitioner]: All right.
A.D.A. Purce: We're just going to hold out here for a
little bit. You just take your time, all right?
[Petitioner]: All right.
You know what, I think we're going to-we're going to
stop now, and if you want to continue, we'll talk in a
second, okay.
You want us to stop right now?
[Petitioner’s] ANSWER: Yeah.
A.D.A. Purce: All right, just stop the tape for now.
There will be no further questions until we resume the
tape.
(Ex. 4 at 178-79.)
Courts in this District have previously found an individual’s
invocation of the Fifth Amendment to be ambiguous where they merely
display reticence to answering questions, they remain silent, they
equivocate in exercising their rights, or they indicate that they
may not want to continue speaking, but nevertheless continue

4 This court also reviewed the video of the interrogation, provided as
Petitioner’s Exhibit G, and finds it consistent with the transcript utilized by
the trial court.
speaking and answering questions. See Lopez v. Keyser, No. 19-
CV-2655 (ARR), 2020 WL 6873427, at *6 (E.D.N.Y. Nov. 23, 2020)
(determining that under Berghuis, the petitioner’s reticence to
answer questions did not invoke his right to remain silent); see
also Festus v. Noeth, No. 17-CV-3941 (JMA), 2020 WL 7042666, at

*11 (E.D.N.Y. Nov. 30, 2020) (reasoning that a petitioner’s silence
did not invoke his Fifth Amendment rights, especially in light of
the fact that the petitioner had already waived his Miranda
rights); Plugh, 648 F.3d at 125 (finding that although the
petitioner refused to sign a waiver of his Miranda rights, his
concurrent statements, such as "I am not sure if I should be
talking to you,” were too ambiguous to cut off further
questioning); Ross, 2023 WL 6160436, at *10-11 (finding that
although the petitioner may have invoked his right to silence, his
actions in continuing to speak with the questioning officers after

doing so rendered his invocation ambiguous). The Court finds that
such ambiguity also exists here.
In this case, Petitioner waived her Miranda rights in writing
prior to speaking to officers during the July 25, 2012,
questioning. (Ex. 4 at 168.) Further, Petitioner at no point
explicitly stated that she did not wish to speak to the questioning
officers any further. Rather, Petitioner agreed with the ADA’s
suggestion to take a break and resume questioning at a later time.
(Id. at 178.) When the ADA told Petitioner that “there will be no
further questions until we resume the tape,” Petitioner did not
object to continued questioning later. (Id. at 175.) The next
day, the questioning officer reminded Petitioner of her Miranda

rights and asked if she wanted to continue. (Id. at 175.)
Petitioner agreed and continued to answer questions. (Id. at 176.)
Furthermore, Petitioner does not suggest that she subsequently
invoked her Fifth Amendment rights at any point on July 26, 2012.
Based on Petitioner’s mere acquiescence to suggestions to
pause questioning by the ADA, the fact that she did not initiate
the cessation in questioning herself, and that after being reminded
of her Miranda rights administered the day before, she continued
answering questions the next day, a reasonable officer would have
understood only that the Petitioner agreed to the ADA’s suggested
break from questioning at that moment on July 25, 2012, and that
it would resume at a later time, not that she was unambiguously
invoking her right to remain silent. See Ramirez, 79 F.3d at 303

(when a suspect has “waived [her] right to remain silent and has
answered some questions . . . [s]he must articulate [her] desire
to cut off questioning with sufficient clarity that a reasonable
police officer in the circumstances would understand the statement
to be assertion of the right to remain silent”) (internal quotation
marks and citation omitted). Consequently, this Court finds that
the Petitioner did not unambiguously invoke her right to remain
silent on July 25, 2012, and that the Appellate Division was
correct in finding no error in the trial court’s decision to admit
the statement Petitioner made on July 26, 2012. Because
Petitioner’s Miranda claim fails, it cannot be the basis of federal
habeas relief, and the Court therefore denies habeas relief on

this ground.
II. The Trial Court’s Ruling Conditioning Defense Counsel’s
Ability to Interview a Witness During Trial
Petitioner asserts that the trial court erred when it “refused
to allow defense counsel to interview [Witness Matthew Shepard]
alone.” (Pet. at 54.) Petitioner contends that this interference
violated “[her] rights to due process, to present a defense, and
to the effective assistance of counsel.” (Id.) The Appellate
Division held that “it was improper for the [trial court] to
condition [Petitioner’s] ability to interview a prosecution
witness upon the interview occurring either in the presence of the
prosecutor or a detective.” People v. Wisdom, 82 N.Y.S.3d 97, 100
(2d Dep’t 2018). Despite the fact that the condition was improper,
however, the Appellate Division found the error to be harmless.
Id. As such, the Appellate Division’s merits-based decision
rejecting the claim is entitled to AEDPA deference and Petitioner
must show that the decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law” or

was “based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d).
A. Conditions on Access to Witnesses

Second Circuit precedent clearly establishes that
“constitutional notions of fair play and due process dictate that
defense counsel be free from obstruction, whether it come from the
prosecutor [or other officials]” in their interviews of
“prospective prosecution witness[es].” Int'l Bus. Machines Corp.
v. Edelstein, 526 F.2d 37, 44 (2d Cir. 1975) (citing Coppolino v.
Helpern, 266 F. Supp. 930, 935 (S.D.N.Y. 1967)); see also United
States v. Hyatt, 565 F.2d 229, 232 (2d Cir. 1977) (“[W]e shall not
tolerate the view that the government has some special right or
privilege to control access to trial witnesses.”). Similarly,
“New York State courts have consistently held that prosecutors may
not refuse defense counsel requests for interviews with

prosecution witnesses, and that courts will enable these
interviews if necessary.” Schulz v. Marshall, 528 F. Supp. 2d 77,
98 (E.D.N.Y. 2007), aff'd sub nom. Schulz v. Marshal, 345 F. App'x
627 (2d Cir. 2009) (citing several New York appellate and trial
court decisions in support).
However, this right is not without limit, as courts are
permitted to, for example, limit the disclosure of the identity or
address of a confidential informant pre-trial, unless their
testimony is “material to [the] defense.” United States v. Saa,
859 F.2d 1067, 1073 (2d Cir. 1988); see also United States v.
Heatley, 994 F. Supp. 483, 489 (S.D.N.Y. 1998) (ordering the
government to disclose the identities of informants and

cooperators to the court a week before trial and make them
available for interviews as needed). Further, while not binding
authority from this Circuit, Respondent cites to a case from the
Eastern District of Pennsylvania in which a court, confronted with
facts similar to the instant case, stated:
Here, [defendant] does not allege that the prosecution
told [the witness] not to talk to [defendant’s] counsel
or in any other way denied [defendant] access to
witnesses. Neither does [defendant] allege that the
Court in any way prevented or limited his access to [the
witness] before or during trial, except at the moment
she was arriving to testify. Therefore, [defendant’s]
argument that he was prevented from having a fair
opportunity to interview [the witness] is unpersuasive.
United States v. Kemp, 379 F. Supp. 2d 690, 714 (E.D. Pa.
2005), aff'd, 500 F.3d 257 (3d Cir. 2007) (trial court’s limitation
on defense counsel’s access to a witness by requiring an FBI agent
to be present to protect the witness from harassment did not
violate defendant’s constitutional rights). As such, not all
limitations on access to a witness prior to or during a trial
necessarily constitute a constitutional violation.
B. Harmless Error
On federal habeas review, unless the “error ‘had substantial
and injurious effect or influence in determining the jury's
verdict’”, a violation of a petitioner’s federal rights during her
state criminal proceeding is harmless. Brecht v. Abrahamson, 507
U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S.
750, 776 (1946)). As compared to direct review, a showing of

harmlessness on collateral review requires “more than a
‘reasonable possibility’ that the error was harmful.” Davis v.
Ayala, 576 U.S. 257, 268 (2015) (quoting Brecht, 507 U.S. at 637).
However, if a “conscientious judge [remains] in grave doubt about
the likely effect of an error on the jury's verdict” — that is,
“in the judge's mind, the matter is so evenly balanced that [the
judge] feels ... in virtual equipoise as to the harmlessness of
the error,” — then “the uncertain judge should treat the error,
not as if it were harmless, but as if it affected the verdict
(i.e., as if it had a ‘substantial and injurious effect or
influence in determining the jury's verdict’).” O'Neal v.
McAninch, 513 U.S. 432, 435, (1995) (quoting Brecht, 507 U.S. at

623). “[I]n [section] 2254 proceedings[,] a [federal] court must
assess the prejudicial impact of constitutional error in a state-
court criminal trial under the ‘substantial and injurious effect’
standard set forth in Brecht, ... whether or not the state
appellate court recognized the error and reviewed it for
harmlessness under the ‘harmless beyond a reasonable doubt’
standard” generally applicable on direct review. Fry v. Pliler,
551 U.S. 112, 121–22, (2007) (quoting Chapman v. California, 386
U.S. 18, 24 (1967)).
However, “[w]hen a state court holds that a federal
constitutional violation tainted a defendant's trial but that the
violation as harmless” the analysis of harmless error becomes more

complicated, as “the state court has adjudicated a constitutional
claim on the merits.” Wilson v. Capra, No. 15-CV-6495 (MKB), 2020
WL 10506052, at *21 (E.D.N.Y. Oct. 12, 2020), aff'd, 2023 WL
7179268 (2d Cir. Nov. 1, 2023) (internal quotation marks and
citation omitted). Accordingly, the AEDPA prohibits habeas relief
unless the state court’s adjudication on the merits was “contrary
to, or involved an unreasonable application of, clearly
established Federal law” or was “based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d). “[A] state-
court decision [finding a federal constitutional violation
harmless] is not unreasonable if ‘fairminded jurists could
disagree on [its] correctness.’” Ayala, 576 U.S. at 269 (quoting
Harrington v. Richter, 562 U.S. 86, 101 (2011)). A federal court

“may not grant [a petitioner's] habeas petition, however, if the
state court simply erred in concluding that the errors were
harmless; rather, habeas relief is appropriate only if the [state
court] applied harmless-error review in an ‘objectively
unreasonable’ manner.” Mitchell v. Esparza, 540 U.S. 12, 18 (2003)
(per curiam) (quoting Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
“While a federal habeas court need not formally apply both Brecht
and AEDPA/Chapman, AEDPA nevertheless sets forth a precondition to
the grant of habeas relief.” Ayala, 576 U.S. at 268 (internal
quotation marks omitted) (citing Fry v. Pliler, 551 U.S. 112, 119-

120, (2007)).
C. Defense Counsel’s Attempted Interview
Petitioner argues that because “the [trial] court refused to
allow defense counsel to interview [Mr. Shepard] alone,” her
counsel “was unable to effectively prepare to defend Petitioner
and attacked [Mr.] Shepard’s credibility before [Mr.] Shepard
unexpectedly revealed petitioner’s outcry.” (Pet. at 54.) The
Court finds that the trial court’s condition on defense counsel’s
access to the witness just prior to testimony was harmless error
and did not have a “substantial and injurious effect or influence
in determining the jury's verdict.” Brecht, 507 U.S. at 623
In Petitioner’s case, Mr. Shepard had been disclosed as a

witness and thus was not a surprise witness, defense counsel was
not restricted by the court or prosecutor from contacting the
witness prior to trial, and Petitioner does not allege that the
prosecutor did anything to dissuade Mr. Shepard from speaking with
defense counsel. (State Opp. at 55; Pet. at 54.) Rather, defense
counsel sought to speak to Mr. Shepard after he had been held on
a material witness order to testify, and the trial court granted
defense counsel’s request to interview Mr. Shepard. (Ex. 7 at
30.) Defense counsel stated that Mr. Shepard was willing to speak
with him, but defense counsel objected to the presence of a
detective in the room. (Id. at 31.) Defense counsel acknowledged
“there is a matter of security” but stated he should be able to

interview Mr. Shepard alone due to the fact that the room had
“three detectives standing outside” and was “on the 21st floor of
a building which you can only get down in the elevators.” (Id.)
The prosecution objected to defense counsel interviewing Mr.
Shepard without a detective in the room on the grounds that defense
counsel was “not [Mr. Shepard’s] lawyer.” (Id. at 32.)
Ultimately, the trial court ruled that a detective should “stand
outside with the door open so he can hear what you do and say.”
(Id. at 32.) Defense counsel again objected after being prevented
from speaking with Mr. Shepard with the door closed, and the Court
again denied the defense request, and stated that the prosecutor
could be present if she desired. (Id. at 34.) Ultimately, defense

counsel again returned to Mr. Shepard and stated to the witness
that he was not allowed to speak to him privately and that they
would “speak on the stand.” (Id. at 35.) Defense counsel told
the court that he “think[s] it’s objectionable and I would move
for a mistrial.” (Id.) The trial court responded that defense
counsel “may be right” regarding the legal principle regarding
access to a witness but nonetheless proceeded with the trial. (Id.
at 35-36.)
Petitioner is correct in contending that courts do “not
tolerate the view that the government has some special right or
privilege to control access to trial witnesses.” United States v.
Hyatt, 565 F.2d 229, 232 (2d Cir. 1977). It is also true, however,

that a court may exercise discretion to protect witnesses from
harassment immediately prior to testimony, see United States v.
Kemp, 379 F. Supp. 2d 690, 714 (E.D. Pa. 2005), or issue a court
order preventing contact with a witness by a defendant to prevent
harassment and intimidation, see United States v. Soape, 169 F.3d
257, 270–71 (5th Cir. 1999).
It is not clear from the record why the trial court in the
instant case required the presence of a detective or the prosecutor
during a defense interview with Mr. Shepard, or whether the trial
court was motivated to prevent intimidation of a witness who had
required a material witness order to secure his testimony.

Similarly, the trial court did not state whether the presence of
a detective was necessary for the safety of defense counsel, or to
prevent flight by the witness. Nonetheless, even though the
Appellate Court found, and this Court agrees, that the trial
court’s conditions were improper, this Court does not find that
the trial court’s condition on defense counsel’s ability to
question Mr. Shepard had a substantial and injurious effect or
influence in determining the jury’s verdict, Brecht, 507 U.S. at
623, and does not find that the condition rises to the level of a
constitutional violation. The Appellate Division’s conclusion
that the trial court’s condition was improper but a harmless error,
People v. Wisdom, 82 N.Y.S.3d 97, 100 (2d Dep’t 2018), is not “an

unreasonable application of[] clearly established Federal law”
and, as such, is entitled to AEDPA deference, 28 U.S.C. § 2254(d).
Accordingly, assuming that the condition was improper, this Court
will turn to the Appellate Division’s conclusion that any error
was harmless under the standard set out by People v. Crimmins, 326
N.E.2d 787, 791 (N.Y. 1975) (explaining the New York state
appellate standard of review for constitutional errors—which
mirrors Chapman's beyond a reasonable doubt standard—and non-
constitutional errors—which requires a showing of a “significant
probability” of acquittal by the jury had it not been for the
error).
The Court agrees with the Appellate Division that the trial

court’s condition on defense counsel’s interview of Mr. Shepard
was harmless error, to the extent it was error. The prosecution
disclosed Mr. Shepard’s grand jury testimony to Petitioner prior
to trial, and listed Mr. Shepard as a witness at the beginning of
trial. (State Opp. at 55.) As such, defense counsel knew that
Mr. Shepard would be testifying, and what the contents of his
testimony would likely be. Furthermore, defense counsel conducted
an extensive and successful cross-examination of Mr. Shepard,
which elicited Mr. Shepard’s statement that Wilson “tried to take
it, tried to force his self on [Petitioner].” (Ex. 7 at 62-63.)
Petitioner argues here, as she did before the Appellate Division,
that defense counsel “may have been able to elicit additional

exculpatory evidence, such as [P]etitioner’s exact words to [Mr.]
Shepard, given a fair and meaningful opportunity to interview [Mr.]
Shepard.” (Pet. at 58; see also App. Div. Appellant Brief at 54.)
However, Petitioner does not proffer any further “additional
exculpatory evidence” that Mr. Shepard might have provided, or
explain how Mr. Shepard’s “exact words” would have made a
meaningful difference in proving her justification defense.
Petitioner also argues that defense counsel “surely would
have done things differently” and would have refrained from
impeaching [Mr.] Shepard’s credibility if defense counsel had
known [Mr.] Shepard would state Wilson had tried to “force” himself
on Petitioner. (Pet. at 59.) As noted by Petitioner, defense

counsel elicited Mr. Shepard’s criminal history and reminded Mr.
Shepard that he told “[the D.A.] that you weren’t paying attention
to what [Petitioner] was telling you.” (Ex. 7 at 57-61.) However,
defense counsel’s cross-examination of Mr. Shepard was not focused
solely on impeaching Mr. Shepard, but was also focused on eliciting
evidence supporting Petitioner’s justification defense. Shortly
after impeaching Mr. Shepard, defense counsel asked “[Petitioner]
did tell you she was hit by Anthony [Wilson], right?” (Id. at
61.) Subsequently, defense counsel asked if “[Petitioner told]
you that Anthony [Wilson] tried to rape her at that time?” (Id.
at 62.) Defense counsel clearly intended to use-and did use-his
cross-examination not just to impeach Mr. Shepard, but also to

elicit information that would be helpful to Petitioner’s
justification defense. Immediately afterward, defense counsel
appeared quite pleased with the result of that cross-examination,
as well, noting that “based upon the testimony we heard this
morning . . . [Petitioner] has decided not to testify.” (Id. at
91.) Defense counsel continued, stating that “[w]e felt that [Mr.
Shepard] was a very strong witness for [Petitioner].” (Id.)
In light of the facts of this case, the Court finds that the
Appellate Division was not unreasonable in deeming any error
related to defense counsel’s access to Mr. Shepard harmless.
Defense counsel was able to elicit information helpful to
Petitioner on cross-examination, and there is no evidence that

further helpful information might have been uncovered in a private
interview of Mr. Shepard just prior to his testimony. Furthermore,
any strategic error regarding impeachment of Mr. Shepard was
harmless. Though Mr. Shepard did offer testimony helpful to the
defense, he also offered testimony that corroborated the
prosecution’s version of events, stating that “[Petitioner] said,
I’m not paying rent and fucking him . . . [s]he said she poked
him.” (Id. at 48.) As such, a decision by defense counsel not to
impeach Mr. Shepard would also have carried strategic risks, given
his importance to the prosecution’s case. Taken together, the
Court finds that to the extent there was an error in conditioning
defense counsel’s access to Mr. Shepard on the day of trial, it

did not have a “substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht, 507 U.S. at 623.
Accordingly, the Appellate Division’s holding was not
unreasonable, and is entitled to AEDPA deference.
III. The Trial Court’s Decision to Admit the 911 Call and
Preclude Use of Mr. Wilson’s Medical Records
Petitioner contends that the trial court deprived her of her
right to a fair trial and to present a defense by preventing
defense counsel from admitting Mr. Wilson’s medical records
relating to his mental health. (Pet. at 60-62.) Petitioner argues
she was entitled to present evidence showing Mr. Wilson was
“quarrelsome, vindictive, or violent” to demonstrate her state of
mind. (Id. at 61.) She also argues that she was entitled to
introduce documentary evidence-Mr. Wilson’s medical records-
proving Mr. Wilson was exhibiting aberrant behavior sufficient to
cause fear and warrant a forceful response. (Id. at 62.) Finally,
Petitioner argues that by preventing her counsel from cross-
examining the medical examiner, Mr. Wilson’s sister, and Mr.
Wilson’s friend about Mr. Wilson’s psychiatric prescription and

substance abuse, her right to confrontation was “improperly
curtailed.” (Id. at 67.)
Petitioner also contends that the state court violated her
right to a fair trial by improperly admitting Mr. Wilson’s
statements made in a 911 call under the present sense impression
exception to the rule against hearsay. (Id. at 72.) Petitioner

argues that the call was inadmissible for lack of contemporaneity
and corroboration as required under New York State Law, and further
alleges that the admission of the call into evidence removed
reasonable doubt that would have otherwise existed on the record,
resulting in the deprivation of a fundamentally fair trial. (Id.
at 73-78.)
The Appellate Division dismissed Petitioner’s claims
regarding the admission of medical records and cross-examination
of witnesses as “without merit.” People v. Wisdom, 82 N.Y.S.3d
97, 100 (2d Dep’t 2018). Regarding the admission of the 911 call,
the Appellate Division found the contention “unpreserved for

appellate review” but nonetheless agreed with the trial court’s
“determination to admit the recording under the present sense
impression” exception to the hearsay rule on the merits.5 Id. at
99. The Appellate Division’s merits-based decision rejecting both

5 As noted in the State’s Affidavit in Opposition, the state “did not argue
before the Appellate Division that the claim was unpreserved, nor is that an
argument now being raised in response to [Petitioner’s] habeas petition.”
(State Opp. at 71.) Petitioner argues that there is no indication that “perfect
compliance” with state procedural rules in the objection to the 911 call “would
have made a difference [], since the trial court clearly understood and decided
the legal question presented.” (Pet. at 86) (citing Lee v. Kemna, 534 U.S.
362, 387 (2002)). The Court agrees with Petitioner and, in light of the
Appellate Division’s alternative merits-based decision, will address
Petitioner’s claim on the merits.
claims is entitled to AEDPA deference, and as such, Petitioner
must show that the decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law” or

was “based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d).
A. Review of Trial Court Evidentiary Rulings Under AEDPA
In reviewing a habeas petition pursuant to the AEDPA, courts
in this Circuit have found that the “unreasonable application of
the law” prong cannot be satisfied by showing a ruling was “merely
. . . incorrect or erroneous.” Delancy v. Lee, No. 15-CV-891 (RRM)
(CLP), 2019 WL 9051134 at *14 (citing Williams v. Taylor, 529 U.S.
362, 409-411 (2000)). Rather, the ruling must be so unreasonable
that it is impossible for fair-minded jurists to disagree that it
was in violation of Supreme Court precedent. Harrington v.
Richter, 562 U.S. 86, 101 (2011). This is an intentionally high

standard, as the purpose of habeas relief is to “guard against
extreme malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction.” Id. at 102 (internal
quotation marks and citation omitted).
Where a petitioner alleges an incorrect evidentiary ruling at
trial, this Court must first ascertain whether the state court
ruling was proper under state law; if the ruling correctly applied
the state evidentiary rule, there is no constitutional violation.
Delancey, 2019 WL 9051134, at *17. Second, if this Court finds
the evidentiary ruling was made in error, it must determine whether
the error violated a constitutional right. Id. For a ruling to

rise to such a level, the error must have deprived petitioner of
a fundamentally fair trial. Collins v. Scully, 755 F.2d 16, 18
(2d Cir. 1985). Courts have clarified that such deprivation occurs
when the error in question has removed reasonable doubt that was
otherwise present in the context of the entire record. Rosario v.
Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988) (citing United States v.
Agurs, 427 U.S. 97, 112-13 (1976)).
B. Admissibility of a Decedent’s Mental Health Records
Under New York evidence law “a defendant, in a prosecution
for homicide, may introduce evidence that the deceased had a
reputation as a ‘quarrelsome, vindicative or violent’ person,
provided that the defendant was aware of this reputation at the
time of the incident.” People v. Miller, 349 N.E.2d 841, 845 (N.Y.

1976). However, this is only applicable to the admission of
medical records when it can be shown the accused had knowledge of
the decedent’s psychiatric history at the time of confrontation.
People v. Trivette, 572 N.Y.S.2d 85, 87 (3d Dep’t 1991). Without
establishing that the medical records are relevant to the
defendant’s state of mind at the time of the confrontation, medical
records relating to the mental health of the decedent are
inadmissible. People v. Adams, 708 N.Y.S.2d 766, 767 (4th Dep’t
2000). This applies to other forms of documentary proof as well;
“[e]vidence of a conviction for a violent act is, of course,
acceptable documentary evidence that would support the defendant's

contention, provided he was aware of the conviction at the time of
the incident.” Miller, 349 N.E.2d at 848. An exception to this
rule exists for toxicology reports of the decedent showing use of
intoxicants at time of death, which are admissible regardless of
the accused’s knowledge. People v. Chevalier, N.Y.S.2d 508, 509
(1st Dep’t 1996), aff'd, 681 N.E.2d 1292 (N.Y. 1997).
C. The Trial Court’s Preclusion of Mr. Wilson’s Medical
Records
At trial, defense counsel sought to admit evidence of Mr.
Wilson’s psychiatric health and past substance abuse, requesting
to:
“put a certified copy of [Mr. Wilson’s medical] records
into evidence which will show what he said to the
doctor... if I don't have that physician, I want to put
on my expert, Dr. Siegel, he will -- who can talk about
psychosis. I can ask him what drugs are given for
psychosis and he would undoubtedly say he gives some of
them and Seroquel.”

(Ex. 4 at 13, 14). The trial court denied counsel’s request,
calling counsel’s argument “an inference and then an inference
upon an inference”. (Id. at 14). The trial court further
disagreed with defense counsel’s suggestion that the medical
records showed that Mr. Wilson was psychotic, finding after court
review of the medical records that Mr. Wilson’s diagnosis was
“depressive.” (Id. at 15.) Defense counsel subsequently argued
that it was possible that Mr. Wilson’s failure to take Seroquel
might have caused him to have hallucinations, or to attack
Petitioner. (Id. at 16). The trial court again found defense

counsel’s argument to be speculative and stated that Mr. Wilson’s
medical records did not show any evidence of violence or violent
hallucinations. (Id. at 16-17.) Ultimately, the trial court ruled
that defense counsel had “no evidence at all that the failure to
take the Seroquel caused [Mr. Wilson] to harm or want to harm
[Petitioner]” and thus the medical records were not admissible.
(Id. at 20).
Under New York law, the only proper purpose for which the
records in question could be admitted by the trial court would
have been to illustrate an underlying condition that Petitioner
was aware of, and the impact of that awareness on Petitioner’s
state of mind. See People v. Miller, 349 N.E.2d 841, 845 (N.Y.

1976). Accordingly, what is pertinent is whether Petitioner had
actual knowledge of Mr. Wilson’s psychiatric history. This court
finds no evidence in the record indicating as much. Petitioner
argues that Mr. Wilson kept prescription bottles in plain view,
asserting that “[Petitioner] undoubtedly was [] aware of Wilson’s
psychiatric issues, given that she had been living with him for
about a month . . . .” (Pet. at 63). This argument, however,
falls short of the required factual support in the record; no
evidence was presented to the trial court that Petitioner observed
Mr. Wilson’s medication or medical records, much less researched
the information on the bottles to ascertain the myriad of
psychiatric conditions Seroquel is prescribed to treat.

Furthermore, evidence admitted at trial showed that the ”pill
bottles [] were recovered from under the bed,” as opposed to being
in plain sight. (Ex. 2 at 180.) Similarly, Petitioner’s statement
to police that Mr. Wilson was saying “crazy shit,” (id.), is not
sufficient to show prior knowledge of Mr. Wilson’s psychiatric
history, both because it generally refers to Mr. Wilson’s
statements during the altercation as opposed to beforehand, and
because it is ambiguous enough that it simply indicates Mr. Wilson
was saying things Petitioner found disagreeable, rather than
reflective of an abnormal mental state.
Petitioner asserts in the alternative, that the trial court
should have admitted Mr. Wilson’s psychiatric records into

evidence in order to impeach his character, claiming that the State
put his character at issue when relying on Mr. Wilson’s statements
made during his call to emergency services. (Pet. at 65). Upon
review of the trial record, this court cannot identify any point
at which the argument regarding impeaching Mr. Wilson’s character
was raised, and as such this argument was not properly preserved
under C.P.L. § 470.05(2). However, the Appellate Division plainly
stated its intention to address the argument on its merits
regardless. See People v. Wisdom, 82 N.Y.S.3d 97, 100 (2d Dep’t
2018) (“The defendant's remaining contention is without merit.”).
This court is therefore obliged to contend with the substance of
the Petitioner’s argument, rather than finding it procedurally
barred. See Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000)

(“[W]e follow the presumption established by the Supreme Court and
ask not what we think the state court actually might have intended
but whether the state court plainly stated its intention.”). In
evaluating the merits of the argument regarding use of the medical
records for impeachment, this court finds that the Appellate
Division was correct in finding no error in the trial court’s
decision to exclude Mr. Wilson’s mental health records.
Under New York law, it is recognized that mental health
history, including evidence of a history of delusions, is
particularly probative of a witness’ credibility. People v.
Rensing, 199 N.E.2d 489, 491 (N.Y. 1964). However, the party

seeking to admit such evidence must have a “good faith basis for
believing that the witness’ mental condition affected a material
issue in the case, for example, [the witness’] ability to perceive
or remember.” People v. Knowell, 464 N.Y.S.2d 525, 529 (2d Dep’t
1983). New York state courts typically only find an abuse of
discretion in precluding evidence of a witness’ mental health
history when there is substantial, undisputed, documentation of a
testifying witness’ mental illness, such as multiple
hospitalizations, diagnosis as paranoiac or schizophrenic, or
involuntary commitment. See Rensing, 199 N.E.2d at 491 (court,
in reversing conviction and granting a new trial, held that the
jury should have been made aware that a key witness experienced,
inter alia, “visual and auditory hallucinations with marked memory
defect” and had been diagnosed with “Paranoid Schizophrenia”); see
also People v. Knowell, 512 N.Y.S.2d 190, 192 (2d Dep’t 1987)

(finding that a court erred in refusing to conduct an in camera
inspection of psychiatric records of a witness who “had a lengthy
history of psychiatric problems, had been confined in mental
hospitals on several occasions in the recent past and had been
diagnosed as paranoiac”). These circumstances simply do not exist
in the instant case.
Mr. Wilson’s medical records, reviewed by the trial court,
spanned a three-month period – from September 6, 2011, through
November 26, 2011. (ECF 1-7 (“Pet. Ex. H”) at 11, 22.) Mr. Wilson

was originally referred for substance abuse treatment but was given
a psychiatric evaluation as part of his intake to the Chemical
Dependency program. (Id. at 11-14.) As later noted by the
medical provider who examined him, Mr. Wilson was diagnosed with
“Major Depressive Disorder” and was taking “Seroquel, Benadryl,
and Prozac while enrolled in [the] clinic.” (Id. at 23.) The
medical provider also stated in her notes from her psychiatric
evaluation that Mr. Wilson “[n]otes hallucinations to harm self or
others.” (Id. at 14). However, the medical provider also noted
that Mr. Wilson had “no gross cognitive deficits, [d]enie[d] both
suicidal and homicidal ideation, [and was] alert and oriented to
time, place, and person.” (Id.) Mr. Wilson was not diagnosed

with a mental illness such as paranoid schizophrenia, and no other
annotations regarding delusions, violence, or his ability to
accurately perceive events are present in his medical records.
Furthermore, Petitioner does not offer any evidence to suggest
that Mr. Wilson exhibited any hallucinatory behavior in the month
she lived with him, or on the night when he called 911 on November
29, 2011, or that she was aware of his psychiatric evaluation.
Accordingly, the instant case is distinguishable from precedent
cited by Petitioner and noted above. As such, this court cannot
find that the trial court acted unreasonably in excluding evidence
of Mr. Wilson’s mental health records for purposes of impeachment.
Considering Petitioner’s claim under the standards set out by the

AEDPA, the Court finds that the Appellate Division's rejection of
this claim on appeal was not an objectively unreasonable
application of existing federal constitutional principles, and
Petitioner’s claim regarding her right to present a defense is
denied.
D. New York State’s Present Sense Impression Exception
For hearsay to be admissible under the present sense
impression exception under New York state evidence law, a statement
must be (1) “made while the declarant was perceiving the event or
condition, or immediately thereafter” and must be accompanied by
(2) “some independent verification of the declarant's descriptions
of the unfolding events.” People v. Vasquez, 670 N.E.2d 1328,

1334 (N.Y. 1996). The New York Court of Appeals has emphasized
that the level and nature of the corroboration required “will
depend on the particular circumstances of each case and must be
left largely to the sound discretion of the trial court.” People
v. Brown, 610 N.E.2d 369, 374 (N.Y. 1993). The inquiry must
determine “whether the corroboration offered to support admission
of the statement truly serves to support its substance and
content.” Vasquez, 670 N.E.2d at 1335. Brown serves as an
example, where apprehension of a suspect matching a description in
a 911 call was found to be sufficient corroboration to admit the
underlying 911 call. 610 N.E.2d at 374. New York courts have
observed that “[t]he ‘present sense impression’ exception has been

utilized mainly to introduce 911 calls made by either the victim
or witnesses while they observe events as they are unfolding.”
People v. Semple, 666 N.Y.S.2d 900, 902 (Sup. Ct. 1997) (citing
People v. Hughes, 645 N.Y.S.2d 493 (2d Dep’t 1996) and People v.
Cook, 632 N.Y.S.2d 193 (2d Dep’t 1995)).
Once a New York trial court finds that the hearsay statement
qualifies for admission under the present sense impression
exception, it retains discretion to refuse to admit the evidence
if “its probative value is substantially outweighed by the danger
that it will unfairly prejudice the other side or mislead the
jury.” People v. Scarola, 525 N.E.2d 728, 732 (N.Y. 1988). As
such, the decision to admit evidence that satisfies the present

sense impression exception to hearsay is also reviewable by the
Appellate Division for abuse of discretion. People v. Smith, 5
N.E.3d 972, 974 (N.Y. 2013) (stating that a court retains
discretion regarding excluding otherwise admissible evidence “when
it reasonably finds that evidence to be more prejudicial than
probative”).
E. The Trial Court’s Ruling during the Molineux Hearing
Defense counsel objected to the admission of the 911 call
during a Molineux hearing on the basis that it failed to satisfy
both requirements of the present sense impression exception under
New York State law, and that its prejudicial effect would outweigh
its probative value. (Ex. 2 at 3, 6.) Specifically, defense

counsel argued:
“During the evening of this call we actually don't
know when this man is killed. Time of death was never
set, the date itself was never set. We don't know what
it refers to, whether it refers to this incident or
something else, and so absent any background or
testimony, it is just this man calling. We don't know
if there's an upsetment, an intervening event, things
calm down and something happened. It's significant,
there’s nothing on the call like look out or ouch or
hearing anything, it essentially just cuts off with
that . . .”
(Id. at 3-4). The prosecutor responded that both medical
evidence and Mr. Wilson’s phone records indicated that the call
was made shortly before his death, and that phone records also

showed Petitioner began using Mr. Wilson’s phone shortly after the
911 call was made. (Id. at 4-5.)
Specifically, the prosecution argued that Mr. Wilson’s phone
was used to call a witness, Matthew Shepard, following the 911
call, and that when Mr. Shepard answered the call, expecting Mr.
Wilson, it was Petitioner calling. (Id. at 4.) The prosecution
further argued that Petitioner subsequently made “third-party
admissions” to Mr. Shepard that she was not going to give Mr.
Wilson money and have sex with him, and subsequently “poked” Mr.
Wilson as a result. (Id. at 4-5.) Continuing, the prosecutor
noted that the medical examiner would be able to corroborate that
the time of death was close in proximity to the time of the 911
call. (Id. at 5.) After further argument from defense counsel

that there may have been intervening actions between the call and
the stabbing, the trial court ultimately ruled that Mr. Wilson’s
call was admissible hearsay under the present sense impression
exception. (Id. at 6.)
This Court finds that the trial court was not unreasonable in
its determination that Mr. Wilson’s statements were adequately
contemporaneous and corroborated. First, the trial court properly
considered extrinsic evidence that established the time of the
call in relation to Mr. Wilson’s stabbing based on the proffered
medical examiner’s evidence, as well as subsequent phone calls
from Mr. Wilson’s phone that matched the petitioner’s pattern of

phone calls from her own cell phone in establishing the
contemporaneity of the statements. (Id. at 4-5). Furthermore,
based on the prosecution’s characterization of Mr. Wilson’s word
choices in describing the perceived behavior on the 911 call as
occurring while he was speaking, the trial court admitted the 911
call as a present sense impression exception to the hearsay rule.
(Id. at 2-4.) The record sufficiently establishes that Mr.
Wilson’s statements were made while the described event was taking
place.
With respect to corroboration of the call’s substance, the
trial court properly considered petitioner’s later statements to
Mr. Shepard, in which she acknowledged that an argument took place
between her and Mr. Wilson. (Id. at 4-5.) Mr. Shepard’s later

testimony on the stand confirmed that this corroboration occurred.
(Ex. 7 at 47-48.) Moreover, Petitioner admitted during her July
26, 2012, interview that she took Mr. Wilson’s cell phone after
she stabbed him. (Ex. 4 at 165-66.) This totality of evidence
adequately corroborates Mr. Wilson’s statements through
independent means, as required under New York law regarding the
present sense impression.
Finally, this court does not find persuasive Petitioner’s
claims that Mr. Wilson’s statements were overly prejudicial and
should have been excluded. Once properly admitted under the

present sense impression exception to hearsay, Mr. Wilson’s
statements would have been admissible for the truth of the matter
asserted. Whether or not Petitioner was indeed “acting crazy”
shortly prior to Mr. Wilson’s death would have been highly
probative of the veracity of her justification defense.
Furthermore, the fact that Mr. Wilson, the declarant, was
unavailable weighs in favor of admissibility of the statement.
See People v. Buie, 658 N.E.2d 192, 195 (N.Y. 1995) (holding that
“the present sense impression exception does not require a showing
of the declarant's unavailability as a sine qua non to
admissibility,” although the trial judge may weigh the declarant's
availability in the “traditional probativeness versus undue

prejudice calculus” for determining admissibility).
Based on the foregoing, this Court finds that the trial
court’s decision to admit Mr. Wilson’s 911 call was a correct
evidentiary ruling under New York State’s present sense impression
exception to hearsay. Accordingly, the Appellate Division’s
decision upholding the trial court’s ruling was not an objectively
unreasonable application of existing federal constitutional
principles and Petitioner’s due process claim is denied.
CONCLUSION
For the foregoing reasons, Petitioner’s Section 2254 petition
is respectfully denied and dismissed in its entirety. Because
Petitioner has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability shall not
issue. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (discussing
certificate of appealability standard); Rules Governing Section
2254 and 2255 Cases, Rule 11 (“The district court must issue or
deny a certificate of appealability when it enters a final order
adverse to the applicant.”).

The Clerk of Court is directed to enter judgment in favor of
Respondent, and close this case.

SO ORDERED
Dated: December 6, 2023 b = YY,
Brooklyn, New York f? we
) i oe te
HON. KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10311070. Public record. Not legal advice.